Hot on the heels of Venkat Balasubramani’s Twitter update reminding me of all those I have yet to convince came a message from one of the unconvinced. The individual in question had watched my first webcast and had some questions that we discussed by email. His second email to me ended with the following paragraph:
If it is helpful to you, I’ll explain why it is a little bit difficult for me to follow your suggestions. Particularly as a young attorney, only four years out of law school, I am somewhat reluctant to disregard long-established traditions. In general, this seems like a wise approach as these traditions usually have reasons behind them of which a person may not be immediately aware. (Edmund Burke famously espoused the importance of this principle.) That’s not to say that traditions should not be changed when they become outmoded, but I would look for more than one person’s say-so and I haven’t been able to find it. As it is, outside counsel tells me that it is not important to make those changes and the templates in Westlaw don’t seem to incorporate your suggestions. I can’t even find an article on the other side of the issue that would help me weigh the two sides of the argument!
And here’s how I responded:
Regarding your closing paragraph, I understand your reticence. But your faith in traditional contract language is misplaced. You suggest that traditional usages must have some rational underpinning. I’ve spent 14 years poking around in the entrails of contract language, and I hope it comes across in my writings that I’m pragmatic and equipped with better-than-average semantic acuity. If I say that the language of mainstream contract drafting is dysfunctional, that’s because it is. The evidence for that dysfunction is on display in page after page of my book, and on my blog, along with my recommendations for superior alternative usages. Better contract language doesn’t come from placidly accepting what’s handed to you. Instead, it comes from testing the alternatives in the marketplace and using those that prove themselves to be clearest and most efficient.
As for the fact that you haven’t been able to find any writings that support my positions, that’s because there’s simply no one else out there analyzing contract language in excrutiating detail. But that doesn’t mean that my recommendations constitute nothing more than personal opinions; that something I addressed in this December 2007 blog post.
More generally, in order to use a reference work, you have to decide whether it’s reliable, and then you rely on it, unless your own knowledge—as opposed to prejudice—allows you to question it. Life’s too short for lawyers to second-guess everything they read in reference works. And when it comes to manuals of style, ultimately there’s value in having everyone following the same rules, even if there’s not much to choose between some of the usages. I leave it to you to decide whether you have enough confidence in my book to rely on it. In that regard, you might helpful some of the testimonials on this page of my site. And for what it’s worth, MSCD is widely used. Of course, to assess my book, you’d probably need to get hold of a copy!
Instead of using my book, you could rely on your outside lawyers’ reassurances that everything’s just fine as is. But what are their credentials as experts in contract language? Just having deal experience isn’t enough. It may be that they have all sorts of valid and nuanced objections to my recommendations, but I doubt it. I suspect that like everyone else, they’re churning out crap, either because they’ve acquired a taste for it or because in the high-pressure transactional world, currently no one has time or resources to do otherwise.
And I’m not surprised that they don’t want you getting any fancy ideas about improving contract language. They’d prefer to have you be a placid consumer of their products—reinventing the wheel has long been a reliable source of contract-drafting billable hours. If I were in your shoes, I’d be inclined to use my clout as client to say that I want my contracts purged of impenetrable gibberish. It wouldn’t take much for you to be more knowledgeable about contract language than your outside lawyers. Just read my book.
And as regards Westlaw’s forms, I haven’t looked at them in a while; I’ll do so. But of course they’re going to follow the herd by using mainstream contract language. It would be unrealistic to expect them to be a source of innovation or cutting-edge expertise. And by the sounds of it, they’re not.
I’m acutely aware that what I have to say doesn’t come as good news. Improving contract language is a laborious process that many, perhaps most, won’t have the time, expertise, or resources to attempt. But analyzing the current dysfunction and building a new set of rules is a necessary first step towards a real solution, which is to commoditize and outsource contract drafting. We’ll see in the coming years what sort of progress we make.
If this exchange prompts any thoughts, by all means chime in.
I take exception with (I think only) one point. The billables argument goes the other way. It takes less time to write garbage that one’s used to than it does to draft quality contracts, even if they are shorter as a result. In the long-run, better contracting means lower fees paid to lawyers, but in the short-run I’m not so sure.
Then again, I’ve drafted one contract in my life, and am not yet a lawyer, so I’m even less qualified than any of the authorities offered by you or your emailer.
Scott: What I was thinking of was how the traditional drafting process at law firms is so improvised, with different precedent being used for the same kinds of deals, so that it’s standard for drafting to be a process of constantly reinventing the wheel.
And yes, fixing contract language has up-front costs.
Ken
I think that describing your correspondent as a traditionalist is overreaching. He strikes me as a proponent of the “You can’t go wrong buying IBM” school. If you’re a startup company making widgets and yours are better to a person who examines them closely, a person who has a problem when using one of your widgets will get asked “why did you buy that widget instead of using AceWidgets like we’ve been doing for 50 years”
Seems to me that a good lawyer needs to be willing to take a leadership stance even if that involves perceived risk. The compulsion to follow the herd isn’t a good trait when helping a client to achieve a client’s objectives. Otherwise, how does a lawyer resist an articulate but incorrect assertion from a lawyer on the other side of the transaction who wants to leverage their experience and polish to wrong-foot someone less experienced?
Come to think of it, one of the real frustrations of aspiring to good drafting is that there is an army of lawyers out there who reach for the red pen and reinstate the usual text just because it’s what they have in their firm’s precedent. The poor old client doesn’t enjoy paying for the former to educate the latter.
I agree entirely with the sentiment of this post. Drafting by blind tradition verges on negligence, and a lawyer should ideally be able to explain the reason for every word in a contract. Saying that “it has been used before” doesn’t count – you need to know why it was used, and that reason needs to apply to the document you are drafting.
My only comments would be that:
(i) some common words and phrases are well understood by the courts (e.g. “reasonable”) or mitigate marginal risk, despite being ugly and perhaps arguably illogical (e.g. “represents and warrants” together). A lawyer can feel quite entitled to use these on the basis of previous court approaches to them if they understand why they are doing it;
(ii) lawyers should also feel no qualms about using redundant, harmless words if they think that removing words will cause debate (and therefore cost money);
(ii) if there was a suggestion that lawyers in general have no credentials as experts in contract language, that would seem very wide of the mark – I am not sure that you meant to say that, Ken, but the assumption that the “dissenting” lawyers have no such credentials simply because they dissent does imply it to a degree. In any case, lawyers’ drafting expertise varies widely, but for anyone who is interested in contract language and values good drafting, the best place to learn is at a law firm, drafting contracts all day long, where you will also become most familiar with the law behind all contract language. I think it is a reasonably safe assertion to say that the best drafters (as well as many of the worst) will be lifelong lawyers.
Art: Some thoughts:
On the one hand, sure, the courts understand reasonable, just as you or I understand it—it means, well, reasonable. On the other hand, it’s a vague standard, so will always be slippery, will always have to be assessed anew. So I don’t think it means much to say courts understand reasonable.
I suspect that you don’t have access to a copy of MSCD. If you did, you’d realize that I think represents and warrants is utter bollocks. But the comments isn’t the place to discuss this. Instead, I invite you to put together an argument that rebuts, in detail, what I say in MSCD. As of yet, rigorous champions of represents and warrants have been conspicuously absent.
I disagree with your notions about “redundant, harmless words.” Ostensibly harmless words have a way of becoming something people fight over.
As for avoiding unnecessary debate, drafters are entitled to deference with respect to anything that doesn’t relate to deal points, so I’m not going to leave in my drafts stuff that I know is meaningless or clumsy or confusing. To encourage the other side to observe that convention, one could let the other side know up front that they should forget about reinserting meaningless traditionalisms. See this January 2009 blog post.
I don’t understand your final point. All that matters is, which usages are most efficient? My position is that until such time as I’m shown otherwise, the usages I recommend in MSCD are the most efficient. If someone drafts differently, am I meant to defer to them somehow? I get the sense that you’re advocating the “craft” school of drafting: you do your thing, and I’ll do mine, and it’s all good, because we simply have our different styles.
And “the best place to learn is at a law firm, drafting contracts all day long”? I think that’s a starry-eyed take on things. At most law firms drafting consists of regurgitating precedent of questionable quality and relevance. The proof is in the pudding: look at the appendix of MSCD for my take on a representative example of BigLaw drafting.
Ken
Ken, I don’t think our views are as far apart on most points as you think, and please be reassured that I certainly do not subscribe to the view that drafting is just a question of different styles.
However, some imperfections are essentially harmless, in that they carry no identifiable legal risk. Where that is the case it would be completely inappropriate for me to charge my client $500 per hour to make the amendments to another firm’s documents and engage in any debate that may follow. Deleting “and warrants” from “represents and warrants” falls into this category as far as I am concerned, because I have never seen a situation where its inclusion caused a legal problem, and cannot imagine any materially likely situation where it could do. I just see it as a redundancy, with any arguable distinction rendering “represents and warrants” wider, so if the other lawyer thinks the difference is meaningful I will not argue the point.
Of course, this approach rests on determining what carries legal risk and what does not. We can disagree over the implications of “represents and warrants”, and I agree that some ostensibly harmless words will end up being debated – assessing which is which is part of our job. But the principle of leaving in harmless wording (rather than charging the client for negotiating its removal) is solid. It is impossible to remove all legal risk from a documents, and the benefits of trying to do so in such cases (which relate to immaterial probabilities) are outweighed by the immediate financial costs.
I also think that the ides of telling the other side to forget “non-material” changes will not work in many cases. Many lawyers see changes such as “and warrants” as material, and telling them otherwise (a) is unlikely to change their mind and (b) in any case, starts exactly the expensive debate that we need to avoid.
Finally, I can’t fully agree with this statement: “At most law firms drafting consists of regurgitating precedent of questionable quality and relevance.” I certainly know a few law firms that give the impression of doing this, and I hold them in little regard. But I also know many other firms that draft excellently and generally have a good reason for every change that they make. This isn’t “starry-eyed” – these are documents that I receive regularly.
Drafting cannot be isolated from law, from (commercial) market practice or from cost implications, and it is hard to learn drafting in that context outside of legal practice. There are many excellent drafters at law firms, who are as good as they are because they have such extensive first-hand experience of drafting, and because they cared enough to learn. Of course, those who do not care will never learn to draft well, however much experience they have, but I think it is fair to recognise that most lawyers do what they do with good reason.
Art: You may in one respect be right about represents and warrants, in that I’ve never seen any litigation about it. But dropping represents and warrants is important not so much for its immediate implications but because thinking it’s meaningful requires a thoroughly skewed view of remedies.
I can’t agree with your notion that “most lawyers do what they do with good reason.” I see only an infinitessimal fraction of the contracts that are drafted, so who knows, there may be plenty of drafters with semantic acuity to match their deal skills. But I’ve seen enough to know that problematic contract language is the norm. I have yet to see a contract that couldn’t have been made significantly clearer and easier to read.
Ken
Here’s some support for Ken’s post. I don’t have good solutions to any of the problems discussed in the post and follow-ups, just some information.
Ken said:
As for the fact that you haven’t been able to find any writings that support my positions, that’s because there’s simply no one else out there analyzing contract language in excruciating detail.
Wayne says:
Ken is right about this. I am a reader of the literature in this field, and I even dabble in contract-drafting language myself. No one else is doing what Ken is doing.
Ken said:
Instead of using my book, you could rely on your outside lawyers’ reassurances that everything’s just fine as is. But what are their credentials as experts in contract language? Just having deal experience isn’t enough. It may be that they have all sorts of valid and nuanced objections to my recommendations, but I doubt it. I suspect that like everyone else, they’re churning out crap, either because they’ve acquired a taste for it or because in the high-pressure transactional world, currently no one has time or resources to do otherwise.
Wayne says:
True. I went trolling in my database of legal-writing quotations and found a bunch that back Ken up:
“We consider ourselves competent to handle all of our client’s problems, but too often we neglect to train ourselves as draft[ers] while we are daily called upon to draw legal instruments affecting their property.”
-Sidney F. Parham, Jr., The Fundamentals of Legal Writing 57 (Michie Co. 1967).
“The fact is that many young lawyers find themselves dictating [read “drafting”] with supreme confidence instruments totally unfamiliar to them, and older lawyers draw their 1000th will or lease without ever realizing what was wrong with the first.”
-Sidney F. Parham, Jr., The Fundamentals of Legal Writing. 58 (Michie Co. 1967).
“It is difficult to convince the profession in general that drafting is a special skill that requires intense application.”
-Robert C. Dick, Legal Drafting 4 (2d ed., Carswell Co., Ltd 1985).
“Lawyers may insist that a provision has “stood the test of time.” This only means, however, that the provision has been around so long that no one in the room is old enough to know how it got there originally.”
-Howard Darmstadter, Hereof, Thereof, and Everywhereof: A Contrarian Guide to Legal Drafting 108 (ABA 2002).
Let me suggest that part of the issue with the last paragraph from the 4 year attorney is that, although a better method of writing contracts may be available and persuasive, an associate has few incentives to take a leadership role.
First, associates are often at the mercy of the attorney for whom they are writing, i.e., the attorney who has the primary client relationship. While the first obligation of any attorney is to exercise their professional judgment and responsibly serve the client, associates have a secondary responsibility to the “partner” to facilitate that attorney’s practice. This often practically means associates are left with little discretion to improve the actual practice of law in any given situation until they have established their own practices where they are free to do so.
Secondly, attorneys should desire to strive for excellence in their practices, but associates are also driven to duplicate what is presented as success as a means to building their own practices.
Third, contracts are fundamentally relational documents which require interaction and cooperation between disparate parties. Improving contract language requires an investment in the relationships that may go beyond simply getting the deal done, particularly when the parties are perceived as adverse to one another and the trust is therefore low. The investment may therefore be perceived by attorneys and their clients as an excessive increase in the cost as compared to the benefit to be obtained.
Finally, one of the constant refrains for an associate is often to avoid malpractice. And malpractice is, more or less, defined as complying with the standard for the profession. The standard for the profession may be churning out crap, but there is a sense of security in doing so.
This is simply to say that while tradition may be presented as a facially plausible explanation for why there is resistance to improved contract drafting, the explanation also likely hints at these, and other, practical reasons which tend to perpetuate the tradition. While the development of better drafting skills may be a key part to counteracting the drafting malaise, it also seems likely that attorneys will need to re-evaluate their role towards a more cooperative approach to drafting, combined with a willingness to invest in relationships as a key part of developing the leadership capital necessary to effect a change for the benefit of their clients.
Doug: The constraints you describe are what make it so tough to bring change to contract drafting. I acknowledge as much in MSCD, and in this September 2006 blog post. It’s also something I discuss with Bryn Vaaler in webcast 6 of my “Drafting Clearer Contracts” series.
In that regard, the young traditionalist would seem to have succumbed to Stockholm syndrome. Perhaps my most basic function is to suggest to him and other junior lawyers that there are alternatives.
Ken