Some Thoughts on the Adobe Legal Department Style Guide

Via this post by @bobambrogi, I learned that Adobe has made public a 30-page document called The Adobe Legal Department Style Guide, to encourage others to use it and adapt it for their own legal departments and law firms. Here’s why I’m writing about it:

This document applies to all In-House Legal Department communication and documents, but has a special focus on transaction documents and other external-facing terms such as sales contracts.

The most significant thing about Adobe’s style guide is that it exists at all. I tell anyone who is willing to listen that unless your organization adopts a style guide, your contracts will be inconsistent and, in all likelihood, of poor quality. I’ve encountered a few organizations that use a style guide, but Adobe’s is now the most prominent example, by a long way.

And I agree with most of what’s in Adobe’s style guide. That shouldn’t come as a surprise: MSCD is one of three books on drafting in the eleven works listed in the bibliography, and it’s the only book specifically on contract drafting.

Now, some observations:

It’s Too Broad

Because it’s intended to be used by Adobe’s legal department generally, about half of the style guide consists of guidance relevant to people other than those who work with contracts. While most of those parts are also relevant to those who work with contracts, some aren’t. For example, some of the sample language presumably didn’t come from contracts (for example, “Children who are abused frequently are not protected,” “in the majority of instances, the court will,” and “The person who writes in plain English endears himself to the reader”). And the style guide offers abbreviations for for example, that is to say, and et cetera. I’d be cautious about using the first phrase in contracts and wouldn’t use the second and third.

Given that contract language is so limited and stylized, I found that even in the relatively short Adobe style guide, mixing guidelines for general writing with guidelines for contract drafting made for a sometimes awkward mix. But people at Adobe who don’t work with contracts are more likely to find the mix confusing than those who do, as most of the general-writing stuff applies to contracts too.

It’s Too Shallow

Most of the guidance relates to straightforward stuff: how to state numbers, what to use as a concluding clause, basic conventions for creating defined terms, using cross-references, not using provisos, and so on. It’s important, and getting it right will streamline your contracts.

And Adobe’s style guide offers a range of examples of at least one usage, and/or, that goes beyond those I offer in MSCD.

But Adobe’s style guide skimps on important stuff. For example, it says “Try to write in the present tense.” That has long been standard advice, but it’s also facile. For one thing, what verb structure you use depends on what you’re trying to say. If you’re using what I call language of policy with respect to a contingent future event, will is appropriate: This agreement will terminate if Acme exercise the Option. If you’re expressing a condition, must is often your best choice: To dispute an invoice, Jones must submit a Dispute Notice no later than five days after delivery of the related invoice.

The style guide says flatly, “Do not use ‘shall.'” This isn’t the place to rehash the shall wars, but getting rid of shall limits your semantic acuity when it comes to how you handle verbs, something I discuss in this article. A shortfall in semantic acuity is indeed on display in the style guide when it comes to verb use. For example, it offers four examples of shall “used in an ambiguous manner.” I wouldn’t call any of those examples ambiguous.

And consider the following example: “Any affected party may file a claim with the Commissioner. A claim must not exceed $500 for X, or $1,000 for Y.” If you use must to express obligations (as recommended in the style guide) and also to express conditions, you’re left wondering whether the second sentence in this example expresses an obligation or a condition. I’d express it as a condition, and consistent with my standard advice, I wouldn’t rely on the verb to do the job. Instead, I’d say, To be valid, a claim must not exceed ….

And one approved example begins “Customer must ensure that it maintains ….” But if you’re using must to express obligations, why not say “Customer must maintain  ….”?

I regard the categories of contract language as the foundation of controlled drafting. If you skimp on guidelines regarding verb use, the result is erratic drafting.

As regards other topics, some advice is fine as far as it goes, but it doesn’t go far enough. For example, recommending that one use indemnify instead of indemnify and hold harmless makes sense, but further explanation is in order.

The following bit of sample language offers another indication that the focus is on the easy stuff: “Adobe represents and warrants that”. The phrase represents and warrants is deeply problematic, as I show in this article.

And what about another contentious topic, efforts provisions? Or meaningful discussion of ambiguity? I could go on and on.

An obvious rebuttal to these points would be to say that the document is a style guide, and as such it concerns itself with … style! That narrow scope is perhaps appropriate for other, more freewheeling kinds of writing. But given the limited and stylized nature of contract language, and given what’s at stake in contracts, the prose of contracts is particularly amenable to a style guide that goes beyond what’s usually expected of style guides and offers comprehensive guidance as to the full range of usages.

It’s Fallible

In addition to the points mentioned above, I’m inclined to quibble with some of the recommendations made and sample language used.

Adobe’s style guide sensibly recommends that you use the active voice instead of the passive voice. But there are contexts where the passive voice is appropriate. The style guide recommends that instead of saying “The Partner Program benefits are summarized in Table 1” you say “Table 1 summarizes the Partner Program benefits.” The first sentence is indeed in the passive voice with a missing by-agent, but who cares! This isn’t a context where dropping the actor could create confusion. And because the reader is presumably interested most in the Partner Program Benefits, it’s legitimate to lead with that.

And the following was offered as an example of drafting in the present tense: “This agreement commences on the Effective Date.” That’s something I wouldn’t say. A contract becomes effective when it’s signed. Performance might have started before the date of the contract, in which case you say that the contract applies to that earlier performance. Or performance might kick in sometime after signing, in which case you say as much.

The recommended layout uses a staggered-hanging-indent format. As such, it’s illogical and makes inefficient use of space. Mind you, I expect that most people don’t care much about this sort of thing and would find odd my approach, which is laid out in MSCD chapter 4 in gruesome detail.

The Prose Isn’t Polished

Ideally, the prose used in a style guide should be a model of clarity, so as to lead by example.

In the section “Paragraphs within a Clause,” one bit of advice is that the items in a list must be parallel in substance. But the items in that section don’t use parallel verb structures. For example, compare “If each paragraph is a complete sentence, use a capital letter at the start and a period/full stop at the end” with “A colon follows the introductory words.” I’d revise the latter to say “Use a colon after the introductory words”.

And how about this approved example: “Each party must pay its own legal costs for the preparation of this agreement.” Leaving aside whether “legal” is necessary and whether “expenses” would be a better word that “costs,” doesn’t use of “preparation” go against the style guide’s advice not to turn verbs into nouns? I’d say “for preparing”.

The following sentence, used to introduce an approved example, exhibits the same shortcoming: “The following is recommended for brevity and clarity”. I’d say “The following is short and clear.” Mind you, given what follows, neither really makes sense.

An approved example on page 26 (“‘Customer Site’ means any current or future website or application which: (A) is owned and operated by Customer …”) doesn’t follow the style guide’s recommendation on page 19 regarding use of which. And that example ends with the following, with the extraneous for which, which I’d replace with that or nothing: “contains a privacy policy for which Customer is responsible for enforcing.”

Those are just a few examples that caught my eye.

It’s Busy

I know that infographics are all the rage; that’s the look used for Adobe’s style guide. Infographics are useful for grabbing the reader’s attention, but I don’t think they’re suitable for reference works. I found Adobe’s style guide cluttered and unnecessarily hard to navigate.

A Different Way

Adobe’s style guide is an important step forward, but it covers in a limited way a very limited selection of language issues facing anyone who drafts or reviews contracts. If you don’t attempt to cover that territory in a comprehensive way, you leave yourself open to a world of pain.

But the awkward fact is that it would not make sense for Adobe or any other organization to attempt a comprehensive style guide. It would take a lot of work (there’s a reason why MSCD is over 500 pages), and organizations are unlikely to have the necessary expertise in-house.

I’ve suggested a way around that, but I’ve decided that it’s unrealistic. You can find on my website what I call a “model statement of style” (here). It would allow an organization to say, in a short document, that it’s adopting a style guide based on MSCD. But MSCD isn’t an easy read, so simply inviting your readers to follow its guidelines is an uncertain recipe for success.

To address that problem, some or all chapters in the fourth edition of MSCD—which isn’t coming any time soon—will include a “quick reference” guide. And the plan is that at the same time as the ABA publishes the fourth edition, it will publish my shorter, much more accessible guide.

So organizations could adopt a comprehensive style guide based on MSCD, confident that their personnel would have available materials that make MSCD‘s guidelines accessible even to those who don’t have the time or inclination to wade straight into the full complexity of MSCD.

That’s the idea, anyway.

In any event, Adobe and Michael Dillon, Adobe’s general counsel, deserve a lot of credit for recognizing that style guides are essential for contract drafting and then doing something about it.