For lawyers unwilling or unable to overhaul their traditional contract language, the excuse of choice is that traditional language has been “tested”—if you meddle with it, you’re exposing yourself to all sorts of risk.
I discussed in this 2006 post how the notion of “tested” contract language is nonsense, and I revisited the issue in this 2012 post, as well as in MSCD 1.30–36.
I now see that someone else has questioned the notion of “tested” contract language. The June 2013 issue of the Michigan Bar Journal contains an article entitled Hindsight Isn’t So Reliable After All, by Professor Vincent A. Wellman, of Wayne Law (PDF copy here). This will give you a sense where he comes out on this issue:
In litigation, a court must choose between competing interpretations of the contested clause, and the legal winner is the better of the two alternatives. But that’s only a comparison and not a validation. The fact that litigation is involved at all should raise questions about the wisdom of drafting another contract in the same way. Why should the rest of us want to be guided by a litigant’s disputed interpretation of contract language that prompted a lawsuit? Shouldn’t the fact of the lawsuit suggest there was something less than ideal about the contract clause?
I encourage others to join Professor Wellman and me in debunking the notion of “tested” contract language.
Incidentally, others have already done so. For one thing, it was Professor Robert W. Benson’s article The End of Legalese: The Game is Over, 13 N.Y.U. Rev. L. & Soc. Change 519, 561 (1984–85), that got me thinking about “tested” contract language. (Copy here.) I just learned that Bob died in 2011, and I wanted to note his passing.
