Earlier this year, I published an article suggesting why law firms might want to think about bringing in an outside speaker—presumably moi!—to speak about contract drafting. (Go here for a copy of that article.)
But when I speak at law firms, I make a point of discussing some potential obstacles to associates’ changing the way they draft. This issue is fresh in my mind, because earlier this week I gave a presentation at a law firm.
Let’s assume that I fill Abigail Associate’s head with visions of a brave new drafting world. For her next drafting assignment, she doesn’t simply want to revise the form contract to reflect the deal in question. Instead, she wants to overhaul it to implement the recommendations in MSCD. But for a number of reasons, she’ll probably have to restrain herself.
First, she probably won’t have the time. In my law-firm days, I had a rule of thumb that overhauling the language and layout of a form so that it looked like something I had drafted would take about an hour a page. It would probably take Abigail even longer than that, and it’s likely that given the rigors of transactional practice she simply won’t have that kind of time to spare. Even if she does have the time, the client could balk at paying.
And second, whatever changes Abigail makes could well be frowned on by a traditionalist partner or senior associate. They might utter that time-honored put-down, “That’s not the way we do things around here!”
But I’d tell Abigail that if she plays it smart, she could implement significant change even within these constraints.
For one thing, eliminating the more dismal features of the drafting landscape, such as the traditional recital of consideration and egregious archaisms, takes very little time.
And because some contract language is repeated in a large proportion of contracts, Abigail could in short order put together a stable of MSCD-compliant provisions that she could use in contract after contract, with only minor adjustments. I have in mind boilerplate such as governing law provisions, as well as representations as to organization, authority, enforceability, and other core matters. Over time she could add to this library of provisions.
As for resistance from higher up the food chain, here are some suggestions:
• Abigail should avoid trying out new language on known pettifoggers.
• She should recognize the different forms of resistance—that which invites discussion and that which requires immediate retreat.
• She should realize that some changes will invite greater scrutiny than others. For instance, only partners with the time and inclination to be truly rational will go for using just representations rather than representations and warranties. By contrast, eliminating overuse of shall would likely pass unnoticed.
• And she should realize that as she gains experience, she’ll have greater leeway to make whatever changes she sees fit.
Abigail would, of course, have a much easier time of things if her firm were to decide that in order to ensure modern and consistent drafting firmwide, much of the drafting function would need to be centralized. But significant cultural and financial obstacles make it likely that very few firms will take that approach.