There’s style, and there’s substance, no?
Well, not quite.
Some drafting decisions don’t affect meaning. That includes all decisions relating to the look of a document. It also includes some decisions regarding wording. Witless archaisms such as witnesseth don’t affect meaning. And consider Acme may purchase the Shares and Acme is authorized to purchase the Shares. I recommend using the version with may, as it’s more concise, but both versions convey the same meaning.
Drafters might think that other decisions don’t affect meaning, but they in fact do, in that they make the reader work harder and can create confusion. Think of the choaotic verb structures and rampant overuse of shall that characterize traditional contract language. Think of indemnify and hold harmless. I could go on. And on.
And drafters might think that yet other decisions affect meaning, but they in fact don’t. Consider how U.S. courts have declined to hold that different efforts provisions convey different meanings.
Because usages employed in contracts have a way of unexpectedly affecting meaning, it’s misleading to think of style and substance as being in separate compartments. Instead, I think of them as being on a spectrum, with style bleeding into substance.
While I’m at it, I suggest that there are two kinds of substance—commodity and bespoke.
Commodity substance consists of blocks of text that you see, with innumerable permutations, in contract after contract. In my recent article Dysfunction in Contract Drafting (here), I refer to these as “standard contract provisions.” They make up the bulk of contract language, and in a rational market you’d spit this language out using document assembly.
Bespoke drafting is for that part of a contract for which you have no models. I’ve prepared templates that include a couple of dozen pages of bespoke drafting; that’s where the real craft of drafting comes in.
