I had a brief exchange on Twitter that ended as follows:
— Robert Anderson (@WITNESSETHBlog) February 19, 2017
I like to think I’m not that guy who always has to have the last word on Twitter, gawd help us. But the point under discussion might be of general interest, so I permit myself this post.
The final comment by my interlocutor—Robert Anderson, associate professor at Pepperdine School of Law—is correct, in that I don’t have the data he seeks. But more fundamentally, the way our exchange ended doesn’t make sense.
Initially, in retweeting something mentioning an open-legal-documents initiative, I observed that “Copying someone else’s random stuff sure hasn’t worked for contracts.” Robert ended up invoking the doesn’t-work notion in connection with contracts themselves, asking, “I just wonder what % of contracts currently don’t ‘work’ with all their flaws.” But we’re not dealing with a binary world in which contracts work or don’t work. Instead, as I observed in a tweet to Robert, contracts can be more clear or less clear; working with them can require less time or more time; and you can be exposed to less risk of dispute over confusing contract language or more risk.
And I wonder what Robert’s basis is for saying that traditional language works. Because deals get done? But that doesn’t take into account—
- deals that don’t get done because the contract was too bloated and confusing
- the personnel time and legal fees wasted in wading through archaic, wordy, and confusing prose and indulging in negotiation theater over distinctions that make no sense
- disputes that subsequently arise because of drafting glitches
Where are the data showing that traditional contract language is harder to understand, takes more time to digest, and poses a greater risk of dispute? There are none. Many fields of inquiry aren’t susceptible to number-crunching, and contract language is one of them. Robert is looking for “evidence that better contracts produce fewer disputes & at what cost.” I wager such information won’t appear anytime soon, if ever. In this 2015 post I wrote about the possibility of studying in an empirical way the extent to which contract-drafting glitches lead to disputes, but no such study currently exists. And even if it did exist, it would tell only part of the story, in that avoiding disputes is only one reason for switching to modern drafting.
Instead, as I told Robert, “You’ll have to be satisfied with mountains of anecdotal evidence.” But that doesn’t quite capture it. What isn’t anecdotal is my guidelines: they’re based on how the English language works and contracts work. The anecdotal part is the consequences of following or not following my guidelines.
I don’t see how anyone passingly familiar with my stuff can avoid concluding that if instead of copy-and-pasting traditional contract language you follow MSCD guidelines, you would save time, save money, and reduce your risk. Whether in a given context that matters enough to bother with is a separate question.
And check out the client testimonial in this post. That sort of thing will do nicely, until such time as the data Robert seeks materialize.