I draw your attention to Preston M. Torbert, Contract Drafting: A Socratic Manifesto, 14 Scribes J. Legal Writing 93, 119 (2012) (PDF copy here). Preston is a retired practitioner who teaches and writes about contract drafting; he was kind enough to send me a copy of the article.
Apart from the introductory paragraph, the article is written entirely in questions. That might be a bit of gimmick, but it’s a neat one.
The gist of Preston’s article is that it’s time for law schools to give contract drafting the attention and resources it deserves. No kidding! Read the article; to whet your appetite, here are some extracts that caught my eye:
- What’s the ratio of time spent by the average lawyer on litigation versus contracts? 1 to 10? 1 to 20? Wouldn’t most lawyers agree that contracts is the discipline most central to law practice?
- In general, hasn’t a combination of the factors just noted led to an inordinate emphasis on appellate decisions as “the law,” an emphasis that has distorted legal scholarship and teaching and failed to prepare students for law practice?
- Couldn’t attention to contract drafting play an important role in restoring a better balance to scholarship and teaching, as well as continuing legal education? Couldn’t it give the practicing bar the benefit of academia’s creative insights?
- In legal education, hasn’t “thinking like a lawyer” become “more a talismanic justification for what is going on than an articulated educational program”? Shouldn’t “thinking like a lawyer” include “thinking like a lawyer drafting a contract” rather than merely “thinking like a judge interpreting a contract”?
- If we argue that someone cannot draft a contract without understanding how a judge might interpret it, should we also recognize that someone cannot properly understand a judicial decision on a contract dispute without having drafted a contract?
- Why is it that scholars and teachers have spent so much time studying judges’ decision-making, but have very rarely suggested how lawyers might influence judges’ decision-making in advance by drafting documents in a way that avoids judicial intervention in the first place?
- More specifically, shouldn’t we recognize that drafting is not a routine, nuts-and-bolts task and that, if it were, it would long ago have been outsourced to India? On the contrary, isn’t contract drafting really problem-solving par excellence?
- Can’t we avoid having new associates ““freeze like deer in [the] headlights” when asked by a partner to draft a contract?
- [W]ouldn’t it be more appropriate to talk of “assembling” or “constructing” a contract rather than “drafting” one? Might not Charles Fox’s general term “working with contracts” be an even more accurate expression? How about “contracting”? Wouldn’t a more accurate term help to direct our attention away from the “creative writing” frame of mind toward the legal issues that a drafter faces in putting together a contract?
- Couldn’t a law school arrange a “Contracts Program” that has two basic courses, one on the language of contracts, teaching how to recognize and eliminate ambiguity, and a second on the elements and structure of contracts, examining the basic legal issues common to all contracts and reviewing alternative solutions?
Preston wraps up the article with a plea for “a new doctrine of contract drafting.” I’d like to think that A Manual of Style for Contract Drafting is a step in that direction, in that it establishes guidelines for optimal contract language as an alternative to the current free-for-all.
Perhaps blame for neglect of contract drafting lies as much with the legal profession as with law schools. The nature of traditional contract language suggests that for most practicing lawyers, notions of quality come a distant second to expediency. That being the case, why should law schools care too much about contract drafting?