As I noted in this 2013 post, I’ve long thought that it would be valuable to do a study of what proportion of contract disputes are caused by problematic contract drafting.
Well, this notion has advanced from the hypothetical to the possible. So here are some thoughts as to how this might be done:
- I assume that it would make senses to use a publicly available database of judicial opinions, instead of downloading opinions one at a time from a commercial service.
- I assume that it would be best to look at lower-court opinions instead of appellate opinions, so as to see a full range of disputes.
- One could look at a random assortment of opinions from different jurisdictions, but I’m inclined to look at opinions from a single jurisdiction. That would allow one to look for changes over time.
- The idea would be to determine which opinions relate to contract disputes, and which of those disputes were caused by contract drafting, and how. In other words, was the dispute caused by ambiguity? Conflict? Failure to address an issue? And so on. One would establish a suitable taxonomy. And one would have to take into account the possibility of multiple causes.
- I assume that one wouldn’t rely on what the parties claimed or even what the court concluded, as they might have gotten it wrong, for example by saying that what is clear is in fact ambiguous. So perhaps one would have to note what the parties claimed, what the court concluded, and what objective analysis suggests.
If anyone has any suggestions, I’d be delighted to hear them. And I’d appreciate having a chat with someone knowledgeable about how the court system works. Can you think of anyone?