Go here for episode 54 of The Civil Engineering Podcast, my 20-minute conversation with Christian Knutson on “How to Master the Language for Clearer Engineering Contracts.”
Archives for March 2017
Perhaps some authors buff and polish their reference-work manuscript to a state of gleaming perfection, then place it on a velvet pillow and deliver it to the publisher. Well, that’s not quite how it works with A Manual of Style for Contract Drafting.
When I started studying the building blocks of contract prose, it was largely uncharted territory. I’ve spent the past twenty years slowly mapping it. The bulk of the work has been done, but MSCD is still a work in progress.
For one thing, stuff keeps happening. A good example is the recent First Circuit opinion featuring the serial comma; I discuss it in this post. And I keep spotting usages that I had overlooked (see for example my post on et seq.), although the intervals between such discoveries are getting longer.
Try and Try Again
Furthermore, usually I don’t tackle something definitively and then move on. Instead, my take on most topics is novel enough that I can expect to revisit it, prompted by new caselaw, online commentary, or a question from a reader, seminar participant, or student. It can also be a matter of simply letting time pass, so I get some critical distance.
If a topic is important enough, I write about it repeatedly—in MSCD, in articles, or on my blog. Since the third edition of MSCD came out in 2013, I’ve written two article and about forty blog posts on efforts provisions. And I kept gnawing at the phrase represents and warrants, culminating in my 2015 article on the subject (here).
Because I keep finding new usages to write about, and because often my understanding of a given topic needs time to mature, I’m not close to some finish line. I’m not even sure a finish line exists. Instead, each new edition has come about the same way: I consider how much time has passed since the previous edition, do an inventory of the analyses I’ve put together since the previous edition that are new and different, and decide to proceed. So each new edition summarizes my understanding at a given time.
I recently completed the next phase, which involved an intense month of retrieving four years of writings and reworking them for the new edition, resulting in a manuscript containing much new material. Now I’m working my way through comments on the draft submitted by volunteers—fresh sets of eyes are invaluable. Some of the comments highlight that MSCD is a work in progress.
For example, I just finished going through comments offered by longtime reader and resource Vance Koven. A courtly and no-nonsense transactional lawyer based in Boston, Vance isn’t the sort to focus on spotting typos. Instead, he raised a quizzical eyebrow at some of my newer stuff, prompting me to trash some analyses and bang out new versions.
Similarly, other volunteers raised issues about parts of the book I haven’t thought about in years, prompting some valuable adjustments.
So the fourth edition will contain parts that I’ve labored over sufficiently that I think of them as my own grand complication watch. But it will also contain new analyses that have just plopped off the production line. I’m at peace with that. For one thing, with each new edition the proportion that’s rock-solid grows and the proportion that’s fresh shrinks.
Besides, what choice do I have? I wouldn’t be doing myself or anyone else any favors by sitting on MSCD until such time as I decide my work is done, which won’t be anytime soon.
Attachment-enumeration nerds—wait, does such a creature exist?—this is for you. It’s the result of my revisiting this subject after being prodded by a reader. If you have any quibbles, I’d be delighted to hear them.
Enumerating attachments serves two functions. First, the number or letter used in referring to a particular attachment tells readers where they can expect to find it among the schedules or exhibits.
Enumerating attachments can also serve to tell readers where in the body of the contract they could find at least one reference to that attachment. That could be useful for a reader who goes to an attachment and wants to return to the related provision but doesn’t recall the section number.
When a contract is divided into articles and so uses the multiple-numeration system for section numbers, you can have attachment enumeration serve both functions by using for each schedule and exhibit the number of the section that refers to it. If more than one section refers to a particular schedule or exhibit, use the number of the section with the primary reference.
Even if a contract isn’t divided into articles and so doesn’t use the multiple-numeration system, you could still enumerate schedules and exhibits using section numbers. But that could result in reader miscues: A reader who consults a schedule and notes that it’s schedule 10 wouldn’t be able to tell whether the schedules were keyed to section numbers or simply numbered consecutively. Figuring the system out might require flipping through the contract. Furthermore, someone who encounters in the body of the contract a reference to schedule 10 wouldn’t be able to tell from that alone whether it comes after schedule 9 or might come after a schedule bearing some lower, nonconsecutive number.
This confusion would also occur if in a contract not divided into articles you were to enumerate schedules and exhibits with consecutive numbers. Using consecutive letters (A, B, C) instead would prevent miscues of this sort.
There are other advantages and disadvantages to the different systems of enumerating attachments. If you use section numbers, you wouldn’t have to renumber attachments if a new attachment is inserted for a given section. But if a new section is inserted, that would change the section number used for each attachment that follows (in a contract not divided into articles) or each attachment that follows in that article (in a contract divided into articles). On the other hand, if you use consecutively numbered attachments, adding a new attachment would require renumbering those that follow. But attachments are usually compiled after the contract has been finalized, so these considerations shouldn’t weigh heavily. Also, using section numbers for attachments means you wouldn’t know from looking at a list of attachments whether one was missing. But that too wouldn’t seem a compelling factor.
In contracts divided into articles you could use a hybrid system for enumerating attachments, with schedules using section numbers and exhibits using consecutive letters. A hybrid system would have the advantage of preventing confusion between, say, schedule 3.2 and exhibit 3.2. As it is, one doesn’t often see exhibits keyed to multiple-numeration section numbers. You could also use a hybrid system for enumerating attachments in contracts not divided into articles, with schedules using consecutive numbers and exhibits using consecutive letters. That would prevent confusion between, say, attachment 1 and exhibit 1, if that’s a concern.
It’s likely that to some degree your templates are constructed of traditional contract language, with all the confusion, wordiness, archaisms, and redundancy that entails. You want to improve your templates so they’re clearer, more concise, and better address your needs.
Well, here’s how that might not happen.
You assign one of your in-house lawyers to do the work.
- Pothole 1: The in-house lawyers responsible for your contracts presumably handle deals. That involves a range of tasks: drafting contracts from templates, negotiating, reviewing the other side’s drafts, monitoring performance, and so on. None of those tasks requires strong command of the building blocks of contract language. So it’s likely that drafts created by your in-house lawyers will leave something, or a lot, to be desired. That can be the case even if they think they’re going all plain-English (see this post).
- Pothole 2: Your in-house lawyers are busy, so the lawyer working on your new template might have to fit that work into whatever time isn’t taken up by the regular press of business.
You appoint a committee to do the work.
- Pothole 3: The effects of pothole 1 and pothole 2 are magnified, in that you now have a group of nonexperts with different backgrounds, training, and experience who debate, based on imperfect information, which of their favorite usages to include in your new templates. It’s not unusual for such groups to spend many months working on a template.
You hire a law firm.
- Pothole 4: At their best, law firms are great at pushing deals through. But when it comes to contracts, expediency usually takes priority over quality: no one cares about inefficiencies in the contract if the bet-the-company deal gets done. That approach isn’t so helpful if you’re asking them to create your crucial sales template, the one you expect to use 3,000 times a year.
- Pothole 5: The law firm might want to assign a team to your project and bill accordingly.
- Pothole 6: Because your template isn’t bet-the-company work, don’t be surprised if the law firm proposes that someone junior, a relative stranger to coherent contract drafting, do the bulk of the work.
You hire an expert.
- Pothole 7: After hiring an expert in contract language, you just have too much going on to devote attention to the mucky business of figuring out exactly what you want to say in your templates. The work never gets done.
- Pothole 8: After the expert does the work, you acknowledge that the new template is way clearer than the old one, but you and your team realize that novelty is scary. The current template is dysfunctional, but you’re familiar with it. So that’s what you stick with.
- Pothole 9: After the expert does the work, you show the expert’s draft to your regular outside counsel. They proclaim that the draft is unacceptable, compared with the “tested” current template. You don’t want to sour your relationship with outside counsel, and you don’t want to devote a bunch of time to subjecting the new draft to some sort of inquisition. So you shelve it.
There’s no reason why you shouldn’t be able to steer around all these potholes. But anyone contemplating creating new templates should be aware of them.
I’m sure you can think of other possible potholes.
I’m writing the preface to the fourth edition of A Manual of Style for Contract Drafting. Normally it’s where I’d describe what’s new, but there’s so much new material that listing what’s new would clog up the works. And I don’t know how helpful people would find it.
In the third edition I mostly said whether a given chapter was largely unchanged, slightly expanded, significantly expanded, or extensively expanded, with some specifics included. I’m not sure how helpful that was either.
So I’m tempted just to say that there’s a lot of new material and let readers find it for themselves.
I could put online a version marked to show changes, in a bunch of no-print, no-copy PDFs, but that seems cumbersome. Or I could mention a web page that lists the number of every paragraph that’s largely or entirely new and what they address.
What do you think?