Advice on Contracts: 1916 Compared with 2018

A couple of days ago I noticed a post on LinkedIn by Ian Heptinstall. In it, he quoted a bit of contracts advice from 1916 and asked readers what they thought of it. Here’s that advice:

Our custom here is to draw up a contract before having seen the lawyer and then to ask him to put it in more legal shape. Such a contract is more likely to embody the spirit of what has been agreed upon than one drawn up by a lawyer; to ask his opinion as to what you should do or not do is the worst possible way of conducting business, which should be kept as far away as possible from lawyers

And here’s the comment I posted:

This is terrible advice, as it assumes that your lawyer is an idiot. If this is the way anyone feels, they’re the idiot for sticking with a lawyer who isn’t focused on helping their clients achieve their business goals. Get a different lawyer!

My view wasn’t popular, but I remain comfortable with it. The advice reduces all lawyers to scriveners. If it had been less categorical and all-encompassing, it might have been more credible.

But the purpose of this post isn’t to rehash Ian’s post. Instead, I decided to come up with my own version of the advice in Ian’s post for deals that require outside counsel. (That might seem rash, given that it’s been many years since I actually worked on a deal.) Here’s what I came up with:

Start by preparing a term sheet. In doing so, get business, legal, and tax advice—it will make unpleasant surprises less likely. (That advice might consist of your being told that no advice is necessary.) The term sheet will give your lawyers a road map for drafting the contract. Unfortunately, traditional contract drafting is a mess, consisting largely of copy-and-pasting, on faith, from precedent contracts of questionable quality and relevance. You’ll just have to hope that your lawyer’s deal smarts aren’t subverted too much by clumsy drafting. Expediency, not quality, is likely to be the order of the day. But if you plan on doing repeat transactions, try finding a lawyer who’s an informed consumer of clear and concise contract language.

I invite you to post your own version in the comments.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.