For the heck of it, every so often I search “contract drafting” on Twitter. A few times I’ve been pleasantly surprised to spot a mention of my book. Once someone who evidently was then in one of my seminars tweeted that the seminar wasn’t as much fun as her dinner with an old friend the previous evening. No surprise there—I aim to be moderately engaging, but there’s a limit to what I can reasonably aspire to!
What caught my eye yesterday was someone—evidently a web developer—noting plaintively “is there anything more boring than drafting a contract?” That prompted the following reflections:
- I’m not sure I’d ever describe contract drafting as boring. To be boring, something has to be utterly routine, a known quantity. I don’t think contract drafting qualifies—the stakes are too high, and the language of mainstream contract drafting is too problematic.
- For those who are unfamiliar with traditional contract language, contract drafting is most likely bewildering.
- For those who are all too aware of the shortcomings of traditional contract language, contract drafting is intensely frustrating. I used to hate it when I was required to draft a contract using craptastic precedent.
- In my utopian future, contract drafting would be a byproduct of structuring the deal—once you decide the deal points, document assembly would do the heavy lifting of assembling the contract language. That future is slowly approaching.
So I don’t want contract drafting to be boring, or bewildering, or frustrating. I want it to be a non-issue.
Ken, three points: (1) Contract drafting will never be a non-issue. (2) Those who find drafting boring will also likely find crossword puzzles and other forms of intellectual stimulation boring. (3 The word “craptastic” does not appear in my O.E.D. What does it mean?
Scott: I could have been more precise: I wasn’t referring to all aspects of contract drafting, just the process of pulling together a draft that reflects the deal. People will otherwise still find plenty of stuff to wrestle over.
Regarding “craptastic,” that’s the first time, and probably the last time, I’ve put it to writing. It has a nice adolescent ring to it.
Ken
Ken,
I think the Utopian future is rapidly approaching, especially now that document assembly has reached the point of maturity that many people can “draft” simply by walking through a whizzy questionnaire. Everywhere this happens, the “drafting” merges with the “deal making” and all the boring bits disappear. But I’m not sure I agree with your comments that “traditional contract language” is the source of current boredom. The boredom I hate most as a contract drafter comes in two flavors: first, drafting from a bloated precedent, which might very well turn a 3 hour drafting task into a 3 day task; and second, the tedious and laborious act of proofing, checking and re-checking each draft, hunting for typos. By the third proof-read of my first draft, boredom reigns supreme, and I start dreaming about how much more fun I could be having by sticking rusty needles in my eyes.
Jamie: Come to think of it, that future is already here for a growing number of trailblazing companies and law firms. When I said “slowly,” I was thinking of the bulk of the market. Ken