Longtime readers will be aware that I roll my eyes at the notion of relying on contract language that has been “tested” by courts. As I say in a 2006 blog post, “Why rely on language that resulted in litigation? Instead, express any given concept clearly, so you don’t have to gamble on case law breathing into it the desired meaning.” (Go here for my most recent blog post about this, from 2025.)
Yesterday I saw fleetingly on LinkedIn a post in which someone said you should rely on “battle-tested” contracts, whether they’re drafted by law firms or are the result of a standard-form initiative.
What is a “battle-tested” contract? Presumably that could be just another way of referring to one that has been tested by the courts, in which case I would say, No thanks.
Perhaps the poster had in mind instead contracts that have been used in enough transactions that the contract has been refined to address most, or all, stumbling blocks. But that seems optimistic, for three reasons.
First, dysfunction is the order of the day. Since forever, contracts have been drafted by copy-and-pasting, on faith, from precedent contracts and templates of questionable quality and relevance. So all sorts of organizations in a position to do better churn out mediocre contracts. I’ll spare you a bunch of links.
Second, it’s not clear that deal experience results in better contracts. It’s just as likely that drafters fall prey to “recency bias” (discussed in this post on the HLS Forum on Corporate Governance), so they clog up the works by adding extra language to address every oddball issue that happens to rear its head.
And third, unless you’re satisfied with treating your deal as a cookie-cutter deal, there’s no reason to think that whatever contract you happen upon is going to be relevant to your needs.
So I decided long ago that rather than rummaging around online, it would be better to make a fresh start by using a suitably authoritative automated template. That’s what I’m trying to do with Adams Contracts, but it’s early days, so we’re not there yet. But that approach offers the only reliable and cost-effective prospect for contracts that are clear, concise, and relevant.
