I’m doing a private series of Drafting Clearer Contracts: Masterclass for a group from a global company. We’re three-quarters of the way through, so last week I checked in with my contact at the company to see how they were faring. Here’s what he said in his email back:
I solicited input from a couple of folks, in particular those for whom contract negotiations and drafting are their daily work.
They say the course is incredibly valuable, but also overwhelming, and they find the quizzes particularly hard. They are mature and experienced enough to know that there is no easy shortcut and that mastering your guidance and recommendations will not come merely from our 8 lessons together, but require placing A Manual of Style for Contract Drafting under our pillows at night and consulting it as a partner in the days, weeks, months, and years going forward.
I don’t think there’s any need to change anything in your approach, speed, content. We’re getting the introduction to the material and that’s perfect.
I wanted to share that with you because it describes succinctly what’s involved in becoming an informed consumer (and producer) of contract language. It’s a hike.
Why is it such a challenge? Three reasons. First, the English language is nuanced. Second, a lot is at stake in contracts, so contract language is subjected to greater strain and scrutiny than most other kinds of writing—you have to be more precise. And third, arriving at sensible contract language requires sloughing off encrusted legalistic dysfunction propagated by the copy-and-paste machine.
Because I have essentially to myself study of the building blocks of contract language, the path to being an informed consumer of contract language runs through A Manual of Style for Contract Drafting. Given the complexity, it’s unlikely you’ll stumble into clear and concise contract language without consulting my work.
That’s why I can take pretty much any contract and show how it’s significantly less clear and concise than it might be. Here are two relatively early examples, my 2014 analysis of a Google services agreement, here, and also from 2014, my analysis of IBM’s then-new cloud services agreement, here. The most recent example is my critique of Practical Law’s mutual confidentiality agreement, here.
I encourage everyone to do the hard work required to become an informed consumer of contract language. It gives you an invaluable measure of control. And we have a civic responsibility to be good custodians of the contracts ecosystem. Let’s do better.
A particular challenge is fixing your templates. Remedial work is usually laborious; a fresh start would make more sense. Adams Contracts aims to help with that; see this blog post.