Bryan Garner is a big name in legal lexicography, litigation writing, and guidance on general English usage. He has a new book out, on contract drafting. It’s called Garner’s Guidelines for Drafting and Editing Contracts, and it’s not good.
But first, why write a review? Because using any reference work requires a leap of faith, and book reviews help readers decide whether a leap of faith is justified. But I’ve made a career out of recommending how to say clearly whatever you want to say in a contract, so arguably this book makes Garner a competitor. Isn’t it unseemly for me to review it? No—if scholars weren’t allowed to write reviews of books written by people who fish in the same pond as they do, the number of people eligible to write reviews would shrink drastically.
So here goes.
It’s Mostly Padding
Garner’s Guidelines for Drafting and Editing Contracts is a big book, weighing in at 559 pages a bit smaller than letter-size. But perhaps two-thirds of it (including 54 pages of appendices) consists of before-and-after examples. That sounds helpful, in that you’re showing the reader how the sausage is made. But I found it oppressive, for three reasons. First, many “before” examples are relatively lengthy, with the issue in question relating to a small part of the example. Second, many sections include more before-and-after examples than seem necessary. And third, the “after” versions usually incorporate redrafting that goes beyond what’s required to address the issue in question, so the reader has to work harder to assess the “after” versions. (A fourth factor, the book’s chaotic structure, is discussed below.)
The result is that many before-and-after examples seem to occupy more space than they’re worth. Some examples:
- Treatment of the terms representation and warranty on page 103 (discussed below) is followed by two before-and-after examples occupying a total of four pages. The examples have nothing to do with what’s discussed on page 103 and don’t otherwise address issues relating to representation and warranty. Instead, Garner simply uses those examples as another opportunity for general redrafting.
- Three pages (136–38) are devoted to four before-and-after examples intended to show that extensive use of all-capitals text is a bad idea.
- Three and a half pages (175–78) are devoted to five examples intended to show that it’s a bad idea to use party-name defined terms that differ only in their final syllable (as in Licensor–Licensee).
- Two and a half pages (179–81) are devoted to four examples intended to show that it’s a bad idea to refer to the parties as the party of the first part and the party of the second part.
- Half of page 327 is devoted to provided that. It’s followed by 12 before-and-after examples occupying the rest of that page and most of the next five pages.
And every other page or so you find, displayed prominently in a shaded box and in a large font, a pithy quotation taken from a text on contract drafting or legal writing. A given quotation might relate to what’s discussed in that section, or it might not. Either way, I found such quotations uninteresting—Garner might as well have included messages from fortune cookies.
Add to that the large size of the font used for the main text and this book feels heavily padded.
The photo above is of two representative pages, 452–53. The topic is use of the word whereas. (As I mention below, whereas is also discussed elsewhere in the book.) The main text at the top of page 452 devotes 34 words to it, but you also have three before-and-after examples and two quotation boxes, one related to whereas, the other not. To me, that’s padding. (By way of comparison, my book A Manual of Style for Contract Drafting (MSCD) devotes 23 words to whereas, and otherwise whereas features only in the “before” version of a contract in the appendix.) Considered in isolation, it’s minor, but because the padding is pervasive, it quickly takes a toll.
The Structure Is Chaotic
Parts of the book are given general headings that don’t relate to specific topics. For example, Garner includes in chapter A (Fundamental Principles) a bunch of unrelated topics. The same goes for chapter C (General Conventions). Some of those general conventions look pretty fundamental to me—they could just as easily have appeared in chapter A. I prefer topic chapters, so the reader knows that everything falling in that chapter will relate to that topic.
And some parts of chapters are equally mixed. Here’s my summary of what the six pages of § 9 (Be alert to errors, misstatements, and ambiguities), in chapter A, say:
- Be on the lookout for mistakes, ambiguity, and unhelpful vagueness.
- Be on the lookout for provisions that make no sense because of a mistake.
- Mistakes in templates can be perpetuated.
- The notion of “tested” contract language doesn’t make sense.
- Be on the lookout for using the wrong party’s name.
- Don’t use paired party-name defined terms that different only in the final syllable.
- Instead of common nouns, use party names for party-name defined terms.
- Regarding an extract from a party lease, stating party-name defined terms in all capitals is distracting.
- Here are other suboptimal usages in that extract.
- Consider an instance of lessee mistakenly used instead of lessor in that extract.
- Landlord and Tenant are better than Lessor and Lessee.
- Consider the “after” version of that extract, using Landlord and Tenant.
- Consider the merits of the “after” version—the heading, the vertical listing, the simplified language, the sensible grouping of items.
- Note that the requirement of not unreasonably withholding consent to subletting has been removed for the extract.
- Consider seven before-and-after examples (occupying two pages) highlighting a collection of unrelated mistakes and ambiguities.
- Consider three quotation boxes too.
What a mishmash!
The before-and-after examples are made more burdensome by the chaotic structure. In § 18 (Condense phrases into words when possible), on pages 57–58, six of the seven before-and-after examples relate to topics discussed elsewhere:
- 2 involves with respect to, which is found on page 369, in a list of “Plain Language Word Choices”
- 3 involves the “zombie noun” occurrence (zombie nouns are discussed on pages 61–63) and how to express a future occurrence (discussed in § 47)
- 4 involves how to express an obligation (discussed in § 47)
- 5 involves the zombie noun payment
- 6 involves how to express prohibition (discussed in § 47), use of in the event of (which is also in the list of “Plain Language Word Choices” and discussed on page 424), and the zombie noun performance
- 7 involves a word string, a topic addressed on pages 59–60.
Each example would be more informative if it were placed in a section addressing the related topic instead of being placed with a grab-bag of disparate examples.
And a given topic might be addressed in different places. I’ll limit myself to features of recitals: First, whereas is discussed on page 94, in the context of discussion of recitals, but it’s also discussed in chapter F (Words and Phrases) on pages 452–53 (the two pages featured above). Second, it would have made sense to include witnesseth in the discussion of recitals, but it too is considered in chapter F, on pages 454–55. And third, the recital of consideration is discussed on page 100–01, with four related before-and-after examples, but two other before-and-after examples are on page 28, and another is on page 95. In MSCD, all those topics are discussed on pages 30–35, the “Recitals” section of chapter 2 (The Front of the Contract).
These shortcomings in the book’s structure aren’t minor—they’re a burden on the reader and call into question Garner’s command of his subject.
Bad Takes, Nonexistent Scholarship
The book offers a bad take on many issues, suggesting that Garner doesn’t understand how contract language functions. His instincts are generally traditionalist, and he makes no attempt to consider scholarship (largely my scholarship) that refutes positions he takes. Here are some examples.
The Traditional Recital of Consideration
Here’s what Garner says on page 100 regarding the traditional recital of consideration (footnotes omitted):
Why not just say The parties agree as follows, or perhaps The parties therefore agree as follows? The answer is that in the great majority of instances, such a barebones lead-in would be entirely sufficient. But the recital of consideration—In consideration of …—contains a useful protection: “if a promise is recited as having been made as consideration, this recital cannot be disputed.” The language creates an estoppel to contradict it. Normally, this estoppel doesn’t come into play, but the protection may be helpful in anomalous situations. That’s why it became a tradition in the first place.
Garner is relying on an outdated view of consideration. Instead of the 1965 authority Garner cites, I offer you 3 Williston on Contracts § 7:23 (4th ed.) (footnotes omitted):
If merely saying in writing that a specified fictitious consideration had been received were enough to make a promise binding, a new kind of formal obligation would be created. Rather than adopt this rule broadly, the solution of the law has been generally to entitle the recital to some weight, but to permit the introduction of contrary evidence except in a few narrowly defined areas.
That changes the calculus significantly, making the traditional recital of consideration only marginally relevant in even the tiny proportion of contract disputes where consideration is an issue. So it makes sense to omit the traditional recital of consideration. In those rare cases where consideration might be lacking, address that in structuring the transaction.
Despite Garner’s advice, some “after” examples use “The parties agree as follows” and don’t mention consideration. Presumably that reflects the inconsistent drafting in the “after” examples (discussed below).
On pages 390–91, Garner says, offering no evidence, “And in ordinary English, the phrase best efforts denotes a higher degree of assiduity than reasonable efforts or commercially reasonable efforts or good-faith efforts.” My forthcoming law-review article Drafting and Using Efforts Provisions: From Unreason to Reason (available in mid-July) demolishes that notion and the recommendations that flow from it. Until then, there’s MSCD chapter 8 (Reasonable Efforts and Its Variants) and this 2017 article.
Representation and Warranty
On page 103, Garner offers an analysis of the terms representation and warranty that relies entirely on Black’s Law Dictionary. He doesn’t understand that the jurisprudence implications of those terms are unrelated to how they’re used in contracts—it’s hopeless to expect to understand contract terminology if you examine it divorced from its context. For the only meaningful guidance on this subject, see my 2015 law-review article.
Advice on Defined Terms
On page 297, Garner says, “In the definition, don’t use the term being defined. Doing so is amateurish and question-begging.” He’s mistaken. Here’s what MSCD 6.15 says:
Dictionaries shouldn’t use in a definition the term being defined, as that constitutes a form of circular definition. For example, it would be unhelpful for a dictionary definition of chair to include the word chair. But that doesn’t apply to contract definitions. In a contract, a defined term simply serves as a convenient substitute for the definition, and only for that contract. So repeating a contract defined term in the definition is unobjectionable. An example: “Trademark” means a registered trademark or service mark or any trademark or service mark that is the subject of any application, registration, or renewal.
Here’s an even simpler example: “Member” means a member of the Company.
Garner devotes part of a chapter (pages 115–72) to use of verb structures—what I call “the categories of contract language.” I’ve already written plenty about how Garner and I differ on the role of shall, so I won’t get into that again. But this book prompted three thoughts on verb structures:
First, I continue to find it odd that Garner recommends varying how you express obligations depending on whether the contract is negotiated or nonnegotiable. Leaving aside that nonnegotiable contracts have a way of becoming negotiable, why use must in nonnegotiable contracts to express obligations of the party on the receiving end and will to express obligations of the party with the upper hand?
Second, consider this “after” example on page 57: “If a Material Breach occurs under § 22.2(C), this Agreement terminates automatically.” I suggest that in this context, using the simple present tense in the matrix clause is ungrammatical. Compare Garner’s example with this one from page 739 of The Cambridge Grammar of the English Language: If you get it right, you’ll win $100. That’s why MSCD ¶ 3.324 says, “If the verb in a matrix clause would, absent the conditional clause, be in the present tense, use will, as in [10-1] and [10-2], and not the present tense, as in [10-1b] and [10-2b], and not shall, as in [10-1a] and [10-2a], as no duty is involved.” On the other hand, page 163 contains the following “after” example: “If Klein dies, this policy will cover Klein’s spouse.” So Garner is inconsistent in his verb structures, as part of his broader inconsistency in his “after” examples.
And third, on page 419 Garner says this: “Note, however, that hereby is a special case: it’s a performative adverb that can usefully signify that a given legal act is taking place here and now—that the sentence in which it appears is the very doing of the action described.” I concur; MSCD explains in some detail why I use hereby in language of performance. But the before-and-after examples on page 59 use just assigns, not hereby assigns. So either Garner thinks that one should use or not use hereby depending on the circumstances, which doesn’t make sense and is inconsistent with a systematic approach to the prose of contracts, or he’s unable to follow his own recommendations.
The Capital A in This Agreement
Here’s what Garner says on page 358:
Lawyers almost universally capitalize the word Agreement when referring to the very contract in which the word appears. Although there are (picayunish) arguments against always referring to this Agreement (as opposed to this agreement), the practice is both unexceptionable and arguably useful on occasion—to differentiate the present contract from others that might be referred to.
This is a minor but telling issue. As far as I know, I’m the only commentator arguing for dropping the capital A in this Agreement, so I assume it’s my arguments he’s denigrating. The only issue is whether using the initial capital makes sense. As a matter of standard English, it does not: you’re just referring to a thing. And unnecessary initial capitals make a contract harder to read. So if you get rid of the initial capital, you’re eliminating a senseless usage that makes contracts harder to read.
Can using this Agreement in a contract distinguish that contract from others, as Garner says? No—by itself, using this makes it clear you’re referring to the contract in question. Absent this, you’re necessarily referring to some other contract.
Furthermore, in traditional usage the initial capital is the result of this Agreement being treated as a defined term, but except for examples on page 193 and page 489, Garner uses this Agreement without defining it. In other words, he uses this Agreement for the same reason that many law-review articles pompously refer to this Article—the thing in question is important, and somehow that means it deserves an initial capital. As such, Garner ignores the prevailing dysfunction in favor of his own idiosyncratic dysfunction.
An “after” version on page 32 uses “this lease” without a capital L. It might be that he’s unaware that it’s analogous to this Agreement and so is inconsistent with his preference for using the initial capital, or it might be the result of the suboptimal drafting throughout the “after” examples (discussed immediately below).
If Garner had in mind that the “after” examples in this book would showcase superior drafting, that’s not how it worked out. The drafting doesn’t follow Garner’s guidelines, and it features other glitches.
I’m not in a position to critique the dozens of pages of “after” extracts, so I limited myself to the “model contract” in appendix B, without considering the substance. Here are my comments on the first two of the contract’s 17 pages (I’ll spare you citations to MSCD):
- Introductory clause: Don’t include business addresses; put them in the notices provision.
- Background: If Garner wants to get rid of “zombie nouns,” he would have done well to omit “direct distribution” in favor of “distribute … directly to.”
- 1: It’s unnecessary to say that the term of the agreement begins on the date of the agreement. That goes without saying.
- 1: Why on earth is “Agreement Date” given initial capitals? It’s not a defined term.
- 1(A): Here and elsewhere, it’s redundant to refer to “written notice”—the notices provision says that notices must be in writing. A rookie mistake.
- 1(A): Here and elsewhere, instead of “sends written notice,” use the verb “notify.”
- 1(A) and (B): There’s no reason to distinguish between termination and expiration—it’s simpler just to refer to termination.
- 2: Change “understand” to “acknowledge,” to be consistent with § 2.5.
- 1: Replace “under the terms, conditions, limitations, and prices set forth in this Agreement” with “under this agreement.”
- 1: Follow The Chicago Manual of Style and use a lowercase a in attachment references.
- 1: Instead of referring just to “Products,” it would be clearer to distinguish between a product line and units of that product line.
- 1: Consistent with MSCD and Garner’s guidelines on pages 161 and 168, replace “you are authorized to sell” with “you may sell.”
- 1: What’s a “Dealer Price Book” and why does it have initial capitals?
- 3: “As further consideration for our entering into this Agreement” is pointless.
- 3: Consistent with MSCD and Garner’s guidelines on pages 161 and 168, eliminate “agree to” in “you agree to promptly refer.” According to Garner’s guidelines, it should read “you will promptly refer.”
- 4: Yikes—use of may in a restrictive relative clause. Instead of “as we may designate,” say “that we designate.”
- 4: Get rid of the zombie nouns “change” and “withdrawal,” use verbs instead, with “may.”
- 4: Omit “at our sole discretion.”
- 5: Omit the rhetorical emphasis “specifically.”
- 5: Get rid of the zombie noun “existence.”
- 5: The phrase “by other contract relationships” is awkward; say instead “under other contracts.”
- 6: Instead of the adjective “contractual”—an unnecessary variant—say “contract.”
These problems suggest that Garner’s contract prose is inconsistent, that he doesn’t follow his own guidelines, and that he’s unfamiliar with the broader implications of specific contract usages.
Issues Relating to Contract Substance
Garner doesn’t have a background in doing deals, so it was audacious of him to offer extensive redrafts. Doing so necessarily put him in the business of deciding what to say in a contract, instead of just determining how to say whatever needs saying.
I haven’t looked closely at the substance in the “after” examples in this book, but three things caught my eye.
First, on page 110 Garner endorses a version of the standard “successors and assigns” provision, and it crops up repeatedly in “after” versions. In this 2013 article I show that this provision is pointless. It remains a fixture in traditional drafting, but Garner holds himself out as an expert on contract drafting, so we’re entitled to hold him to a higher standard.
Second, the governing-law provisions in “after” versions throughout the book include “without regard to any choice-of-law rules” language. In this 2015 blog post I demonstrate that it’s unnecessary. Again, this language is standard, but if Garner wants people to consider him an expert, he can’t ignore such issues.
And third, in the “after” version of the contract in appendix C, the definition of “Confidential Information” begins as follows: “As used in this Agreement, ‘Confidential Information’ means all proprietary information related to the Company, including ….” As discussed in MSCD 13.660 and in this 2010 blog post, the word proprietary pertains to ownership, not confidentiality, so using proprietary in relation to confidential information is a basic mistake.
These examples offer further evidence that Garner is not in his element when dealing with contracts.
There are gaping holes in the coverage offered by this book:
Discussion of use of and and or is limited to recommending that in a list, you put the conjunction after the next-to-last item only, not after each item. That’s as close as you can get to saying nothing on the subject. Compare that to the 30-page MSCD chapter 11 (Ambiguity of the Part Versus the Whole).
Discussion of syntactic ambiguity is limited to two pages (337–38) and passing references in a few before-and-after examples. Compare that to the 14-page MSCD chapter 12 (Syntactic Ambiguity).
The index to this book doesn’t mention material or material adverse change. Compare that to the 14-page MSCD chapter 9 (Material and Material Adverse Change).
And virtually none of the usages addressed in the 135-page MSCD chapter 13 (Selected Usages) is touched on in Garner’s book. (Those usages are listed in MSCD’s table of contents, here.)
I find Garner’s prose mildly grating, for three reasons. First, his style occasionally verges on hectoring. Contract prose isn’t simply suboptimal, it consists of “monstrosities” (page 14) and “perversions” (page 15), it’s “ghastly” (page 16) and “horrible” (page 50). And instead of telling the reader not engage in a certain drafting practice, he tells us to “detest” it (page 148) or “renounce” it (page 308). Generally, in formal prose I prefer simply saying what the reader should do or not do, and why.
Second, for all that he tells the reader not to use zombie nouns, he’s not averse to using them himself. Here are just two examples (besides those noted above in “after” examples): On page 72, the heading “Minimize the duplication of ideas” is followed immediately by “Eliminate repetitiousness.” I’d say instead, “Don’t repeat yourself.” And instead of the heading “Impose consistency in numbering,” on page 81, I’d say, “Be consistent in how you use numbering.”
And third, his prose can verge on the precious, as in “readers of any ilk” (page 102) and, yes, “picayunish.”
A Kind of Bait-and-Switch
To reach the conclusions described above, I had to look closely at the book, with a lot of flipping back and forth. When I stepped back and considered the book more generally, I realized that only scattered pockets of text attempt deal with important contract usages. The holes in his coverage and his failure to address in a meaningful way topics such as efforts provisions and representation and warranty show that this book isn’t a text on contract usages generally.
Instead, for the most part Garner simply gives the prose of contracts the treatment he gives general legal writing. Leaving aside the appendices, most of the book (pages 14–73, 115–53, 201–37, 305–451) relates to topics I group under the rubric “Drafting as Writing”—applying to contracts principles that can be used to improve other kinds of legal writing, or any writing.
It’s telling that for further information on issues of word usage not covered in this book, he points readers not to books geared to contracts but instead to two of his books on general legal usage, his book on general English usage, and The Chicago Manual of Style.
Garner’s Guidelines for Drafting and Editing Contracts is exhausting, because of all the padding and the chaotic structure. It’s deficient, because the guidance it offers primarily relates to matters that are a relatively low priority for drafters. It’s unreliable, because of all it omits, because of its mistakes, and because of the suboptimal drafting in the “after” examples. And it’s disappointing, because it adds further misinformation to the already inefficient marketplace of ideas for contract drafting.
Garner could have stuck to his strengths and made this book explicitly about principles of general legal writing that apply to contracts. But I’m not sure there’s a need for such a book, as that information is already available in Garner’s other books.
[By the way, those who aren’t familiar with me can find out more by going here. And if I mention my book, it’s not out of vanity: it offers the only comprehensive set of guidelines for contract usages, it’s in its fourth edition, and it has sold tens of thousands of copies worldwide.]