What to Do When the Other Side Wants to Change Your MSCD-Compliant Language

Longtime reader Michael Fleming sent me the following cry of pain:

Below is a little taste of a markup I received from the other side of a deal I’m working on:


This Mmaster Sservices Aagreement (“Agreement”) is dated ________, 20__ (the “Effective Date”) and is between FLEMING’S CLIENT, INC., a Minnesota corporation (“Client”), and IDIOTIC LARGE COMPANY, INC., a Wyoming corporation (“Idiot”) (each, a “party” and together, the “parties”).

(Names changed to protect the innocent.) The rest contains a bunch of similarly nonsubstantive but pointless changes. How can we ever make progress when this crap keeps coming back whenever I write Adams-fashion? My client, a very forward-thinking ad-agency guy, likes your style but he’s more interested in closing a deal than in advancing the cause of rationality in contract drafting, so I have to swallow these changes. All I can do now is seethe and gripe to you about it.

Here’s my take on this:

In the introduction to MSCD, I say that “readers shouldn’t notice any jarring difference between a contract containing traditional usages and one drafted consistent with the recommendations in this manual—this manual seeks to work within the prevailing idiom.”

But that said, it’s likely that anyone who’s a mindless slave to traditional usages will, on reviewing an MSCD-compliant draft, instinctively seek to change the language back to what they’re used to. I don’t know how often that happens—I’d be interested to hear, dear readers, what your experience has been.

An obvious response would be to tell anyone requesting changes that you’re only going to consider changes that have a bearing on meaning, and that nothing would be gained by racking up lawyer time discussing stylistic changes. It’s standard deal etiquette that you stick with the drafter’s language unless you have good reason for asking for a change.

But once the other side sends over their markup, it might be difficult simply to ignore extraneous changes, particularly if your client is hot to do the deal. So you might want to launch a preemptive strike by including something along the lines of the following in any email that accompanies your draft of any contract, or as a footnote in the draft itself:

Note that in many respects the language used in [the attached] [this] draft complies with the recommendations contained in Kenneth A. Adams, A Manual of Style for Contract Drafting (ABA 2d ed. 2008).

This book demonstrates that many traditional drafting usages are inconsistent with clear, modern, and effective drafting, and it recommends alternatives. Consequently, you may find that some usages that you employ routinely in your contracts aren’t present in this draft.

Before you ask that any traditional usages be restored to this draft, please consider whether restoring them would change the meaning of any contract provisions or make them clearer. If it wouldn’t, making those changes would serve no purpose.

And please consult A Manual of Style for Contract Drafting to see what it has to say about any usage that you seek to restore—it may be problematic in ways you hadn’t considered. It’s in the interests of both sides not to spend time making, or even discussing, changes that have no bearing on the deal or that might confuse matters.

What do you think?

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.

16 thoughts on “What to Do When the Other Side Wants to Change Your MSCD-Compliant Language”

  1. A preemptive email or footnote like that would certainly serve as a nice piece of viral marketing material for MSCD, which in turn would help advance The Cause of saner contract drafting. But I doubt many lawyers are going to want to conspicuously proclaim their devotion to good drafting style.

    Another approach might be to use Word comments (which most of us probably do anyway) to flag the offending changes with a slightly-snotty remark, such as (off the top of my head): NAGUOTBIYIF, standing for Not a good use of time, but if you insist, fine ….

  2. I’d say it happens ALL of the time when there is an actual negotiated document.

    From my own experience, there are two real impediments to getting drafting done well: 1. mindless drafters, and 2. institutional inertia.

    I can’t tell you how often I get a draft back from a more senior associate or partner with changes to the introductory clause. Inevitably, someone adds the “individually a party or collectively parties” language and the (the “Agreement”) language. In those cases, I’ve learned not to mess with those attorneys and just give it to them that way.

    On the flip-side, fewer changes are actually made to the body of the agreement. Occasionally, I’ll get someone that replaces “interest” with “right, title and interest” or changes that scream of belt, suspenders, and duct tape lawyering, but I can usually live with those changes.

  3. Mike: Bear in mind that changes sought by higher-ups on your side are a different, and trickier, matter than changes sought by the other side, in that you can’t ignore them. That’s something I discussed in this September 2006 post. Ken

  4. My only concern with adding Ken’s suggested footnote is that it means I have actually created an Adams-compliant draft. The only thing more annoying than getting back a traditionalized contract would be for somebody smarter than me (or with more time…) to point out all of the Adams-disapproved things I’ve still got left in my forms… (Sadly, I’m not perfect. Yet.)

  5. Michael: My proposed language says “in many respects … complies.” I wanted to give drafters plenty of wiggle room to do things, intentionally or unintentionally, other than as recommended in MSCD. Ken

  6. One possible means of forestalling knee-jerk editing is to strengthen the reference to MSCD in the cover note as if it were the Blue Book (anybody here think it unethical to assume the authoritativeness of Ken’s book?), thus: “The phrasing of this contract is drafted to comply with the [deliberate change of article, omitting the capital] Manual of Style for Contract Drafting (ABA 2d Ed. 2008) [sorry for dropping your name, Ken, but it’s for the greater good here]. Changes in MCSD-compliant language should not be proposed unless greater clarity or the specifics of the transaction so require.”

    Another tack would be to say that the drafting party *requires* that contracts comply with MSCD, which we certainly hope to be the case, and in aid of which we might merely, in the words of Gilbert’s Maj. Gen. Stanley, “in elegant diction/indulge in an innocent fiction/which is not in the same category/as a regular terrible story.”

    If the counterparty doesn’t buy any of this, one can then sigh and report that the client must be consulted to approve deviations from its standard wording, and wouldn’t it save time and money not to kick matters upstairs that have no substantive bearing on the deal?

  7. Vance: By all means drop my name, but you should keep the indefinite article in the title.

    More to the point, I’d love it if you were to try these positions out and report back.


  8. I think Ken’s first suggestion is the best, and even if your client is “hot to do the deal”, I think the following is still a good bet:

    “Dear X,

    Thank you for your comments, all of which prove your unimpeachable genius as a deal lawyer (or words to that effect). I have incoporated all the substantive comments into the current draft, though in the interests of time I have not included all the cosmetic changes.”

    In this way you can demonstrate that you are focussed on time and cost, while maintaining the good drafting. If they insist on their comments, you can be sterner, and still invoke time/costs as perfectly valid reasons for ignoring their points.

    Of course, there may come a point where you should give in – some people are beyond help.


  9. I took up a suggestion from a seminar I attended. On turning the first draft of larger commercial deals, I now usually add a footnote explaining the rationale for each change I make. After having done this several times now, I noticed the following effects:

    (1) I am less likely to make changes that are stylistic, unless I identify specific reasons to do so (like ambiguity). For example, I won’t change:

    This Services Agreement (this “Agreement”)

    (2) I had way fewer changes come back to me than I usually encounter. I think this is partly because I am self-editing and partly because it is easier for the other side to consider our viewpoint outside of the confines of a telephone negotiating session.

    (3) The logistics of the back-and-forth drafts worked better, especially when I included something like this as my first footnote:

    This is [my company] draft dated [date]. We have used footnotes throughout to state the reasons for our changes. For the next draft, we would appreciate it if, using Microsoft Word’s “Track Changes” features, you would reject all of our footnotes (so they don’t show up in the next draft), then accept all our other changes and make your own changes with “Track Changes” turned on (so that only your changes show up in the next draft). We’ve included a clean draft that does that, for your convenience.

    (4) I’ve found that words of authority are the biggest stylistic change I make consistently. So, I use something like this footnote the first time I do that:

    For words of authority (such as shall, must, may, will, and should), we have used the American Rule consistently, as detailed in Kenneth A. Adams’ A Manual of Style of Contract Drafting (ABA 2008).

    Interestingly, on the last such deal, the very bright lawyer on the other side noted that he had the first edition on his desk and reads this blog. (Hi, Chris!) I think that was a very easy deal to close partly because we shared a perspective.


  10. Chris @ 3:35 p.m., I’ve had the same favorable experience as you when I explain why I make changes.

    I’ve found it helpful, though, to use Word comments instead of footnotes. The former are (normally) tagged with the author’s initials and a serial number. That allows them to remain in the draft without confusing people. They can be deleted all at once with a single comment. (I used to use footnotes instead of comments because comments couldn’t be deleted en masse like that.)

    I’ve also found it helpful to put in a comment for every non-trivial change I make — that way, when the lawyers do get on the phone to discuss the markup, we can just proceed seriatim through the (numbered) comments and their associated changes.

  11. D.C. @ 4:15
    I don’t like comments. Being general counsel for my company, I mostly do commercial deals, not corporate ones. A business person sees every deal, but there are a lot of different business people seeing different deals. Many of them are very unsophisticated about Word. Getting them all to make sure they look for and read the comments would be a struggle. I can’t count the number of times where I’ve asked the business people what our response to a comment was and they were totally unaware of the comment’s existence.

    I’d be afraid of that happening on the other side, too, if I put my remarks in comments. With footnotes, they are highly visible. It avoids the risk that the other side, in a big deal, took positions not realizing that we had issues in comments. The only way they can save face in that situation is for us to give on some of the issues in our comments. And, as we seasoned negotiators know, saving face is sadly huge for a lot of people.

    I can, of course, solve that problem by spending more time on each deal, making sure that the relevant business people (on both sides!) have read the comments, and so on. But my business is the mass-production of deals. I don’t want to spend the extra 10 minutes on each turn of each deal to make sure that everyone has read everything. That would have too high a cost in foregone business.

    I’m not sure whether you are saying that deleting footnotes was to hard or too easy, but I find deleting the footnotes is easy (either one at a time or all at once). To delete all at once in Word 2003, select any footnote; from the menu bar, select Format, then Styles and Formatting; at the top of the Styles and Formatting pane to the right, click on the Select All button below the Footnote Reference drop-down box; then hit the delete key. Poof! All the footnotes are gone.

    If your business is mainly corporate, I can see how using comments would work. You have the chance to introduce yourself to the opposing counsel before the first turn of the draft and can discuss the logistics. In the commercial deals that I do daily, there is usually no counsel assigned on the other side until they receive my first re-draft of their form. Persuasive footnotes, highly visible to the business people, may even induce them to decide they don’t need legal counsel if they feel that our position is fair. That’s a good thing.


  12. Track changes also have a risk of accidental disclosure of data. Where changes or comments are hidden, internal comments can potentially be sent accidentally to people who should not be seeing them.

    At our law firm we are told not to use them for exactly this reason. An example is cited of a firm (I don’t know which) sending a draft document to a client which, when track changes were revealed, showed the precedent used – i.e. another client’s document.

    This also happened (in a political context) to ex-UK Home Secretary Charles Clarke, who once sent his internal comments on a terrorism document to the opposition party in error.

    I use Workshare to show changes, and either write comments in the text in bold (and highlighted, depending on the client), or put them in the accompanying email.

  13. I find the best solution to this problem is to incorporate only the substantive changes from the other side into the subsequent draft.

    This forces the other side to justify everything else.

    Also, re Art’s comment on track changes, I’m aware that many firms discourage its use for the reasons you mention. My opinion is that lawyers are responsible for understanding their documents, and that includes the use of metadata. Track changes is an incredibly powerful tool. To disallow it because there is a chance someone might not be bright enough to use it properly is wrong-headed. Baby/bathwater, etc.

  14. I agree with the attitude that a lawyer should be responsible for their document, but I can also imagine the view from a firm’s management. It is no good to them, if a breach occurs, to say that the lawyer responsible just was too dumb – the firm is held responsible, and the management are responsible for the firm, so by that point it’s too late. If you are in a firm with 1000 lawyers, management aren’t going to look at it on a personal level anyway, and the chances of a breach increase proportionately to headcount.

    I don’t like being nannied, but so goes the world…


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