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:
MASTER SERVICES AGREEMENT
master S services A agreement (“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?