Changing Contract Legalese: My Response to Keith Lee

Keith Lee is the lawyer behind the blog Associate’s Mind. He’s also author of The Marble and the Sculptor, a book for law students, but that’s beside the point, because what’s on my mind is his most recent blog post.

It’s entitled “Should Lawyers Ditch Legalese?” It mentions my recent Beyoncé-inspired post, but I stuck around to read his recommendations on how lawyers should handle legalese.

I hope Keith won’t mind if I quote a chunk of his post:

On some level, I sympathize. A lot of “legalese” is dated. It’s confusing and awkward even for lawyers, let alone regular people. The desire to make things easier for people to understand is laudable. But changing things for change’s sake isn’t good either.

…

Put simply, don’t ever take a fence down until you know the reason why it was put up. It’s no different in a law firm.

Policies and procedures that are in place are likely there for a purpose – another attorney set it up that way for a reason. The same is true with the contract. You might look at something and see it as antiquated, but there is a good chance there is something there you don’t see.

Another lawyer with years of experience and perspective drafted the contract for very specific reasons. They are not looking at it on an individual basis, but how the process has been handled over the course of dozens of cases. The process is designed to address multiple problems that could occur along the way. What might seem inefficient to you could actually be the appropriate amount of due diligence required to make sure something is done right.

For three reasons, I suggest that this is too deferential on Keith’s part.

First, his view of how the contract process works bears no relation to the copy-and-paste-happy world that I’m familiar with. If something’s in a contract, it’s likely there for a reason? Because an experienced lawyer put it there, based on experienced gleaned from observing the contract process over dozens of cases transactions? Maybe that’s Keith’s experience, but it sure isn’t mine. Instead, most contracts I see exhibit all the signs of passive drafting. They’re put together by busy lawyers who have little or no rigorous training in contract drafting and who are prone to relying on conventional wisdom—”Someone told me that …” They take defective precedent contracts—the result of generations of copying and pasting—and make only those changes required to reflect what’s different about the transaction at hand. Everything else, they take on faith. (In the circumstances, they likely don’t have any other choice.)

Second, Keith acknowledges shortcomings in legalese, but it seems he underestimates the extent of the dysfunction. “Dated”? “Confusing”? “Awkward”? Yes, but he makes it seem as if it’s all just a little unfortunate. Me, I regard it as a grotesque waste of time, money, and opportunity. It’s a disgrace. My writings contain copious evidence to that effect.

And third, Keith’s standard for when you should change legalese is too constraining. Don’t get rid of contract language unless you know why it was put there? By that standard, I’d have to retain the successors-and-assigns provision, even though I wrote an article (here) in which I consider a bunch of possible functions for the successors-and-assigns provision and find them all wanting. And the approach Keith advocates was apparently behind the pari passu clause being retained in sovereign-debt contracts, even though no one could come up with a convincing explanation for why it was there. The result was a litigation train wreck that is only now being sorted out. (For more about that, see my essay about a book on the subject, here.)

So Keith’s base position is a sensible one—don’t change stuff unless you know what you’re doing—but he elaborates on it in a way that suggests he misunderstands the contract process, underestimates its dysfunction, and would have us keep useless stuff in contracts.

I’ll now go out on a limb and suggest why Keith has offered this advice. It’s because his background is primarily in litigation.

I gleaned that not just from his law-firm bio. There’s also the sample dispute-resolution provision he quotes—I’d wager it’s from a settlement agreement or other litigator-drafted contract. And there’s his use of the word “cases” in referring to the contract process.

In my experience, being a litigator isn’t conducive to becoming an informed consumer of contract language. Litigators deal in contract autopsies, so they don’t create contract language, they just dissect it. As a result, they tend to assume that the universe of contract language is limited to the language that makes it to court. That leads them to buy into the notion of “tested” contact language, a topic I discussed in this recent post. And they underestimate what can be achieved by a drafter with a real command of the building blocks of contract language. That explains why I’ve found wanting much advice on contract usages offered by commentators on legal writing who have a background in litigation. (But with some retooling, litigators can certainly become transactional types; see this blog post.)

So Keith, there’s bad news and good news. The bad news is that mainstream contract language is worse than you think. But the good news is that anyone who takes the time to become an informed consumer of clear and modern contract language would be qualified to do something about it. Whether the forces of inertia would allow them to do so is a broader question.

And Keith, I’m glad you chimed in. Although I take issue with what you say, I hope I’ve done so in a way that isn’t too obnoxious.