I was recently reminded of the following, from a work on contract drafting:
Effective writing consists of clear communication of the subject matter to its intended audience. The audience for commercial contracts is sophisticated business people and their lawyers. The notion that complex commercial contracts should be written in plain English, so as to be understood by people who would never be expected to read them is an unreasonable extension of the plain English movement.
The notion that business contracts should be written so they’re understood by the person in the street is a straw man: I’ve never heard anyone suggest that this should be a goal of clear, modern drafting.
The problem with traditional contract drafting isn’t that consumers can’t understand it. Instead, the problem is that traditional contract drafting is so defective that it causes companies to waste lots of time and money and assume unnecessary risk.
I draft for the district court judge who will hopefully never need to read my document.
If you mean that you use “tested” contract language, that’s exactly what I don’t do. I draft to steer clear of judges.
I spend a lot of time translating from business-language to plain(er) language. My sophisticated business people often speak in cant. If I have difficulty understanding what they are telling me, (and I often do) then I assume that the parties tasked with fulfilling the contract may also have difficulty understanding the contract. I aim to draft contacts that a clever high-school student can understand. Mostly, that means simplifying the sentence structure and using dictionary definitions.
Understood.
What are the ills of traditional contract drafting that clear modern drafting cures?
Presumably lack of clarity and lack of modernity.
Why are clarity and modernity desirable?
Taking modernity first, probably because it’s clearer to modern people than traditional language, so modernity is really a subset of clarity.
Why is clarity desirable?
Because it avoids disputes, which are harmful even if they don’t go to court.
Is there a more positive way to describe the benefit of clarity than ‘dispute avoidance’? I’m reminded of one court’s ‘delay prevention’ program
Several. ‘Performance of deal’, ‘discharge of duties’, ‘ achievement of goals’, ‘fulfilment of expectations’, and ‘improved signal to noise ratio’.
I probably can do without “modern.” I’d go with “clear and concise,” but if I’m limited to one word, “clear” would do.
The benefits? Save time, save money, be more competitive, and reduce your risk.
Your litany contained a lot of buried verbs! :-(
1/ I’ll take the hit on the buried verbs. I was trying for parallelism with ‘benefit’.
2/ If you let go of ‘modern’, you lose the contrast with ‘traditional’, and the enemy is only lack of clarity. That’s fair; much traditional contract language is clear as a bell. (Cliche siren goes off.)
3/ If concision is its own virtue and not just a way to achieve clarity, what are its specific benefits? (I mean practical benefits, not beauty and preserving a sensitive drafter’s sanity, important as those benefits are.)