Contract Drafting: Art or Science? (I Thought of It First!)

This post by Mark Anderson last week used the title I had planned on using for a post of my own. Rather than launch a denial-of-service attack on IP Draughts, or send the boys round to see Mark, I decided to embrace the coincidence. Read our respective posts for deep insight into our creative processes. Or not. Next up, Mark and I will each be shown the same Rorschach test and will report what we see, with the findings being made public.

***

Recently I saw the following tweet by @AhmedHasan:

https://twitter.com/AhmedHasanCA/status/498620759808696320

I know what Ahmed is saying: reliable drafting requires following authoritative guidelines rather than improvising. But I thought I’d permit myself a closer look at this.

Is contract drafting an art? Not if art requires something of the ineffable. Looking for beauty or emotional power in contract drafting? You’ve come to the wrong place, friend.

Is it science? Is it (using Google’s formulation) “systematic study of the structure and behavior of the physical and natural world through observation and experiment”? Uh, no.

So what is it, if it’s not art or science? I suggest that it’s a craft—the skilled practice of a practical occupation. The limited and stylized nature of contract prose leaves no room for the art found in some other kinds writing. And although I’ve been known to suggest that the prose of contracts is analogous to software code, perhaps the fact that unlike software, contracts are to be digested by the end user is what renders inapplicable arguments to the effect that computer programming isn’t a craft. (For example, here.)

But let me get more specific, before you start thinking in terms of drafters being craftspeople, each with—heaven forbid—their own style.

For effective contract drafting, you need quality raw materials—the building blocks have be clear, concise, and consistent, and they have to make sense. The craft in contract drafting shouldn’t reside in coming up with the raw materials. Instead, it lies in one’s command of the raw materials and applying them to achieve an end. As I suggested in this post, a consistent set of usages still leaves all sorts of room for creativity, just as an architect isn’t hamstrung by having to work with materials that meet codes and specifications.

So you follow rules when it comes to usages, then ply your craft to build a contract with those usages.

By the way, just because I think that contract drafting is more craft than art or science doesn’t mean that I’m a fan of referring to “crafting”contracts. It’s too cutesy a word.

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.