Contract-Drafting Writer’s Block?

This summer I had the following exchange on Twitter with @DevonMSmiley:

It got me to thinking about the writing that I do. Blog posts and articles? That’s more like fun than work. Exploring in depth a particular provision? That’s like a puzzle. Drafting actual contracts? Well, that depends.

If a client wants me to retool an existing template, that’s a self-contained exercise, and it should be relatively straightforward.

If I’m asked to create a new contract and it’s a kind of contract that I’m familiar with, then mostly it’s a matter of reconfiguring other contracts that I’ve done. Simple enough. The ultimate example of that is confidentiality agreements: when I need one of those, I use my showcase template. As my father used to say, Bingo bango.

If I’m asked to create a kind of contract that I’m unfamiliar with, I know that I’ll be immersed in detail, and I budget my time accordingly. Again, no particular problem.

But sometimes I have to produce a new kind of contract (not for clients) in a context where I don’t have a whole lot of time to lavish on the project. That’s when I get my own version of Devon’s contract-drafting writer’s block—when the time and effort required to create a particular contract is greater than the time and effort that I’m willing or able to offer. I have a hard time getting into it. I procrastinate. Then I procrastinate some more.

The awkward thing is that I expect that many people in the expediency-driven transactional world find themselves in that situation. For example, you might have on hand three precedent contracts, all of them different, all of them cruddy, that you have to use to create a contract for a deal that doesn’t merit vast amounts of your attention. So you have to cobble something together that isn’t going to be great. Because you’d rather not do it at all, you have a hard time getting down to it.

Does that sound at all familiar?

The only cure for that sort of travail is to turn contract drafting into a commodity. Perhaps at some point the pain of endlessly reinventing a wobbly wheel will overcome the inertia, fear, and vanity that are the primary obstacles to change.

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.