This week I received the following inquiry from a reader:
I’m a lawyer, and I’ve been working with contracts for the past five years. Your blog has been the first place I look for guidance on drafting questions. Thank you for being a great resource.
I find that many lawyers resist implementing the modern approaches you discuss. Typically, I feel that I’m forced to accept the usual archaic stuff. For example, a lawyer on the other side of one deal accused me—while my client was on the call—of wasting my client’s money by pointing out drafting issues.
Do you have any advice or resources that could help me convince others not to blindly accept what they’re used to?
We’re not dealing here with how the other side responds to your draft. (For more on that, see this post.) Instead, it’s a matter of how you respond to their draft.
I’m afraid that it does make sense for you to accept much archaic stuff. If an archaism won’t ever lead to a fight, nothing is gained by asking the other side to strike it. So don’t object to, say, witnesseth or the traditional recital of consideration, or ask that the other side get rid of some shalls. All you would do is waste time and aggravate people.
But that still leaves a lot to comment on. And the more that’s at stake, the greater the chance of a bit of confusion leading to unhappiness. So to use an easy example, I’d always ask the other side to strike and hold harmless from indemnify and hold harmless.
Sometimes the issue might be a subtle one, but if enough is at stake and I can point to a problem caused by the usage in question, that would be enough for me to ask that it be fixed. For example, use of may in restrictive relative clauses seems a modest enough issue, but this 2014 post describes how it confused one court.
What happens if the other side objects to that sort of change? Explain to them why you requested the change: the usage in question is not only awkward, or archaic, or ungrammatical, it could also result in a fight. Readers have told me that invoking A Manual of Style for Contract Drafting—even flipping to the relevant page—has helped them make this sort of point. If whoever is on the other side is sensible and has half a brain, they’ll realize that you’re trying to improve the draft for everyone.
How do you behave if the other side is obstructionist? I’m not equipped to hand out that sort of advice, as it’s been too long since I did deals, but I suspect it all depends on the people involved and who has the most leverage. I expect I’d get testy, but that’s just me :-)
Any suggestions?
I frequently negotiate agreements, and it can get tricky when someone brings ego into play. I’ve certainly cited Ken in the past, although I try to avoid any changes that may be seen as not substantive.
The goal of eliminating archaic terms to make the agreement more easily understood for anyone who may read it is a reasonable aspiration.
I do love the idea of the reader’s counterparty saying “your observation of my shortcomings is wasting your client’s money!”
This discussion troubles me. If MSCD style, a/k/a “Clear Modern,” makes contracts clearer, easier to understand, and less likely to generate disputes, is that not “substantive”? Is that not “material”?
To those who say “the deal” is one thing and “wordsmithing” another, Ken has said that when disputes break out, the deal is what the contract says it is, so “wordsmithing” matters.
I’m resisting the proposition that when the other side gives you a draft stuffed with archaic usages, you should push back only in those few cases where it “matters,” where it’s “substantive,” where it’s “important” or “central” or “critical” or “vital.”
The corollary of that proposition, it seems to me, is that MSCD style is an aesthetic affectation, mostly not important enough to fuss about, or fuss much.
That still leaves the practical problem of what to do when the draft you receive is bad, but your client hasn’t the clout to make changes stick.
I guess in that situation, one has two options:
(1) Try to get the one or two most important changes made and let everything else go; or
(2) Ask for those one or two changes and respectfully suggest that the remainder of the proposed changes aim at making the contract clearer, shorter, and simpler, and your client has asked you to include them for that reason, but they won’t kill the deal. Too wimpy?
Of course, even a client willing to pay you to put your own first drafts into MSCD style and submit them with “the note” might be unwilling to pay you to revise the other side’s trad-style first draft into MSCD style as a matter of course.
Yes, getting the other side to go fully MSCD-complianat would make their draft clearer and shorter. But they’re probably not equipped to do that sort of work, and they would likely not respond well to being asked to do it. And even if they welcomed your doing it, it’s not realistic to expect that you have the time to routinely retool the other side’s draft.
In that context, I think it’s appropriate to fix that which doesn’t reflect the deal or has the potential to create confusion and ignore the merely wordy and archaic.
You are doubtless right as a practical matter, but you are implicitly conceding that wordy and archaic usages may perfectly reflect the deal and run no risk of creating confusion.
If so, MSCD style is reduced to something some drafters prefer to traditional style, the way some people prefer canasta to mumbletypeg.
I feel as if I’m being more ursine than the bear.
This provides good food for thought, thanks. I recently found myself dealing with the opposite situation – a contract drafted by a Large Legal Research Company, where they had “mostly” switched to what I call “plain English” style, the supposedly user-friendly, easy to read by mere humans way of drafting. But they had not changed it entirely. And I had the “benefit” of comparing this to last year’s version of the same document, prior to the change. I liked last years, at least it was written in a language that I can understand! The switch was inartful at best. Terms that should have been defined were no longer defined, making the document less clear. And in other places, they retained the previous “legalease” style, creating inconsistencies. I had to keep myself from commenting about the shortcomings of their partial change to “plain English” and how this made their contract horrible… I wrote all the comments and then deleted them in favor of not antagonizing, instead just focused on the sections where lack of a defined term (or lack of language that made it clear what the term should mean) created a problem for my client.
I’d be interested to know which Large Legal Research Company this was. If you feel able to, please tell me by email.
I work in-house and spend a lot of time working on IT contracts. Of course, like many companies, we have templates we try to use when we can. So I spend a lot of time negotiating with other lawyers who want to try to “fix” our templates. Which means I’m frequently in the role of the lawyer the reader is complaining about – the one resisting changes to the document. (Of course, this is in the specific context of a situation that starts with one sides template – but I suspect that describes a lot of deal these days).
I get it. Language matters and the choice of what language to use can have real and substantive consequences. Our templates are not perfect and revision will always be necessary to tailor the final contract to the deal being negotiated. I didn’t write them so I have no ego attached to the process. And I’m reading this blog and generally agree with what Ken writes. I’m on board with clearer contracts.
But the decision to use a template in the first place already reflects a decision by the company to accept some level of risk in order to move deals quicker and to make efficient use of resources. That means that I’m unlikely to want to spend time discussing a revision unless it’s clear to me that the risk involved with not making the revision rises above that level of acceptable risk.
So my advice to a lawyer who feels a change is important: tell me why it’s important. Too many lawyers will send back a redlined draft with 500 revisions and not a single comment explaining the changes. And then when I ask why a particular change is important, they struggle to provide an explanation. And when every lawyer wants to “fix” the template in a different way, it’s easy to get cynical and start to feel like these “fixes” are really just matters of personal preference – not necessarily better, just what the other side is used to. The best way to get me on board is to show me, up front, why this isn’t the case.
Thank you for this.
Matt, your comment makes sense to me, and as a fellow in-house attorney, I understand where you are coming from. However, I often find myself in the opposite role you are describing as well, which is making 500 revisions to a document without providing corresponding comments.
To the extent that I am dealing with a reasonably fair agreement that places associated risks with the party that is best able to mitigate or control it, that is being compensated to accept it, or that is otherwise willing to accept it, I think your point is a fair one, and I make comments to explain my proposed revisions (and am always willing to further discuss on a call or in a meeting).
On the other hand, when I see an unreasonably one-sided agreement that essentially attempts to foist all risks onto the other party (e.g., an IT agreement where the customer (my client) is expected to bear the risk of the service provider’s off-the-shelf solution infringing the intellectual property rights of third parties). I might make 500 revisions possibly without providing a single comment.
Granted, in that case, I generally would send an email to my client to be forwarded along with the revised agreement in which I explain why there are so many changes, explaining that we cannot reasonably sign the agreement as-is, and that I made changes throughout to address the concerns I had (and possibly bullet-point a few of the most significant revisions). My aversion to comments in these cases, though, is that my revisions are made for obvious substantive purposes, and that there are simply too many for it to make sense to discuss point-by-point until we are closer.
My only point is that the more aggressive the terms of a standard agreement, the more pushback one can expect. Many (but certainly not all) large vendors seem to have grasped this and have reacted by making their agreements quite reasonable (although unsurprisingly still skewed in their favor), and I am sure it has cut down on administrative costs. In these cases, I generally justify all proposed revisions with comments.