Courts Are Citing MSCD

Last week I mentioned in this post that the Delaware Supreme Court had cited A Manual of Style for Contract Drafting. Well, yesterday I noticed that in an opinion issued this week (here) the Eighth Circuit Court of Appeals had cited it too, the issue in this case being where to place the defined-term parenthetical when you create an integrated definition. (The citation is at the bottom of the third page.)

I’m not suggesting that anyone should get too excited about this, but I’m taking it as a sign that courts are starting to recognize that when it comes to contract usages, MSCD is worth consulting.

But any court that does consult it might want to bear in mind that drafting recommendations can’t always be used to decipher contract language that’s unclear: if a drafter doesn’t use the recommended way of expressing a given meaning, that doesn’t necessarily mean that the drafter didn’t intend to express that meaning. That’s why it’s generally easier for me, as an expert witness in contract disputes, to establish ambiguity rather than clear up ambiguity.

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.

2 thoughts on “Courts Are Citing MSCD”

  1. It’s naturally gratifying for an author to find his work favorably cited by courts, but in this case, doesn’t it create a paradox, since one of the theme’s of MSCD is that a contract should be drafted to be understandable within its four corners, without resort to external authority such as case law?

    I would relax the theme a tad and include a provision, perhaps a drafting convention, similar in spirit to the statement of style a junior lawyer might append to a draft submitted to a senior lawyer, or a first drafter might append to a draft submitted to the other side in a negotiation, something like, “The parties intend that this agreement conform to the recommendations of MSCD.”

    Such a provision would be a heads-up to a court wondering whether to apply ejusdem generis to a phrase like “fruit, including tomatoes.” It would alert the judge to the disciplined uses of shall, will, may, and might, as well as other nontraditional usages recommended by MSCD.

    • A. Wright: No paradox here. A court gets involved when the drafter screws up. The court looks for guidance as to what the parties had intended. MSCD can be helpful in that regard, even though its principal function is recommend how to draft, rather than assisting with a post mortem.

      Your suggested provision specifying drafting conventions is a nice idea, but there’s no substitute for simply saying clearly whatever you want to say.



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