Dear U.S. Contract Drafters: The World Be Hating on You

Yesterday I spotted the following tweet that @mcfandrew86, research development officer at Queensland University of Technology, Australia, apparently posted while at a contracts workshop:

Then there was this last week from @IPDraughts, also known as our own Mark Anderson, who is based in England:

And on September 4, another Australian, lawyer @MariamVeiszadeh, took a break from her prolific human-rights tweeting to make the following observation:

As the old saw has it, three is a trend. Dear U.S. contract drafters, the world isn’t inclined to show you much love.

And I can’t say I blame them. Hey you, BigLaw drafter! It’s very likely that your contracts range from so-so to disastrous. (Go here to check out my critique of the Google–Motorola Mobility merger agreement. Or go here to see my assessment of an extract from a BigLaw model confidentiality agreement.) But that won’t come close to putting a dent in your cast-iron smugness.

And you, Fortune 500 contracts lawyer! Compared with law firms, your company is in a far better position to take control of its contracts, given that you use a limited number of templates repeatedly. But it’s very likely that your contracts range from “meh” to calamitous. (Go here for “before” and “after” versions of a representative big-company template.) And it’s very likely that your contracts process is patched together with duct tape and leaks at every seam. But you’re comfortable with the status quo, even though your company keeps frittering away time and money and assuming unnecessary risk.

I don’t say this with any relish. It’s just the way it is. Yes, I’m sure there are plenty of exceptions, but in general the rueful sniping on Twitter is justified.

At the same time, I suggest to the rest of the world that no one has cause to be complacent. Hey, England! Sure, U.S. drafting can bore you to death. But you, with your terms-of-art fetishes (for example, here and here), you flat-out scare me. And Australia, yes, you’ve done a great job of ridding your contracts of a lot of mindless stuff. But that’s the easy part. Based on my review of a sample of contracts drafted by some of the bigger Australian law firms, there’s plenty of room for subtle but important improvements. (Go here for my assessment of Australian drafting prompted by my visit there last spring.)

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.