As their principal objection to tinkering with mainstream contract language, traditionalists offer the notion of “tested” contract language—mess with the standard formulations and you invite a world of risk into your lives.
My objection to that objection has been that it’s mostly offered without any backup. Usually it’s a platitude that’s invoked as a matter of expediency, to rationalize maintaining the status quo. So I welcome attempts to imbue the platitude with some substance. I wrote about one such attempt in this February 2016 post.
Another such attempt has now arrived on the scene, in the form of an article by Lori Johnson, an assistant professor at William S. Boyd School of Law, University of Nevada, Las Vegas. (Go here for her faculty bio.) Johnson has featured in this blog before, in this September 2015 post, in which I mentioned her previous article—a defense of the notion of using “magic words” in contract drafting—but declined to look at it more closely.
Johnson’s new piece is entitled The Ethics of Non-Traditional Contract Drafting. It’s available for download here. It’s described as a “Legal Studies Research Paper” published by her law school, but I assume that it might show up in a law review at some point. As was the case with Johnson’s previous article, my work features prominently in the new article. (That’s why I thought it appropriate to say what I think of this article.)
Here’s the abstract:
A new generation of contract drafters faces increasing commentary advising them to change traditional contract terms into plain language constructions. Yet, traditional, tested terms have consistent meanings, and when these meanings benefit client objectives, advocates should consider retaining them. This article posits that failing to do so can impact a lawyer’s ethical obligations. Specifically, an attorney’s duties of competence, allocation of authority, diligence, and communication under the Model Rules of Professional Conduct require careful thought about modernizing tested contract terms. These duties require the ethical drafter to research whether the use of a traditional, tested term advances a client goal more effectively, and communicate with the client concerning the risks associated with the potential change.
Johnson starts by explaining why using novel formulations instead of traditional usages could implicate lawyer rules of ethics. She then offers two examples of novel usages that she claims created problems. She closes by suggesting how rules of ethics could be “reimagined” to better address ethics challenges in transactional drafting.
But there’s no there there. She offers this big buildup about how those who follow my guidelines are flirting with danger, but there’s no payoff.
Of the two short case studies she offers, one involves use of will instead of shall. It’s interesting, and it prompted me to do today’s other blog post, but it has no bearing on my guidelines: unlike Bryan Garner, I don’t recommend using will instead of shall to state obligations.
The second case study involves using something other than arising out of or relating to in arbitration provisions. In my writings, I recommend that if you want a provision to cover more than just claims under the contract, there are clearer ways to accomplish that. (See this October 2013 post on that subject.) In the case that Johnson discusses, an appellate court held that an arbitration provision that doesn’t use the traditional formula should be interpreted broadly. How does that show that my recommendation is risky? My recommendation assumes that you want the arbitration provision to be interpreted broadly.
So as regards what I do, Johnson offers nothing—zip, zero, nada—to justify the portentous buildup. Her article is hollow. She would have been better off if she had started with examples of novel formulations that have had adverse outcomes and then drawn conclusions from that. A dearth of examples might have prompted her to drop the idea entirely.
But let’s assume, for the heck of it, that Johnson had been able to find a case in which use of wording I recommend had yielded a bad outcome. Would that have represented an indictment of my approach to contract language? Hardly. I’ve analyzed and recommended alternatives to untold dozens of usages. Do I always get it right? No—I’ve adjusted my recommendations many times over the years.
Furthermore, litigation outcomes are subject to the whim of judges. If a given judge is sufficiently addled, or is bent on achieving a given outcome, even the clearest language can be subject to attack.
It’s hardly surprising that my guidelines emerge unscathed from Johnson’s article. What I have to offer is in fact as simple as can be: Don’t express transactions using prose that’s bloated, archaic, and confusing, leading to your wasting time and money and running the risk of disputes over meaning. Instead, say whatever you want to say clearly and concisely, following the guidelines that I’ve developed over the past twenty years. That can involve novelty—for example, using states instead of represents and warrants—but that holds no terrors, because you’re saying exactly what the context calls for, and you’re saying it clearly.
Here are two other things I noted in Johnson’s article:
In the conclusion to her article, Johnson says that (emphasis added) “significant risks are associated with jettisoning all traditional, tested, legally-significant terms in lieu of phrasing more friendly to lay readers.” That’s a classic misconception. My guidelines aren’t a sop to nonlawyers. Lawyers too are bamboozled by traditional contract language; that might be what’s most pernicious about it.
And Johnson implies, in the above quotation and note 13 of the article, that I advocate eliminating all terms of art. That’s not the case; see MSCD 1.8–.9, 1.23.
In basing two articles on the alleged pitfalls in my approach to contract language, Lori Johnson has gone down a road to nowhere. And in the process, she has appointed herself champion of traditional contract language. What an unpromising cause! For anyone interested in the ethics implications of contract drafting, a far more fruitful project would be exploring the implications of unthinkingly copy-and-pasting stuff that makes no sense.