Don’t Be Unduly Deferential to Contract Language

Cousin Joshua Stein pointed out to me this post on Above the Law. It’s by Keith Lee, who has his own site, Associate’s Mind.

Keith’s post is about the perils of hasty change:

Put simply, don’t ever take a fence down until you know the reason why it was put up.

Policies and procedures that are in place are likely there for a purpose—another attorney has set it up that way for a reason. The same is true with [a boilerplate contract used by the law firm for a certain type of real estate deal]. More than likely there is something there you don’t see. Something their experience and perspective provides that you can’t perceive. They are not looking at it on an individual basis, but how the process has been handled over the course of dozens of cases. The process is designed to address multiple problems that could occur along the way. What might seem inefficient to you could actually be the appropriate amount of due diligence required to make sure something is done right.

I have no quibble with Keith’s recommendation that any associate at a law firm speak with a more senior lawyer before changing anything in a form contract that the firm has used for a particular kind of transaction. But Keith seems to have greater faith than I in contract language.

Assume that contract provisions “are likely there for a purpose”? Well, I’ve been unable to attribute a meaningful purpose to the “successors and assigns” provision (see this article). From the book The Three and a Half Minute Transaction (mentioned in this post), it appears that no one has been able to attribute a meaningful purpose to the pari passu clause, long a feature of sovereign-debt contracts. And A Manual of Style for Contract Drafting describes all sorts of traditional usages that make no sense.

So of course be careful about making changes to form contracts, particularly if you’re an associate. But beyond that, traditional contract language merits skepticism as much as deference.

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.