Drafting by Committee? Not So Good

Today Rees Morrision posted this item on his blog. It makes the point that groups are good for sharing information but not so good for making decisions. It also quotes an academic as saying that “Groups are not helpful in getting people to make better decisions, but they’re helpful in getting people to feel more confident about the decisions they’ve made.”

That explains why all sorts of organizations (1) make a hash of their template-drafting initiatives by indulging in drafting by committee and (2) feel entirely virtuous about their work.

By “drafting by committee,” I mean the process of deciding on contract language by majority vote. (You can have drafting by committee whether one person or many contribute the language that’s being vetted.) It results in contracts that incorporate traditional usages and reflect the conventional wisdom—not a good outcome.

But obviously, it’s beneficial, indeed essential, to get the input of others. For one thing, it’s likely that both the language and substance of any given draft would benefit from it. Also, if you’re drafting something that’s to be used by a broad group of people, giving them the opportunity to participate would likely make them more inclined to adopt the end product.

But it would be best to have the group defer to a designated expert. In many organizations that would be unrealistic. Heck, in many organizations (namely law firms) sacrificing any individual autonomy would be a tough sell.

[An astute comment by reader Art prompted me to revise this post shortly after I initially posted it.]

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.

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