At the beginning of this year, I said in this blog post that you cannot be an informed consumer (or producer) of contract language without consulting A Manual of Style for Contract Drafting. No one has suggested I’m mistaken. I’m not surprised—disagreeing with me would require that you either (1) mount a spirited defense of copy-and-pasting dysfunction or (2) point to some other, nonexistent set of comprehensive guidelines.
So yay MSCD?
Not so fast. It’s not always the case that acquiring knowledge leads to that knowledge being used as readily as you might want.
In connection with knowing how to say clearly and concisely whatever you want to say in a contract, I’ve pondered the Jewish and Christian notion of eating the fruit of the tree of knowledge of good and evil. In the Bible’s version of the story, partaking of the forbidden fruit had sobering consequences. Adam and Eve became aware of their nakedness, so they made clothing out of fig leaves. And they were expelled from the Garden of Eden. So they saw things as they really are, and they were excluded from what they had known and had to make their way on their own.
How on earth does that relate to contract drafting? Well, those who become informed consumers of contract language realize that mainstream contract drafting, with its heedless copy-and-pasting and addled conventional wisdom, is systemically dysfunctional. To do better, they must change. In effect, they too have eaten the fruit of the tree of knowledge.
The metaphor is particularly apt when you consider the change that would be required for anyone who wants to escape the prevailing dysfunction in contract drafting. MSCD’s promise is that if you follow its guidelines in creating your own contracts, those contracts will be clear and concise. But as I explain in this blog post, creating contract templates—and even one-off contracts—is time-consuming and challenging. For one thing, you’d likely find yourself having to do a lot of remedial work to make traditional contract language clear and concise. But the bigger problem is that you’d also have to address what you say in a contract. In other words, you’d have to make those choices that allow your contract to be relevant. That requires deal-specific knowledge.
I’ve discovered that few of us have the time, the expertise, or the stomach for creating contracts that are not only clear and concise but also relevant. That explains why I’m routinely asked what contracts templates I can recommend that would allow users to create contracts that comply with MSCD’s guidelines.
For the longest time, the answer was clear—none! I felt sheepish saying so. I wasn’t engaged in some sort of bait-and-switch—being an informed consumer of contract language is necessary if you want to save time and money at every stage in the contract process and if you want to stay out of trouble. But being an informed consumer of contract language isn’t sufficient, because of course you would want to avoid having to do a bunch of remedial work. And you would want to be able to create a contract that expresses the deal in a way that makes sense.
I expect that many MSCD readers found they had no option other than to resort, yet again, to the copy-and-paste machine. I recall encountering an example of that: A few contracts people from a company attended one of my public presentations. A year or two later, that company asked me to do a presentation for them. As part of preparing for that presentation, the company gave me a handful of their contract templates. I included in my PowerPoint slides examples drawn from those templates, and during the presentation, I mildly observed that their templates we full of the usual dysfunction. Why hadn’t they taken the opportunity to make their templates clearer and more concise? And how did they make sure their templates were relevant? Those who had attended my public presentation shrugged sheepishly.
The lack of a source of quality contract templates has been a roadblock to spread of MSCD-compliant language. That in turn made it easy for someone to suggest that MSCD has failed (see this 2017 blog post). That’s why it has long been a priority for me to create highly customizable templates.
Now I can say, go ahead, eat the fruit of the tree of knowledge! With Adams Contracts’ new service agreement template, we now have a way forward.
