It’s high time that I shift gears, in two respects.
Positive Over Negative
I’ve spent much of the past 20 years on the offense. I decided early on that if I wanted to make headway against entrenched notions of what clear contract language looks like, and if I wanted to keep myself and my readers interested, I shouldn’t pull my punches. And by temperament, I bridle at waste and stupidity. So you’ll find polemic in my blog posts.
I’m OK with how that has worked out, but being on the offense is no longer enough. For one thing, I no longer have an opposition: there’s no traditionalist commentariat to speak of. Instead, we just have those who have unwittingly been assimilated by the Borg-like copy-and-paste collective. So when it comes to guidelines for clear contract language, A Manual of Style for Contract Drafting is by default the new orthodoxy. (And it doesn’t hurt that the Delaware Court of Chancery sees fit to cite my work. See for example this 2020 blog post and this 2018 blog post.)
Furthermore, MSCD gets us only so far. In effect, I point readers toward components they can use to build whatever contract they wish. But it’s a copy-and-paste world, so most people don’t have the time, inclination, or expertise to build their own contracts. They want to copy.
So going on the offense by critiquing the drafting of others has increasingly seemed like it’s beside the point, at least for now; I’ve been holding my tongue.
To move beyond MSCD, I have to offer an alternative to copy-and-pasting. I’m now exploring what infrastructure I might use for the sort of initiative I’ve long advocated. Wish me luck.
Message Over Messenger
Another implication of MSCD being the new orthodoxy is that it can stand on its own—you can consider it apart from me. (See this 2020 blog post for more about that.) It would be healthy to focus on the message rather than the messenger.
For example, when I ultimately do videos for an on-demand version of my Drafting Clearer Contracts training, I don’t need to be the one doing all the talking. I could even use actors. And I’d be pleased to have others offer their own training that features MSCD. I’ll see what I can do to facilitate that. (Updated 22 May 2023: Go here one idea—that you, instead of me, could present Drafting Clearer Contracts: Masterclass to your organization.)
I expect there will continue to be a place for live training by me, whether it be Drafting Clearer Contracts presentations (here) or my course Drafting Clearer Contracts: Masterclass (here). Because for me it’s so personal, there’s a story-telling aspect to my training. That can help get the message over.
The default orthodoxy is what the bulk of existing institutions condition lawyers to do, which is obviously not what you’d like them to do. Nobody reads or follows MSCD without paying $150 and reading 600-plus pages. A vanishingly small number of law schools and law firms require this. It’s an opt-in, and a pricey one.
Unless what you want to defend is pole position in the very narrow niche of contract drafting book publishing, I’d encourage you to stay “on the offensive”. But understand the proving ground isn’t law journals or Twitter or blogs. It’s practice. If buying a pricey book, reading it, and following it were necessary to compete as a contracts lawyer, you’d be in the same position “orthodoxy” is now: fully able to take criticism from all comers, shrug, and keep billing.
Hi Kyle. You’re not telling me anything I don’t already know. A comprehensive set of guidelines for clear contract language is necessary if we’re to make progress, but it’s not sufficient: only a small proportion of those who work with contracts have the time, inclination, and aptitude to digest and apply what’s in MSCD. We also need a way to scale up quality contract language. That’s what I’ve long been trying to do, and it’s what I’m working on now.
That has nothing to do with my “positive over negative” comments. They relate simply to my no longer finding it helpful to critique the drafting of this company or that law firm. What’s required instead is a solution.