Of late, I’ve been pondering the following notion: “Everyone thinks his own fart smells sweet.”
It’s one of the “Adages” of Erasmus, the Renaissance scholar. And I think it explains much of the resistance to clearer contract language.
Let’s take as my starting point the notion that the overwhelming majority of business contracts are constructed of language that varies from the mediocre to the wretched. It’s clear how that came to be—it’s due to unthinking regurgitation of the language of precedent contracts. But why the slow pace of change?
In part, it’s because any given drafter can respond to dysfunctional contract language in one of four ways, and only one of those ways involves replacing the dysfunctional language with the clearer alternative. I’ve outlined those four responses below.
Response One: “Ignorance is bliss!”
If you’re a bad tightrope walker, you very quickly find that out. But unless someone goes to the trouble of pointing them out, it’s easy to remain oblivious to the shortcomings in your contract drafting. That’s because the illusion that one is a good writer is particularly hard to shake. (That’s something I discuss at some length in this January 2007 post on AdamsDrafting.)
Given the pressures involved in doing deals, it’s unlikely that anyone will take the opportunity to do a top-to-tail overhaul of one of your drafts, even if they were equipped to do so. It might be that in order for you to become acquainted with the notion that you could upgrade your contract usages, that idea would have to penetrate the hermetic, precedent-driven transactional world. That can be a matter of chance—that’s why I try to get the word out through as many different outlets as possible.
Response Two: “It’s all good!”
Even if drafters are vaguely aware that there’s an alternative, they might have no compunction about sticking with traditional contract language. After all, drafters have different drafting styles, don’t they? Here’s what I had to say about that in the introduction to MSCD, in the section entitled “Contract Drafting Isn’t a Craft”:
It’s commonplace to hear lawyers refer to someone’s drafting “style.” The implication is that contract drafting involves craft rather than industry—that drafting involves an element of self-expression, with the drafter drawing on a palette of alternative yet equally valid usages. The prevalence of this view helps to explain why lawyers are often so reluctant to acknowledge deficiencies in their drafting.
But to think in terms of drafting styles is to misconstrue the nature of contract drafting. Contract prose is limited and highly stylized—it’s analogous to computer code. It serves no purpose other than to regulate the conduct of the contract parties, so any sort of writerly “voice” would be out of place. As a result, the only criterion by which to judge contract prose is how efficiently it communicates information. Out of the alternative usages available to accomplish a given drafting goal, one will generally be more efficient than the others. It would make sense for all drafters to employ only those usages that are most efficient, and it would facilitate the contract process if they were to do so. Such uniformity is the opposite of craft.
So there are no drafting styles, only drafting that is clear and efficient and drafting that is less so.
Response Three: “How dare you insinuate that the emperor has no clothes!”
Some people get my message but reject it vigorously. It’s not that they do battle with me in the marketplace of ideas and emerge triumphant. Instead, they tune me out, sometimes pointedly so. I suspect that the robust ego that many senior lawyers wear like a carapace doesn’t leave much room for the constructive humility that’s required if you’re to change your entrenched misconceptions.
Response Four: “I, for one, welcome our new clarity-in-contract-language overlords.”
Once you’re aware of the alternative to traditional contract language, simple self-interest can be enough to make you welcome the notion—drafting contracts in standard English makes life easier for all concerned, saving time and money and reducing risk.
That doesn’t mean that change comes easily. Putting your contract process on an efficient footing by adopting a style guide, training your personnel, and redrafting your templates are steps that require significant resources.
But effecting that sort of change is straightforward compared to getting past Responses One, Two, and Three—the three flavors of “Everyone thinks his own fart smells sweet.”
