Today I came upon yet another article exploring law students’ lack of basic writing skills: Aïda M. Alaka, The Grammar Wars Come to Law School, 59 J. Legal Educ. 343 (2010). (Click here to go to a pdf copy.)
Professor Alaka notes that “many, if not most, legal writing instructors have been surprised by the sometimes astounding lack of basic writing skills exhibited by a few of their students.” Is this something new? The following quotation in the article (taken from this article [pdf copy]) suggests that to some extent it is: “Widespread cultural changes, resulting in overall declining student writing levels and reading efforts, will likely affect incoming law student preparedness for law schools at every tier level.” But as Professor Alaka notes, Derek Bok (the former president of Harvard) says that “freshmen have never arrived at college with impressive writing skills” and that about 25 percent of Harvard freshmen in the 1890s were deemed poor writers ill-prepared for college coursework.
So I don’t agonize over the causes of current writing standards; all I know is that what I read and hear suggests that they’re a cause for concern. (To hear some people talk, being a legal writing instructor is akin to engaging in trauma triage.)
I got to wondering how this plays out for contract drafters. Would the same kind of remedial work be required to turn the current crop of law students into accomplished drafters? In other words, does clear drafting require the same kinds of skills as other kinds of writing (descriptive, expository, narrative, persuasive)?
In that regard, I have some good news and some bad news.
The good news is that because contract drafting seeks to regulate conduct, it’s more limited and stylized than other kinds of writing. For example, it offers a limited range of verb use, a limited vocabulary, and generally seeks to accomplish a limited range of goals. So you don’t have to be Proust to be an excellent contract drafter. Instead, you have apply to language the mindset of a software engineer—one with some creativity!—and you have to follow the rules.
But the bad news is that if you screw up in drafting a contract, the consequences can be vastly more traumatic than in other kinds of writing: in a contract, every provision serves a function; the stakes are high; the future is uncertain; and the parties can be expected to leap on anything that works to their advantage. By contrast, other kinds of writing are generally much more forgiving.
Those factors operate as a carrot and a stick on those learning to draft contracts: Consider yourselves lucky that you’re dealing with a more manageable kind of writing. And be sure to take advantage of that, because there’s a lot riding on your command of contract language.