Glenn West on the “Why” of Contract Drafting

Via @lisasolomon I learned of a new piece by Glenn West. It’s entitled Contract Drafting 101: A Checklist Derived from Recent Caselaw, and it forms part of the materials for a course for in-house counsel offered on 10 August 2016 by the State Bar of Texas. It’s available here. For information about the course, go here.

In this piece, Glenn considers recent caselaw that illustrates why certain elements in contracts are handled the way they are. What’s the point of consulting such caselaw? Here’s Glenn’s explanation:

Reading cases concerning contract interpretation issues is a critical discipline that must be maintained by all transactional lawyers. While clarity of drafting in terms of clearly communicating your client’s intentions is paramount in the “how” of contract drafting, reading cases is paramount in the “why” of contract drafting. And both are required to be an effective contract draftsperson.

Glenn goes on to distinguish between what you say in a contract and how you say it. That’s a distinction that I invoke routinely.

But I would adjust Glenn’s advice. Whether you’re in law school or are a practicing lawyer, reading caselaw isn’t an efficient way to learn anything. You have to sort through the clutter, then you have to make sense of the relevant bits. It’s not realistic to expect everyone to go through that routinely.

So instead of routinely reading caselaw, get in the habit of reading stuff by people who take it upon themselves to digest the caselaw for you. That’s why the drafting gods invented the likes of Glenn and me.

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.