How Not to Learn About Contracts

Today I saw the following tweet:

@kemitchell is one of the good guys, so I don’t think he’ll mind if I take issue with his tweet.

I suggest that expecting to understand how contracts work from reading 1,000 randomly selected contracts is like expecting to understand contract law by reading 1,000 randomly selected court opinions about contract disputes.

Your average contract is full of dysfunction. If you read 1,000 contracts, you’ll become familiar with the elements of traditional contract language, but you won’t learn what function they ostensibly serve; you won’t know why they’re lacking; and you won’t learn what to use instead.

So reading 1,000 contracts will just prime you to join the ranks of passive drafters. (Go here for more on active drafting versus passive drafting.)

To understand contracts, you have to know what to say in a contract and how to say it (and how not to say it). I’d like to think that the how-to-say-it part is relatively straightforward: read MSCD.

The what-to-say part is still a real problem, in that you have to rely on whatever commentary is available. For example, I recently purchased a book about a particular kind of transaction; it handled poorly enough the stuff that I know something about that I lost confidence in it for purposes of the stuff I know little or nothing about.

Nevertheless, I wouldn’t use actual contracts as my starting point. Instead, I’d look at commentary, with my critical faculties on high alert.

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.

8 thoughts on “How Not to Learn About Contracts”

  1. Thoroughly rebuked, but unrepentant, I slither from stocks to comments section!

    Self-assessment is tricky business, but frankly, I’d chalk up any “good guy” status I deserve to the early force-reading I recommended. A thousand contracts is a lot to read with nary a seditious thought!

    After a few months — a few dozen — I was comfortable. I knew I could read. Catching little mistakes here and there was comforting.

    About a year in — hundreds — I thought I knew everything. Several variations for every deal point. Lots of options.

    By the end of law school — twice as many — I’d developed “taste”. Lots more variations, but only some, I thought, were any good. The high-end, big-dollar stuff impressed in this period. Lots of M&A and IP agreements on EDGAR. International JVs. Financial products. Learned the names of fancy firms, mostly ignored anything else. Started to get bored.

    I’m not sure when I crossed the thousand-contract mark. I suspect around receiving my license, since I started reading more broadly, outside “my areas”. By that time I’d become seriously concerned that I hardly knew anything at all about contracts. The magic was gone and impostor syndrome, in the form of malpractice dread, set in. (Don’t ask how many times I’ve read the Cali Bar rules.)

    So many variations, in form and substance. Stupidly many. No rules or principles up to organizing the chaos. Instead, a feeling of arbitrariness. I took up historical trivia, where all the reliable answers seemed to hide. Learned some Law French. Read Mellinkoff in rapture, but it left me depressed.

    I’m more relaxed now, though I still know diddly-squat about contracts. See, e.g., the hours I spent at law library this week trying to find out if, when, and how no-oral-waiver clauses work under California law. I’m still not sure, and yes, I checked the secondaries. CEB, Witkin, and Cal. Jur. helpfully provided orthodox contract language, but not authority on point.

    So read the ten forms in your first firm’s training packet and sure, I think you’ll fit right in. But I defy anyone to read a thousand of anything — novels, fortune cookies, greeting cards — without starting to think more like author or critic than passive consumer. Moreover, I suspect asking anyone who hasn’t “seen a bit of the world” to flaunt the orthodoxy is asking either too much or for just the wrong thing. Faith — and there is too much law for any of us to practice without faith — doesn’t work that way. I had to break myself down with reading before building up the courage to march off the beaten path, and I like to think I’m a pretty rationale, independent SOB. I also had Wayne Schiess at Texas.

    Maybe folks made of tougher stuff can read MSCD once and set the world on fire. That wasn’t me, but I’m enjoying practice enough as a happy accident. All I wanted out of pounding down contracts was that warm I-have-done-something feeling, an antidote to bone chilling anxiety about my ability to do what I’d signed up to do. No planned pedagogical payoff was part of the picture. Others’ results, of course, may vary.

    • Hey, who let you out of the stocks! ;-)

      I think the key phrase in my post is “starting point.” In other words, anyone who reads 1,000 contracts will get more out of it if they have halfway reliable commentary to act as a lodestar.

      Of course, even without that perspective, anyone who has read 1,000 contracts would be vastly better positioned to look after themselves than someone who has read zero contracts.

      So I suspect that we’ll find ourselves meeting somewhere in the middle. How predictable!

  2. Having taught LLM students on an introductory course about business transactions, I am conscious that many have no experience of the commercial world. I would suggest the following sequence:

    (1) a couple of days of formal teaching to provide basic familiarisation with the elements of a commercial agreement, including some case studies to go through some examples of agreements. At this stage the style is irrelevant.

    (2) gradually introduce students to examples of well- and badly-drafted agreements.

    (3) as familiarity increases, get them to do drafting exercises based on the principles set out in MSCD, and have lectures perhaps one on each chapter.

    (4) as familiarity increases they should look at more examples of agreements.

    Personally, I did the last of these stages in the first year or two of my first real legal job, as an in-house lawyer. But it could be done earlier.

    • Item number two is exactly what I try to do. You can show people how to use formatting to add clarity, how to rephrase a sentence to make the meaning clearer, how to understand the difference between passive and active drafting, and how to avoid using pompous words for simpler and more direct language, among other things. None of those are likely to become obvious simply from reading a thousand contracts.

  3. I agree with reading contracts, MSCD (wish it was around in 1988), and a good drafting course, but I also learned a lot from the red pen of senior attorneys that reviewed and passed on their experiences.


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