“I Particularly Do Not Enjoy … Contracts”

A reader alerted me to this post on Above the Law. It’s about a letter that a Big Law corporate associate sent to his firm explaining exactly why he was pleased to be leaving the profession.

Here’s the pertinent bit:

I do not enjoy the practice of law. At all. I find it extremely tedious and stressful. I particularly do not enjoy the following activities:

    a. reviewing contracts

    b. drafting contracts

    c. editing contracts

    d. research corporate law; and

    e. strategizing about deal structure.

Being that a.-e. pretty much describe 95% of the job of a corporate lawyer (whether a first year associate or 20 year partner), I can safely say that this is the wrong field for me.

Am I aghast that this associate should have found contract work in its various forms so unrewarding? No, I’m not.

The associate in question perhaps wasn’t cut out to be a deal lawyer. But even someone otherwise temperamentally suited to transactional work could find their zeal flagging, given that mainstream contract drafting is beset with problems of process and quality that make working with contracts far more of a chore than it should be.

One problem is that associates have traditionally been expected to learn by osmosis—an unpromising notion, given the specialized nature of contracts. Learning by osmosis encourages drafters to regurgitate contract prose and give credence to contract-drafting urban legends.

A second problem has been undue reliance on contracts used in other deals. Any given contract could be considered the answer to a question—What provisions will allow my client to accomplish its goals in this transaction? When a junior associate is asked to draft a contract, he or she will generally be given one or more forms to work from. But each form contract represents someone else’s answer to a different question, and generally a drafter who didn’t work on a given deal won’t be in a position to reverse-engineer a form contract so as to figure out exactly why it contains the provisions it does. So it wouldn’t be surprising if even a relatively knowledgeable associate were at a loss over how to handle the variations in a handful of form contracts. And this doesn’t even take into account that any given form contract might well be substantively deficient.

A third problem is the way drafters are constantly reinventing the wheel. If using a clutch of form contracts to creating a draft contract for a given kind of transaction were not hard enough, it’s commonplace for an associate thereafter to be asked to use an entirely different set of form contracts to prepare a draft for a comparable transaction.

A fourth problem is the deficient prose used in mainstream contract drafting. One legal-writing expert suggests that it’s the most problematic form of legal prose, and I’m inclined to agree.

So the net effect is that you couldn’t blame someone for growing disenchanted with the contract-drafting life. Things are slowly getting better, with more schools offering courses in contract drafting and more scholarly attention being paid to the subject. (Wayne Schiess discussed these changes in a recent article.) Perhaps even more importantly, document assembly is gaining traction as a way to put contract drafting on a more rational footing.

But these changes were evidently not happening fast enough for at least one associate.

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.