I was pleased to receive the other day the following wry email:
You’ve inspired me since your presentation to our firm back in May. I used to be content with my drafting before I met you, but I now live in constant internal turmoil.
My correspondent’s state of mind comes as no surprise. To master contract language, first you have to discard traditional usages in favor of a more rigorous lexicon. Then when drafting any given contract, you have to decide what structure you wish to build and which materials are best suited to building it. Even when you’ve got a handle on the former task, the latter will always pose serious challenges—witness my own recent exertions in attempting to define Government Body and improve the AAA standard arbitration clause.
So mastering contract language, from the standpoint of both the individual and the organization, is a stern challenge requiring resources beyond the reach of many, or most.
It doesn’t come as a surprise that many buck this challenge by sticking their heads in the sand. When occasionally I contact an organization to offer some observations on their contract language, often I’m met with silence or studied indifference.
Acknowledging and managing the confusion caused by the gulf between the actual and the ideal in contract drafting is a more sensible tactic than running from it. Once you abandon your illusions regarding your traditional language, you can start taking meaningful steps toward better managing cost and risk.