Improving Contracts Isn’t a Matter of “Academic” Versus “Practical”

This is the first of two posts prompted by what a reader said in a recent exchange of emails.

Here’s one thing they said:

On more than one occasion, a colleague has used the term “academic” as a pejorative to describe my interest in an issue. For example, “well, let’s try to stay away from just academic discussions and concentrate on what’s practical.”

I assume that in describing something as “academic,” this person means it’s not worth bothering about (as opposed to suggesting it’s impractical). Here’s what a restrained version of me would say in that situation, if I were permitted a soliloquy:

It’s not a matter of “academic” and “practical.” Instead, it’s a matter of improving the contract, taking into account the circumstances.

We’re talking here not about what you say in a contract, but how to say whatever you want to say. From that perspective, there are two ways to improve a contract. First, you can make it clearer—in other words, you can eliminate sources of potential confusion. And second, you can make it more concise and modern.

If we’re talking about one of our templates, it makes to sense to improve it in both ways. It’s always advisable to eliminate potential confusion, but when you’re dealing with a template you expect to use repeatedly, it’s also advisable to do all the cleanup that remains after you fix stuff that could result in your getting into a fight. For example, rearranging the elements, cutting meaningless boilerplate, eliminating archaisms and redundancies, and tightening up the prose.

If you’re working with traditional contract language, the cumulative effect of such cleanup work is generally considerable: the contract becomes significantly shorter and easier to work with. Every transaction goes a little bit faster, a little bit easier. That adds up.

So when you’re dealing with our templates, you make all the improvements you can.

But in other contexts, restraint is in order. For example, if you’re drafting a contract for a one-off transaction, you won’t have the opportunity to use that contract again, so there’s no point in investing time and effort in making it a smoothly running machine.

And if you’re reviewing the other side’s draft, you have to limit your changes: you don’t want to waste your time, or risk antagonizing the other side, haggling over issues that couldn’t result in confusion.

But to know what to change in that context, you have to be an informed consumer of contract language. Being a copy-and-paste traditionalist won’t cut it. For example, a traditionalist would likely accept using the phrase indemnify and hold harmless, and might even argue that it’s necessary. I’m acutely aware of the problems that phrase causes, so I wouldn’t dream of allowing it to remain in any contract I’m working on.

And sometimes risk comes from unexpected quarters. For example, in an awkwardly defined term. In use of may in a restrictive relative clause (any widgets that Acme may produce). In throat clearing (The parties agree that). I could go on and on.

I’m not interested in playing the odds. If I can show that a particular usage has resulted in a fight, that’s enough for me to ask that it be removed.

So again, it’s not a matter of academic versus practical. Instead, it’s a matter of being able to assess risk and the benefits of efficiency, taking into account the context. To be able to do that, you have to be an informed consumer of contract language.

Hmm, I wonder how one becomes an informed consumer of contract language …

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.