On occasion, someone who doesn’t agree with me on a given issue will blurt out, “I’ve been doing this for 30 years, and ….” Or if they wish to be more low-key about it, they might simply observe that experienced drafters take a different approach.
In some activities, being experienced is a suitable proxy for being good. If I were a 19th-century traveler looking for a pilot to help me navigate the rapids of the upper Mississippi, I’d be happy to get someone who was experienced: that would tell me they were knowledgeable enough to have survived repeated trips and were reliable enough to have secured repeated business.
But if I’m assessing a product, I don’t particularly care about how experienced the producer is. In a system rife with dysfunction, being experienced can simply mean that the producer has embraced the dysfunction. I prefer to assess the product myself.
The premise underlying my work is that there’s generally an optimal way to express a given concept and a bunch of suboptimal ways, and I’ve cheerfully spent many years cataloguing how that premise plays out in practice. So for purposes of contract drafting, I don’t care how experienced you are: your drafting speaks for itself.
Because they’re suggesting that experienced drafters are united in adopting a given approach, those who invoke the practice of experienced drafters are in effect relying on the logical fallacy argumentum ad populum. Here’s what my 2019 law-review article on efforts provisions (here) has to say about that (footnotes omitted):
For example, consider what Mr. Justice Flaux said at a 2016 panel discussion: “I think English lawyers generally would say that reasonable endeavours and best endeavours are two different concepts.” Another example is from an email to this author: “The solicitors I work with all understand that it matters to a client whether it undertakes to use ‘reasonable efforts’ or ‘best efforts.’” Such statements rely on sweeping and often exaggerated generalization (Everyone would agree that . . . ). That’s because the speaker is trying to express that this view is the conventional wisdom, and what level of support an idea must have to constitute conventional wisdom is necessarily nebulous.
But a bigger problem is that such statements rely on argumentum ad populum (also known as “appeal to common belief” and other names), the logical fallacy that a proposition must be true because many or most people believe it. How many people ascribe to an idea is not proof that it’s valid. Relying on argumentum ad populum is a sure sign one has lost an argument.
I could not be more sympathetic to this argument. And I’m always glad to see someone with more experience making it!
At the same time, to borrow one from Luis Villa, I think “steelmanning” this argument requires addressing a stronger rejoinder. In general terms, the law and law practice are socially constructed, so what the practice community does and what works are often one and the same. In more specific terms, avoiding surprise and double-takes on the other side gets things done, which is what clients want. They don’t care about theoretical optimums or wide-eyed legal futurism.
I don’t find those arguments convincing, either. But they’re deeper than mere unreflective practice inertia. Many lawyers simply don’t think much about it. But I’ve met quite a few who do, and think this way.
I’m acutely aware that expediency is a powerful force in doing deals, and I acknowledge that expediency in the advice I give. For example, I recommend that people refrain from deploying my more shocking recommendations, such as dropping the capital “A” in “this Agreement” (oh noes), when reviewing the other side’s draft.
So I don’t object to expediency. Instead, I object to misguided conventional wisdom being passed off as, well, wisdom.
Thank you for this. I run into this frequently, and you’ve expressed the answer in such a way that I will almost certainly be utilizing!
Happy to have provided some ammunition!