Is Contract Drafting “Deadly”?

This American Lawyer article about the lawyers of the “Forbes 400” reminded me that real-estate developer Sam Zell once said, regarding his first days as a lawyer, “I spent my first week drafting a contract. It was deadly.” (See this WSJ Law Blog item for complete details.)

So, is contract drafting deadly? For junior lawyers, it’s unlikely to be a walk in the park. Exactly how frustrated you get presumably depends on your temperament and ambitions. If you’re a real-estate billionaire-in-waiting, “deadly” sounds about right.

It could hardly be otherwise: You’re likely given little or no training in contract drafting, and you’re asked to base your drafts on precedent contracts containing impenetrable language that would try anyone’s patience. So, on a wing and a prayer, you engage in grand cut-and-paste jobs. I don’t know how anyone could find that gratifying.

But with time your drafting might well become a source of pride. Yesterday I spoke with someone who compared drafting to sculpting—turning a rough block of stone into a work of art. That might represent progress, except for the fact that the language might well still be something of a mess—you’ve just gotten used to it.

Furthermore, what’s deadly about the traditional process of drafting contracts isn’t just the suboptimal language. You shouldn’t be crafting works of art, you should be cranking out Model T Fords on a production line. The action in dealmaking is devising strategy and assisting with negotiations. Papering the deal is scrivener’s work; it should be commoditized. Sure, figuring out how to articulate some complex deal point can be a gratifying challenge, but that sort of drafting represents a small fraction of the drafting required for a given deal.

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.