Recently Mark Anderson and I found ourselves back-to-back, brandishing longswords and together battling nonsense in skirmishes that broke out on different platforms (go here for an entry point). But it would be no fun if that were to prevent me from riffing on something Mark says.
In one of his posts in that exchange (here), Mark says this:
Resistance to modern drafting has now all but evaporated among English business lawyers. This doesn’t guarantee that contracts will be well written, but it provides a healthy context for those us who teach the subject.
Mark goes on to say “The USA has been slower to adopt modern drafting techniques, and many of the templates that are seen are full of turgid, archaic wording and (US) lawyers’ jargon.”
That prompted the following thoughts.
Everyone’s a Great Drafter
I don’t know Mark’s basis for saying that English lawyers have embraced a modern approach to drafting. He might in part be referring to what people have to say about contract drafting.
Generally, a willingness to speak up about writing has no bearing on how well one can write. Everyone thinks they’re a great drafter until their work is subjected to real scrutiny.
What Contracts Are “Representative”?
The only way to assess contract drafting is to examine actual contracts. Only sporadically do I have occasion to look at contracts drafted in England, but when I do, I see the same sort of dysfunction I see in contracts drafted in the United States and elsewhere. For example, in this 2016 post I critique a fragment of “Magic Circle” drafting.
Mark might suggest that the example I picked isn’t representative of English drafting. The little rooting around I’ve done suggests that it’s representative of big-deal drafting at the largest English law firms, but I cheerfully acknowledge that that doesn’t make it representative of English drafting as a whole. On the other hand, I’m not sure the intellectual-property contracts Mark works on can be said to be representative of English drafting either.
The notion of one or more contracts being representative would seem an illusion, for two reasons. First, most of us look at contract drafting through a keyhole—we seen only a tiniest fraction of the whole. And second, the universe of business contracts in England or the United States is sufficiently diverse that it doesn’t make sense to describe any one contract or group of contracts as representative, any more than a handful of people selected at random in England or the United States could be said to be representative of those populations.
This suggests that a comparison as broad as comparing English drafting to U.S. drafting is unlikely to yield meaningful conclusions.
Degrees of Ineptitude
Comparison makes sense only if you get specific. For example, I said in this 2012 post that Australian big-firm contract drafting is generally free of the most obvious nonsense that afflicts U.S. contracts. And when it comes to the IP contracts Mark works with, I’m sure his assessment of U.S. drafting is accurate. I’m not in a position to offer any such assessment regarding English drafting, because I haven’t seen a lot of it, and what I’ve seen is plenty dsyfunctional.
Even if you accept that a given kind of U.S. contract is likely to exhibit more dysfunction than an equivalent piece of English drafting, that’s perhaps offset by the English legal profession’s systemic problems with contract interpretation. When interpreting contract usages, English courts are prone to drawing distinctions that have no basis is reality, and English law firms exhibit a forelock-tugging obeisance in accepting whatever courts have to say. English handling of endeavours provisions is the example on my mind at the moment; go here to see my 2017 article on the subject, or wait until July for my law-review article, which goes into greater detail and mentions some comparable issues. [Updated 4 Sept. 2020: That article is available here.]
When there’s plenty of dysfunction to go around, I’m not particularly interested in distinguishing between degrees of dysfunction. I’d rather have all boats lifted by a rising tide of greater sophistication in employing the building blocks of contract language.
(By the way, we can all agree that two uniquely aggravating features that are more prevalent in U.S. drafting than elsewhere are the all-capitals fetish and the reluctance to break text up. But for what it’s worth, they don’t relate to the words used.)
Comparing Effective with Ineffective
Comparison would become interesting if instead of comparing degrees of inadequacy we could point to comprehensive training programs in the language and substance of contracts. Or point to a substantial organization that has completely overhauled its contract templates as the Australian law firm Mallesons Stephen Jacques apparently did in the 1980s. (See this 2013 post.)
But that sort of comparison will have to wait, as I’m not aware of anyone who’s doing anything well enough that one would want to emulate them. Some recent initiatives have been praised, but I find them lacking; the link at the top of this post will take you to my discussion of that.