Yesterday I posted two items (this one on and and or, this one on the passive voice) that were rather more harum-scarum than my normal offerings, in that I ended up quickly making significant changes in response to reader comments. (Thank you, all.)
Having previously limited myself to the building blocks of contract language, I’m now working to bring the same approach to bear on entire provisions. It’s a different process. For one thing, instead of focusing just on how to say stuff, you have to address what to say. And you’re dealing with not only the major building blocks but also a mass of interstitial stuff that raises its own, perhaps less-predictable issues. Hence yesterday’s posts, prompted by one sentence I’m working on.
So I’ve been pondering the following metaphor: Previously I’ve been working on the rules; now I’m focusing on playing the game. It’s not entirely apt, but it gives a sense of the shift in dynamic involved and the adjustment required.
3 thoughts on “It’s One Thing to Know the Rules, Another to Play the Game”
I think you are right. Another useful way to think about it is form versus substance.
The first piece of advice I give to beginning lawyers about how to write a form commercial contract is to immerse yourself in the details of the business: make sure you understand it from end to end; become an expert in your company’s business; and know whom to ask when you’re not sure. (The second piece of advice is buy your book.)
Another analogy: kids who go straight through school and get MBA’s can probably manage any businesses you place them in. But they have a much harder time starting their own businesses because they have to know something about the substance — as opposed to the process — of the business.
This also feed my biggest gripe about a lot of the contracts I see, especially where the customer has issued a request for proposals. We get a 20- or 30-page services agreement that says nothing about the actual services to be performed. Then I go through it and find all the provisions about delivering goods (we’re a service provider), construction warranties (we don’t build buildings), toxic chemicals (we deliver all our services electronically), HIPAA compliance (generally, we don’t get medical information), etc.
That’s bad enough. But then I get a services agreement where the agreement itself is decently constrained, and has as “Exhibit A” as description of services that it one sentence. I’ll often sign that one because it doesn’t hurt us. But why would the lawyer on the other side be content with one sentence describing the thing they are paying us for? Shouldn’t they be asking for a textual description of what it is we are promising to do? Frustrating.
That’s why I prefer using our form agreement. More than half of it describes the services we provide and the things that have to happen that are special about our services. The generic legal stuff takes about 1.5 pages out of five.
Chris: I’m leery of a distinction between form (or style) and substance when it comes to contract language. There’s very little in MSCD that I’d describe as relating to form—only stuff like recommending that you use all capitals when stating party names in the introductory clause. Ken
I’d say that there’s another aspect to this whole process: pragmatism. If you’re preparing the contract, anew, then it’s much easier to follow the “rules” to the letter. But a lot of real world stuff interferes: opposing counsel, other drafts, business people, time, etc. To keep up the sports analogy, there’s a lot of room to “let the parties keeping playing” rather than throwing the flag. If you’ve ever seen a basketball game or a football game where the refs called every foul/penalty, the fans would be booing and would have deserted the game by the end of the first half… twenty hours later.
I’d raise your previous few posts about the clause regarding a motion to compel as good examples. While it may make some sense to think through the drafting that clause originally, it makes little sense for either party to fight over it too much. Any efficiency gained by a couple of words is immediately lost if one party takes a pass at it or picks up the phone to discuss it. Any “ambiguity” in a clause like that would rank pretty low on the risk radar (if you’re at the point where a party is seeking or is a party to a court-mandated disclosure of confidential information then you probably have many other problems). And, even from what little context exists, it appears to be mutual so unless one party is giving up significantly more valuable information, the clause will be a wash.