The Law Society Gazette—a publication of the Law Society of England and Wales—has published my conversation with Mark Anderson, aka @IPDraughts. No, wait—Mark’s conversation with me. Whatever. It’s called Adams v Anderson on contract drafting; go here for a PDF and go here for the posh online version of the entire issue of the magazine (it’s on pages 20 and 21).
In it, Mark and I discuss differences in English and US approaches to contract drafting. Because we would have found it way too boring to do it entirely straight, we permitted ourselves some japery. It might fall dreadfully flat, but at least we entertained ourselves!
By the way, some of you might not be aware that I did all my secondary and college education in England. I suspect that had an effect on what sort of things amuse me.
Next up, Mark and I will be taking our double act to the variety show at Clacton Pier.
Very interesting exchange.
I think Mark was unfair to you by saying that ‘you’re not interested in how a court would interpret wording [preferring instead] to make the meaning clear for the general reader’.
I think your distinction is not between the audience for contract prose (judges vs. laypersons), but between sources of contract prose (judicial decisions interpreting disputed language vs. language so clear its interpretation never comes before a judge).
Mark’s version of your stance makes it sound as if you favor ‘perfect’ contract prose even if it risks judicial misinterpretation whilst ‘real-life’ drafters favor formulations judges won’t misinterpret because courts follow precedent.
I don’t know whether the following is a ‘middle way’, but I find value in harvesting contract prose from judicial decisions. I look less at the language in dispute and more at the language the court uses in stating the meaning of the diputed verbiage.
So, for example, if a court says that ‘momentarily’ means ‘for a moment’ rather than ‘in a moment’, I’d eschew the disputed langauge (‘momentarily’) and use either ‘for a moment’ or ‘in a moment’, whichever fit my meaning.
That way I avoid ‘tested’ language but also take benefit from the adjudication.
IP Draughts is a wonderful Web site.
I might be overly familiar with our schtick, but when Mark and I put our conversation together I was OK with how my approach was characterized. In a way, I don’t care what courts have to say because I sidestep them: they’re irrelevant if you don’t get into a fight.
> if you don’t get into a fight
Wishful thinking, I fear. Buyer’s (or seller’s) remorse, abetted by highly-competitive litigation counsel, can result in wondrous meanings being attributed to seemingly-plain contract language. Stir in a judge who isn’t familiar with the commercial context, and … well, you get the picture.