My Advice to a Frustrated Reader

Here’s what a reader said to me in an email:

I’m frustrated. Even though I’ve been a lawyer for 21 years, my contract drafting skills are not what they should be for a lawyer with my experience. For example, I’m drafting a termination agreement for a consulting services agreement. A friend and I briefly discussed what should be in it. In essence, he said what I wrote won’t work. The original agreement doesn’t have a survival clause, yet there are some clauses that should survive. He says I have to include all of the boilerplate from the original agreement. He doesn’t think that I have ensured that we have no further financial obligations to the consultant after the termination. Well, heck, that’s the purpose of the agreement!

How am I supposed to get good at contracts? Law school was pitiful in this regard. I can’t find a forum where lawyers are willing to debate these things ad nauseum. I need to get with the program. Some of the things I write are embarrassing. However, I then realize that there are a lot of bad contracts out there. I don’t want to write bad contracts.

What should I do? Do you have any thoughts or words of wisdom you can pass along?

Here’s my reply:

I hear you, Frustrated. Many others are in the same position. You’re all victims of passive drafting. In other words, you’ve long drafted contracts by copy-and-pasting from precedent contracts of questionable quality and relevance. You haven’t had the benefit of guidelines. And you haven’t received proper training.

But you’re now in a particularly challenging position. Here’s what I said in this 2014 post:

Ignorance can be bliss—nothing impedes you from recycling the same old contract language and dusting off the same old conventional wisdom.

That grinds to a halt once you eat the fruit of the tree of contract-drafting knowledge. It can seem as if you’ve been cast out of a world of simplicity into one where you can’t trust your old contract language and find it laborious to come up with language to replace it with.

In that position, you still have to try and make sense of whatever bit of conventional wisdom comes your way. A case in point: “survival” clauses are pointless. See this 2006 post; for the more up-to-date version, see MSCD.

How do you improve your contract drafting? I suggest that “a forum where lawyers are willing to debate these things ad nauseum” is the last thing you need. We already have that, in the form of LinkedIn groups. They’re a source of cacophony and misinformation; see this 2013 post.

Instead, if you’re looking for help on the building blocks of contract language, you’re in luck, because that’s what MSCD is for. If you have sufficient confidence in my track record that you’re willing to take the leap of faith that’s required to rely on any reference work, MSCD is all you need. If all goes well, the fourth edition will be out sometime in September.

But that covers just how to say in a contract clearly and effectively whatever you want to say. You still have to figure out what to say. In that task, you’re mostly on your own, unfortunately.

You can’t trust the contract language you find out there, no matter who prepared it. I can think of one for-pay service and one free site that offer various model contracts with some editorial control. I won’t name them, as I don’t want to seem to damn them with faint praise.

The only kind of template that I’d be satisfied with is something comparable to my automated confidentiality agreement. As I mentioned in this post, it’s available only to my consulting clients. It’s too bad that there doesn’t seem to be any interest, on the part of both vendors and consumers, to pay for a library of automated templates for key commercial contracts. As I say in the manuscript of the fourth edition of MSCD, “But it’s not clear that the market is equipped to distinguish between such templates and the innumerable random contracts available online for free or close to it. There might be little demand for quality, whatever the price.”

Sorry to be a bummer. Perhaps readers will have other ideas.

(Regarding termination of that consulting agreement, I don’t have enough information to say how it should be handled. Perhaps you could just amend it to have the consultant acknowledge that the project is over.)

 

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.