Overrated: Litigators As a Source of Contract-Drafting Advice

Last week I tweeted this, or something close to it: “When I want authoritative contract-drafting advice, I look to litigators.” I was aware that it was unclear whether I was being sincere or snarky. After a few hours, I decided that being gratuitously confusing was unhelpful, so I deleted the tweet.

But the replies to my tweet remain. Some endorse enthusiastically the value of a litigator’s perspective. For example:

So I might as well tell you what I think without being gnomic about it.

The Limits of the Litigator Perspective

Your litigation experience has sensitized you to how drafting glitches can lead to disputes? Good. A friendly litigator is willing to read your draft? It’s always helpful to have an extra set of eyes look over one’s work.

But whatever the benefits of a litigator’s perspective, they come a distant second to having your contract reviewed by an informed consumer of contract language, whether it’s you or someone else.

Good litigators know how to litigate. They marshall whatever arguments serve them in a given dispute. That doesn’t give them the understanding of contracts prose that’s required to be an informed consumer of contract language. Anyone who knows their way around A Manual of Style for Contract Language would be way better equipped than the average litigator to figure out the implications of contract usages.

And being a litigator doesn’t by itself give anyone the broad understanding of deal points required to offer meaningful advice. Even when it comes to dispute-resolution provisions, the odds are that your friendly litigator would be able to offer only anecdotal evidence.

The Canard That Is “Tested” Contract Language

Of course, any litigator could elect to step out of their comfort zone and become better informed about contract language and contract substance. But in addition to their haphazard exposure to contracts, I think litigators are under a handicap that warps their perspective. In my experience, litigators pay way too much attention to outcomes in caselaw. They look to refight the last battle—if a court said a given phrase means X and you want to express X, well, you’d better use that phrase! Hence the tendency to invoke “tested” contract language.

Caselaw is the last place I’d look for how to write contracts. Using “tested” contract language might help you win a fight, but that’s not my goal: I want to avoid fights. So I look to caselaw for cautionary tales—how contracts prose can lead to fights, and how judges can fail at contract interpretation. With those cautionary tales in mind, I say clearly whatever I want to say, at the same time reducing the risk of a wasteful and expensive fight.

Litigators as Commentators on Contract Drafting

If litigation were a promising training ground for offering advice in how to draft contracts, litigators should feature prominently in commentary on contract drafting.

Offhand, I can think of one legitimate effort, the chapter “Governing Law and Forum Selection,” by Brad S. Karp and Shelly L. Friedland, in Negotiating and Drafting Contract Boilerplate 137 (Tina L. Stark ed., 2004). I took issue with it (see this 2019 post), but not for any reason related to the authors being litigators.

But apart from that sort of sporadic offering, litigator commentary on contract drafting isn’t much in evidence. The one litigation-writing commentator who has serious pretensions in this regard is Bryan Garner, but most of what he says about contracts is deeply wrongheaded. The ultimate manifestation of that is his 2019 train wreck of a book; see my review here. I suspect that the root of Garner’s shortcomings is that he doesn’t understand that contract language is profoundly different from litigation writing.

The Upshot

So instead of looking to litigators to cure what ails you, become an informed consumer of contract language. That road runs through A Manual of Style for Contract Language. Regarding deal substance, seek out authoritative commentators—the likes of Glenn West.

But there’s a bigger fix. Those doing deals shouldn’t have to come up with the required verbiage, and they shouldn’t have to be scholars on the side. We should offer them automated, customized, and annotated templates compiled with the help of editorial boards of subject-matter experts. Templates that work, in terms of what they say and how they say it. So people who work with contracts can focus on doing deals without wondering whether they should enlist a friendly litigator to save them from themselves.


While you’re here, check out my new online course Drafting Clearer Contracts: Masterclass. It’s the express route to becoming an informed consumer of contract language.

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.

4 thoughts on “Overrated: Litigators As a Source of Contract-Drafting Advice”

  1. Full disclosure: I’m a litigator (inter alia). I thought Vance was, too, but if so, he’s a self-hating one (Helen, if Vance calls, I’ve stepped out).

    My hair stands on end when I see many contracts, either in draft for my review, or ones I had no hand in but the litigation eggs have hit the fan so they’re on my desk. (‘So who decides whether the property has been restored to its original condition? The contract doesn’t say’.) I don’t know whether my hair does that because I’m a litigator or because I’m ‘an informed consumer of contracts language’ (marinated in MSCD).

    Nevertheless, I think the brickbats aimed at litigators and judges as useful sources of contract language information are a bit off the mark. Just because it’s your duty to make the best possible case for your client’s side of the case doesn’t mean you know nothing about contract drafting. Briefs are intended to persuade, and the more you know about the language under contention, the likelier you are to craft persuasive arguments.

    As for “I don’t want to win fights, I want to avoid them,” a client doesn’t want to hear that if it comes down to a fight, you don’t want her side to win, you just want to surrender so as to avoid a fight.

    If that’s not what you mean, it might be better to say something like, ‘I want to draft this so clearly that you achieve your contract objectives without having to litigate. If litigation is thrust upon you, I want you to win because the court finds that the meaning for which you contend is the meaning the contract expresses’.

    As for ‘tested’ meaning, here’s the way it makes sense: the contract says A. The plaintiff argues that A means B. The defendant argues that A means C. The court, perhaps, disagrees with both and rules that A means D. A good drafter will not say, “When I want to express D, I should use A, because a court held that A means D.” A good drafter will say, “If I want to express D, if will not use A, B, or C, but I will consider using D.” If you think of D — the court’s language — as the ‘tested’ language, it makes sense to consider using it.

    Finally, the roles of deal maker vs. contract drafter. Which role am I playing if I say, ‘You might want to specify who decides whether the property has been restored to its original condition’? It could be that my client (or both parties) have decided to leave that provision unclear for reasons unknown to me. Is it my job *as drafter* to interrogate my clients about the substance of the deal they made and to suggest more, fewer, or different provisions? What happened to the distinction between “what” is said (the deal) and “how” it is said (the drafting)?

    Happy Thanksgiving, Ken and Vance and all.

    • AWrightBurkeMPhil–I confront the deal maker vs. contract drafter distinction rather frequently. My opinion is that a lawyer ought to function as an advisor to the deal maker and as a contract drafter. Good contracts require both skills.

      I view the role of contract drafter as the “how.” How do we draft? Clearly and concisely. The MSCD (and lots of practice) is all you need.

      But clear, concise drafting won’t forestall all of the potential disputes. What if, as you stated in your last paragraph, the parties specified an obligation, but failed to state who was responsible for that obligation (assume that the contract otherwise complied with the MSCD)? You have litigation potential. Especially if performance of the underspecified obligation determines whether the deal makes money. The difference in performance value might be enough to make litigation worthwhile and might motivate the parties to nitpick the contract for excuses to litigate.

      In order to avoid the problem, the lawyer attached to the deal ought to interrogate the client about the substance of the deal. The goal is to perform a risk assessment on the transaction and suss missing details. If there’s high litigation potential, you might recommend that your client seek safeguards in the contract to tamp down litigation risk (one example? no attorneys’ fees clause).

      So then, the role of (advisor to) the deal maker is the “what.” As in, what goes in the contract? The “what” ought to include things like who is performing a particular obligation.

      I wonder if this is where litigation experience has the most value. Based on your statement above, it appears that litigating contracts does indeed give one the ability to suss the holes. But maybe doing lots of deals provides equivalent experience. I offer no opinion as to whether simply working on lots of deals is better than litigation experience.

      In sum, brickbats for the litigators who offer unnecessary commentary on how to draft contracts. Kudos to the litigators who use their litigation experience interrogate their clients to eliminate substantive gaps in contracts that otherwise appear to be well-drafted.


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