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:
I fully agree. Given the luxury of time, it is useful to have a “litigator’s read-through” of the draft and try to find ambiguities in the contract. And if you are a litigator, you are more likely to do a thorough job.
— Michael Twomey (@LawWebinars) November 6, 2020
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.
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.