Pandering to Traditionalists

I’ve been doing public and in-house “Drafting Clearer Contracts” seminars for, oh, 14 years now. That’s because people find them worthwhile and, shockingly enough, somewhat entertaining. Otherwise, I would have gotten the hook long ago.

So the feedback is positive, but occasionally participants suggest I adjust my approach. For example, here’s what a participant at my recent New York seminar for Thomson Reuters had to say:

A good conference, but I don’t think all of the guidance can be realistically implemented by organizations which apply the traditional approach. I think the focus should be on revisions that will be welcomed. I thoroughly enjoyed working on the examples.

I have three thoughts regarding the notion of focusing on those changes that traditionalists within your organization would accept.

 

First, apart from two of my recommendations—using this agreement with a small a, using states instead of represents and warrants—there’s nothing inherently shocking about my recommendations. So I have no idea what changes a given traditionalist might object to. I suspect that for most traditionalists, it’s not so much the individual changes that are disconcerting, but rather the cumulative effect: when you apply my guidelines in revising traditional contract language, a lot gets changed, as I discuss in this post.

Second, my recommendations make sense. Ignoring them just results in more nonsense in your contracts.

And third, even if you know you’re not going to be able to use, say, states instead of represents and warrants, it’s still important to understand the implications of using represents and warrants.

So I don’t think it makes sense to pander to traditionalists by deciding up front that you’re going to tolerate some some traditional usages. And it follows that I don’t think I should tailor my seminars to reflect that approach.

Instead, I suggest that you be pragmatic in your work with contracts, effecting change when you can and tolerating traditional usages when it’s expedient to do so.

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.