I’m back from another foray to Toronto, for a seminar at Osgoode Professional Development and another at a law firm. (Greetings, Toronto newcomers to this blog!)
Although there’s always room for improvement, both seminars went well. But I’ve come to expect that occasionally amid the favorable evaluations will be one by a seriously unhappy participant. And that was the case with the Osgoode seminar.
Choice of Contract Usages—A Matter of Taste?
The gist of the evaluation in question was that in the seminar I had offered nothing more than my “personal opinions” and so the seminar represented a waste of time for seasoned lawyers. The implication was that the drafting usages you select are, at least in part, a matter of taste.
I’m sure that other participants sporadically feel the same way, at least with respect to the “personal opinions” part. A tell-tale sign is when a participant responds to one of my suggestions by saying, with a tight smile, “I’m not sure I agree.”
And it’s easy to spot the same attitude at loose in the world at large. While I was still in private practice, I attended a CLE session on contract drafting offered by one of the partners. He assured the junior associates present that in the course of time they, too, would develop their own “personal drafting style.”
And this different-strokes-for-different-folks approach is also on display when a company reacts to one of my redrafting projects by suggesting, in the face of my copious annotations and substantial revisions, that they’re quite happy, thank you, with the current version of the contract.
If I’m Right, It Doesn’t Matter that I’m Alone
Here’s my take on this: Unlike mathematics, good writing isn’t susceptible to right-or-wrong absolutism. Instead, assessing the quality of a piece of general writing requires that one invoke a host of guidelines. Commentators constantly offer their own versions of those guidelines, and one can expect them to evolve over time.
But despite the mixed and shifting nature of those guidelines and the myriad voices contributing to the discussion, determining whether a piece of writing is clear and efficient isn’t an entirely subjective matter. Instead, one can count on a broad consensus among teachers of, and writers on, English usage as to the clarity and efficiency of a piece of writing.
The limited and stylized nature of the language of contracts—I liken it to software code—should be conducive to even more clear-cut assessments of quality. And I’ve found that to be the case.
Nevertheless, it’s difficult for me to point to any sort of broad consensus when critiquing a given contract usage. With respect all but the most obviously problematic usages, you won’t find other commentators offering analyses that track my own. Consequently, a seminar participant who objects that I’m offering nothing more than my personal opinions is, in a sense, correct.
But if I’m on my own, it’s simply because no one else has subjected contract language to the same level of scrutiny. In the absence of comparable analyses that reach different conclusions, dismissing my recommendations out of hand is an exercise in stick-in-the-mudism. If you and I employ different usages to accomplish a given drafting goal, one of us is likely being less efficient than the other. If you’re unable to offer analysis showing why your usage represents the more effective choice, you can’t expect me to defer to it.
Given the conservative nature of the corporate bar, and given how widespread and tenacious is the delusion that one writes well (for more on that, see this blog post), I expect that I’ll be a lone voice for a while yet. But it’s more fun to be in the vanguard than a camp follower.
8 thoughts on “Am I Simply Expressing My “Personal Opinions”?”
The analogy to computer code is interesting. I find a lot of inspiration in programming texts, tools and methodologies, but do not recall seeing any papers/texts on the subject, do you ?
You’re not alone in this. While I don’t receive much push-back about my contract drafting, I am frequently charged with strangling the creative muses of those whose draft reports I’ve just reviewed and edited.
The analogy I employ when working with these folks is that of a hypodermic needle. The needle ‘s mission is to deliver beneficial contents to a recipient, and its design objectives are to make the transmission as brief, pain-free, and unlikely to transmit bad content (i.e., infection) as possible. As such, we value straight, narrow, sharp, clean needles. Curved or flared ones might be more interesting to look at, but they compromise the point of the thing (and yes, I intended the pun; sorry).
Likewise, obscure or archaic words, passive voice, and imprecise linkage of subject to object may be closer to a drafter’s comfort zone, but it doesn’t make them acceptable.
I use the software code analogy to help technologists get comfortable reading contracts. I tell them that understanding the conventions of contracts is no different than adjusting to the conventions of Perl, Ruby, C, etc.
This has been extremely effective, in my experience. For instance, my clients used to draft initial services descriptions with all sorts of random capitalization. It was bizarre, almost as if they had seen capitalization in contracts and were emulating it without any proper rules.
Now I explain the defined terms convention as a parallel to defining variables in code. This simple up-front step solved that problem on most deals.
I agree with much of what you say but from a practice perspective lawyers are taught that using new language is risky. So for example you suggest “best efforts” means no more than “reasonable efforts” and that the “hold harmless” in “indemnify and hold harmless” is redundant, and that the recital of consideration is worthless. Now you may well be right in all these cases but you cannot say so with 100 percent certainty so it is natural that lawyers will continue to say “best efforts” where they wish to impose the higest possible standard, “hold harmless” where they wish to minimise any risk of the indemnity being restricted, and a recital of consideration to raise an estoppel (although if there is doubt about consideration then a deed format should of course be used instead of simple contract – obviating the need for a recital consideration entirely although even then I will still recite consideration in a guarantee document under deed). There is tons of legal language like this and sure maybe most of it is redundant but lawyers are supposed to be conservative. So we write things like “unless and until” instead of just “until”, and “any one, or more, or all of”, and “represents and warrants”, and we still call a condition a “condition subsequent” if we want to steer a judge away from holding that a condition was a condition precedent even though we know that the distinction may be ephemeral.
RossK: I think you misunderstand what I’m trying to do. I can in fact say with “100 percent certainty” that a given usage is confusing and could result in dispute; I can point to case law to that effect. Continuing to use, for example, “indemnify and hold harmless” has nothing to do with mitigating risk and instead has everything to do with expediency and obliviousness. To accomplish a given drafting goal, you can use clear and effective language rather than resorting to defective cliches. Ken