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.