In response to a cri de coeur from @FlemingMF, in this 2009 post I introduced a notion aimed at preempting pushback from traditionalists bewildered by clear contract language. I suggested that when you send out a first draft that complies with MSCD, you could include a cover note asking that the other side refrain from making comments that don’t pertain to deal points.
I revisited the idea in this 2011 post, in which I noted that someone who had attended one of my seminars told me that she uses just such a cover note. Since then I’ve encountered others who do so.
I was reminded all this by an exchange on Twitter today. I revised my form of cover note for purposes of the “model statement of style” included in MSCD as appendix 2 (it’s also available here), so I thought it might be helpful for me to post the revised language. Here it is:
The language used in the attached draft complies with the recommendations contained in Kenneth A. Adams, A Manual of Style for Contract Drafting (ABA 3d ed. 2013).
That book explains that many traditional drafting usages are inconsistent with clear, modern, and effective drafting, and it recommends alternatives. Consequently, you may find that some usages that you use routinely in your contracts aren’t present in this draft.
Before you ask that any traditional usages be restored to this draft, please consider whether restoring them would change the meaning of any contract provisions or make them clearer. If it wouldn’t, making those changes would serve no purpose.
And please consult A Manual of Style for Contract Drafting to see what it has to say about any usage that you seek to restore—it may be problematic in ways you hadn’t considered.
It’s in the interests of both sides not to spend time making, or even discussing, changes that have no bearing on the deal or that might create confusion.
Would you consider using such a note? Have you ever received one?
Ken:
In the commercial context, only the customer (not the vendor) could send such a note.
Chris
That’s good to bear in mind.
I don’t agree. Whoever first drafts the contract can send a note (I actually have a first-page header to similar effect, which doesn’t go into lengthy explanations about standard usage). If a customer, receiving the contract, objects strenuously, then obviously the drafter can back off, though I would try to have a colloquy on the subject first.
When I’m the first drafter, whether as seller or buyer, and the other side inserts language that by habit contains traditionalist bric-a-brac, I clean it up even when accepting the substance of the point, and just politely say it’s for stylistic consistency. I seldom get much push-back.
Vance:
Fair point. I was assuming a starting point of responding to the other side’s document. I have sent a similar note when mine was the first draft.
Chris
I wouldn’t dream of sending this note with anything but a first draft.
Rarely, I’ve received or sent a note that asked the other side to limit their changes to only the very most important issues. But that usually has to do with something other than one drafter using a style of drafting that is different from what most people use or see. I’ve never seen a note like that above.
In my current practice, I am always the customer. If I got a note like that above, I’d react badly – mostly because I’d assume it was a vendor who was just teeing up for a pointlessly lengthy and tense negotiation. I think the first two paragraphs would be helpful, but the rest would be offputting.
I, too, caught a whiff of condescension. Maybe this is no better, but I gave it the old college:
The attached draft follows the recommendations in A Manual of Style for Contract Drafting (ABA 3d ed. 2013) by Kenneth A. Adams.
“MSCD style” avoids the pitfalls in traditional style that are identified in the Adams book.
As a result, this draft may contain usages that differ from some that occur routinely in your contracts.
Our request is that you ask for reversions to traditional usages only when you believe a particular reversion would alter or clarify a deal point.
We rely on the traditional courtesy by which one seeks only those changes in the first drafter’s proposal that alter or clarify deal points.
This mode of proceeding also saves time discussing language changes that neither change the deal nor enhance clarity.
I agree the above language seems a little condescending. I would suggest this re-write:
The language used in the attached draft follows the recommendations contained in Kenneth A. Adams, A Manual of Style for Contract Drafting (ABA 3d ed. 2013). This manual explains that many traditional drafting usages are inconsistent with clear, modern, and effective drafting, and it recommends alternatives which are used in the attached draft. Consequently, you may not find some word choices you routinely use or see in contracts present in the attached draft.
Before you ask that any traditional language be restored to the attached draft, please consider whether restoring such language would change the meaning of any contract provisions or make them clearer. I would prefer not to discuss language which does not change or make clearer the attached draft in the interest of saving time. I am open to discussions changes to any draft language for other reasons.
If you have not, I would encourage you to consult A Manual of Style for Contract Drafting so that we may have a baseline for discussions concerning the attached draft.
I’m probably a little too, um, close to the topic to get the tone just right. But I think that “condescending” isn’t quite right either. My cover note is geared to the less sophisticated end of the spectrum; it’s inevitable that those at the other end of the spectrum will think that someone’s speaking down to them. Perhaps I should do alternative versions.