Preempting Pushback from Traditionalists

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?

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.