A couple of recent posts (this one and this one) prompted some gnashing of teeth and rending of clothes by commenters frustrated at the pushback they encounter when they use clear, efficient, and modern contract language. So I thought it might be worthwhile for me to elaborate on something I offered in this comment. Here goes:
I’m optimistic about the prospects for change. No doubt that’s due in part to my no longer being engaged in hand-to-hand fighting in the deal-making trenches: I don’t have people on the other side of the table, or higher up the food chain, constantly shoving deficient language in my face. That might make me a teeny bit detached, but the flip side is that it permits me to have a broader perspective.
And that broader perspective tells me that I’m on the winning side of this particular battle.
First off, it’s not an even fight. Sure, at the moment they (the Forces of Tradition) are many and we (the Forces of Modernity) are relatively few. But traditional contract language doesn’t represents a coherent, disciplined body of knowledge. Instead, it’s chaotic, and it feeds off confusion, expediency, inexperience, and timidity. It shouldn’t represent much of an obstacle for a more coherent alternative. So it’s relevant that A Manual of Style for Contract Drafting is selling well—with luck, most people who are exposed to it won’t remain satisfied with uncritical regurgitation.
And the economics of contract drafting weigh in our favor. Using traditional contract language means that every stage in the contract process—drafting, reviewing, negotiating, and monitoring performance—takes longer, and costs more, than it should. In that regard, it’s company law departments that are best positioned to drive change, in that they’re the ones who pay the bills for inefficient drafting, whether by their lawyers or, more to the point, their outside counsel. I learned long ago not to expect company law departments to accept change with any alacrity. (Click here for a Ron Friedmann post in that vein.) But company law departments are under increasing pressure to do more with less, making it more likely that in the long run they’ll embrace simplicity and require it of their outside counsel.
I’ve drawn an analogy between the current state of contract language and the inconsistencies in English spelling before the advent of dictionaries. Once dictionaries were introduced in the mid 1600s, spelling started to stabilize, and by the 1800s most words had set spellings. But given the ever-accelerating pace of change, when it comes to contract language we won’t have to wait 150 years for progress.
How about helping to move things along? To protect your MSCD-compliant language from attack, take advantage of the principle of deal etiquette that says that anyone commenting on the other side’s draft should limit themselves to substantive comments. For more on this, see this blog post and the related comments.
Once again, bear in mind that I’m no bomb thrower. We’re not talking about revolutionary change but rather a rigorous fine-tuning.