In this post I say why it’s important to be systematic about applying effective contract-drafting usages systematically. But in my consulting work, that’s only a small part of the story. If, as is usually the case, I’m charged with producing a new version of a template that uses traditional contract language, my work consists of way more than fine-tuning the wording.
Even if you assume that the substance—the what-to-say part—remains essentially unchanged, the how-to-say-it part still offers plenty of scope for drastic change.
For one thing, when it comes to the boilerplate (Notices, Indemnification, Governing Law, and so on), it makes sense for me to use my own versions, refined over the years, instead of retooling whatever happens to be in the template I’m working on.
But beyond that, I can usually expect to apply a cascading series of changes that renders my version entirely distinct from what I started with. I can expect to do, among other things, the following:
- apply a different enumeration scheme
- reorder provisions so they tell the story of the transaction more effectively
- revise the categories of contract language so that, for example, a sentence that started as an obligation becomes a condition
- overhaul how defined terms are handled, so a cumbersome definition section at the beginning of the body of the contract is slimmed down, with the remaining definitions either in a definition section toward the back or placed “on site”
- replace many abstract nouns with verbs or adjectives
- eliminate redundancy
Some of those changes are significant when considered on their own. Others are significant when considered cumulatively. Either way, the client gets back something very different. For an example of what this sort of change looks like, see the appendix to the fourth edition of MSCD. It consists of two versions of a contract given me by one of the national U.S. law firms. The first version is the original, annotated with over 200 footnotes explaining its shortcomings. The second version is my redraft, which is significantly shorter, much clearer, and very different, although it says essentially the same thing as the original.
I now warn clients about change up-front, because some clients aren’t equipped to handle change.
I’m unable to offer a halfway version of change. I don’t just “tweak” templates, because that would require me to decide what level of dysfunction is acceptable. I wouldn’t know how to make those sorts of calls.
Recently a client made it clear that given their deadlines, drastic change wasn’t an option. So instead of revising their template, I produced an extensively annotated version, leaving them to make whatever changes they felt appropriate. The best that could be said for that approach is that it’s better than nothing.
That second-to-last paragraph speaks to me, as I feel that is a conversation I and every decent solicitor has frequently with clients, except you’ve summarized it more eloquently. I’m going to borrow some of your words for future such conversations.
Nor sure where the best place is to post this, but I wonder what you think of the advice from Bryan Garner here: http://www.abajournal.com/magazine/article/of_lists_and_tabs_transforming_transactional_drafts_to_make_sense/
The original slab of text is horrible, and it is clearly an awful lot better to reformat and add subheadings, but what about the language itself?
I don’t like his enumeration scheme. You can find details of my more recent enumeration scheme at https://www.adamsdrafting.com/a-new-mscd-enumeration-scheme/. Full details are in MSCD4.
As regards the language, critiquing it would not be a good use of anyone’s time.
I wasn’t expecting a line by line critique!
It seems to me that the original version was exceptionally dysfunctional, and the revised version is materially better in almost every way. No doubt it could be improved further, like any work of human hands.
I cannot understand why anyone would want to use a wall of text like the original version. Unless perhaps the aim is to confuse and obfuscate?
Actually, your comment prompted me to look closer at it, in terms of both layout and language. Expect a blog post next week on the layout side of things.
And sure, the original was particularly deranged.
It’s hard to calibrate the alleviation of dysfunction: is one contract twice as well drafted than another because the former generates only three disputes and the latter six?
But Ken, you have a reputational reason not to do ‘percentage’ jobs: you can’t afford to have someone look at a contract, say ‘This contract is rubbish’, and be told ‘But Ken Adams himself revised it’. Your annotation solution was elegant.
Dysfunction is not fungible. A near-perfect contract with one key ambiguity can sink the deal, and a work of a thousand infelicities can make all the parties rich.
The near-perfect deal with a fatal flaw is like a barrel of fine wine with one spoonful of sewage. It’s a barrel of sewage. Woe to the consultant who did only 99% of the job. –Wright