Hot on the heels of Venkat Balasubramani’s Twitter update reminding me of all those I have yet to convince came a message from one of the unconvinced. The individual in question had watched my first webcast and had some questions that we discussed by email. His second email to me ended with the following paragraph:
If it is helpful to you, I’ll explain why it is a little bit difficult for me to follow your suggestions. Particularly as a young attorney, only four years out of law school, I am somewhat reluctant to disregard long-established traditions. In general, this seems like a wise approach as these traditions usually have reasons behind them of which a person may not be immediately aware. (Edmund Burke famously espoused the importance of this principle.) That’s not to say that traditions should not be changed when they become outmoded, but I would look for more than one person’s say-so and I haven’t been able to find it. As it is, outside counsel tells me that it is not important to make those changes and the templates in Westlaw don’t seem to incorporate your suggestions. I can’t even find an article on the other side of the issue that would help me weigh the two sides of the argument!
And here’s how I responded:
Regarding your closing paragraph, I understand your reticence. But your faith in traditional contract language is misplaced. You suggest that traditional usages must have some rational underpinning. I’ve spent 14 years poking around in the entrails of contract language, and I hope it comes across in my writings that I’m pragmatic and equipped with better-than-average semantic acuity. If I say that the language of mainstream contract drafting is dysfunctional, that’s because it is. The evidence for that dysfunction is on display in page after page of my book, and on my blog, along with my recommendations for superior alternative usages. Better contract language doesn’t come from placidly accepting what’s handed to you. Instead, it comes from testing the alternatives in the marketplace and using those that prove themselves to be clearest and most efficient.
As for the fact that you haven’t been able to find any writings that support my positions, that’s because there’s simply no one else out there analyzing contract language in excrutiating detail. But that doesn’t mean that my recommendations constitute nothing more than personal opinions; that something I addressed in this December 2007 blog post.
More generally, in order to use a reference work, you have to decide whether it’s reliable, and then you rely on it, unless your own knowledge—as opposed to prejudice—allows you to question it. Life’s too short for lawyers to second-guess everything they read in reference works. And when it comes to manuals of style, ultimately there’s value in having everyone following the same rules, even if there’s not much to choose between some of the usages. I leave it to you to decide whether you have enough confidence in my book to rely on it. In that regard, you might helpful some of the testimonials on this page of my site. And for what it’s worth, MSCD is widely used. Of course, to assess my book, you’d probably need to get hold of a copy!
Instead of using my book, you could rely on your outside lawyers’ reassurances that everything’s just fine as is. But what are their credentials as experts in contract language? Just having deal experience isn’t enough. It may be that they have all sorts of valid and nuanced objections to my recommendations, but I doubt it. I suspect that like everyone else, they’re churning out crap, either because they’ve acquired a taste for it or because in the high-pressure transactional world, currently no one has time or resources to do otherwise.
And I’m not surprised that they don’t want you getting any fancy ideas about improving contract language. They’d prefer to have you be a placid consumer of their products—reinventing the wheel has long been a reliable source of contract-drafting billable hours. If I were in your shoes, I’d be inclined to use my clout as client to say that I want my contracts purged of impenetrable gibberish. It wouldn’t take much for you to be more knowledgeable about contract language than your outside lawyers. Just read my book.
And as regards Westlaw’s forms, I haven’t looked at them in a while; I’ll do so. But of course they’re going to follow the herd by using mainstream contract language. It would be unrealistic to expect them to be a source of innovation or cutting-edge expertise. And by the sounds of it, they’re not.
I’m acutely aware that what I have to say doesn’t come as good news. Improving contract language is a laborious process that many, perhaps most, won’t have the time, expertise, or resources to attempt. But analyzing the current dysfunction and building a new set of rules is a necessary first step towards a real solution, which is to commoditize and outsource contract drafting. We’ll see in the coming years what sort of progress we make.
If this exchange prompts any thoughts, by all means chime in.