Right and Wrong in Drafting Usages

Someone who does a lot of presentations to law firms recommended to me that when I field comments from the audience, I should avoid suggesting that I’m right and the speaker is wrong.

I understand his point; after all, the customer is, in a larger sense, always right.

But I find it hard to be too easygoing. Because contract language regulates conduct, it’s more limited and stylized than narrative prose. Furthermore, the consequences of getting it wrong are more pronounced than in the case of narrative prose. So my mantra is that if you and I employ different usages to accomplish a given drafting goal, one of us is likely being less efficient than the other. I discussed this point in this December 2007 post on whether I’m simply expressing my “personal opinions.”

And sometimes when addressing an issue of semantics I’ll conclude that the alternative approaches on offer aren’t a matter of degrees of efficiency but rather logically defensible versus logically indefensible. I took this position in response to some comments to my recent post on—what else—best efforts.

So when it comes assessing alternative usages, I don’t think I’d be doing anyone any favors by adopting an anything-goes approach so as to avoid any chance of bruised feelings. But I’ll do my best to make sure that I understand your point and that I’m not heavyhanded in expressing my own view.

And I’d like to think that I’m always prepared to be proved wrong. The quickest way to make progress is to have someone show you how you messed up. And I’ve made my share of mistakes.

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.