I’ve recently been emphasizing, in print and in speaking engagements, that for any organization that wants to gain control of the drafting process, a necessary first step is to adopt a house style for contract drafting. (I know of three law firms that are currently working on adopting a house style.)
What should such a house style look like, and how should an organization would go about adopting one?
Regarding what a house style should look like, I suggest, with all the objectivity I can muster, that until such time as an alternative to MSCD materializes, any organization would do best to adopt MSCD as its house style.
As to how an organization would go about adopting MSCD, I thought it high time that I offered some practical advice: click here for a draft, in Word, of what I’ve called a “statement of style for contract drafting.” In just over four pages, it allows an organization to say that it’s adopting MSCD‘s recommendations regarding contract language, explain why, and address some related issues. (I’m calling it a “statement of style” rather than a “style guide” because it doesn’t itself go into any detail.)
To give you a taste, here’s what’s on the first page:
With a view to ensuring that our contracts are as clear and efficient as possible, we have adopted this statement of style for contract drafting. It specifies guidelines regarding the look of and, more importantly, the language used in our contracts. It applies to everyone in our [organization] who is responsible for drafting or reviewing contracts. We believe that complying with this statement will save time and money and make us more competitive.
Any kind of writing would benefit from use of a style guide. That’s particularly the case with contract drafting, given that contract language is so limited and stylized and given that the ramifications of unclear contract language are potentially drastic.
Lawyers have traditionally treated contract drafting as a craft, with differences in drafting usages being attributed to acceptable divergence in individual preferences. That approach has contributed to the inconsistency and lack of clarity that afflicts mainstream contract language. By adopting this statement of style, we’re breaking with that tradition.
Following A Manual of Style for Contract Drafting
Once we decided to adopt contract-drafting guidelines, we were faced with two alternatives. We could take advantage of an existing style guide for contract drafting, or we could create our own entirely from scratch.
Only one style guide for contract drafting is currently in existence—A Manual of Style for Contract Drafting, or “MSCD,” by Kenneth A. Adams. Published by the American Bar Association and currently in its second edition, MSCD is a work of practical scholarship that has gained a wide following in the legal profession. If we were going to piggy-back off of an existing style guide, MSCD would be the only candidate.
We could conceivably create our own version of MSCD, but that would be unrealistic—it would require more resources and expertise that we have available to devote to the task.
We could prepare a skimpier version, of perhaps a couple of dozen pages. But any such guide could only skate over the surface of the diverse issues relating to contract language, so it would be of little value—with any form of writing, the devil is in the details. All published style guides for general writing are book-length. Given the technical and demanding nature of contract language, it would be unrealistic to expect that one could make do with anything less for purposes of contract drafting.
Consequently, we have decided to follow MSCD. Our guidelines regarding style can be summarized as follows: comply with the recommendations made in MSCD. (In future versions of this statement we might in a targeted way supplement that guidance.)
If you’re contemplating adopting something like this statement, please let me know.
(By the way, I included a copyright notice in my draft statement of style, just to identify myself as the author. I hereby grant to anyone interested a license to copy the draft statement of style or to prepare derivative works based on it, free of charge and without any restrictions. Thanks to Chris Lemens for prodding me to do this.)