Seeking Objective Signs of Progress

I see plenty of signs of increasing interest in rational contract language. For one thing, people keep buying MSCD in healthy numbers, and I find appreciative readers in all sorts of place.

But how about objective evidence that people are choosing to follow MSCD‘s recommendations?

Well, here’s a little test I ran. I searched that great manure lagoon, the SEC’s EDGAR system, for use in each of the past twelve years of the concluding clause The parties are signing this agreement on the date stated in the introductory clause: I think it’s safe to say that that’s my formulation. Here’s what I found:

  • November 14, 2002, through November 13, 2003: 0 contracts
  • November 14, 2003, through November 13, 2004: 0 contracts
  • November 14, 2004, through November 13, 2005: 0 contracts
  • November 14, 2005, through November 13, 2006: 0 contracts
  • November 14, 2006, through November 13, 2007: 0 contracts
  • November 14, 2007, through November 13, 2008: 5 contracts
  • November 14, 2008, through November 13, 2009: 10 contracts
  • November 14, 2009, through November 13, 2010: 12 contracts
  • November 14, 2010, through November 13, 2011: 3 contracts
  • November 14, 2011, through November 13, 2012: 18 contracts
  • November 14, 2012, through November 13, 2013: 0 contracts
  • November 14, 2013, through November 13, 2014: 14 contracts

So it appears that people are using MSCD. The lag we see between publication of the first edition in 2004 and first occurrence of the language in question on EDGAR is what I’d have expected. As regards the ups and downs, that doesn’t surprise me either: the path of progress isn’t a straight line.

But these findings also suggest that which we already know: we’ve got a long way to go. For purposes of comparison, a search for use of witnesseth in the past year retrieved 509 contracts.

Mind you, that’s not to suggest that this is somehow a numbers game. That people find my stuff useful is all I need to know; exactly how many is neither here nor there.

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.