Recently I saw this LinkedIn post by Jerry Levine in which he outlines six different styles of contract.
The accompanying image is of how his post describes the first two kinds of contract, namely “Traditional/Legalese” and “Modern Precise.” He tags me in “Modern Precise,” saying I “built a whole discipline around this.”
Jerry’s post got me thinking. In effect, he styles my work not as a gloss on traditional drafting, but as something distinct and apart. I hadn’t thought of it in those terms, but I think he’s right—my work reflects a methodical and rigorous approach that’s the opposite of traditional drafting. And I love the name “Modern Precise.”
I couldn’t help but notice that I’m the only individual associated with one of the six styles of contract. That reflects the scope of my work and the ambition of A Manual of Style for Contract Drafting. Without MSCD, there would be no Modern Precise.
For comparison, what are the hallmarks of Traditional/Legalese? Copy-and-pasting, obviously, and the cognitive debt that comes with it, so you’re cranking the handle of the copy-and-paste machine with little understanding to show for it. It’s a hermetically sealed world in which MSCD has never existed.
But Traditional/Legalese is the order of the day. It’s easy to identify its artifacts and those organizations that indulge in it. For an example, check out my new article in Corporate Counsel Now. (Go here for the article; go here for my related blog post.)
By contrast, the Modern Precise constituency is a diffuse one. MSCD has sold tens of thousands of copies; I’ve offered training to many thousands of participants; and people let me know my work is meaningful (see this blog post). But you’d be hard-pressed to see a Modern Precise contract in the wild (unless you drafted it) or identify a company or law firm that is avowedly Modern Precise. For example, I’ve idly considered the phrase The parties are signing this agreement (recommended in MSCD for the concluding clause) to be an MSCD-reader shibboleth. It’s on EDGAR, but in paltry numbers.
That’s because the constituency for Modern Precise is individuals, not organizations. That has to change if we want Modern Precise to play a broader role than being wielded by individuals at the margins of Traditional/Legalese.
Greetings from the Jurassic age and this particular lexosaurus. I find myself welded to the craft of traditional drafting and as an od school lawyer, believe I understand the extent of the strings of definitions and extent of certainty that they provide. Isn’t your less is more approach dumbing down to an LCD for practionioners who don’t possess the experience and knowledge? Are not time tested clauses a place to find certainty? I agree that the law is full of pompous gits who revel in the arcane and opaque, but it strikes me that terms of art, equivalent to our fealty to precendent have a concrete place in drafting.
Hi Daniel. This isn’t something that can usefully be discussed in generalities. I’ll start by asking how familiar you are with my stuff. In particular, have you consulted my book? Until you have, we can’t have a sensible exchange of views. Ken
I might be “new“ to contract drafting by your terms: I was a summer associate 30 years ago, so perhaps I’m still pretty green.
I can’t think of anything in the MSCD that could appropriately be described as “dumbing down” the provision.
But the pages abound with examples of where the time-tested approach, already old by the time I started writing riders on the back of a printed page, is the lazy approach.
Lazy for not bothering to read the words on the page (passive voice is ambiguous); lazy for not thinking about fundamental principles of contract law (purporting to bind non-parties like accountants); lazy for not thinking about what the provision is actually intended to accomplish (successors and assigns).
I don’t know you, but I bet you’ve either added a successors and assigns provision or accepted that change without a thought as to what it means and whether your counterpart had the same thought as you. I sure used to think that way.
So I offer this confession of clear problems in drafting that are NOT endangered in the wild, and hope that it encourages you to read a few more blog posts, including the ones that trot out and politely demolish all the excuses we corporate lawyers have been passing on from partner to associate for literal decades.
I’d rather be in the club that says “I know what every sentence is supposed to do” vs the one that says “I hope this is a good form.”