In this post and this post I explain why my approach to contract language doesn’t favor clarity over avoiding risk. There’s no plausible reason for anyone to spurn A Manual of Style for Contract Drafting.
Nevertheless, inertia remains. Someone who attended one of my seminars made the following point in a LinkedIn message to me:
I would love to be able to get our lawyers to draft in plain English; unfortunately, most of the older ones prefer their legalese.
And Jack added this comment to a recent post:
Part of the challenge here is getting your language past the other attorneys. Attorneys who use “legalese” often think that they need to write this way to conform to judicial interpretations of past contracts. Consequently, their effort will be to try to convert your language into their preferred way of writing.
I return to the issue of inertia quite often, but let me take another crack at it now. How can you encourage others to accept improved contract language, whether they’re within your organization or outside it? (Regarding the latter category, I have in mind your outside counsel and people on the other side of a deal from you.)
I think you can bring to bear three levels of suasion. Let’s call them “green,” “yellow,” and “red.”
The green level involves winning people over with reasoned argument. Usage X is preferable to usage Y because __________. “Tested” contract language is a canard because __________. And so on.
But life might be too short to do this sort of thing routinely (unless your name is Ken Adams!). And some people have invested so much in the notion that they’re proficient drafters that they simply reject anything inconsistent with it.
The yellow level ups the ante by suggesting that the person advocating inertia is on the wrong side of history and is packing little in the way of scholarship firepower.
Your main weapon here is A Manual of Style for Contract Drafting. The pitch would go as follows: Are you familiar with MSCD? No, you’re not! Oh. Really. Well, here’s the third edition. Yes, the Wire-O binding is pretty nifty. Yes, it’s very detailed. Adams has been hammering away at this stuff for around fifteen years, analyzing the same issues over and over again, and having his views tested in the marketplace of ideas. You should see the courts that are citing him now. And the book is in use pretty much everywhere, even internationally—it’s the new orthodoxy. You really should get a copy. Everyone at [cite relevant constituency] relies on it.
The red level applies the most vigorous level of suasion—”This is the way we’re doing it.”
With respect to a company’s own drafting, it would involve telling everyone to comply with the company’s new style guide, either one created from scratch or, more likely, one based on MSCD. (Go here for my model “statement of style.”) This wouldn’t have a prayer of working at most law firms, for reasons discussed in this article.)
With respect to someone on the other side of the table, it would involve telling them that any comments unrelated to deal points aren’t welcome. The model statement of style contains language to that effect that you could use when sending out a draft that complies with MSCD guidelines.
With respect a company’s outside counsel, it would involve making it clear to them that if they want continued transactional work, all drafts that the law firm creates for the company will have to comply with MSCD. For more on that, see this recent post.
What determines which level is appropriate for you? In this 2012 post, I suggested that the following factors are required if an organization wants to be aggressive about overcoming inertia in the contract process:
The organization has to be under pressure, but still have sufficient resources to effect change. And it has to have strong centralized control, so as to be able to overcome the urge to protect your turf and stick with what you know.
But those factors are perhaps not sufficient. Maybe you also need that intangible, the vision thing.