Brian Rogers, also known as @theContractsGuy, has reviewed the third edition of A Manual of Style for Contract Drafting. Go here to read it. I’m delighted that Brian thought it worthwhile to go through the old-fashioned work involved in writing a book review.
No reviewer want to write a puff piece, and Brian is no exception. Although his review is certainly positive, he echoes Mark Anderson’s review (here) in suggesting that my guidelines might be more concerned with clarity for its own sake rather than achieving a favorable outcome.
That’s a notion that has also cropped up in the comments to this recent post, and I’ll be exploring it further in an upcoming post. For now, suffice to say that I think it’s unfounded. My guidelines are squarely aimed at avoiding confusion and risk and achieving clarity. More specifically, the risks you want to avoid are (1) that confusion leads to litigation and (2) that a judge finds unintended meaning in your contract language. As part of analyzing those risks, MSCD cites dozens of court opinions.
Avoiding risk requires judgment calls. And sometimes avoiding risk has to be balanced against concision. My track record shows that I’m hardly infallible. But I think that the only way to fault my judgment is to point out to me the flaws in specific recommendations.
In that regard, I have no qualms about my recommendation that drafters not use the phrase best efforts. That’s a strategy that entails no risk.
3 thoughts on “The Contracts Guy Reviews the Third Edition of MSCD”
I only took a quick glance at Anderson’s review, but my take was that he felt one line of thought not generally present in MSCD is how using more arcane language may provide an advantage in a dispute to your client over it’s counterparty due to the court’s interpretation of such language. This advantage would be at the expense of clarity of the contract’s language.
Anderon’s point is a good one, but frankly, a tool that can be used to provide clarity to contracts and best represent the agreement of the parties is generally more useful than one that would give you an “edge” by using language that is murky or the meaning of which has been tweaked by courts in some fashion. I think it best to head directly to topical caselaw in those circumstances, and see what you can glean from the language used.
If you want to use unclear language in a contract, you should at least know that it is unclear, why it is unclear and what the risks of using it are. Using such language is something that lawyers often have good reason to do. But unless they have thought about language properly and know what is good, clear language and what is not, they aren’t really in a position to exercise good judgement about when to fudge an issue.
Understanding clarity and ambiguity is important for everyone who drafts a contract, even if they want to use it in ways that MSCD would not recommend. So MSCD doesn’t need to be on one side of a debate with more pragmatically-minded persons on the other side.