The Contracts Guy Reviews the Third Edition of MSCD

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.

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.