The Role of Trust in Contract Drafting

If you were to try to perform yourself all the analysis and research required to do your work, you’d likely run out of time before you had really gotten started—to some extent, you build on what others have done.

That’s clearly the case when it comes to contract drafting. More than any other kind of legal writing, it’s precedent driven: you rely on templates, or contracts from previous deals. You don’t second-guess everything in them, as that would defeat them point of copying from them.

So using a template or precedent contract involves a measure of trust. And the drafter’s motto might well be that old saw, “Trust but verify.” Some thoughts:

  • If you’re copying promiscuously from the SEC’s EDGAR system, your trust is probably misplaced.
  • Unless you’ve worked closely with the drafter, a contract copied from your organization’s document-management system might not be much more trustworthy than something copied from EDGAR—at many organizations, there’s little in the way of centralized quality control.
  • Copying a template promulgated by a bar organization or trade group? The trust that that organization inspires might exceed the quality of its templates.

Anyone contemplating subscribing to Koncision would be entitled to ask themselves, Can I trust Koncision’s product? Well, I’ve worked lo these many years to establish my credentials as an authority on contract language—I invite you to consider them and decide. But while you’re at it, you might want to consider also the contract-language credentials of whoever’s responsible for whatever language you’d be inclined to use if you don’t use Koncision’s.

By the way, trust should be distinguished from the CYA motive. That comes into play when what you choose to copy is a function, to a greater or lesser extent, of whether if things go wrong you’ll be able to deflect blame by saying, “But I used __________’s contract from the __________ deal!”

I hope that you, dear reader, don’t find yourself motivated by CYA considerations too often. And I hope that Koncision comes to provide whatever CYA comfort the average drafter might need.

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.

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