Generally, when I disagree with someone, it’s not over some discrete usage issue. Instead, it’s because they’ve bought into one of the three great misconceptions of contract drafting. You’re already familiar with them, but since I encounter them alarmingly often, I thought I’d take this opportunity to air them again:
1. “Everyone Has Their Own Drafting Style”
Just yesterday I heard someone offer, as if it were part of the normal order of things, the notion that lawyers have different drafting styles. I beg to differ.
We’re not talking about writing a novel, a resume cover letter, or a greeting for your holiday card. Instead, we’re dealing with the limited and stylized world of contract language. Sure, there’s some wiggle room, but the general rule is that to articulate a given deal point, there’s the clearest way and less-clear ways.
If different drafting styles had no effect on clarity, I’d be in some other line of work. Of course, you could call the dysfunction of traditional drafting a “style,” but the word “style” suggests a reasoned foundation that’s lacking in traditional contract language.
2. “You Mess with Tested Contract Language at Your Peril”
I quoted in this May 2012 post the following expression of the notion of “tested” contract language:
[C]areful writing can even be counterproductive if the result is to re-draft language that has been previously interpreted by a court as having a particular meaning. Ironically, in such a case, changing the words—even for the better—can only increase uncertainty.
But this excuse for not using the clearest contract language suffers from three fatal weaknesses:
First, because courts have scrutinized some traditional contract terminology but not the full range of contract usages, the notion of “tested” contract language applies only narrowly.
Second, the notion of “tested” contract language suggests that all courts ascribe the same set meaning to individual usages. That’s not so. How courts interpret usages depends on the circumstances of each case, not to mention the semantic acuity of the judge, and can vary over time and among jurisdictions.
And third, if parties to a contract had to ask a court to determine the meaning of a particular provision, that’s because the contract failed to state clearly the intent of the parties. Why rely on language that created confusion? (As @theContractsGuy has suggested, a better term than “tested” language would be “failed” language.) Instead, express meaning clearly, so you needn’t gamble on a court’s breathing the desired meaning into the contract.
So although some lawyers will continue to claim that “tested” contract language is safer than expressing meaning clearly using standard English, it’s a lazy platitude that doesn’t survive scrutiny. That’s why those who invoke “tested” contract language rarely get around to offering arguments to support it.
3. “I Have a Different Drafting Philosophy”
A more exalted version of the notion of drafting styles is the notion of drafting “philosophies.” My philosophy is to state the deal as clearly and as concisely as possible and to avoid any risk of confusion. What other philosophy is there?
I suppose you could call the notion of different drafting styles a philosophy. The notion of “tested” contract language too. But just as it diminishes the notion of “style” to say that traditional contract language represents a drafting style, it also diminishes the notion of “philosophy” to describe those two turkeys as philosophies.
If I’m missing anything in all this, let me know. I’m not trying to be snarky; I’m just bemused.