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.
8 thoughts on “The Three Big Misconceptions of Contract Drafting”
In fairness to the “tested” language proponents, I believe that tested contract language falls into two categories and your analysis doesn’t consider the second. The first category is the tested language that you identify, that is, language that was tested and failed.
I know trial lawyers who believe in using tested language, by which they mean language that was tested and passed. This second category is language that the court accepts day in and day out without question. Take, for example, a confession of judgment provision. Most can be drafted more clearly, the language can be more efficient. But if the local courts before which an attorney regularly appears to enforce the confession of judgment provision routinely accept the language, why should an attorney change it?
(I disagree with my trial attorney friends on this issue and am offended at some of the language they use in contracts.)
Bryan: I actually meant something different. I’m talking about contract language that failed because the parties got into a fight over what it meant. A court then had to resolve the dispute. So in my understanding of the term, there aren’t two categories of “tested” language.
In referring to language that “was tested and passed,” I think you’re talking about litigation drafting. I don’t have anything to do with that.
I encounter the ‘tested language’ argument a lot from my supervising partners, often when I try to implement Ken’s suggestions (e.g. doing away with ‘commercially best reasonable efforts’ or some-such in favour of mere ‘reasonable efforts’). It’s frustrating. And yet, I can see that while it may be that language on which a court had to rule initially can be said to have ‘failed’, in that its meaning could not otherwise be discerned, nevertheless once courts have consistently ruled that certain language has a certain meaning, wouldn’t it be a brave lawyer who decided to depart from it – however much ‘better’ or ‘clearer’ his new language may be ?
In other words, as to Ken’s point 2 above, let’s say arguendo that the first and second arguments don’t come into play – a specific term is consistently deemed to have a particular meaning in all relevant jurisdictions (if indeed there is such a case). In such a case, Ken, do you still say that it would be a ‘lazy platitude’ to use such term in place of an objectively clearer one ?
I’m not trying to be facetious; I’d genuinely be happy to have an answer to this, the better to convince others !
SB: The “tested language” notion is generally offered in the abstract; the best way to counter it is to be specific. What is the issue being debated? What exactly does the caselaw say? How do the semantics play out? I can’t offhand think of an instance where after that sort of analysis I’ve concluded that sticking with confusing but “tested” language is the best way to go.
“Efforts” provisions are a great example of a context where traditionalists bleat about “tested” language, but in fact the caselaw is very different from what they think it is.
I don’t understand your use of “litigation drafting”. Isn’t every contract drafted with a view to litigation?
I think most readers of this blog would agree with your stance, aspirationally, but I do not think things are as cut-and-dry as this for a transactional lawyer drafting a contract to suit his client.
If every client (and counterparty) bought into your philosophy, then “hallelujah!”, but the driving force behind the transactional lawyer’s drafting process is preparing a document that best serves the client’s interests (or what the client perceives to be his interests) and that will include:
1. building in provisions that are essentially redundant (for example, terms that are implied by statute) because the client or counterparty wants to see them in black and white, and the client would benefit from seeing them in what will become a reference document (he cannot be relied upon to keep an annotated version with reference notes, separately from the signed filed document);
2. sacrificing some commercial protection in areas perceived by the client to be less significant or lower risk, in order to conserve space, shorten the document overall, and potentially aid the negotiation process;
3. using superfluous, archaic, or tested language; and
4. using language used by the client or counterparty in other contexts to aid consistency with other documents and readability by the client and counterparty.
Clearly, the client’s interests would be better served by them being persuaded to accept the virtues of ‘MSCD3-compliant’ drafting, but it is rare to find a client who has the time or inclination to understand these arguments, and even rarer to find a transaction lawyer who has the time, inclination or courage to try to shape his client’s instructions in this way.
James: I have no argument that it can be helpful to a client to state in a contract what the law provides. And of course what you include in a contract is a matter of balancing the risk posed against the drawbacks of adding additional verbiage to the contract.
Does one end up including suboptimal language just for consistency with other contracts? Sure. But I don’t accept the notion that including suboptimal language can make a contract easier to read: the whole point of my guidelines is to make contracts clearer.
Do clients and their lawyers nevertheless include suboptimal language in their contracts? Of course. But we’re not dealing with an all-or-nothing scenario. If you’re a drafter, you have control over your contract. The fact that countless others accept suboptimal language doesn’t mean that you have to.
“Tested” means keep piling up the old contract garbage, making it into an occupational layer for law-archeologists like Ken to sift through and try to make sense of those remains of primitive tools and bits of pottery that only the “tested” cavemen knew about. A lot of things were “tested” and and safe – like riding in a horse-drawn cart or living under British rule until Washington – this crazy fool who did not want to keep swimming in this “tested” comfort zone – changed it. In other words, “tested” is sitting in your own filth because you are too lazy to get out of your tub and clean it.