I noticed this article published by IACCM. It’s entitled Why Are Agreements So Hard to Understand?, and it’s by Kristian Foss, a partner in a Norwegian law firm. It prompted the following thoughts:
- Contracts aren’t easy to understand? No surprise there. Sure, traditional contract drafting is dreadful, but the awkward fact is that transactions tend to be complicated. “Easy” is often an illusion; I’ll take “clear” instead. For my blog post about that, go to this blog post.
- It’s a canard that contracts are drafted by lawyers for lawyers, with the only problem being that they should take pity on the unenlightened. Lawyers are as bamboozled by traditional contract drafting as everyone else.
- Comparing the number of words in a bunch of different contracts tells us nothing, except perhaps that U.S. drafters are verbose, but we knew that already.
- Exhorting people to keep contracts simple and brief is hopeless. As I’ve already noted, transactions get complicated quickly. And if you aim instead for clarity, saying “be clear” gets you nowhere. Drafting clearly requires mastering the building blocks of contract language. There’s a lot to master—that’s why I was able to write a 600-page book on the subject.
- The author cites approvingly a Harvard Business Review article by a general counsel at GE Aviation. That article is in fact a great example of what happens if you’re naïve about the complexity of contract language. For my take on that article, see this blog post.
- The entries under the heading “Is someone addressing the problem?” are quaint. I have great regard for the work of Richard Wydick, but anyone who relies on a generalist work like Plain English for Lawyers for drafting contracts is asking for trouble. A more relevant entry would be my book A Manual of Style for Contract Drafting.