Towards an Empirical Study of Causes of Contract Disputes

As I noted in this 2013 post, I’ve long thought that it would be valuable to do a study of what proportion of contract disputes are caused by problematic contract drafting.

Well, this notion has advanced from the hypothetical to the possible. So here are some thoughts as to how this might be done:

  • I assume that it would make senses to use a publicly available database of judicial opinions, instead of downloading opinions one at a time from a commercial service.
  • I assume that it would be best to look at lower-court opinions instead of appellate opinions, so as to see a full range of disputes.
  • One could look at a random assortment of opinions from different jurisdictions, but I’m inclined to look at opinions from a single jurisdiction. That would allow one to look for changes over time.
  • The idea would be to determine which opinions relate to contract disputes, and which of those disputes were caused by contract drafting, and how. In other words, was the dispute caused by ambiguity? Conflict? Failure to address an issue? And so on. One would establish a suitable taxonomy. And one would have to take into account the possibility of multiple causes.
  • I assume that one wouldn’t rely on what the parties claimed or even what the court concluded, as they might have gotten it wrong, for example by saying that what is clear is in fact ambiguous. So perhaps one would have to note what the parties claimed, what the court concluded, and what objective analysis suggests.

If anyone has any suggestions, I’d be delighted to hear them. And I’d appreciate having a chat with someone knowledgeable about how the court system works. Can you think of anyone?

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.

14 thoughts on “Towards an Empirical Study of Causes of Contract Disputes”

  1. Ken:

    You might think about a pilot program where you use the federal courts and just look at choice of law or choice of forum clauses. You can access all federal courts through PACER (for a fee). And because it is federal court, they will have pretty high standards for opinions and they will have to face the choice of law question frequently due to diversity jurisdiction. It might not give you a big enough sample, though.


  2. An alternative approach might be to try to get a court to help you in categorising cases as they are processed, rather than try to work out for historic cases what the issue was. Recently the English High Court authorities have been helpful in identifying patent cases and giving them a different code number to other IP cases (for reasons that are not worth mentioning here).

    • Assigning a code to patent cases seems a ministerial decision. Assigning a code to contract disputes would be too, but I don’t think it would be realistic to expect anything more fine-grained than that.

  3. I assume AAA would be a gold mine for this kind of data. But I also assume AAA neither anonymizes nor sells party data.

  4. One of the advantages of having an affiliation with a law school is that you can leech onto their subscriptions for Westlaw and Lexis, where you can search by court, key word or subject heading. That way, you could, for example, specify just the New York Supreme Court (for those not familiar with it, its name notwithstanding it’s the general-purpose trial court, like the English High Court–New Yorkers are hyperbolic like that), and specify a range of key words suggestive of bad drafting, for example “contract” coupled with “poorly drafted.”

    But I assume you’ve thought of all that.


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