Wading Through Caselaw Probably Isn’t a Good Use of Your Time

Recently I did this post prompted by an exchange with a reader. That exchange started with my reader asking this question:

How do you stay on top of contract dispute cases that deal with imprecision of language, as you discuss on your website? Are there certain search terms you use in Westlaw? I have tried to search for cases, but I’m not sure what terms to use.

When I’m on the hunt for court opinions relevant to what I do, I search on Westlaw for opinions that feature the word ambiguity or the word ambiguous a minimum of some specified number of times. But I confess it’s been a while since I’ve done that. These days I rely mostly on stuff I find online and tips sent me by readers. The reasons for that might be of more general relevance.

Caselaw shows us how language can fail us by being so confusing as to result in a public fight. There’s nothing so compelling as a court opinion to convey the waste and expense that can result from defective drafting. That’s why I’ve kept my eye open for disputes over particular usages. For example, I was delighted to be able to round out the caselaw discussed in the MSCD chapter on “ambiguity of the part versus the whole” by adding a page discussing an English case relating to the word all. (See this post.)

But for three reasons, I wouldn’t recommend that those looking to become better informed consumers of contract language trawl caselaw looking for cautionary tales.

First, that sort of search takes time.

Second, for those who work with contracts there’s little value in learning the same lessons over and over again. How many court opinions on, say, syntactic ambiguity do you have to read to be alert to it? Not that many, I’d have thought. (My needs are a little different. It’s part of my job to try to cut through the fog of inertia by saying the same things over and over.)

And third, reading caselaw is often a serious pain in the neck. It’s not simply a matter of trying to make sense of whatever text the litigants were fighting over—you might also have to untangle a court’s botched analysis. That’s not a task to take on lightly. See for example this post on a recent Minnesota Court of Appeals case involving syntactic ambiguity.

So for most of you, wading through caselaw wouldn’t be a good use of your time. Instead, spend some of that time with MSCD, becoming more familiar with what causes fights over confusing contract language and how to avoid that confusion. If you really want a closer look at caselaw, look through the blog archives. In the posts on caselaw, I serve as your guide.

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.

4 thoughts on “Wading Through Caselaw Probably Isn’t a Good Use of Your Time”

  1. I agree! I rarely look to case law to help inform how to draft contracts and clauses. Your book, A Manual of Style for Contract Drafting, is a much better starting point. In addition, one rule of thumb I always use is: make sure the language clearly reflects the intent. Key word being “clearly.” That is half (if not more) of the battle when it comes to contract cases.

  2. I don’t read case law for abstract drafting tips. I read it to stay on top of developments and disputes in the industries I serve, and occasionally to figure out a particular point of law. It just so happens a fair number of those cases are at least partially on contract claims. There’s an element to this that’s not so unlike the rationale for reading the trade press and mass media news and opinion coverage. Story time!

    In the back of my mind, I also want to make sure that I stay in sync with how judges think through things that I handle. I don’t always guess how they’ll decide specific issues or cases. But I want to make sure that at least their approaches, the way they summarize policies and summon up rules that I advise on, don’t come as a total surprise. I don’t want to get blindsided.

  3. Caselaw (particularly when limited to appellate courts) is not statistically correlated to the reality of the hundreds of thousands of contracts drafted and signed for every contract-law case report that’s out there, so reading opinions would lead one to inaccurate perceptions of how rotten drafting is in the real world.

    Of course, the next question is whether it’s actually worse in the real world than the cases would lead you to believe!


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