A couple of readers sent me links to articles relating to Steven Pinker and his new book, The Sense of Style: The Thinking Person’s Guide to Writing in the 21st Century.
For those who are unfamiliar with him, Steven Pinker is, I suppose, about as close as we get to a public intellectual these days. His mane of grey curls probably helps! I’m familiar with him largely through his book The Better Angels of Our Nature.
One of the articles is this piece in the Wall Street Journal, by Pinker himself, on the source of bad writing. Inevitably, it caused me to consider how the source of bad writing compares to the source of bad contract drafting.
Pinker leads with the following observation: “The most popular explanation is that opaque prose is a deliberate choice.” But he goes on to reject it: “Never attribute to malice that which is adequately explained by stupidity.”
That’s true of contract drafting as well. I encounter quite often the suggestion that traditional contract drafting is as it is because lawyers wish to bamboozle us all. A mountain of anecdotal evidence indicates that that’s not the case.
Here’s how Pinker describes the stupidity that he’s referring to
Call it the Curse of Knowledge: a difficulty in imagining what it is like for someone else not to know something that you know. …
The curse of knowledge is the single best explanation of why good people write bad prose. It simply doesn’t occur to the writer that her readers don’t know what she knows—that they haven’t mastered the argot of her guild, can’t divine the missing steps that seem too obvious to mention, have no way to visualize a scene that to her is as clear as day. And so the writer doesn’t bother to explain the jargon, or spell out the logic, or supply the necessary detail.
Well, that’s not the case with contract drafting. That’s because in traditional contract drafting, the building blocks of contract language aren’t a function of what the drafter knows. Instead, the drafter is mostly imparting what the drafter has copied from somewhere else. Instead of knowledge, the best the traditional drafter can count on is dog-eared conventional wisdom, picked up from who knows where.
But paradoxically, that’s why it should be easier to fix contract drafting than writing generally. Because traditional contract language doesn’t reflect innate knowledge but rather verbiage regurgitated in response to deal-point stimuli, it should be easier to swap out the traditional verbiage with something better. That’s the theory, at any rate.
7 thoughts on “What Distinguishes Bad Contract Drafting from Bad Writing”
Well, it’s certainly a feature of some academic legal writing. See my blog post here, including an outraged comment from the author of the article that I criticised: http://ipdraughts.wordpress.com/2012/04/09/practical-legal-scholarship/
Some contract wording could be viewed as the argot of the guild, eg the horrible mutatis mutandis.
Dear Mr Adams,
I agree with you in totality that most of the lawyers are picking words from somewhere else. I was working with a leading law firm and my senior was an alumnus of Harvard but still he was doing nothing except adopting the same set of writing for almost all the contracts and when I referred your book to him to change the method and suggested him not to use words which have same meaning twice then he got me fired.
That’s very unfortunate! One has to be careful about how one goes about suggesting change: people can’t be counted on to respond reasonably when you puncture the illusion that they write well.
I don’t know if you were trying to take Mr. Pinker down a peg when you quoted his use of ‘the single best explanation.’ Using ‘single’ plus a superlative adjective is a cliched redundancy that flies under the radar of even many excellent and famous writers, eg Mr. Pinker. It’s like saying, ‘Joe is a tall man, and I don’t mean two men!’
I think we’ve had this discussion before! I say that “single best” is simply rhetorical emphasis. Perhaps if Pinker and I gang up on you, we could beat you up.
I think what distinguishes bad contract drafting from bad writing is the urgency of the matter. If one is under pressure to deliver on time they might end up doing the drafting in a hurry. Otherwise, I believe every legal practioner is talented and can do well.
I’m afraid that I cannot credit your explanation and cannot share your optimism.