What Distinguishes Bad Contract Drafting from Bad Writing

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.