What Does Glenn West Mean When He Says You Should Make Sure Your Contracts Say What You Meant?

I find it convenient to divide the world of contract drafting into deciding what you want to say in a contract and deciding how you want to say it. They’re not distinct tasks, but rather two ends of a spectrum, with blurring in the middle, because how you say something can unexpectedly affect meaning.

I focus on the how-to-say-it part, with occasional forays into boilerplate topics like governing law, force majeure, and indemnification. A savvy commentator on the what-to-say part is Glenn West, a partner at the law firm Weil. (That’s him in the photo.) Glenn has written about many deal issues; I’ve mentioned him in a bunch of blog posts.

So I of course checked out his most recent post on Weil’s Global Private Equity Watch blog. The title is A New Year’s Resolution for Deal Professionals: Make Sure Your Written Deal Documents Say (And Will Be Interpreted to Mean) What You Meant. In it, Glenn points to recent court opinions reinforcing the notion that courts interpret contracts to mean what they appear to say, not what you might have thought they say.

That’s a worthwhile reminder, but it raises a big question. Yes, you should make sure your contracts say what you mean, but no sane and sober drafter ever says to themselves while drafting a contract, I’m going to make sure this contract doesn’t say what I mean! Instead, any disconnect between what you say in a contract and what you mean will be inadvertent.

So “Make sure your contracts say what you meant” is an invitation to a conversation. Acting on it requires guidance. Glenn isn’t in the business of providing that sort of guidance. Mastering the how-to-say-it part of contract drafting requires devoting endless hours to a worm’s-eye view of contract language. No one with a day job, and certainly no titan of BigLaw, has time for that.

When Glenn tells you that you should make sure your contracts say what you mean, in effect he’s leaving you at the gates of the how-to-say-it world. While you’re there, you might see me frantically waving, trying to catch your eye.

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.

3 thoughts on “What Does Glenn West Mean When He Says You Should Make Sure Your Contracts Say What You Meant?”

  1. It’s not insanity or inebriation, but there are still quite a few seriously deluded lawyers out there who draft contracts with deliberately obfuscatory language. The theory is that the counter-party would never agree to what the lawyer’s client wants the contract to say, so better to fudge the language so it will be later possible to *argue* that it meant what the client wanted it to say. Think about the cartoon on Mark Anderson’s site of Mr. Pettifog chortling over some bit of maliciously drafted disingenuousness. And unfortunately, there are just enough situations in which the counter-party isn’t in a financial or transactional position when a dispute arises to challenge the position of the drafter, and just enough judges willing to take the bait, to make these (in my view) unethical lawyers willing to risk their clients’ money on gambits like that.

    You have said on several occasions that drafting skills and negotiating skills are sufficiently separate that they should be handled by different people, but I disagree. If the lawyer negotiating the deal doesn’t know how best to draft a provision to say exactly what (s)he means it to say, then the cause will be lost: in the heat of negotiation, nobody’s going to take the time to say “I’ll have to run this past my contract-drafting consultant.” The two skills go hand-in-hand, just as an advocate had better know the law.

    • Happy New Year to you, Vance.

      Occam’s razor suggests that contracts are unclear because drafters don’t know what they’re doing, but presumably some of the time it’s deliberate.

      I don’t recall having said that drafting and negotiation should be handled by different people. If someone can do both, so much the better, but you’d want both skills at the table, one way or the other.

      • Clarify, please.

        You have said, I think, that dealmakers (negotiators) sometimes disparage drafters as mere ‘wordsmiths’ to whom the dealmakers hand the deal points or term sheet after the deal is struck to be ‘wordsmithed’. You were making the point that when disputes arise, the wordsmithing *is* the deal.

        So when you say one wants both skills ‘at the table’, do you mean that if the negotiator and the drafter for a side are different persons, both should be ‘at the table’?

        Also, what’s the ‘table’ for the purpose of both skills being at it?


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