This week I received the following message from lawyer Tim Gilmore:
I’ve been following you several years. You’re on the right track. But I’m frustrated. Ten years ago I was happier, in denial, comfortable with the conventional wisdom that legalese is court-tested and plain language is dangerous.
Then largely thanks to you and a few others, I opened Pandora’s Box. Now I’m stuck between conventional wisdom I know is dysfunctional and plain language I don’t know how to write.
I suspect that Tim’s feelings are shared by many. Ignorance can be bliss—nothing impedes you from recycling the same old contract language and dusting off the same old conventional wisdom.
That grinds to a halt once you eat the fruit of the tree of contract-drafting knowledge. It can seem as if you’ve been cast out of a world of simplicity into one where you can’t trust your old contract language and find it laborious to come up with language to replace it with.
But no one would mistake the world of traditional contract drafting as some Garden of Eden. For one thing, drafting using traditional contract language is as frustrating as it is expedient: ask any law-firm associate who is asked to base a new draft on three very different precedent contracts.
And with traditional contract language, what you don’t know can hurt you. Endless time and money is wasted puzzling through bloated and confusing contract language in the course of drafting, reviewing, and negotiating, and yet more money is wasted on disputes caused by that bloated and confusing contract language.
But the awkward fact is that although the forces of modernity have cleared the decks and provided us with guidelines for clearer contract language, we don’t yet have an authoritative source of reliable contract language for a broad range of transactions. So we’re artisans, building our own language and learning as we go.
But there are alternatives to having everyone endlessly reinvent the same wheels. I’d like to think that my showcase confidentiality-agreement template (here) is an example of one way back to efficient contract drafting, but with a solid foundation. And there’s some basis for hoping that the market is coming around to that sort of rationality.
That ties into how Tim signed off in his message to me:
Wasn’t hope at the bottom of Pandora’s Box?