What Proportion of Litigated Contract Disputes Are Caused by Drafting Glitches?

Today I happened to consult the Black’s Law Dictionary definition of ipso facto. Here it is:

ipso facto (ip-soh fak-toh). [Latin “by the fact itself”] (16c) By the very nature of the situation <if 25% of all contractual litigation is caused by faulty drafting, then, ipso facto, the profession needs to improve its drafting skills>.

I was tickled by the example provided. Seems logical to me!

But it reminded me that I haven’t seen any study that attempts to determine the underlying causes of litigated contract disputes. I recall maybe fifteen years ago reading that a Harvard Law School study had determined that a specified proportion of contract disputes were caused by bad drafting, but when I tried to track down the study, no one had heard of it.

If you know of any such study, pleased let me know. And if no one has ever done one, well, why not? It seems like a worthwhile task for a PhD candidate, or law-school faculty.

If I were inclined to do such a study—and I’m not!—I’d select a jurisdiction, and one or more lower courts in that jurisdiction, and I’d select a study group consisting of all cases within a given period. By examining the court opinions and briefs in those disputes that relate to contracts, I’d assign each case to one or more categories in a taxonomy of causes.

If anyone is inclined to do such a study, I’d be happy to help them design it.

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.