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.
4 thoughts on “What Proportion of Litigated Contract Disputes Are Caused by Drafting Glitches?”
Ha! Great question. The follow-up is ‘How many poorly drafted contracts avoid litigation only because the parties perform as intended?’
Have you ever offered a post on receiving feedback on your drafting? LItigators know immediately when they lose a case. I rarely recieve feedback on my writing and typically never re-review an agreement after execution.
Yes, people only revisit a contract when someone’s unhappy. And the possibility of future litigation is by itself probably too remote to act as an incentive to change.
This is an interesting idea, Ken.
My thought would be to include such categories as: contract language (e.g., obligation, performance, discretion, prohibition, etc.), ambiguity/vagueness, and defined terms/usage.
What categories would you add to (or remove from) this list?
I guess I’d start a step back and determine the basis for disputes involving a contract. Many will involve something other than uncertain contract meaning. For example, the litigants might be fighting over whether there in fact was a contract. Or who was party to the contract.