Although it won’t see the light of day for at least another year, my attention is turning to the fourth edition of A Manual of Style for Contract Drafting. Compared with the difference between the first edition and the second edition, and the difference between the second edition and the third edition, the fourth edition won’t represent as dramatic an upgrade. But it will contain a truckload of new material.
But I’m not sure exactly what to include.
At the outset, my idea was that MSCD would deal with the building-blocks of contract language. By addressing specific usages, the focus would be not on what you say in a contract but how to say clearly and effectively whatever you want to say.
But I’ve already ignored that limit in dealing with some topics. For example, the third edition’s discussion of the phrase consequential damages is in effect a riff on limiting liability. And the discussion of moral turpitude goes on to propose a more effective form of termination-for-crime provision.
So I now wonder to what extent I should give myself additional latitude of this sort in the fourth edition. For example, should I include my version of a force majeure provision? (See this post.) Should I include my explanation of why successors and assigns provisions are pointless? (See this article.) Should I include my indemnification language? (See this post.)
Readers would surely find all that stuff useful. But instead of addressing individual usages, those topics really involve individual items of contract boilerplate—the miscellaneous provisions at the back of a contract.
Rather than expanding MSCD by stealth, I could simply add a new chapter entitled “Boilerplate.” But that could become a tail that wags the dog; I’m not interested in writing an exhaustive text on boilerplate. And although I’m happy to provide model boilerplate language, the best way to do that is through automated templates, such as my NDA template (here).
So perhaps I should add a new chapter entitled “Selected Boilerplate Issues,” or some such, and move to it some materials from the increasingly unwieldy “Selected Usages” chapter.
Any thoughts?
I for one would appreciate a boilerplate section, or a section that discusses miscellaneous boilerplate usage issues. As it is, if I’m inserting a provision that I haven’t yet MSCD’ed, the first thing I do is Google your name along with the provision name (or selected elements from the provision) to see if you have any commentary, then I search MSCD, then build it out from there. Most recent example was a notice provision. I started out with your MSCD’d version from the sample contract in the book, then I revised it to reflect our jurisdiction’s rules of court relating to service.
I’d be interested to hear about what you mean by revising it to reflect court rules.
Ah, there’s no great reason behind this other than the unique instructions I was given in that example. The parties were individuals with strictly barrister law practices. As it is, parts of my notice provision reflect our service rules because I think they’re pretty straightforward.
However, the parties preferred that the contract stated service would be valid if done (or deemed to have been done) in the manner permitted in our rules of court. Their reasoning was that it was easier for them to deliver a notice in a manner that they’re familiar with than have to wonder if they’ve complied with the contract (though I would be surprised if they actually served a notice without looking at the contract—they both seemed like prudent people).
Ken:
I would welcome a boilerplate section, but it would need some really careful caveats about the type of scenario you are addressing. For example, your drafting often seems to be appropriate for an M&A transaction, but would fit very oddly into the kinds of commercial deals that I do. But that’s one of the points you make frequently: that you write primarily about building blocks because you can’t just cut and paste boilerplate from a book. So, you might approach the boilerplate more in the vein of the appendices you already have. Say that the question is indemnity in an M&A agreement, or force majeure in a services agreement, etc.
Chris
These days I do exclusively commercial contracts, so I suspect that whatever M&A bias I might have had is long gone.
Ken:
Also, re-write that atrocious chapter on formatting.
Chris
In yo dreams!
Ken:
That would be a really mundane dream.
Chris
Troo dat
I love Sterling’s comments, especially [1] his fine distinction between ‘a boilerplate section’ and ‘a section that discusses miscellaneous boilerplate usage issues’ and [2] his new verb, ‘to MSCD’ a provision.
For myself, a couple of notions:
1/ Size. It’s a *manual*, which means a handbook, not an encyclopaedia. I thought the second edition was perfectly sized, and the third edition a hair chunky. I know you take pride in MSCD’s comprehensiveness, but I’d hate to see the fourth edition even bigger than the third. I’d hate to see it go to microscopic font size, and I’d hate to see the work grow to two volumes.
My preference would be just one volume, and to make room for treatment of boilerplate and other new things by judicious editing of the core material. My thought on that is that you have by now earned the trust of drafters and needn’t elaborately justify every recommendation.
Also, I know that white space can increase readability, but the use of wide left margins devoted to section numbers may be a suboptimal investment of space. There are less space-eating ways to ensure readability.
2/ Presentation. In addition to the already good table of contents and comprehensive index, a ‘commentated’ model contract (perhaps with lots of boilerplate?) would be a compact teaching device and an additional quick reference resource. Such a thing might replace the ‘before, commentated before, and after’ appendices in MSCD3.
3/ What kind of person is Chris Lemens to say a cruel thing like ‘rewrite that atrocious chapter on formatting’?
4/ Rewrite that atrocious chapter on ‘Time’.
You’re all a bunch of ballbusters!
I think the concept of interaction between the book and something online — maybe your blog, maybe not — is good. It could also be part of size management.
For example, if there are six ways to deal with an some drafting issue, and you reject 1-5 and recommend 6, you might place part or all of the detailed criticisms of 1-5 online, with a reference to the URL in the hard-copy text.
Workers like their most-used tools near to hand and are content to have the least-used tools in a drawer.
Is the 4th Edition still in the works? Any timeline?
Yes, it’s in the works and on my mind, but it’s too early for me to say when. Sorry!