Here’s something I said in this article on LinkedIn:
And more generally, being expert in your company’s transactions doesn’t make you an expert in contract language, any more than knowing how to drive a car makes you an expert mechanic. Contract drafting is a specialized kind of writing: leave it to specialists.
By “specialist,” I mean someone who is expert in how to say clearly and concisely whatever you want to say in a contract. In preparing a given template, that person would work with those who handle that kind of transaction.
My specialist resembles Richard Susskind’s notion of “legal-knowledge engineers.” (I added the hyphen. Because phrasal adjective.) Here’s what Susskind says in his book The End of Lawyers?:
In contrast, there will be a much greater need for my third category of lawyer – the ‘legal knowledge engineer’. If I am right and legal service will increasingly be standardized and (in various ways) computerized, then people with great talent are going to be needed, in droves, to organize the large quantities of complex legal content and processes that will need to be analysed, distilled, and then embodied in standard working practices and computer systems. This new line of work will need highly skilled lawyers.
So where does one find contract-drafting specialists (or contract-drafting legal-knowledge engineers)? Well, I’m one. I’m not going to be all coy about it. But the scary thing is that I don’t know of anyone else who meets my necessarily loose notion of what it takes to be a contract-drafting specialist.
You’re unlikely to find specialists at companies. It’s not a matter of how smart you are: if your job is handling transactions, you’re not going to have the bandwidth to be expert in contract usages, even if that possibility crosses your mind. What unites the many big-company templates I’ve looked at is that they all exhibit shortcomings indicating that they were prepared by people for whom knowledge of contract usages was not the first priority. That’s to be expected. And it’s the case whether you’re dealing with contracts prepared by traditionalists or by people trying to create something more modern. (For an example of the latter situation, see this 2014 post about IBM’s cloud-services contract.)
And you’re particularly unlikely to find specialists at law firms. The billable hour is a disincentive to efficiency. Balkanized power structures and the law-firm-partner ego make it difficult to apply standards firmwide. Law firms are generally called on to draft a relatively broad and unpredictable range of contracts, so it’s harder to achieve contract-drafting economies of scale. And if you’ve been highly profitable running a copy-and-paste factory, why change? The result is that law firms are unlikely to support the sort centralized initiatives that could make use of contract-drafting specialists.
Part of the problem is lack of certification, so there’s no clear path to becoming a specialist. One could become a specialist through self-study, but that doesn’t seem particularly likely. And unless a specialist goes out of their way to parade their expertise, they might be largely invisible. There might be specialists out there quietly minding their own business.
If we want contract-drafting specialists, it would make sense to establish a credential, so people could train to become a specialist and signal that the have the necessary expertise. I’ve sporadically contemplated developing an online certification program, but becoming a specialist would probably require more than than—perhaps a one-year LLM course. That’s something I might turn my attention to down the road.
I’d welcome there being more specialists. The more people working in discipline, the more rigorous it becomes. And having more contract-drafting specialists would make me less of an outlier.
14 thoughts on “Where Are the Contract-Drafting Specialists?”
I hate to say it, but most of the contract drafters whose style I respect are in-house lawyers. It seems there is virtually no appetite for it in the firms. We recently used a very fine lawyer who actually took your class in college. He abandoned MSCD within a few months of joining a firm. He didn’t open it again until we retained him. But the press of the deal meant we didn’t have time for him to re-write his firms go-by’s.
I suspect that’s true everywhere. Companies at least have some incentive to write contract that are readable. If you can avoid your form going to your customer’s legal department (because it is imminently readable), that’s a small win. I don’t see any similar dynamic with deals run by law firms.
Troo dat. To reflect that, I added the word “particularly” to the paragraph about law firms.
I agree with Chris as well. I’ve had to push my outside counsel just to get middlin’ improvement in the contracts they draft for me. After a couple of years of trying, I’ve taken to writing the contracts myself whenever I can and just having outside counsel advise on the legal issues (with strict instructions not to reinsert dysfunctional drafting).
I’ve also thought for the last year that the only way to effectively change the status quo will be to establish a credible course of study at the law schools, with some kind of patronage from a respected firm where graduates of the program can find a home long enough to cement their new and improved drafting habits.
The notion of patronage crossed my mind. For the reasons outlined in this post, I think companies would be a more likely source for specialist jobs.
If by specialist you mean one for whom knowledge of contract usages is the first priority, then you’ve ruled out all good lawyers by definition. Good lawyers are those for whom client interests are first priority, expedient though they may be.
I don’t buy that points of practice knowledge and draft-craft represent mutually exclusive achievements in a single practitioner’s career. The best argument against that thesis is MSCD itself, insofar as it readily doles out the benefits of research and analysis that practicing lawyers absolutely don’t have time to do. Draft-craft can cost less, and making it cheaper and easier doesn’t diminish its value to clients.
My old saw about an available corpus of high-quality language is on theme here again. Armed with the knowledge of drafting necessary to develop language in good taste, you’ll still recognize good work faster than you’ll type it out yourself. There is efficiency in reuse, and reuse needn’t be so daft as current-day copy-and-paste. If good drafting doesn’t become reusable, if it remains bespoke, as it largely is now, mass client-first lawyer demand for it will never come. The profession isn’t going to deindustrialize. It can’t.
Ken, if you yourself went back into practice, would you lose all the knowledge you’ve accumulated about usages? Wouldn’t you regain some points of practice currency, and end up a combination of both? I’m thirty, you’re a smidge older, but health permitting, we’ve both got a whole lot of professional time left. And our kind have always been cursed with long careers. If one lawyer can be a good litigator, and a good deals man, in one lifetime, why not a good deals man and a good draftsman?
Thank you, Kyle. Obviously, readers could familiarize themselves with my guidelines without having to put themselves through my twenty-year odyssey. So why shouldn’t every drafter be a specialist?
I can think of two reasons. First, time constraints: life is short and law is long. Recently I did an in-house seminar for a group that included several people who had attended one of my public seminars a couple of years ago. Their templates weren’t remotely MSCD-compliant. Why? Because they didn’t have the time.
And second, when I redraft a client’s template, what I do goes beyond complying with my own guidelines. There’s a writerly sense of how to organize stuff that kicks in. Coming up with optimal contract language and doing deals are two different skills. But improving everyone’s game would certainly be beneficial.
I agree that making quality contract language a commodity would be better than having every company engage specialists. But we’re not there yet.
I’m glad you found a compliment or two in my post. I certainly intended a couple.
I wonder whether a successful timeline looks like bedlam-specialists-commodities, or rather more like bedlam-commodities-specialists. Perhaps those generalizations are just too general, too fun. But all the same, I’m trying mighty hard to make commodities in the time I can steal. Published another form this week, God help me.
From the outside, I’m it’s all hypergraphia—all output, no feedback. Perhaps that’s something akin to how you feel, on the consulting front. Maybe someday something will catch. In the meantime, I do see improvement in my work, and I’m told—and repeat often, to myself—that that’s worth something, in and of itself.
The “thank you” was more for a sensible comment. Your notions of how much mileage I have left are of course wildly delusional :-)
As you mentioned, we need contract-drafting certifications. I am not a contract professional but I have been reviewing, redlining, negotiating and drafting contracts on a daily base for many years. I don’t have an official legal background but my experience allows companies to afford a “contract manager”. If you don’t require a law degree to get admitted, I would be the first to sign up for a certification; I would certainly improve my skills and it would give me credentials.
Yes, you don’t have to be a lawyer to know how to handle contracts. That’s something I wrote about in this post: https://www.adamsdrafting.com/what-part-of-the-contract-process-if-any-requires-a-lawyer/
I echo Robert’s reply. I think its a fabulous idea and one that I have been searching for, for many years myself. I draft, redline and negotiate contracts daily – I’m a contracts officer! I would love to perfect my craft and add some credentials along the way. It drives me nuts when I see templates used verbatim with nothing but copy and paste throughout. Customization and organization are key to a well written agreement, an agreement which should be easily read and understood by those not involved in the actual deal. Sign me up Ken!!
It’s on the to-do list!
For what it’s worth, I’m negotiating an IBM contract right now. And in my glass-is-half-full universe, I imagine that IBM hired Ken to rewrite or advise on its form documents, because the IBM client contract no longer reflects the train wreck on which he opined in 2014. I’m not asking for confirmation or denial – just colorfully stating that it is much better than what I remember from years past.
No argument that it’s way better than the traditional stuff! The point about my post on that IBM contract was that it could have been better, in non-trivial ways.