Where Are the Data Showing that Traditional Contract Language Is Dysfunctional?

I had a brief exchange on Twitter that ended as follows:

I like to think I’m not that guy who always has to have the last word on Twitter, gawd help us. But the point under discussion might be of general interest, so I permit myself this post.

The final comment by my interlocutor—Robert Anderson, associate professor at Pepperdine School of Law—is correct, in that I don’t have the data he seeks. But more fundamentally, the way our exchange ended doesn’t make sense.

Initially, in retweeting something mentioning an open-legal-documents initiative, I observed that “Copying someone else’s random stuff sure hasn’t worked for contracts.” Robert ended up invoking the doesn’t-work notion in connection with contracts themselves, asking, “I just wonder what % of contracts currently don’t ‘work’ with all their flaws.” But we’re not dealing with a binary world in which contracts work or don’t work. Instead, as I observed in a tweet to Robert, contracts can be more clear or less clear; working with them can require less time or more time; and you can be exposed to less risk of dispute over confusing contract language or more risk.

And I wonder what Robert’s basis is for saying that traditional language works. Because deals get done? But that doesn’t take into account—

  • deals that don’t get done because the contract was too bloated and confusing
  • the personnel time and legal fees wasted in wading through archaic, wordy, and confusing prose and indulging in negotiation theater over distinctions that make no sense
  • disputes that subsequently arise because of drafting glitches

Where are the data showing that traditional contract language is harder to understand, takes more time to digest, and poses a greater risk of dispute? There are none. Many fields of inquiry aren’t susceptible to number-crunching, and contract language is one of them. Robert is looking for “evidence that better contracts produce fewer disputes & at what cost.” I wager such information won’t appear anytime soon, if ever. In this 2015 post I wrote about the possibility of studying in an empirical way the extent to which contract-drafting glitches lead to disputes, but no such study currently exists. And even if it did exist, it would tell only part of the story, in that avoiding disputes is only one reason for switching to modern drafting.

Instead, as I told Robert, “You’ll have to be satisfied with mountains of anecdotal evidence.” But that doesn’t quite capture it. What isn’t anecdotal is my guidelines: they’re based on how the English language works and contracts work. The anecdotal part is the consequences of following or not following my guidelines.

I don’t see how anyone passingly familiar with my stuff can avoid concluding that if instead of copy-and-pasting traditional contract language you follow MSCD guidelines, you would save time, save money, and reduce your risk. Whether in a given context that matters enough to bother with is a separate question.

And check out the client testimonial in this post. That sort of thing will do nicely, until such time as the data Robert seeks materialize.

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.

5 thoughts on “Where Are the Data Showing that Traditional Contract Language Is Dysfunctional?”

  1. This kind of argument saddens me because it suffers from lack of definition of terms.

    To take one example, exactly what is ‘traditional contract language’? It seems to be an undefined whipping boy. If it’s been defined and not just denigrated, I missed that class.

    Is it (1) contract language from before a cutoff date; (2) contract language that is not clear and concise by some standard; (3) contract language of whatever vintage that has been uncritically cut and pasted from a form or precedent; (4) contract language that is or has been the subject of dispute in court (because it ‘didn’t work’)?

    Other definitions are possible but with no definition at all it’s impossible to answer fair questions like, ‘What percentage of any given contract is traditional contract language and what percentage is not?’ What are the units to be analyzed and the criteria of judgment?

    Without agreed definitions, discussion is not argument but just quarrelling.

    • I’m fine with the label “traditional contract drafting.” It’s a convenient label for the dysfunctional usages I discuss in my writings. Even more conveniently, it’s a label for the way most people draft now. I’ve used it since I started writing about contract drafting. Whatever Anderson’s confusion, I don’t think it involves his not understanding what I mean by “traditional contract drafting.”

  2. Are there many lawyers who would want to return to the days of archaic language and contract drafting such as “Whereas … now this agreement witnesseth as follows …” and “the said party of the first part” and “hereinbefore” and “undermentioned” and “herewith” and so on? Who are they?

    Almost everyone wants their agreements to be as clear and concise as possible, so they achieve the intentions of the parties, while protecting their client’s interests not least as to risk.

    And almost all lawyers like to start with a precedent, as there is no point in reinventing the wheel (provided of course that the wheel is round not square, and the tyres are not worn or punctured or flat). Your automated documents are just precedents, just with drafting that you approve of.

    But just like there is little empirical, quantified evidence – because it is not a binary option, to be modern or traditional, but more of a range of possibilities, some of which work better than others – so I am not convinced there is just one way of writing that is “modern”.

    • What do you mean by “return to the days of archaic language.” We’re still there. Take a stroll on EDGAR if you don’t believe me.

      Almost everyone wants their agreements to be as clear and concise as possible? Who are these people you’re referring to? And I don’t care what people think they’re doing: the contracts speak for themselves.

      Yes, people start with precedents. But everything depends on the quality of the precedent. My automated documents are just precedents with drafting I approve of? Sure. But that’s like my saying, sure, the Tower of London is a building, but so is my suburban home, what’s the difference?

      The lack of quantifiable data has nothing to do with guidelines for clear drafting. I have a 500-page book out there that demonstrates that generally there’s a clearest, most concise way of saying something. I wager that you haven’t consulted it and that you’re speaking off the top of your head.


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