In his recent column in the ABA Journal entitled Why Lawyers Can’t Write, Bryan Garner describes how lawyers generally think they’re great writers yet are in fact depressingly inept.
No news there. But what caught my eye was Garner’s suggestion that this delusion “is significantly higher among transactional lawyers than it is among litigators.” He goes on:
Transactional lawyers have little idea how little they know.
…
[T]ransactional lawyers go through their professional lives blithely unaware of the land mines they’re inadvertently planting in their documents—at least until litigation over those land mines ensues.
Again, we can partly blame the law schools here. …
And practicing contract-drafters rarely get their papers “graded” as compared with litigators. Consider the highly publicized cases in 2012 alone in which courts thoroughly excoriated litigators who filed subpar briefs. That’s a strong motivator to do better. Transactional lawyers rarely suffer this negative experience.
Sure, but Garner’s assessment doesn’t take into account that writing by litigators is very different from contract drafting. Litigators actually write; transactional lawyers copy and adjust.
That’s because it’s likely that any dispute will involve a measure of uniqueness requiring a fresh take by any litigator. By contrast, any transaction will closely resemble other, previous transactions, so it makes sense to copy. If your writing consists mostly of copying, it follows that your critical faculties never develop. And it follows that guidelines, and training, are irrelevant, so you’re free to just make sh*t up.
I take second place to no one when it comes to bemoaning the nonsense that the transactional world churns out relentlessly. But given how different litigation writing is from contract drafting, it’s unhelpful to rank them on the same scale.
There is no fair comparison between brief writing and contract writing because of the significant differences between the two. A brief addresses known, disputed issues. A contract address known issues and tries to address unknown issues that may arise in the future. A brief is written by one lawyer with one argument. A contract is drafted and then negotiated by two lawyers with different positions. Transactional lawyers write quickly to get the deal done. Litigators have the luxury of time and hindsight when reviewing contract language in dispute. As far as a court not judging a transactional lawyer’s work, nothing could be further from the truth. Transactional lawyers are concerned that the language from their contracts will be the subject of a dispute and the focus of a court opinion. There were numerous cases in 2012 from Delaware alone critiquing contractual language drafted by transactional lawyers. How do you think those transactional lawyers feel reading how a court critiques their language?
Franco: I agree that contracts do get a measure of review by judges, but it’s very different from that experienced by litigators. Anyone who submits a document to a court knows that a judge will review it. By contrast, a contract gets serious scrutiny only if a dispute arises, and only a small fraction of disputes make it to court, so it’s very unlikely that a given drafter will get called to account by a judge for their suboptimal drafting. Ken
Up to a point, Lord Copper. M&A may require very little original drafting, but IP agreements frequently involve some freehand drafting. Nor am I sure about the last commenter who wrote that contract lawyers draft quickly to get the deal done. My experience is that lawyers take as long as they think they need, when drafting contract wording. Maybe some don’t realise they haven’t spent enough time.
The tone of some of the comments on the Garner article was surprising to me. They seemed like the comments you get below online newspaper articles. Is that the usual style of ABA readership? Or did Garner’s article hit a raw nerve?
In general, comments can bring out the worst in people, commenters to this blog excepted! See the following article in today’s New York Times: http://www.nytimes.com/2013/03/03/opinion/sunday/this-story-stinks.html.
Interesting. It looks as though the NYT is better than some. I was interested by the comments about the process for getting letters published. On the few occasions that I have written to the (London) Times and had my letter published, someone has called me from the paper, basically to check that I am a real person and not a nutter. Fortunately I have always passed that vetting process! I am not sure why we allow anons to post comments online, but most websites do.
Although
Mr. Garner makes the valid claim that many law schools fail to effectively
teach contract drafting, I think he fails to consider how difficult it is to
implement change. For instance, as a current student I have occasionally faced resistance from more experienced attorneys when my proposed changes were “unconventional.” I hate to see a poorly written final product, but I often feel it better to avoid unnecessary conflict when a change is not of substantive value.
Greg: You have a good point: Even those who want to effect change may be unable to because of resistance from above. Ken
I agree with you Greg… I really can’t stand when I read something that can be made better but it hasn’t been just because other lawyers are lazy.
As a small firm transactional lawyer, sometimes I hesitate to change a very common, but ill-advised phrasing because I anticipate time-wasting opposition from the other side. More often though, I’m leaving in poor drafting because I cannot justify spending my time and client’s money on correcting bad drafting where I believe it’s unlikely to matter to the parties. So, unfortunately, even if you didn’t have a senior partner stopping you from better drafting, you might have efficiency doing it instead.
Will: Great point. Ken
Will, I agree and was going to mention that as a reason why I would hesitate to say it was out of laziness. However, this situation has come up even when drafting from “scratch” or when there would be no additional cost incurred.
Additionally, my limited experience has often involved drafting documents used by non-legally trained parties, and in those instances I think it can be worth the minor expense to take the time to simplify the language. Although the initial cost is slightly higher, such a style can prevent additional costs because parties will not have to ask “legal” for clarification as frequently. This is a unique scenario, but I think it may be why I am prone to see the advantages of simpler language.
I think that’s a great point. I’m usually only able to give that kind of attention to documents I use repeatedly in non-negotiated settings such as bylaws or a buy/sell (shareholders’) agreement. Such documents are the relatively rare instance in which I’m not faced with efficiency concerns (as I draft much of them on my time) or the inertia of opposing counsel’s fear of moving away from poor, but traditional drafting conventions.
I am very late to this discussion, but as a transactional (M&A) lawyer I would offer another potential reason for poor drafting: it may be intentional and strategic. It could be done as a sleazy attempt to render a contract ambiguous, especially if you know you have more leverage with respect to any future dispute. In other words, if the language is ambiguous, vague, conflicting (etc), the weaker party might just have to live with the stronger party’s interpretation. This is not how I practice, but I have seen it. And of course, there are the other issues that were mentioned – most importantly, perhaps, is the fact that you have an adversarial co-author who you are working with under extreme time pressure! You can be negotiating the most important provisions late into the night, reacting to the other side’s mangled language, but you just have to get the deal done. I have worked on many provisions that are downright ugly, thanks to the other side’s sloppy contributions. The first principle is to do what’s right for the client. Beautiful language sometimes has to be sacrificed along the way.