In my recent blog post about how BigLaw associates have thus far been immune to the charms of my West seminars (click here), I offered some reasons as to why that might be the case. But I omitted one possible reason—that learning how to draft contracts ranks low one’s list of priorities. My thanks to commenter Damon for showing me a different perspective. Here’s what he had to say in a comment posted today:
Honestly, it’s a question of whether the conference is worth the cost, in time and money. Many associates think it is not. Given the small number of instances in which the issues that you raise (however interesting to me and to other readers of this blog) actually have material consequence, many associates would rather spend the money to attend a conference that deals with substantive legal issues, where they can also interact with folks in their own industry.
Now that I think of it, I suspect Damon’s right, that many associates are inclined to consign contract drafting to the ghetto of “squishy” CLE subjects—those that don’t cut it in the Darwinian world of the law-firm transactional lawyer.
Disputes Caused by Suboptimal Drafting
But I’d like to take issue with Damon’s assessment. First, there’s his reference to the “small number of instances” in which use of suboptimal contract language has mattered. I’ve occasionally fantasized about doing empirical research into how many lawsuits have their roots in defective drafting. Until such time as I get around to doing that research—I suspect I never will—I’ll have to make do with anecdotal evidence.
Compared with the ceaseless torrent of transactions taking place all the time, those instances of problematic drafting that one hears about would seem to represent a drop in the bucket. But for every such instance, it’s safe to assume that many others fly below the radar. For example, of those legal opinions I encounter that involve confusion as to what a particular contract provision means, only a small minority can be turned into an interesting blog post illustrating some drafting usage or other. And for each dispute that is enshrined in a legal opinion, it’s safe to say there are untold others that are settled, and yet others where a disgruntled contract party wasn’t willing or able to put up a fight.
So I don’t think confusion over what a contract is trying to say occurs in only a small number instances. Instead, I think it’s endemic.
Ineffeciencies Caused by Suboptimal Drafting
And bear in mind that the significance of suboptimal contract language isn’t limited to its role in causing contract disputes. At law firms and companies it’s also a source of gross inefficiency in drafting and negotiating contracts, as making sense of the murk that is traditional contract language wastes everyone’s time at every step in the process. Any contract that I redraft ends with about 20% fewer words and can be read in about half the time.
So in terms of both risks and inefficiencies, the costs of suboptimal drafting are very real and very significant, and in a way that is more immediate than, say, the costs attributable to inadequacies in other kinds of writing.
You Don’t Know What You Don’t Know
Most lawyers think they’re good writers, but you become a good writer only by having your work routinely subjected to withering scrutiny, whether by you or by others. I suspect that any associates who find something fuddy-duddy in the notion of improving your contract drafting haven’t had their work subjected to that sort of scrunity.
In that regard, you might find of interest my recent video interview with the ABA Journal. I suggest you skip the talking-head stuff and go to 2:44, where I start my annotated PowerPoint dissection of two extracts from the merger agreement providing for Oracle’s acquisition of Sun Microsystems. As a piece of drafting, that contract is entirely representative of the mainstream yet is, um, very problematic. But those who drafted it probably think it smells like roses.
Until such time as you take the trouble to expose yourself to the difference between mainstream contract drafting and the clearer alternative, you’re not going to be in a position to assess how significant that difference is.
But that said, it’s a big CLE world out there, with any number of topics to choose from. My observations go to the absolute merits of my topic, not its relative merits.
6 thoughts on “Why Bother Learning to Draft Contracts More Clearly?”
I found the quote about attending substantive CLE presentations quite interesting. I don’t know about others, but I would much rather attend a CLE on a non substantive topic (drafting, legal technology, practice management, cross examination) than on a substantive legal topic. I spent 3 years in law school learning how to ascertain what the law says. Also, I regularly keep up with developments in my substantive practice areas. I would much rather spending my time having someone tell me about the stuff I don’t know.
Great piece; as a contracts manager, former journalist and writer, I find myself confined by the strictures of the forms, templates and clauses used by attorneys. Contracts managers probably do more low-level drafting than attorneys but unfortunately do not have the option of being change agents or evangelists for your thesis.
Great post, Ken.
My modest contribution: I’m afraid that we need more precise language to distinguish between, on the one hand, ‘pure’ contract drafting and plain English techniques, and on the other hand, ‘substantive legal issues(Damon)’ – as applied to the content of Contract Drafting courses.
In other words, those that have not had their expectations met by Contract Drafting courses simply haven’t been on the right ones!
From my experience as a trainer on Contract Drafting and Legal English courses, the ideal model course/seminar is a composite of drafting skills AND application the substantive law practised by the delegates. This doesn’t mean being bang up to date with the very latest case-law, but being able to bring some (or many) cases that illuminate the points made. In addition, perusal in the group, of documents that the delegates are working on; thus, making the course diagnostic to them, and not just repeating what Garner or others say, just because it is in a book.
As a trainer in the UK, I also acknowledge differences between the US and English legal systems in this regard – those that I am aware of.
Gil: A slight quibble: I think “substantive” is a function of more than just whether caselaw is involved. I cite a bunch of caselaw in my book, but I wouldn’t claim that that means my discussion of “efforts” provisions, or ambiguity, constitutes discussion of substantive law.
Instead, my rule of thumb is that substantive law relates to what you say in a contract; my “drafting clearer contracts” stuff relates to how you say it.
Damon’s comment highlights a short-sightedness that might be pervasive among BigLaw associates. The worth of a contract (from the drafter’s point of view) should not simply be the fees that are billed for it, but should include the quality of the contract. A drafter should take pride in the quality of his/her product, just as a manufacturer of goods takes pride in the quality of the goods that it produces.
Another aspect to the short-sightedness is the possible consequence for the drafter of the contract landing up in court. Very frequently, the issue before the court is the interpretation of the contract. If one’s client were to lose such a case, the client might come to the drafter seeking compensation for the drafter’s failure to convey what the client wanted conveyed.
Ultimately, I think this boils down to economic incentives. If you are an associate at a big law firm, you have little incentive to learn how to draft the right way that is so often advocated by Ken (clearly, efficiently, concisely, and leaving as little room as possible to ambiguity in order to reduce litigation risk).
The attorney who does draft the right way is going to prepare contracts quickly, negotiate rapidly (less unclear, interminable language to argue over), and, as a result, will bill less hours. The inefficient attorney will instead bill more hours, get a bigger bonus, and have a better chance at being promoted. Since most contract disputes are handled by negotiation, and most litigation settles, it is unlikely that the inefficient attorney’s small sample size of deals is going to blow up in her face. Also, by the time the inefficient attorney’s contract results in litigation, the associate will most likely have moved on due to the massive attrition rate (often due to burnout from billing so many hours).
The good news is that as major corporate procurement departments start using strategic sourcing principles to manage legal services (eBay and United Technologies are already doing so), firms will have to change their incentives to value efficiency. However, this will take quite some time.