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.