A Post Acknowledging Judge Richard Kopf: Would It Be Inappropriate for Judges to Endorse Contract-Language Guidelines?

This week Richard Kopf, a senior U.S. district-court judge, announced in this post on his blog, Hercules and the Umpire, that he wouldn’t be writing anything further for the blog, which he began in February 2013.

For more about Judge Kopf and his blogging, see this WSJ article and this ABA Journal article. In a comment to his farewell post I said, perhaps rather ponderously, that his was “a novel and important voice, and an altogether human one.” And I was one of doubtless many who corresponded with him due to his blogging; he wrote this post about my “Bamboozled by a Comma” article.

Calling a halt after a year of blogging is nothing to get teary-eyed about. In fact, it seems like a rational thing to do—only hard cases like me keep at it year in, year out. But I wanted to mark the occasion, in a blog-post-as-solo-Festschrift manner. I knew that any such post would have to relate to judges, and it so happens that I’ve been idly pondering an issue involving judges. It’s not particularly thrilling, and it’s a little self-involved, but it’s the best I can do on short notice, so please forgive me, Judge Kopf. And it does relate to the question of the extent to which judges should stick their necks out, something discussed in the WSJ article I link to above.

Anyway, here goes: Why do judges feel that it would be inappropriate for them to endorse a set of contract-language guidelines?

I sporadically exchange emails with a small number of judges. (If I email any one of them twice a year, that’s a lot.) More specifically, over the course of three editions of MSCD, I’ve asked each of those judges in turn if they would write a foreword for the book. Each has declined, explaining that it would be awkward for them to do so. (Perhaps they used that as a polite pretext, but for purposes of this post I’ll assume that wasn’t the case!) Does their position make sense? And what does it say about the role of judges when it comes to contract language?

Judges aren’t shy about making public pronouncements about litigation writing. But litigation writing is on behalf of litigants involved in a dispute, the aim being to express one’s argument as clearly and convincingly as possible. By contrast, contract language is what gives rise to disputes, with judges being asked to attribute meaning to confusing contract language. So the implications are very different.

Presumably the concern is as follows: A judge endorses a set of guidelines for contract language. That set of guidelines says, for example, that a certain usage is ambiguous. A litigant in a dispute involving a comparable usage attempts to tie the judge to the interpretation offered in the guidelines. Awkwardness ensues.

But there are countervailing considerations. For one thing, I don’t think it would be reasonable for anyone to conclude that if a judge writes a foreword to a set of contract-language guidelines, that means that the judge agrees with every single thing in the book.

But beyond that, I’m in the business of promoting clear drafting, whereas judges are in the business of making sense of confusing language. Those are two very different undertakings, as Chancellor Strine of the Delaware Court of Chancery noted when he cited MSCD  in a 2011 opinion (see this post). That should limit the potential for judges finding themselves at odds with MSCD.

Furthermore, it would be in the interest of everyone, including judges, if lawyers were to consult contract-language guidelines while drafting and negotiating contracts, rather than haggling over confusing language after a dispute has erupted. So it might be that encouraging people to refer to a comprehensive set of contract-language guidelines—whether MSCD or something else!—is worthwhile use of a judge’s political capital.

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.