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Tech can’t solve bad drafting: six lessons from Ken Adams

Ken Adams, 5 November 2019

Contract magic

All the innovative new software in the world is useless to you if the fundamentals of your contract drafting aren’t in place. These six lessons can set you on the right track.

This is a chapter from our Modern Contract Handbook, featuring insights from expert authors on every stage of the contract process. Download the guide in full here.

1. The legal industry has a problem.

Contract language remains a huge problem - the overwhelming majority of contracts are built with blocks that don’t make sense. The ubiquity of copy and paste for generations has meant there’s a disconnect between what people think is in contracts, and what’s actually in them. I see a lot of cluelessness out there as a byproduct of the copy/paste machine.

We have a good idea of what clearer, more functional drafting looks like. But we need to make it accessible - it’s not realistic to tell people that we’ve given them guidelines and they have to get on with building everything new themselves. We need to work on bridging the gap to give people greater access to better contract drafting. They will have a hard time achieving it without help.

2. The most common mistakes persist.

The traditional prose of contracts is dysfunctional. A Manual of Style for Contract Drafting contains 600 pages covering all sorts of issues, some of them big, some smaller. But the net cumulative effect of addressing all the sources of dysfunctional prose has a big impact. Common issues include:

  • Working with defined terms
  • Eliminating redundancy
  • Using long strings of words, instead of what you need to accomplish your goals
  • Inappropriate verb structures, exemplified by the overuse of the word ‘shall’

There are many more, including archaic practices like putting words and phrases in all caps, and the ludicrous outdated vocabulary that stubbornly lives on. And ambiguity manifests in many different ways in a contract, leading to confusion, which leads to fights and litigation.

The starting point to begin to change this is realising that something doesn’t make sense. What you do next depends on the context and what role you’re playing. If it’s your draft, you can fix everything. If it’s the other side’s draft, you focus on what might create confusion and what doesn’t reflect the deal as you understand it.

"The ubiquity of copy and paste for generations has meant there’s a disconnect between what people think is in contracts, and what’s actually in them"

3. Contracts need brevity.

Whatever you need to say, say it as clearly and concisely as you can. You might think that some small glitch can’t cause a problem, that it would be pedantic to insist on fixing it, but I regularly encounter instances where, because of the circumstances, small glitches can end up throwing a spanner in the works.

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4. We must break the copy/paste machine.

Everyone who starts in the legal profession starts with a blank slate. They’re then indoctrinated: people will do what they have to do to please their bosses. Traditionally this has meant that you draft contracts by copy-and-pasting, and what is dysfunctional soon looks normal to you. You’ve been co-opted into a dysfunctional system.

That process is still the norm, but I like to think there’s a growing constituency that is aware of better alternatives. Whether that’s individual by individual, or law firm by law firm, change comes one decision at a time. Becoming conscious of the current dysfunction is a good first step - that allows you to take the more challenging step of breaking from the herd and doing something about the dysfunction.

5. We must fix the language to fix the process.

I got into the language side of things because I thought contract drafting should be a commodity process, but that can’t happen without clear and consistent prose we can rely on. Otherwise, we’d just be automating dysfunction.

"Language and process are linked together - rehabilitating the process will help fix contract content"

We need automation as an alternative to copy-and-pasting. It’s not realistic to expect everyone to dutifully rehabilitate contract language on their own. Automation offers us a way to scale up optimal language and optimal substance. But automation will require that we put contract drafting in the hands of contract-drafting specialists, leaving everyone else to focus on doing the deal. Language and process are linked together - rehabilitating the process will help fix contract content.

6. New to drafting? Live by these two principles:

1. Don’t trust anything. Don’t assume that just because language came from some prestigious law firm that it will make sense, because everyone is riding the copy-paste train.

2. Anyone can take command of contract language. You don’t have to be a lawyer to do this - in fact, there’s very little that’s purely legal about contracts. With a bit of study and some semantic acuity, anyone who does deals can be an informed consumer of contract language. I’d like to see responsibility for contract language being a function of your competence instead of whether you’re a lawyer.

Download the Modern Contract Handbook here.

Learn more at adamsdrafting.com. The 4th edition of A Manual of Style for Contract Drafting is available here.

Topics: Contract magic

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