30 Years of the Michigan Bar Journal’s “Plain Language” Column, by Ken Adams, Adams on Contract Drafting
Revisiting Use of Words and Digits to Express Numbers, by Ken Adams, Adams on Contract Drafting
Some legal writers advocate writing out a number and then adding digits in parentheses. In this post, Ken Adams argues against this practice. If anything, it makes what your writing more verbose and harder to read regardless of the type of document.
Most people do not argue with Strunk and White. Its 3rd edition says to spell out numbers under 100, and use digits for numbers 100 and above. The 4th edition, which came out in 2000, specifically admonishes against spelling out numbers, unless they are used in dialogue. -CCE
More often than not, contract drafters use words and digits to express numbers, as in no later than thirty (30) days after the Closing. That’s a bad idea, for two reasons:
First, it creates clutter that distracts the reader. And the more numbers a contract contains, the greater the distraction.
And second, it violates a cardinal rule of drafting—Thou shalt not state the same thing twice in a contract! Whenever you say the same thing twice, you introduce a potential source of inconsistency. . . .
What It Takes to Be a Great Contract Drafter, by Ken Adams, Adams On Contract Drafting
If you write or work with contracts, this is a “must read” post by Ken Adams. Drafting a good contract is a special type of legal writing. A good, solid contract is a work of art. Also, please don’t ignore the Comments at the end of the post. There’s more good information there as well. -CCE
Here’s what it takes to be a great contract drafter:
Know the deal mechanics. As a drafter, it’s your job to express the transaction in a way that advances your client’s interests most effectively. You can’t do that unless you’re aware of the full range of options for structuring the deal. I don’t mean to suggest that you yourself have to possess that information—it’s enough if you’re able to pick the brains of people with that information.
Know the law. With some transactions, there’s no need for the law to rear its head in the contract. In other transactions, it would be appropriate, or necessary, for the law to feature in the contract. I discuss that in this 2013 post. As drafter, it’s your job to figure out what role, if any, the law plays in your transaction. Again, it’s enough if you can get that information from others.
Follow a comprehensive style guide. You don’t follow a comprehensive set of guidelines for the building blocks of contract language? Sorry, you’re not a great drafter. You’re not even a good drafter. Instead, you’re parroting whatever contract language you copy, which is likely dysfunctional. You’re following conventional wisdom, which more often than not is bogus. Don’t throw at me your education, your reputation, your long list of publications, your compensation, your track record as a dealmaker. They’re all beside the point. Of course, the only set of guidelines out there is A Manual of Style for Contract Drafting, but don’t hold that against me. I’m not stopping anyone else from producing their own comprehensive set of guidelines. And following my guidelines isn’t rocket science. . . .
A Reminder About “Shall Cause,” by Ken Adams, Adams On Contract Drafting
Reed Smith has published an inaugural issue of Contract-Drafting Bulletin. One item was of particular interest to me. It’s about an October 2014 opinion from the U.S. District Court for the Southern District of New York, World of Boxing LLC v. King (PDF copy here).
Here’s the gist of it: In May 2013, boxers Guillermo Jones and Denis Lebedev fought, with Jones winning. But after the bout Jones failed a drug test and was stripped of the win. In January 2014, boxing promoters Don King and WOB entered into an “agreement in principle” in which King promised to “cause Jones [ ] to participate” in a rematch. But before the rematch, Jones failed another drug test, so Lebedev withdrew.
In the resulting litigation, WOB claimed that King breached their contract by failing to cause Jones to participate in the match. The court agreed (footnotes omitted):
If Jones could not participate in the bout, it follows a fortiori that King could not have caused Jones to participate in the bout. Therefore, King breached the Agreement.
King protests that this interpretation of the Agreement yields “unreasonable and illogical” results. It would require of King “nothing less than … personal supervision of Jones’s every action between the execution of [the Agreement] and the scheduled date of the [bout against Lebedev].” Indeed, in order to avoid liability, King avers that he would have had “to imprison Jones to prevent him from having any access to a banned substance”—clearly an untenable outcome.
While these arguments might have force, they are addressed to the wrong issue. King could be right: under the circumstances, it is possible that his contractual obligations were too onerous to be enforceable. But that question goes to whether King’s failure to perform may be excused, not to whether King in fact failed to perform. As to the latter, Jones’s disqualification plainly put King in breach.
The court then went on to hold that King’s impossibility defense didn’t excuse his breach.
So, what does this case have to say to contract drafters? . . . .
The Sad Truth About Promiscuous Copying of Contract Language, by Ken Adams, Adams on Contract Drafting
I recently came across this blog post on Clio’s website. Clio is software that handles time and billing, calendaring, and collaboration, but this blog post is about something else—how law firms can use ‘commercial legal forms.’ It suggests three possible uses: You can copy them. You can resell them. Or you can create and sell your own. Here’s my take on the first of those suggestions.
The author says that if you’re looking to copy ‘boilerplate,’ you can get it from three sources:
- from your own files
- from ‘the same vast library of forms and templates that the public now enjoys,’ which ‘are often crafted by experienced lawyers’
- from forms sold by the likes of LegalZoom and Rocket Lawyer, one advantage being that checking those forms would ‘take a fraction of the time that would have been spent of compiling a rough draft from scratch’
Regular readers will know that I find the latter two options depressing. Good luck relying on anything you find in, say, the great flea market that is the U.S. Securities and Exchange Commission’s EDGAR system. As for relying on the LegalZooms and Rocket Lawyers of the world, go here for my critique of a LegalZoom contract and go here for my critique of a Rocket Lawyer contract.
The sad fact is that plucking contract language from the random mass and then checking it and revising it appropriately requires serious skill and is time-consuming, despite what the Clio author says. Given the cold realities of quality control, the something-for-nothing appeal of promiscuous copying of contract language is an illusion.
Copying contract language without that sort of scrutiny requires a leap of faith; if you’re putting your faith in some contract you found in a few minutes of rooting around online, you’re screwed before you even start.
Incidentally, given that Clio is now offering advice about where to copy from, I’ll now start writing about time-management software! Not really.