Once law students graduate and enter law practice, there are often multiple tracks to take in terms of career paths. In very general terms, there are three broad areas of legal practices: Litigation Practice, Transactional Practice, and Government/Policy Practice. Today we won’t look at policy practice since it is a different animal. Let’s take a look at how litigation and transactional practices work when it comes to writing.
In the litigation world, the vast majority of pieces of writing that a lawyer will write are only going to be read by other lawyers. This leads to common habits based in the adversarial method and the curse of knowledge, which you can read more on here. Law school
In the transactional world, lawyers aren’t taught how to write contracts in law school. While we have witnessed some development in the teaching of contract how-to’s, the developments are in risk assessment or what content to include. If a law school offers elective contract drafting classes, those classes will be usually focused on large contracts such as merger and acquisition contracts. The problem persists because the writing for M&A contracts is focused on other lawyers as the audience. Very little instruction, if any at all, is focused on good writing style or content. Lawyers receive almost zero instruction in drafting contracts that will be used by businesses on a day to day basis, almost exclusively by non-lawyers. These kinds of contracts are not thought of worthy of deep study, despite the fact that the vast majority of contracts are for the sale of goods or services, or partnership or limited liability company operating agreements between non-lawyers.
When lawyers go out to practice transactional law and deal with contracts they will typically learn it through other lawyers in the law firm where they start working. Of course, senior attorneys have little time to coach writing style or skill. So, junior lawyers are left with the instruction, “Use the contract from matter X as a guide.” This instruction leads to one of the most important yet unfortunate actions in contract drafting: the normalization of a “cut and paste” method. The usage of forms is perfectly legitimate, and I encourage it. I use forms. Cutting and pasting a contract together without adequate thought and management, however, is not conducive to good contract prose.
While forms can be used in a strategic manner, many forms are used without much thought. Lawyers begin to cut and paste whole chunks of a contract and drop them into a new contract with very little analysis beyond “I need this provision, it looks like it was used in this other contract, so it probably needs to be used in this contract. Let’s just drop it in there.”
The result is a mish-mash of problems and errors that arise. One of the most common errors arises when language is just inserted into a contract without thought. A lawyer will cut and paste a provision from another contract and drop it into one that they are working on. Then, without much thought of its impact on other provisions, the lawyer modifies the newly cut and pasted section. The modification is almost always adding language. Cut and paste contract language is hardly ever taken away. We end up with a contract provision that is, for lack of a better word, ugly in the way that it’s written and in its style. Often, it’s not a whole sentence that is dropped into a paragraph or clause, it’s a subordinate clause. Its 30-40 words of comma-separated language. It doesn’t look like the way anybody speaks, and usually adds to the complexity of the language rather than taking away complex thoughts.
One of the consequences of the cut and paste method is that different references and confusion about terms results. For example, a client of mine is purchasing a piece of real estate. Because most of my clients don’t face this issue often and commercial real estate sales are complex, I referred my client to a real estate lawyer, one whom I have known for years and trust implicitly. This lawyer gave very good advice about the transaction. This lawyer also prepared a twenty-three-page purchase contract that referred to my clients – the buyers of the property – as both buyer and purchaser. Since it is unlikely that my lawyer colleague drafted the purchase agreement from scratch, the only reason why there were different terms is cut and paste. Somewhere along the line, a provision was taken from one contract that referred to the buyer in the transaction as “buyer.” The other provisions were taken from another contract where the buyer was referred to as the “purchaser.” They both exist in the same contract now. The difference could very well have happened four or five contracts or even years ago. Now we have an inconsistent identification of a party. At the end of the day, such discrepancies seem small but could have a significant impact in a dispute.
“Cut and paste” has made contracts longer and more complex because very little thought is given to be consistent and clear. Financially, using forms and cut and paste benefits the client through lower costs. Drafting a twenty-page contract from scratch is probably not the best idea, and certainly not the best use of the client’s money. But, the lack of thought in drafting the contract creates a complex beast that is not easily discernible by non-legally trained individuals.
The on-the-job training that lawyers get dealing with contracts and contract-drafting is largely based on this not completely mindless, but not completely thoughtful, use of cut and paste. There are other issues present as well, such as missing a functional editorial review process. But those are issues for another post.
Another drawback of the drafting process is the collaborative nature of drafting contracts. Clients will come to a lawyer seeking advice or counseling on a contract or a transaction, explaining the terms, and asking help to negotiate it and to advise on what’s going on. The client may present the attorney with a document prepared by the other party’s lawyer. In part to justify their fee and in part to try to put their own stamp on the transaction, your lawyer will make changes to the language. If you look carefully, you can often spot the very different styles of writing between the lawyers, particularly if one lawyer is traditional in their approach to contract drafting, and the other is more open to a manual of style. You end up with a document that is difficult to read because it doesn’t have a consistent style. It doesn’t have a consistent tone. The lawyers themselves are not getting on the same page, and it is not a cooperative enterprise.
This leads us back to the issue of adversarial process that marks many interactions between lawyers. Lawyers drafting a contract for a transaction see the process through an adversarial lens. Preparing contracts for clients wishing to do business together is not combative though, it is cooperative. It’s the goals and wishes of two clients that have a similar desire to move forward. Lawyers in transactional work need to embrace a cooperative mindset while advancing their client’s interests. Instead of trying to out-do, out-lawyer, or out-write the other party, lawyers should be looking for a way to cooperate to get the deal done. Instead of fees based on combat, lawyers should look to helping their clients grow their business.
The bad habits of contract drafting may be difficult to overcome at the start. By focusing on good general writing skills, knowing the audience, solid grammar, mindfulness of the Curse of Knowledge, and advancing client interests rather than competing with the other lawyer, contracts will be less difficult to read.