Charles Drayson reviews the fourth edition of this well respected work and adds a few pithy observations on the state of IT contract drafting
Nobody taught us how to draft contracts. Not during a law degree (understandable), not at Law School (surprising), and not during our training contracts (bewildering) did we receive any structured or systematic grounding. That would surprise clients who assume such skills are inherent. The partners imparted lore, not law. There was a pretence at training – I remember once, in the City firm where I trained, being told to re-draft a letter because ‘it looks like it’s been written by a solicitor from St Albans’. Mostly, we were trying to capture some elusive style that would mark us out as professionals. We somehow learned to write text that looked just like the normal output from law firms.
The most expedient way to get work out the door was to use the firm’s precedents, especially those drafted by professional support lawyers who could be relied upon to make sure we didn’t refer to repealed legislation or use wording that had embarrassed less fortunate practitioners in a law report. Departing from the established norms felt risky, and who needs unnecessary risk when trying to rise through the ranks of a law firm? Associates leaving an esteemed firm would find ways to download these gems rather than risk walking naked into a role in the next firm.
The need for new types of agreement to keep up with innovations in the IT industry was hard to satisfy with precedents. Using a traditional software licence for a cloud-based IT service still seems to be unfathomably common and one wonders whether the authors don’t comprehend the substantive difference or are just too rushed or ill-equipped to issue a more appropriate document. This is an issue of ‘what to say’ in the agreement rather than ‘how to say it’. Deciding what to say calls for legal and industry insight, but then one faces the challenge of how to say it if underlying drafting skills haven’t been built on solid ground.
Meanwhile, in the land where litigation truly punishes the unwary, Ken Adams decided it was time for a ‘Manual of Style for Contract Drafting’. On my shelf is the 2nd, 3rd and now 4th edition; each one significantly longer than its predecessor, as if the profession has absorbed the basics and eagerly awaits more. Alas, if you follow Ken’s blog (and you should), you will see that we are collectively slow to adapt. Who’d have guessed?
There is a problem and Ken is vocal. Readers who comfort themselves knowing that the English judiciary has for centuries handed down wisdom and prudence for the guidance of those who will but read the reports might want to skip this paragraph. Adopting a deliberately international perspective in his work (one less excuse not to read it), Ken doesn’t shy away from candid views on such matters as the English fascination for thinking that ‘reasonable endeavours’, ‘all reasonable endeavours’ and ‘best endeavours’ mean different things. He doesn’t mind who he upsets with his views on ‘represents and warrants’ or the analysis of those practitioners and judges who feed the habit. He wants to debate the lamentable state of the art in the marketplace of ideas. This is a marketplace where anyone can trade (again, see the blog) but you will to need to bring more than the usual arguments if you want to justify the status quo. That’s why the book is getting longer. To challenge the orthodoxy, Ken brings acuity and analysis to show that his views on ‘how to say it’ are objectively well founded and not just pedantry or a personal drafting style. He recounts every argument he encounters to disagree with him and then deconstructs the issues.
The problem with reading MSCD is that you will find it even more excruciating to wade through some of the standard form agreements that underpin so many of the deals done by SCL members. You cannot unlearn why usages are archaic, vague, redundant or just plain wrong and apt to cause disputes. You might find it easier to perpetuate the norms and have a quiet life…hope that your drafting never comes under scrutiny in a dispute, hope that the lawyers on the other side don’t shine a light on your text in front of your clients, and hope that clients don’t read Mr Adams’s recent article in ‘The Lawyer’ advocating that clients should replace lawyers who cannot draft more adeptly. If that sounds like a safe bet, you haven’t seen who makes up the audience for Ken Adams’s lecture circuits and regular speaking events (even in the UK) – there be clients in them woods.
The good news is that the medicine isn’t hard to take once you accept the diagnosis, even if Mr Adams’s bedside manner isn’t for the meek. For lawyers who are more recently qualified, I expect they would welcome a clear articulation of ‘how to say it’ rather than having to extract sacred knowledge from the drafting elders. For lawyers with more years behind them, especially those tasked with creating the documents that others will use as precedents, here is a book that will aid consistency and logical usage, so you are more successful with ‘what to say’.
Ironically, a movement towards better drafting could yet be undermined by technology. The tools to replicate (good or bad) documents with document assembly solutions have been around for a while but the new kid in town is the AI powered system that promises to review piles of existing documents and analyse them. If it takes the latest AI brains to create systems to extract information from the historical record, we might consider what this says about the clarity and consistency of what was originally in those documents. Beyond e-discovery applications, the more worrying trend is using the collection of old documents (aka big data) to extrapolate what should be found or inserted in newly minted documents. How long is it going to be before we have a system, not just some lawyers, justifying flawed drafting because it’s consistent with what went before?
‘A Manual of Style for Contract Drafting’ Drafting’ by Kenneth A. Adams, 4th edition, is published by the American Bar Association and is available at https://shop.americanbar.org. The list price is US$119.95 (around £90), plus a nontrivial shipping fee if you want it sent to the UK.