The following article was originally published in the SDCBA's weekly e-newsletter This Week at the Bar on April 18, 2016.
Contract drafting and review are central activities of a transactional attorney. However, rarely if ever does an attorney draft from scratch or have license to make unlimited changes during a review. Instead, the attorney starts with something on the page of varied quality and labors under time pressure to make it express the parties’ intent while nudging it this way and that in the negotiation process. Contract drafting as a distinct craft can get lost in the more immediate exigencies of attending to clients’ needs and, as a result, practicing transactional law can often serve as a poor means of honing one’s drafting skills. As transactional attorneys, we must find ways to consciously develop and reinforce our own drafting principles and technique. With this in mind, here are six ideas that will hopefully help prompt such an effort.
First, remember the goal of drafting is to memorialize a transaction in a manner that is concise, precise, direct, consistent, user friendly (usually), and to a reasonable degree, complete. Yes, this all must be balanced with practical realities, budgets, and other client needs, but this is the drafting goal. These attributes should remain in the back of one’s head at all times while drafting.
Recognize the barriers to developing better drafting skills. Cost and time constraints are the obvious ones. There are other barriers, however, such as fear of deviating from common practices that have no solid basis and relying too heavily on forms. A desire to be emphatic and to cover every possible scenario with lengthy lists of examples can also result in poor drafting. Cost and time constraints are here to stay. Many other barriers need not be.
Supplement actual drafting with education. Pick up a copy of Ken Adams’ third edition of A Manual of Style of Contract Drafting (2013) and commit to reading one chapter per month. Mr. Adams has thought deeply about contract drafting and has been fearless in challenging common practices in his effort to create a unified set of contract drafting conventions. His book illustrates how non-uniform drafting is in that it reads like a persuasive argument. He works through the various ways one might typically see an issue handled to arrive at a recommended approach. Whether or not you agree with him is not as important as the process of walking through his analyses.
Settle upon consistent rules for expressing categories of contract language. The categories Adams identifies in his Manual include language of performance, obligation, discretion, and policy and Adams offers an approach for each. For example, he suggests identifying language of obligation by asking whether the provision can be read as, “Party A has a duty to . . .” and he persuasively recommends exclusive use of the word “shall” as in “Party A shall . . . .” Importantly, he advocates against using “shall” in any other instance. A cursory glance at even the most sophisticated contracts will usually reveal inconsistent use of the word “shall.” Again, you may ultimately disagree with certain of Adams’ positions, but internalizing these categories and adopting a consistent approach to them is invaluable. While fully implementing that approach in day to day contract reviews may be impractical, developing the ability to quickly categorize each sentence in a contract will bring greater clarity of thought and help identify and correct a variety of drafting issues.
Be cognizant of when you can realistically devote time to developing drafting skills. Some of us are working on multi-million dollar acquisitions where the legal budget permits (and the stakes require) very careful drafting and an extra few hours spent polishing the documents may be inconsequential. For other transactions, we struggle with the client’s hopeful request for a “two-pager.” Particularly for those of you more often dealing with the latter, the answer is to develop your drafting skills in revising the form agreements that you most routinely must produce. Do this on your own time when a client’s budget and substantive issues are not relevant. Not only will this improve your drafting skills and your core forms, you will increase your ability to apply those skills quickly and cost effectively in the context of client work.
Develop an eye for ambiguity. Ambiguity is like an optical illusion that shows two different pictures depending on how it is viewed. It accounts for those (hopefully) rare, but heart stopping moments when, in your third review of an agreement, you suddenly realize a sentence could be plausibly read with an alternate meaning that would be adverse to your client. Linguists will tell you that most written and verbal language is rife with ambiguity, usually to no ill effect. Our minds are trained to disregard ambiguity and instantly arrive at the most sensible meaning. However, the potential for an alternate interpretation to lurk unseen presents a special risk to the contract drafter. Read Ken Adams’ two chapters on ambiguity in his Manual and work on increasing your ability to spot it. You cannot decide if an ambiguous sentence merits revision if you are not aware of the ambiguity in the first place.
The language of contracts is unique and contract drafting skill is distinct from the variety of other skills a successful attorney must employ. Works on contract drafting by Ken Adams and others have made it easier to sharpen one’s awareness and ability. You will find that even passing attention to the craft will inform and ultimately improve your practice of law.