The fourth edition of A Manual of Style for Contract Drafting (MSCD) has just recently been published. It is a must-have reference work for any lawyer who is interested in proper contract drafting, in other words, for any lawyer who drafts contracts. The author is well-known drafting expert Professor Ken Adams, who has been speaking and writing about these issues for a number of years. His blog, on the Adams on Contract Drafting site, is an excellent source of commentary on a great many contract drafting issues, including ones that, for space limitations, are not addressed in his book.
The first edition of this valuable book appeared in 2005, and the author has continued to refine and expand upon the issues he first dealt with there. His blogging and speaking experience means that he has heard (more than once!) the many objections that are raised to the various suggestions he makes. In his introduction, he addresses the main types of objections he receives. Anyone who has tried to introduce more “progressive” drafting processes to one’s colleagues will probably have encountered all of these.
Having attended several of Professor Adams’ drafting seminars, it is apparent that the attendees are already focused on improving their drafting and therefore open to the various recommendations made in his book. Regrettably, the lawyers who most need this work are those who believe — wrongly — that their drafting is already superb.
I suspect that most lawyers who use some variation of “best efforts,” “commercially reasonable efforts,” or “commercially reasonable best efforts” would be surprised to find, after reading this book, that their “understanding” of this concept is woefully inadequate. Professor Adams has written extensively on this issue, but the majority of lawyers continue to use these various phrases, believing their own understanding of the law is correct, without verifying that understanding. A careful drafting lawyer will likely be chastened after reading the author’s chapter on “efforts” and is unlikely again to use any formulation other than “reasonable efforts.”
Professor Adams also devotes a chapter to the (related) concepts of “material” and “material adverse change.” Given the number of times that one or both of these concepts arise in M&A deals, any M&A lawyer would be well advised to read the author’s analysis of these concepts.
If you wish to zero in on a particular word or phrase, the author has more than 130 pages of “Selected Usages,” where you can find discussions of terms or issues such as “applicable,” “between or among,” “cost and expenses,” default,” and “execute and deliver,” to cite examples from just the first five letters of the alphabet. If for nothing else, any contract drafter should have recourse to this section any time he or she is less than absolutely certain of the meaning of a particular phrase. And he or she can really only be certain of that after having read Professor Adams’s discussion.
I have written before about the importance of having a style guide in order to set out the “house rules,” so that one’s own contracts, and those drafted by others in the same firm or organization, are consistent. The size of this work is somewhat daunting, at almost 500 pages of text. The size of the book may deter some users from plunging in, which would be a shame.
It is possible, of course, for a firm or corporate law department to adopt a much shorter style guide, but one virtue of this book is its breadth, since it deals with issues that cannot be adequately addressed in a short guide.
The sheer size of this reference work also means that a busy lawyer may well skip over many of the chapters, such as the author’s careful delineation of categories of contract language, to which he devotes an entire chapter. The careful drafter should, however, read that particular chapter with care, since understanding these categories will enable him or her to root out and eliminate potential drafting problems.
A Canadian lawyer may also wonder whether a guide to contract drafting written by an American expert, which cites mostly American case law, would be of benefit to those of us north of the border. The answer is an emphatic yes. While there may well be differences in law in various substantive areas, the intention when drafting, say, an IP licence will be the same for any common law lawyer, whether in Canada or the US.
The focus here is on enabling you to say clearly in your contract what needs to be said. You are assumed to know the law of your jurisdiction and to know how to make any necessary changes. But I suggest that those changes will be few. Drafting clarity involves ensuring that the substantive issues that the parties have agreed to are stated clearly and unambiguously in the document you are drafting, whatever your jurisdiction of call.
In a work this extensive, there are small points where I might beg to differ with the author. But one useful function of this manual is that, if one does differ, one is obliged to come up with good counterarguments. Regrettably, many “old style” drafters do not engage in such necessary intellectual debate, but simply retreat to a position such as, “Well, I don’t like the serial comma and so I’m not going to use it!” Such intellectually lazy recalcitrance is a major reason that we continue to be afflicted by legalistic jargon weighing down contracts.
The author’s introduction outlines the differences from the 3rd edition and points out the new material. Lawyers who already have a copy of the previous edition may feel reluctant to invest in an edition that treats substantially the same issues. I would, however, counsel any such lawyer to invest in the new one. The author continues to refine his analyses of these issues, so if one is serious about contract drafting, one should ensure that one has the author’s most current thoughts on these issues.
The primary focus of contract drafting should be to write for your reader, namely your client. Regrettably, most lawyers continue to draft for other lawyers, producing documents that clients find incomprehensible. We would all benefit if the lawyers who draft those legalistic monstrosities took the time to read and then apply the principles so clearly set out in Professor Adams’ manual.