Improve your contract drafting. Step 1: read MSCD, 3rd edn

When IP Draughts first started in legal practice, he was taught many wise and noble things by the elders of the profession.  Barristers do not shake hands with one another.  A barrister should address a magistrate as “Sir” and eschew the practice of some solicitors who refer to him as “Your Worship”.  A junior barrister should not use the moveable lecturn that sits on the bench in front of him in court, until he has been qualified for 7 years.  Outside of court, a barrister should address a judge as “Judge” (using the vocative) and not with his judicial title.  A barrister must wear a three-piece suit in court, with the waistcoat buttoned (except for the bottom button); alternatively he may wear a double-breasted suit, with the buttons done up.  If counsel’s clothes are regarded as loud or inappropriate, the judge may say “I cannot hear you, Mr Anderson” to signal his displeasure.

Another pearl of wisdom that was lovingly passed down to IP Draughts, like grandpapa’s hand-made dinner suit, was that you should not cite legal textbooks in court, unless the author is dead.  The President of the UK Supreme Court, Lord Neuberger, has recently explained the history of this “rule” in a lecture to the Max Planck Institute, recorded here.  It seems that the rule no longer applies, and may not have applied when IP Draughts was taught it thirty years ago.  Thus, traditional wisdom lingers in the minds of practitioners long after its usefulness has come to an end.

The reverence that the legal profession has for familiar practices is demonstrated, day-in, day-out, by the appearance and content of commercial agreements.  This is as true in the UK as it is in the USA, Australia and many other jurisdictions. That the style of those agreements differs from jurisdiction to to jurisdiction makes not a jot of difference to the principle, which might be summarised as: familiarity breeds complacency.

Another Adams who worked on an important drafting project

For the last decade, Ken Adams has made it his professional mission to improve the quality of contract drafting.  At the heart of his mission has been his book, A Manual of Style for Contract Drafting (MSCD), which was first published in 2004.  The 3rd edition of this work (MSCD3) has recently published by the American Bar Association. He also maintains a blog on contract drafting, and he has taught the subject to many people; he is currently in the Orient on a lecture tour.

Although he has fine academic credentials, and is a visiting lecturer at the University of Pennsylvania Law School, Ken is not an academic. Rather he is someone who has come from legal practice and invented a discipline of his own, one that is focused on the needs of practitioners yet written with all the rigour and thoroughness of an academic treatise.

Anyone who is serious about developing their skills as a contract drafter needs to read this book.  That is not to say that you have to agree with every word of it, but you should at least consider the arguments that Ken makes.  You will probably end up agreeing with most of them.  Even where you don’t agree, you may find that, over time, some of his recommendations have crept into your thinking without you realising it.  It is said that the best way of persuading someone is to make them think they had the idea themselves.  IP Draughts previously thought that his practice of starting the operative clauses of contracts with the phrase “The parties agree as follows” was original to him, but after reading MSCD3 he realises that he may have picked this idea up from an earlier edition of the book.

The perspective that Ken takes is one of making contracts clearer and more accurate in their language; one of the benefits of doing this is to reduce the opportunities for disputes over interpretation.  However, he is not directly concerned, as a practitioner should be, with “winning in court”.  It is not part of his brief to pander to the quirkiness of courts, or the encrustation of national or State case law.  He is particularly critical of how some courts go about the business of interpreting contracts.  For instance, he despairs of how the English courts make fine (and, in Ken’s view, misguided) linguistic distinctions between representations and warranties, or between best endeavours and reasonable endeavours, when these terms are used in contracts.

English practitioners will want to keep a weather eye out for how an English judge is likely to interpret a particular form of words, before deciding how far they are prepared to take Ken’s recommendations in this area.  To take another, small example (and one that Ken analyses in detail) IP Draughts is not yet convinced that he can abandon the phrase “including without limitation”, although he does relegate it to an interpretation section, so that it only appears once in the contract.

MSCD discusses, and make recommendations on, all aspects of the appearance and drafting style of a contract.  This breadth of coverage is very helpful, but does mean that some of its recommendations are on subjects that might be thought a matter of personal preference, eg whether to type the document in a Times New Roman or Calibri font.  Put another way, some of the recommendations are core to the Adams drafting approach and are radical in some of their ideas (eg those in chapter 3 – Categories of Contract Lanugage), while some others reflect conventional practice among lawyers and writers (eg many of those in chapter 4 – Layout).  To quote from Ken’s “model statement of style” at page 454, MSCD “works within the prevailing idiom”.  This is sometimes the idiom of US contract lawyers and that idiom is sometimes, in IP Draughts’ view, sub-optimal.  He will continue to prefer English drafting practices where he considers these to have advantages over US drafting practices, eg by numbering the parties,  putting definitions in two columns, avoiding tab spacing, and referring to contractual provisions (at several levels in the hierarchy of provisions) as clauses.

A short review can only scratch the surface of the hundreds, or perhaps thousands, of detailed recommendations that are made in MSCD.  As IP Draughts read through MSCD3, he wondered whether there might be some way of summarising the key recommendations of each chapter, to aid the reader’s comprehension.  It seems to IP Draughts that there is a danger of overwhelming the casual reader with detailed information that cannot all be remembered.

The sample “before” and “after” agreements at the end of the book are helpful in this respect, but might there be other ways of presenting the information in an easily-digestible way, eg an interactive online presentation of an agreement, with  dialogue boxes that come up as one moves the cursor over the text, perhaps colour-coded to deal with different types of recommendation?

Once an author has published his work, he loses control over it, except at the margins in areas such as copyright infringement and defamation.  People can read it, and use it, in whatever way they choose. Ken has spent many thousands of hours in debating, thinking and writing about the points discussed in MSCD.  The book reflects his well-considered conclusions on drafting best practice.  Therefore it is natural for him to take the view that the recommendations of MSCD should be adopted wholesale by contract drafters internationally. While some drafters will take this approach, IP Draughts thinks it likely that a larger number of readers will make a gradual shift towards the principles of MSCD over time, with people moving at different speeds and adopting more or less of those principles as they consider appropriate.

A project of this kind benefits all who are involved in contracts, whether as drafters, negotiators, implementers of contractual obligations, or judges of disputes over those obligations.  In this sense, Ken has chosen to perform a national, or international, service.  IP Draughts hopes that the service gets the financial and other recognition that it deserves.

In an earlier age, innovators who performed valuable national service were rewarded with Government prizes and royal pensions.  For example, in the eighteenth century John Harrison received Government funding for his work to develop accurate chronometers.  This innovation enabled people on ships to calculate their longitudinal position.  Perhaps MSCD is not quite in that league, but it surely merits recognition for the service it provides to people involved in commercial contracts.

Coming back to a point made earlier, MSCD certainly deserves to be cited in court, even though the author is very much alive and kicking.  Long may he remain in this condition!