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Monday, June 10, 2013

Daniel Barnhizer Reviews Ken Adams' Manual of Style for Contract Drafting (3d ed.)

BarnhizerDaniel D. Barnhizer is Professor of Law & The Bradford Stone Faculty Scholar, Michigan State University College of Law. 

Kenneth Adams’ third edition to the Manual of Style for Contract Drafting[1] (“Contract Drafting”) delivers invaluable advice to any attorney or professional who drafts contracts or contract terms. The book is also highly suitable for law school classroom use in drafting classes, business school, or undergraduate business courses. This book has found a permanent place on my shelf among my go-to style manuals.

 

Introduction

 

Contract Drafting is a style manual that goes well beyond explicating basic contract conventions, admonishing attorneys to use “plain English” and avoid “legalese,” and providing lists of awkward or ambiguous words and phrases to excise from the drafting lexicon. Adams does all of these things effectively and efficiently, but Contract Drafting delivers on many more levels.

 

Audience

 

Like previous editions, this book will be useful across a wide range of applications. As Adams notes in the introduction:

This manual should be of use to readers in every contract ecosystem—a solo or small-firm general practitioner handling a broad range of contracts . . ., a contract-management professional responsible for negotiating contracts with customers; a big-law associate drafting mergers-and-acquisitions contracts; an in-house lawyer overhauling the company’s template sales contract; a paralegal reviewing confidentiality agreements a company is asked to sign; a judge trying to make sense of a confusing contract provision.[2]

In this list, Adams omits another important audience – law students. Contract Drafting is a nearly ideal tool for teaching a contract drafting course. As discussed below, the content of the manual goes beyond listing blackletter principles and providing tables of words and phrases to avoid. In this most recent edition of Contract Drafting, Adams carefully walks the reader through detailed explanations of his drafting principles while at the same time presenting an extraordinarily complete manual that teaches the inexperienced and informs the senior practitioner. Any professional – lawyer or non-lawyer – or law student who deals with contracts in any manner should keep this book near at hand.

 

Content

Ken AdamsContract Drafting is comprehensive and ambitious in scope. The range of topics covers the significant contract drafting issues likely to be encountered in appropriate length and detail. Importantly, the book recognizes that for many attorneys and professionals who will use this style manual, the principles of good contract drafting cannot be reduced to a short list of rules to which the struggling drafter may refer in order to turn a poorly written instrument into a thing of beauty. Rather, the text is a teaching text. Experienced drafters already familiar with good drafting techniques may use the book to help clarify difficult provisions and terms on an ad hoc basis.

But for the vast majority of users who still draft from samples passed through generations of law firm lawyers, the Adams’s Contract Drafting will only reach its full potential if they actually read the book. My students—and many practitioners, based on some of the clauses I have seen out in the wild—often have difficulty with drafting general release clauses, for example. Attempting to use the book for a quick check on how to draft a general release clause will be fruitless. Contract Drafting contains excellent advice that applies to the different phrases useful to drafting such a clause, such as use of common terms from such releases including “arising out of or relating to” and “from the beginning of time.”[3] But if a practitioner is facing a clause such as the one I inherited from one of my supervisors early in my career, these are merely helpful Band-Aids:

[Party B] discharges and acquits [Party A], their subsidiaries, affiliates, successors and any persons or entities taking through them, of and from any and all claims, liabilities, and choses in action of any kind whatsoever, whether known or unknown and whether asserted or not, arising out of or relating to the [current action] from the beginning of time to the date of these presents, including the [current action].

Reforming that riot of legalese and opacity requires not a Band-Aid but major surgery. To get to the point where the drafter can effectively spot the problems inherent in such provisions and efficiently rewrite the term without breaking the bank requires training and practice. Contract Drafting provides the basis for the training as long as the reader is willing to put in the time necessary to assimilate its lessons.

Taking a simple example from Chapter 1, “The Characteristics of Optimal Contract Language,” ¶¶ 1.42-1.54 address the need to “Limit the Use of Strings.”[4] A beginning drafter or even an experienced drafter who lacks systematic training in modern contract drafting and legal writing principles likely will not even be able to recognize “strings” – redundant series of synonymous terms such as “goods and chattels,” “sell, convey, assign, transfer, and deliver,” and “indemnify and hold harmless,” – much less know that they are in most cases unnecessary and potentially ambiguous.

AdamsLikewise, Chapter 3, “Categories of Contract Language,” does a masterful job of distinguishing between different types of contract language that inexperienced drafters will likely have not encountered. Just as Wesley Newcomb Hohfeld’s taxonomy of jural correlatives created real structure and meaning in theoretical and judicial analysis by systematically distinguishing legal relations such as rights and duties, privileges and no-rights, liabilities and powers, and immunities and disabilities,[5] in my experience many students and even experienced drafters fail to maintain distinctions between different types of contract language. Adams’s Chapter 3 walks the reader through each of the categories of contract language – Agreement, Performance, Obligation, Discretion, Prohibition, Policy, Conditions, Declarations, Belief, Intention, and Recommendation – and clarifies through rules and examples how and when each category is appropriately used.[6]  

Later chapters address more specific contracting issues that a drafter might refer to on a one-off basis. Chapter 6, for instance, deals with the proper use of defined terms. Chapters 8 and 9 address the commonly used terms “Reasonable Efforts,” “Material,” and “Material Adverse Change.” Chapter 10 explains proper techniques for referring to time in a contract. But even these more specific sections deserve the 30 minutes of attention it would take to read through each and assimilate Adams’s systematic and detailed treatment of their subjects so that the drafter will recognize the issues when they arise.[7]

Fortunately, despite that appreciating the full value of the book requires assimilating the text, Adams’s style is highly readable. Adams writing is explicative and does not merely set forth a list of rules with bare admonitions for the drafter. For example, in the section on limiting the use of redundant phrases, Adams advises the drafter against needlessly redundant language such as “goods and chattels,” or “sell, convey, assign, transfer, and deliver.”[8] But Adams also identifies the situations in which a drafter may legitimately choose to retain terms with subtly different meanings or accepted legal phrases. Importantly, Adams explains the arbitrary origins of such redundancies both in reference to medieval English practices that incorporated identical legal terms from English, French, and Latin and in connection with the “rhythmical appeal” of these terms. By explaining how such redundancies developed, Adams reemphasizes the rule in a manner that is memorable and provides comfort to an unsure contract drafter considering a departure from a form.[9]

Within each chapter, the organization is excellent and logically approaches the subject matter so that the reader may efficiently begin incorporating the principles of contract drafting immediately after encountering them. Adams also judiciously salts his explanations with clear and concise examples of both proper and problematic contract usages. Chapter 12, for example, dealing with syntactical ambiguity, provides series of permutations of contract terms in which modifiers and commas are moved within the term to effectively demonstrate the sources and resolution of ambiguities. And throughout the book Adams includes specific judicial decisions relating to the contract drafting at issue to demonstrate his principles and to impeach many traditional justifications for bad drafting practices.[10]

Finally, the “before,” “before with footnotes,” and “after” versions of a sample executive golden parachute contract in Appendices 1-A, 1-B, and 1-C clearly show the value of the book and the potential benefits of adopting Adams’s principles of contract drafting.[11] The “before” version is a dense, confusing, potentially ambiguous, and definitely unclear example of a typical termination agreement that is consistent with similar agreements I have seen in my own practice. The “before with footnotes” version in Appendix 1-B is worth its weight in gold as Adams systematically lists the individual shortcomings in the before contract. This version convicted me of several of my own contract drafting sins, and should clearly demonstrate to any reader the need for rigorous and consistent application of a manual of style for contract drafting. The final version—“after”—shows what the contract could look like if drafted according to the principles laid out in Contract Drafting. These three versions provide invaluable demonstrations of the benefits of the book and for students and colleagues make a convincing argument in favor of adopting and learning a style manual.

 

Using Contract Drafting

 

In developing this review, I considered several of the contract drafting issues that had come up in my own classes and past drafting practice. Adams’s treatment of each issue was correct and complete. Had I been addressing those concerns from scratch in the drafting stage, Adams’s treatment would have informed the beginning drafting student, the sales officer, and the transactional lawyer alike.

For example, my students often struggle with when and how to use “time is of the essence” clauses. The index contains an entry for “time is of the essence” clauses.[12] Adams’s substantive treatment begins with the basic rule: “time is of the essence clauses” are necessary in some contexts because “courts tend to hold that late performance isn’t grounds for termination unless the purpose of the contract or the circumstances surrounding it indicate that the parties intended for that to be the case.”[13] The remainder of the discussion on this issue addresses pitfalls relating to improper use of the clause. These include the inclusion of general statements that fail to link the clause to a specific performance for which time is truly essential, failure to identify the consequences of untimeliness, failure to recognize that the term may be inconsistent with other terms in the contract, and failure to recognize that some jurisdictions may refuse to enforce such clauses for trivial breaches after substantial performance. Finally, after exploring general usage and the pitfalls awaiting the unwary drafter, Adams provides an alternative drafting convention – with an example – that would deliver the precise meaning that most drafters would be seeking in using such clauses.[14]

 

Organization

 

The overall organization of the book is the only problematic area, albeit one that should be relatively innocuous to a regular user. In attempting to find treatments of particular contracting issues during my first read of the book, I found it frustrating to navigate different sections and the organization was not intuitive. Chapters 1 (“The Characteristics of Optimal Contract Language”), 3 (“Categories of Contract Language”), 4, (“Layout”), 7 (“Sources of Uncertainty in Contract Language”), 11 (“Ambiguity of the Part Versus the Whole”), 12 (“Syntactic Ambiguity”), and 16 (“Typography”) address what I consider “strategic” contract drafting issues that apply generally to the process of drafting the contract as a whole. Chapter 17 also likely fits in this category as it contains a short treatment of general writing principles applicable to drafting, although the material in this chapter seems better suited for inclusion in Chapter 1. 

Interspersed within those strategic treatments are chapters on various “tactical” issues. Chapters 2 and 5 respectively concern specific terms and elements of the front and back matter of the contract like identification of the parties, recitals, and signature blocks. As noted above, Chapters 8 and 9 discuss specific contract terms—“Reasonable Efforts” and “‘Material’ and ‘Material Adverse Change’” clauses. Chapter 13 provides a lengthy list of problematic usages in this regard, similar to that found in other style manuals such as chapters 11 and 12 of Bryan Garner’s well-known general legal style manual “The Redbook.”[15] Chapter 14 and Chapter 15 describe drafting provisions relating to numbers and formulas and drafting conventions.

The organization of the book will be a problem only for the reader who picks up the book looking for a single specific answer to a specific type of contract question. Those answers are there and the book will often be of assistance to such questions. But as noted above, the reader will benefit from the book far more after spending the time to read it cover to cover and assimilating the principles Adams explicates. Once the reader has familiarity with the structure and with the contents of the book, the organization issue will be de minimis.

 

Final Thoughts

 

Contract Drafting has nearly everything I could ask for in a style manual. Kenneth Adams’s coverage of the field is comprehensive. All of the substantive material is presented in a highly-readable form that teaches good drafting through rules followed by detailed explanations and examples. Indeed, a skilled contract drafting instructor could build an entire semester-long course out of this text and a small number of actual contracts or case studies. Preparation for this review alone gave me substantial food for thought and showed areas where my own drafting practices can be improved significantly. For the student, this is a perfect book.

It is also an extraordinarily useful book for the practitioner. The book can, however, only deliver its full potential if the practitioner recognizes the need for a short-term trade of otherwise billable hours (or free time) for long-term professional development. The short-term costs are not insubstantial—my initial reading of the book in preparation for this review took approximately twelve hours, although much of that was note taking. Afterwards, drafters will incur additional time and transaction costs in redrafting contracts previously seen as “good enough” because they cut and pasted terms that had “worked” or been tested in past contracts. It will take time to reach the point that the bank of new contract forms contains sufficient well-drafted terms and the principles from Contract Drafting become sufficiently second nature that the practitioner will begin to profit from the investment.

In the final analysis, though, the investment is not optional. The economics of the legal market are changing rapidly. As Richard Susskind’s The End of Lawyers suggests, the winners in the new legal marketplace will be those who can offer high-quality mass-produced services that look like “bespoke” or custom-made work.[16] Kenneth Adams himself has founded a contract assembly firm, Koncision Contract Automation, that uses computer algorithms to build contracts using the principles described in Contract Drafting based upon a detailed questionnaire that permits clients to develop sophisticated and high-quality contracts that address their needs at a mass-production level price schedule.[17] 

It is unlikely that contract and other document automation firms such as Koncision or form banks like LegalZoom.com will entirely replace contract drafting by individual practitioners or firms, but it is certain that clients will continue to demand more and better contracts for less. Lawyers engage in cut-and-paste contract drafting because it is fast and cheap (at least for them) on the front end. But as legal markets becomes more transparent, sophisticated consumers will notice the back-end costs associated with poorly-drafted contracts and be able to associate those costs with the lawyers, firms, and contracting practices that caused them. Contract drafting practitioners and other professionals who do not move beyond contract language and techniques of the last century will become non-competitive for drafting business in these new legal markets. Contract Drafting provides a great basis for developing modern contract drafting skills and practices.

[Posted, on Daniel Barnhizer's behalf, by JT]


[1] Kenneth A. Adams, A Manual of Style for Contract Drafting (3d ed. 2013) [hereinafter “Contract Drafting”].

[2] Id. at xxix.

[3] Id. at 250, 280.

[4] Id. at 6.

[5] See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions As Applied in Judicial Reasoning and Other Legal Essays (Walter Wheeler Cook, ed.) (1923).

[6] See Contract Drafting, supra note 1 at 37-98.

[7] Of all the chapters in Contract Drafting, only Chapter 13, “Selected Usages,” is specifically adapted for immediate and occasional reference. This section arranges common contract terms, such as “force and effect,” “incorporated by reference,” “mutatis mutandis,” and “provided that,” alphabetically for easy reference and provides detailed explanations regarding whether and how drafters should employ those terms. See id. at 247-360.

[8] Id. at 6.

[9] See id. at 6.

[10] See, e.g., Contract Drafting, supra, note 1, at 87 (Aspect Systems, Inc. v. Lam Research Corp., No. CV 06-1620-PHX-NVW, 2008 WL 2705154, at *9 (D. Ariz. June 26, 2008) (case law does not support the proposition that there is any difference in remedy for a “representation” in a contract than for a “warranty”)), 154 (listing cases addressing lexical ambiguity), and 246 (Telenor Mobile Communications AS v. Storm LLC, 587 F. Supp. 2d 594, 605-08 (S.D.N.Y. 2008) (syntactical ambiguity arising from lack of a serial comma)).

[11] Contract Drafting, supra, note 1, at 425-450.

[12] Id. at 474.

[13] Id. at 348.

[14] Contract Drafting, supra, note 1 at 348-49.

[15] Bryan A. Garner, The Redbook: A Manual of Legal Style 183 - 318 (2d ed.) (2002).

[16] See generally Richard Susskind, The End of Lawyers? Rethinking the Nature of Legal Services (2008).

[17] See “Why Koncision?,” available at http://www.koncision.com/why-koncision/advantages/.

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Comments

I'm an old dog who learned a lot of new tricks reading MSCD, then started occasionally commenting on Adams's blogs, for which he honored me by asking me to help him proofread the third edition. I have a pretty good sense now of how the style goes, but still have to correct myself when I lapse into my "native tongue." Learning is a lifelong experience.

Your comment that MSCD should be a law school textbook is spot on. Presumably, Adams uses it in the classes he teaches at Penn, but it's heartening to know that there even are classes on contract drafting in law schools now; there weren't in the antediluvian days of my legal education.

Also, your observation that finding a specific usage can require hopping around the book is a fair point, attested to by the dog-eared condition of my copy of the second edition (but the index is quite good). Any taxonomic approach, no matter how logical, is arbitrary when confronted with a different person's thought grid. One possible workaround would be if the book existed in searchable electronic format. I am given to understand that this may be under contemplation, but one knows not if and when it will issue. Nevertheless, having a universally portable paper copy handy is still valuable, and as it's currently the only option, one shouldn't waste educational time waiting for another format. It would be cheap enough to buy both (and Ken didn't pay me for saying that!).

Posted by: Vance R. Koven | Jun 11, 2013 1:18:40 PM

Hey, Vance! The book should be on iTunes soon.

Posted by: Ken Adams | Jun 11, 2013 2:22:27 PM

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