How well did the drafters of complex securitization documentation do?
“The documents were almost comically incomprehensible, frequently ambiguous, and occasionally produced the wrong numbers.”
Howard Darmstadter, Precision’s Counterfeit: The Failure of Complex Documents, and Some Suggested Remedies, 66 The Business Lawyer 61, 61 (Nov. 2010).
Here are my biggest pet peeves in legal drafting—primarily contracts and statutes. I’ve already posted my list for analytical writing here. This isn’t a list of the biggest problems in legal drafting, just the ones that bug me.
- Sometimes sentences in a contract run to hundreds of words in length. A former student sent me a change-of-control provision that was a single sentence of 379 words.
Archaic words that are not terms of art.
- It’s not just the word you use whenever you feel the sense should be “mandatory.”
Doubling text and numerals
- This practice has annoyed me for nine (9) years.
Unnecessary or redundant word strings
- right, title, and interest
- transfer, convey, and set over
I hereby authorize the Merchant, or it’s Agent, to initiate a debit entry to the account indicated above at the depository financial institution named above and to debit the same to such account. I acknowledge that the origination of ACH transactions to my account must comply with the provisions of U.S. Law.
How can we improve this? I don’t know enough about the substantive law or the reasons for some of the language contained in the original, but here’s a shot:
By clicking “confirm,” you authorize the merchant or its representative to deduct the amount show below from your account at your financial institution–listed above. Your origination of this ACH transaction must comply with U.S. law.
If you want to draft a document in standard English, what can you do?
If you are a transactional lawyer, and you now believe you have room to improve the language of the forms you use, here are my recommendations:
1. Get Adams’s Manual of Style for Contract Drafting.
Although it might be a while before you have the time to read Adams’s book straight through, you can immediately begin using it as a reference. You’ll learn a lot that way, plus it will help settle language disputes.
You’ll also found the following reference valuable:
It will help you master the subtleties of legal language.
2. Turn off autopilot.
Your standard forms can sometimes foster haste and laziness. Never rely too heavily on the form or assume all you need to do is change the names and change the dates. Get to know every provision in your document. Proofread carefully. Triple-check.
3. Stay current.
You and others at your office have used this form document as a starting place for years, so what could be wrong? Plenty. Laws change, and so do contracting practices. Know what you need and what you don’t need in the document. No matter the source of the form, there’s no substitute for learning, on your own, what the law requires for the transaction you’re documenting.
If not in plain English, then what?
So if plain English is not right or cost effective for every document—especially large transactions with competent lawyers—what is the proper style for modern transactional drafting? According to Kenneth Adams, the leading expert on the subject, it’s called “standard English,” and he details that standard in his book, the only comprehensive style guide for transactional drafting:
Adams is careful not to use the phrase “plain English.” His Manual is not directed at those who write consumer-credit disclosures, website disclaimers, and the “limitation of liability” on the back of a baseball ticket. He is speaking to lawyers who prepare complex contracts for business clients.
What is “standard English”?
Adams says standard English is “English as used by educated native speakers.” Adams, A Manual of Style for Contract Drafting at xxvi. He’s in full agreement with me that the content of complex contracts need not be conveyed in plain English: “Using standard English has nothing to do with dumbing-down contract prose to make it accessible to the nonlawyer.” Id. For Adams, and for me, plain English applies to “the simplified language of consumer contracts.” Id. at xxvii.
But Adams also insists that the language of modern contracts is dysfunctional. It abounds with “deficient usages . . . flagrant archaisms, meaningless boilerplate, redundant synonyms . . . inefficient layout, and so forth.” Id. at xxv. He aims to motivate you to improve your drafting—make it standard English—and then he tells you how.