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If you draft legal documents for a living, don’t miss Marc Lauritsen’s review of A Manual of Style for Contract Drafting by Kenneth Adams.

A Manual of Style for Contract Drafting
By Kenneth A. Adams
American Bar Association Section of Business Law (Chicago, 2004)
256 pages 6 x 9 Paperback
$44.95
Available at http://www.abanet.org/buslaw/catalog/r5070453.html or 1-800-285-2221.

The way in which lawyers generate transactional documents is a critical, often overlooked, law practice management issue. Efficient, effective, and consistent contract drafting is a sign of quality lawyering. It can drive profitability. But most observers agree that our methods and our results leave a lot to be desired.

Drafting is not well taught in most law schools, and is rarely the subject of disciplined attention in law offices. Some people become superb drafters on their own. Most flounder with time-worn, myth-laden techniques that are rarely examined, let alone critiqued. Drafting is learned and performed largely in private, and firms of any size evolve multiple camps of inconsistent drafting styles even for the same kinds of documents. Many practitioners bleed time wondering how to phrase and format things, dealing with inconsistent precedents, and explaining poorly written passages to clients and other parties.

In my own line of business – document automation – the absence of drafting standards is often an obstacle. Disputes among partners over wording – even over commas and tabs – can delay or derail projects. Of course, once you settle good styles and best practices, and build them into intelligent templates, you don’t have to think about these things so much.

But this is not a matter of technology. Ubiquitous word processing and document management systems, for instance, can actually exacerbate the problem. It’s a matter of knowledge, policy, and discipline. Lawyers need to know better, and law offices need to promote higher standards.

The recently published Manual of Style for Contract Drafting is a great resource if you want to pick up that agenda. It focuses mostly on the organization, language, and layout of contracts, not their substantive contents. Topics include:

• the parts of contracts (front, body, back)
• the different categories of contract language (performance, obligation, discretion, prohibition, policy)
• how to organize sections, subsections, and enumerated clauses
• the important difference between vagueness (imprecision – often useful) and ambiguity (alternative meanings – usually nefarious)
• the use of defined terms
• select words and phrases, like “deem,” “incorporated by reference,” and “notwithstanding”
• how to handle numbers and formulas
• the drafting of amendments, letter agreements, and corporate resolutions

Kenneth Adams – a practicing corporate lawyer at New York-based Lehman & Eilen and an adjunct professor at Hofstra University School of Law – is not shy about his opinions. Emphasizing clarity, precision, and elegance in writing, he demolishes many drafting practices long overdue for the trash heap, and lays out clear standards that are worthy of adoption. For instance, only use “shall” when you really mean “has a duty to.” And resist your lawyerly penchant for strings of synonyms, like “sell, convey, assign, transfer, and deliver.”

The author shows meticulous attention to organization and clarity, with numbered paragraphs, tables, and many examples (both good and bad). It has a decent bibliography and index.

Readers will differ with the author’s calls on some issues, like placement of defined term parentheticals. But law offices should have drafting standards even if they don’t want to adopt this very set. Centralized approaches should be welcomed as enablers of excellence, not impositions on artisanal freedom.

Any set of standards this comprehensive and subtle is hard to internalize and instinctively follow. It might be more useful as a working code if the discussion passages were separated from the rules. Availability in electronic form would be a nice addition.

Even with careful reading, I found a couple dense sections hard to understand. It would help to have more of an introduction to some concepts before use, like the various “languages” (permission, obligation, etc.) Also, for those of us some distance from English grammar studies, a review of terms like matrix clause and object predicative would be handy.

This is not the kind of book you’d likely want to read on the beach. It is rough going in parts even without distractions. But follow its precepts and you might find yourself with more time to spend on the beach. If you draft legal documents for a living, consider checking out the latest styles.

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Marc Lauritsen, a Massachusetts lawyer and educator, is president of Capstone Practice Systems, a firm that specializes in document assembly and other knowledge tools for professionals. He can be reached at (978) 456-3424 or marc@capstonepractice.com.