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A Day within the Lifetime of the American Contract

Initially revealed in Might 2016

Do practising attorneys get to vote on legal-writing controversies? Not when you ask some self-styled pundits.

Like different types of writing, authorized writing has its descriptivists (“Right here’s how attorneys do write”) and its prescriptivists (“Right here’s how attorneys ought to write”).

The prescriptivists, who dominate the subject, have the virtues of idealism and of attempting to foment large-scale change within the occupation. However they’re typically dismissed as out-of-touch scolds who don’t know what it means to follow regulation or to fulfill purchasers in in the present day’s ruthless authorized market.

The descriptivists, for his or her half, could also be extra in contact with the calls for of regulation follow. However maybe they’re too fast to imagine that the legal-writing conventions mirror practitioners’ aware intent fairly than inertia or the worry of deviating from what’s perceived to be the norm.

I’ve tried to stake out a hybrid method. For briefs and opinions, for instance, I do “prescribe,” however not what’s in my head or my coronary heart. As a substitute, I attempt to work empirically, sharing patterns and strategies that I’ve extracted from the work of revered attorneys and judges.

And but for contracts, I’m extra inclined to defer to “cheap” practitioners, as a result of they almost all the time work from precedent, and as a result of their aim is to maintain their purchasers out of bother, to not try for some form of Platonic Ultimate in drafting. These constraints, by the way, may assist clarify why so many proposed contract-drafting reforms have been roundly and routinely ignored.

Actually, of all of the authorized writing “subspecialties,” contract drafting sees the best chasm between the practitioners and the speaking heads.

Find out how to bridge the hole?

Right here’s one thought. If greater than 75 p.c of seasoned company attorneys undertake a sure follow in contract drafting–together with attorneys who’re accustomed to the acquired knowledge of the drafting punditocracy–ought to there be a rebuttable presumption that these practitioners aren’t simply lazy or ignorant?

Possibly. And so in the present day I’ll play pure descriptivist.

In homage to the coffee-table guide A Day within the Lifetime of America, I provide you with A Day within the Lifetime of the American Business Contract. On the wonderful website, I pulled 25 contracts, all filed with the SEC on a single day: April 14, 2016. The contracts run the gamut from escrow agreements to asset buy agreements.

Earlier than you scroll down, I would like you to guess what proportion of my pattern contracts, a lot of them filed by prestigious corporations, interact in these alleged drafting peccadilloes:

  • Utilizing “shall”
  • Utilizing “and/or”
  • Utilizing provisos, together with “supplied that”; “supplied, additional, that”; and “supplied, nonetheless, that”
  • Introducing recitals with “Whereas”
  • Utilizing some variation on “however something on the contrary”

Earlier than you peek on the solutions, I wager a few of you’re already considering “However, however, however, I simply don’t prefer it when . . . .”

So keep in mind: in the present day we’re all descriptivists. Only for as soon as.

Right here you go:

  • What number of of these agreements use “shall”? 100%
  • What number of use “and/or”? 88 p.c
  • What number of use provisos? 100%
  • What number of begin recitals with “Whereas”? 88 p.c
  • What number of use a variation on “however something herein on the contrary”? 76 p.c, plus one other 12 p.c when you embody “however the foregoing,” for a complete of 88 p.c

And now that you simply’ve been type sufficient to take pleasure in a uncommon little bit of legal-writing descriptivism, be at liberty to attempt to rebut my rebuttable presumptions!



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