Corporate & Securities Law

Adopting a House Style for Contract Drafting

By Ken Adams

To accomplish any given drafting goal, one usage will be more efficient than the others. Once you accept that notion, it follows that it would make sense for drafters to join other writers in using a manual of style. That’s why I wrote A Manual of Style for Contract Drafting.

Use of a manual of style in a given population might be at the discretion of the individual, or it might be adopted more systematically. A drafter might of their own volition consult MSCD with the aim of improving their own drafting. But in addition, a law firm or law department could stipulate that a given manual of style represents its house style for contract drafting.

And it would make sense for law firms and law departments to do so: The more technical a given kind of writing, and the more collaborative the writing process, the greater the need for the sort of consistency that can be achieved only by adopting a manual of style. Contract language is plenty technical, and the contract-drafting process is certainly collaborative.

A given organization could prepare its own house manual of style for contract drafting. But that’s an unlikely notion: unless the manual were limited to guidance on, say, typography and layout, I doubt that any organization would have the stomach or the expertise to prepare a comprehensive manual of style from scratch. And little would be gained by adopting a manual that covers a narrow range of topics.

The path of least resistance would be to adopt MSCD. You’d need to supplement it with a short handbook that states why the organization is adopting a house style for contract drafting and how it’s to be used. It would also need to supplement MSCD by mandating specific usages in those instances where MSCD offers alternatives. Heck, you could even indicate parts of MSCD that you’re excluding from your house style. You might also want to include a quick reference that, for example, lists words and phrases not to use. And while you’re at it, it would make sense for you to require that your lawyers use the Numbering Assistant to apply MSCD’s enumeration schemes.

Your lawyers may well complain that adopting MSCD as your house style would limit their freedom to draft as they see fit. But that’s the whole point of a manual of style! Curtailing drafter discretion would only pose a problem if MSCD were unreliable. I’ve certainly heard people say that they disagree with me (see this November 2008 post), but I have yet to hear anything that would cause me to want to revise MSCD.

I think the problem isn’t so much any potential shortcomings in MSCD but rather the mere idea of sacrificing autonomy. But maintaining drafter autonomy in an organization would ensure that its contracts not only exhibit a disconcerting variety of usages but also share the shortcomings that pervade mainstream contract drafting. The choice is a stark one: you can preserve drafter autonomy, but only at the cost of quality and efficiency.

How you would go about adopting MSCD as your house style would depend on the nature of your organization and the kinds of contracts it produces. For example, if the contract drafting undertaken by a law department were limited to creating deal documents from a few templates, the general counsel could conceivably make compliance with MSCD compulsory and have the templates redrafted.

By contrast, a substantial law firm handling a broad range of transactions couldn’t be high-handed about it. The transition from legacy contracts to MSCD-compliant contracts would have to be gradual. And if in a law firm with a Balkanized power structure someone with a healthy book of business wants to continue doing things the way they always have, presumably no one is going to stop them. But adroit use of the carrot and stick should encourage adoption. So should the fact that in the processes they use, law firms increasingly resemble other kinds of businesses.

As to where things stand currently, I’ve spoken with someone from a big company that is working on some form of house style for contract drafting. And I had the chance to review a relatively ambitious draft manual prepared by someone at a mid-size law firm. If you know of any law firm or law department that already has something in place, I’d be interested to hear about it.

And if you’re contemplating adopting MSCD in a big way, you might want to get in touch with me?I can think of some interesting ways to facilitate the process.

Full post as published by AdamsDrafting on January 29, 2009 (boomark / email).