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Dysfunctional drafting in the magic circle?

Written by: The Lawyer
Published on: 21 Nov 2016

I recently took part in a panel discussion in London organised by UCL Faculty of Laws and entitled “Dysfunction in Contract Drafting: Are the Courts, Law Firms, and Company Law Departments Stuck in a Rut?” (For more about the event, go here.)

To give those present a sense of the dysfunction of mainstream contract prose, I opened the proceedings by critiquing a sentence from a contract drafted by lawyers at the London office of one of the magic circle” law firms. (Namely this contract; I selected it at random.)

Here’s the original version:

Without prejudice to Clause 12.3.2, the Purchaser agrees that the Seller may (at any time between the date of this Agreement and Closing) in its sole discretion, or may procure that any member of the Seller’s Group may make to any one or more Retained Employees an offer, in writing, to employ such Retained Employee(s) under a new contract of employment to take effect on or before Closing.

And here’s my revised version:

Subject to clause 12.3.2, one or more Seller’s Group Companies may each offer employment to one or more Retained Employees under a contract to take effect on or before the Closing.

My version is half as long, is much clearer, and is free of the misconceptions reflected in the original.

The original version is representative of the prose in the contract it came from. I suggest it’s also broadly representative of BigLaw drafting generally, in the UK and the US. For one thing, it’s consistent with critiques of BigLaw drafting that I’ve posted on this blog over the years, for example my 2011 analysis of the Google–Motorola merger agreement.

I’ve encountered English lawyers who suggest that English drafting is less dysfunctional than US drafting. Based on my review of this and other UK BigLaw contracts, I don’t think one can draw any meaningful distinction between UK and US drafting in terms of quality.

If you’re at a magic circle law firm and you think your contract prose is fine just as it is, that’s likely because it has never been subjected to serious scrutiny from the perspective of the building blocks of contract prose. There’s a real disconnect between the magic circle’s trappings of prestige and the contract prose they’re dishing out. Instead of haunch of venison on that silver platter, it might well be some dodgy bubble and squeak.

How can the most prestigious law firms produce this sort of dysfunction? It has nothing to do with how smart or hardworking the lawyers are. Instead, it’s due to their being stuck in a dysfunctional system, one to which I’ve applied the label “passive drafting.” (See this extract of one of my articles.)

This sort of dysfunction isn’t trivial. It wastes time and money, creates confusion at each stage in the contract process, and makes disputes more likely. If you want a sense of what’s required to fix it, see my 2015 article with Chris Lemens in the ACC Docket, Fixing Your Contracts: What Training in Contract Drafting Can and Can’t Do (here).

Now, for those who want me to explain the changes I made to that sentence:

  • Without prejudice to: Unnecessarily legalistic; use instead Subject to.
  • Clause: I’d use section, but I won’t fight that battle here. Instead, use a lowercase c, consistent with what guides to general English usage recommend.
  • the Purchaser agrees that: Delete. It’s an example of what I call “throat-clearing”—a redundant verb structure tacked on to the front of a provision. The Purchaser has signed the contract; it follows that they’re agreeing to each provision in the contract.
  • (at any time between the date of this Agreement and Closing): Delete. The only relevant timeframe is that at the end of the sentence.
  • in its sole discretion: Delete. The sentence uses may, which grants discretion, so this is a redundant rhetorical flourish.
  • may procure that: Delete. This is a misuse of procure. It’s an unduly legalistic word—I recommend using cause instead—but the point is that procure (and cause) are pertinent only if the provision anticipates the party with control causing the controlled party to do something. In this case, the controlled party has discretion.
  • any member of the Seller’s Group: First, use one or more instead of any. Second, the defined term Seller’s Group Company is created in the contract, so it makes sense to use it.
  • the Seller may: Delete. It’s redundant: because the Seller is a Seller’s Group Company, the Seller falls within the reference to the Seller’s Group Company.
  • in writing: Delete. I don’t think it’s relevant whether the offer is in writing or oral.
  • such Retained Employee(s): Delete such; it’s a hallmark of crassly legalistic prose. And delete the clunky (s) and use instead one or more.
  • new: Delete. It’s redundant.
  • contract of employment: Delete of employment. Employing someone under a contract makes it a contract of employment without your needing to say so.
  • on or before Closing: Add the before Closing, for reasons explained in this blog post.

Ken Adams is a lawyer based in New York, and the author of A Manual of Style for Contract Drafting.

Previously: The problem with contract drafting and what young lawyers can do about it