Somehow it is comforting to know that there are contract geeks out there championing the cause of better contract writing.
The specific guy I’m thinking of is Kenneth A. Adams, who has written extensively on contract drafting. Adams teaches seminars and classes on the subject. He now maintains a website devoted to writing contracts. Adams used to be a real lawyer who had actual clients, but he packed that in to focus exclusively on becoming the Great and Powerful Contract Writing Wizard (“Great Contract Wonk”). Just like the late Herb Shaindlin, Adams has taken a personality defect and turned it into a career.
I have one of the Great Contract Wonk’s books. I often check out his website to stay up on the “hot” contract writing issues (an oxymoron, if ever there was one). The guy covers an awful lot of territory. Some of it is incredibly useful and bedrock fundamental for a practicing lawyer. Such as the real meaning of things like “materiality” and “material adverse change.” Some of it is almost entirely useless. Such as a two page discussion of why you see ‘curly’ quotation marks and ‘straight’ quotation marks in documents.
Adams is on a crusade to get the legalese out contracts. He discounts the use of stock legal phrases when he thinks a “redraft” will result in a better technical document. I am marching alongside Adams as to a general dislike of legalese – that “relatively plain English” thing — but I do not accept his premise that a “redraft” of all the stock legal phrases is necessarily going to be better. In the real world lawyers don’t have time to fuss over all the minutiae. They have an obligation to get the paperwork out the door and the deal done. The client does not want to be charged for the time it takes to rewrite the stock phrases just to say the same thing a different way, or to clean up the stylistic defects that might exist.
Take one example. Almost every contract has an indemnity clause in it. The standard phrase used contains what amounts to the legal equivalent of a Holy Trinity: “indemnify, defend and hold harmless.” The Great Contract Wonk correctly states that the Holy Ghost in this arrangement — “hold harmless” – is redundant. It does not have a distinct meaning from the Father, “indemnify.” But that does not mean I am going to spend my time going through every contract to strike it out. Doing so may very well trigger a pointless and protracted discussion with the other side as to what function “hold harmless” might possibly serve.
Besides, the word Adams favors using by itself – “indemnify” – is inherently ambiguous. As I mentioned before, it is not exactly clear under Alaska law whether “indemnity” means the sucker who has to pay out the money must cover just what the smart guy owes to a third party, or whether the smart guy’s own direct costs are also included. If you’re going to “redraft” the legalese as the Great Contract Wonk advocates, it would be far better to junk “indemnify” as well. You could use some plain English instead: “Sucker must reimburse smart guy for what he has to pay out to others as well as any direct costs and losses smart guy incurs.”
Adams also says that the Son of the legal trinity – “defend” – should be left out of the indemnity clause. He thinks defense can be addressed in a separate provision on the “indemnification procedures.” I part company with Adams on this point as well. Defense is something distinct from indemnity. For the smart guy to have the right to have the sucker hire a lawyer to defend the smart guy as the case is going along, the smart guy needs to keep “defend” in the mix. Otherwise, the smart guy may have to get his own lawyer to defend the case as it unfolds and worry about collecting for the expense after the fact.
But don’t get me wrong. I am not down on Ken Adams. As I said, a lot of what he covers is absolutely essential for a practicing lawyer to know. It’s laudable that there is a bold champion out there who is making a real effort to improve the writing lawyers use over and over again in their contracts. Yet, I can still disagree with the Master on some of the details of his approach. He may be the one, the true, Great Contract Wonk, but I ought to be able to a bit of a contract geek in my own right.