This post is my response to @ronfriedmann‘s tweet below. .@KonciseD Fair . But how do we scale to ensure widespread, properly drafted agreements? And how do we persuade lawyers of necessity? — ronfriedmann (@ronfriedmann) February 16, 2017 If you want clearer, more effective contracts, you need two things: supply and demand. Supply By “supply,” I mean that you have to provide … Read More
After Tuesday’s panel discussion in London I received the following email from a mid-level lawyer at one of the major English law firms: I thought you were great. I also thought that your contribution had a slight air of shouting into the wind—I agree with everything you say, but conceptually there is not a sufficient meeting of the minds elsewhere. … Read More
Early this year I wrote about attempts to argue that changing traditional contract legalese is a bad idea, either because traditional legalese works (see this post) or because it might work (see this post). Well, I’ve encountered another article that makes the same sort of argument. In Contracts Part III: The Role of Legalese in Contract Drafting (here), published in something … Read More
A roadblock to progress in clearer contract drafting is the dead hand of inertia. I’ve written a fair amount about it (see these posts). Over the weekend I was in the kitchen listening to WNYC when a rebroadcast of the Freakonomics “Think Like a Child” episode came on. (That episode is available here.) Below is an extract of the transcript, consisting of … Read More
You know that post I did about a recent English opinion on warrants (here)? Well, Glenn West, a partner at Weil whose name appears regularly on this blog, did a blog post about it too (here). Here’s the bit that caught my attention: This author’s consistent position on this subject is to continue to bow to current market convention in … Read More
You might find of interest The Inefficient Evolution of Merger Agreements, a law-review article by two law-school professors, Robert Anderson and Jeffrey Manns. (You can get a PDF copy here.) The authors did something that is still relatively novel when it comes to study of contract drafting—they engaged in empirical research. Specifically, they used computer textual analysis to analyze 12,000 public-company merger agreements … Read More
Last Friday I noticed this post on Above the Law. It’s by Stefan Savic, an associate at the law firm Balestriere Fariello. The title is Legalese: Won’t Do With It, Can’t Do Without It. According to Savic, traditional contract legalese is impenetrable. He says that although lawyers have been encouraged to use plain English, “the day-to-day legal universe has been slow to move … Read More
At the suggestion of @saBEERmetrics I listened to episode 590 (“Choosing Wrong”) of This American Life, the weekly public radio show. I’m glad I did, because it’s about inertia, and in a couple of respects it’s relevant to what I do. What Stops You from Doing What Makes Sense In act one of the episode, Malcolm Gladwell discusses the notion of beliefs and … Read More
As their principal objection to tinkering with mainstream contract language, traditionalists offer the notion of “tested” contract language—mess with the standard formulations and you invite a world of risk into your lives. My objection to that objection has been that it’s mostly offered without any backup. Usually it’s a platitude that’s invoked as a matter of expediency, to rationalize maintaining the status … Read More
Keith Lee is the lawyer behind the blog Associate’s Mind. He’s also author of The Marble and the Sculptor, a book for law students, but that’s beside the point, because what’s on my mind is his most recent blog post. It’s entitled “Should Lawyers Ditch Legalese?” It mentions my recent Beyoncé-inspired post, but I stuck around to read his recommendations on … Read More
