Contract drafting is not taught on most law degrees or at law school. Most lawyers learn during a period of apprenticeship to a more experienced lawyer. Contract drafting is also expensive. Creating a contract from scratch is time-consuming. In truth, not many lawyers are comfortable starting with a blank sheet, and few have clients willing to pay hourly rates for such work. Drafting from a blank sheet is also vulnerable to human error.

The net result is that many contracts originate from a precedent document. Some precedents are better than others, of course. The lawyer tries to squeeze the transaction into the shape of the precedent, or squeeze the precedent into the shape of the transaction. Maybe a bit of both. Sometimes, a contract is created by taking sections from more than one precedent. This cut and paste drafting is used with greater or lesser degrees of skill. 

You would think that contracts evolve from that process. Mostly, that isn’t what happens. It takes confidence, time, and effort to make changes. It’s tempting to assume that the precedent was handed down by experts, and you mess with it at your peril. This is why we still see contracts with archaic phrasing.

If lawyers are reluctant to take anything out of a document (seems risky), they are less reluctant to add to it (belt and braces). On top of archaic language and redundant text, we get over-stuffed contracts because too few people saw the merit in taking anything out.

The more this method of contract drafting continues, the greater the expectation that contracts should follow a set pattern of content and style. Going your own way feels lonely and risky. Lawyers don’t want to produce a document that invites lots of red ink from the traditionalists – their clients might start to question their experience. Better to follow the herd. Business users infer that there’s a good reason why contracts are awful to read and understand.

Still, some lawyers do question the quality of contract drafting. Ken Adams writes about contract disfunction, and more lawyers are ready to accept that current practices are unsatisfactory. There are resources to learn to do it better for those with a will to improve. Adopting automation solutions is a good time to put effort into creating better documents. Don’t use automation to replicate sub-standard documents. Automation makes it worth investing in the base materials and makes sharing the benefits with colleagues easier. Automation makes it possible to do good work without disrupting day-to-day work. Ken Adams writes about the building blocks of contract language. Automation makes it easier to use those building blocks to produce better contracts. Automation is a better way to augment the work of junior lawyers than leaving them to extract anything useful from legacy documents of variable quality.

A library of automated documents will be a more intuitive source for colleagues, so they will be less tempted to revert to legacy documents with unknown pedigree.

When buying complex goods (cars, computers, drugs), it’s comforting to know that expertise is used to create intellectual property in clever designs, and machinery is used to produce them at scale. Such items are consistent, on spec, durable and affordable. Automation enables better outcomes. Contracts are like that – you are not buying artwork with human foibles and flaws built-in.

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