Updated: Apr 5, 2020
“I hate @#$%&! lawyers!” I heard Mike yell from his office.
“You useless conniving, lightweight, pen-stealing, cockroach @#$%&! You’re less helpful than a hundred @#$%&!s tied in a knot!”
Three years out of law school, I joined a large financial institution’s litigation department. If the size of my new employer wasn’t intimidating enough, my boss, Mike, was an insanely smart lawyer, an excellent mentor, and a brilliant poet of profanity. Luckily, he reserved his trademark vitriol for opposing parties and, occasionally, outside counsel (ours and theirs).
“Everything, okay?” I said, barely inching my head through Mike’s door.
“No!” he yelled, looking up from a document on his desk. “Osteen – Why do we have contracts?”
“Um, to establish the agreement that the parties have made and to fix their rights and duties in accordance with that agreement?”
“WRONG!” Mike yelled. I ducked just in time to avoid a stress ball barreling towards my head.
“Good lawyers draft contracts to make sure the business people are on the same @#$%&! page; so those business people stay on the same @#$%&! page; and–most importantly—if they aren’t on the same page because @#$%&! brain-eating aliens invade, a jury will slap those @#$%&! aliens back to their outlaw star with their caudal appendages tucked between their @#$%&! legs!”
Mike picked up the document, flipping the pages with disgust. “And now, because some legal proctologist had to string together a bunch of big words to compensate for his @#$%&! lack of writing skills, we’re stuck with a piece of @#$%&! that does none of those things!”
Mike’s colorful contract drafting lesson 15+ years ago made a profound impact on how I drafted contracts from that day forward. Since then, I've had the privilege of drafting and working with many excellent lawyers who drafted contracts that would have made Mike proud. I've also seen my share of writing monstrosities.
From this experience, I’ve gathered my Top 10 tips on how to make your business better by demanding better writing from your outside counsel. Here are Tips 1-3:
Tip 1: Contracts should use plain language.
The average reading level of American is 8th grade. Which means, you should expect that the average reading level for any jury would be about the same. So use plain language in your business communications and contracts.
"But my contracts have jury waiver clauses and my audience has at least a college education."
Congratulations. Still, the research shows even highly educated readers crave succinct information that is easy to read.
An intern once asked what one piece of advice I had for new attorneys. Without missing a beat, I replied, “Regardless of whether you want to be a litigator or transactional attorney, eat, sleep, and breathe Bryan Garner.” See Garner’s website: www.lawprose.org.
Bryan Garner’s The Winning Brief, Legal Writing in Plain English, and most recently, Making Your Case: The Art of Persuading Judges, co-written with the late Justice Antonin Scalia, shaped the way I draft, edit, and read everything. I’ve marked up my copy of The Winning Brief so much that it’s too damaged to donate.
To crudely paraphrase my learnings from Professor Garner: If business leaders have to manage business according to legal documents, they shouldn’t have to call an attorney to figure out how to do so. And courts don’t have the time.
If your contracts aren’t simple, send them back and tell your counsel to save the ambiguity for short-story fiction.
Tip 2: Embrace brevity.
I’m often amazed by how many needlessly long contract forms are used and reused for years despite not a single businessperson understanding them. Blaise Pascal’s comment holds today: “I would have written a shorter letter, but I didn’t have the time.”
Sometimes, the length of the contract is direct evidence of lawyer laziness. Too often, contracts contain lengthy recitals, pages of definitions, and incomprehensible language simply because it’s a reused form, or the lawyer doesn’t want to spend the time to fix it. The minute I see, “Now, therefore, in consideration of the foregoing and the mutual promises and covenants herein contained, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows,” I know I will throw up red ink.
A good contract explains each party’s consideration, making the above phrase unnecessary. Be wary of any lawyer who writes ten sentences when two will suffice.
Tip 3: Don’t be an ASS.
Say what you will of Elon Musk’s eccentricities, he’s one of our foremost innovators. And I like his style.
He’s known to periodically send out a company-wide e-mail when something’s bothering him. He titled the subject line of one of his more famous e-mails, “Acronyms Seriously Suck.”
There is a creeping tendency to use made up acronyms at SpaceX. Excessive use of made up acronyms is a significant impediment to communication and keeping communication good as we grow is incredibly important. [. . .] No one can actually remember all these acronyms and people don't want to seem dumb in a meeting, so they just sit in ignorance. This is particularly tough on new employees.
Every industry uses acronyms, but lawyers (and Human Resources leaders) are the worst at saddling readers with acronyms instead of using easily spelled out words only used once or twice in the document.
If you do use acronyms in your business and contracts, make sure they are meaningful and be consistent. For electronic documents, include hyperlinks to spelled out versions of abbreviated forms. Most importantly, don’t assume everyone else knows the same acronym.
Whether you find yourself at the very beginning of your business's journey or somewhere in the middle, you must always take contracts seriously because they govern the way you make money and the ways you can lose it.
So stay tuned to for Tips 4, 5, and 6 and remember: