Contract drafting has become so flawed that lawyers drafting contracts have become “copy and paste monkeys,” an American lawyer said.
The comment came from Ken Adams, adjunct professor at Notre Dame Law School in Indiana at a panel on how to improve contract drafting hosted by the University College London last week, according to The Law Society Gazette
The US-based lawyer suggested that a universal contract drafting style guide should be developed and used by law firms and that automated templates put together by answering a series of questions should be considered.
Fellow panellist and Clifford Chance partner Kate Gibbons said, however, that there is no “one size fits all” template and that templates in general should not be “slavishly followed.” The Magic Circle firm partner said that lawyers can improve by reading and studying poetry because it develops appreciation of “the importance of every word.”
Gibbons – along with fellow panellists Kristin McFetridge, chief counsel for BT, and High Court judge Justice Flaux – also criticised excessively complex language in contract drafting, the Gazette
McFetridge said that BT has already reworked its terms and conditions so “customers understand exactly what they are buying.” To improve, lawyers can try studying a foreign language as this could help them better understand the “quirks of the English language.”
Justice Flaux, meanwhile, suggested provisions and interpretations that are “tried and tested” should be used but added that a problems is many people “do not appear to understand grammar.”
“Ensuring you properly understand the meaning of what you are writing is crucial, as incorrectly used grammar can change the meaning,” the judge said.
However, Adams said he cannot accept the notion of tried and tested. He noted that 93% of interpretation clauses either state the obvious or are not feasible, the Gazette
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