Lawyers drafting contracts have become ‘copy and paste monkeys’ without the time, authority or funds to revisit and check that what they are copying is correct.
That was the view of one lawyer during a panel discussion on contract drafting hosted by University College London yesterday.
Ken Adams, a US-based lawyer and adjunct professor at Notre Dame Law School, in Indiana, said a universal style guide should be put in place for firms to use as ‘building blocks’ for drafting contracts.
He added that automated templates, created through questionnaire answers, should also be considered.
During the event, lawyers from magic circle firm Clifford Chance and telecommunications giant BT, as well as High Court judge Mr Justice Flaux, criticised a tendency to use overly complicated language but denied that a dramatic change in culture was needed.
Kristin McFetridge, chief counsel for BT, said the company had already ‘re-drafted’ its terms and conditions so that ‘customers understand exactly what they are buying’.
Clifford Chance partner Kate Gibbons said there is ‘no one size fits all’ template but that they should not be ‘slavishly followed’.
The session was chaired by UCL visiting professor Mark Anderson, chair of the Law Society's IP law committee, who asked whether lawyers fully understood what they were writing and whether certain clauses could be left out of contracts to avoid litigation.
Flaux said provisions and interpretations that are ‘tried and tested’ should be left in. He added that one of the problems was that many people today ‘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,’ he said.
‘I can’t accept the notion of “tried and tested”,’ countered Adams, who said 93% of interpretation clauses either state the obvious or are not feasible. He pointed to the jumping between ‘best endeavours’, ‘reasonable endeavours’ and ‘all reasonable endeavours’.
Anderson asked what tips junior lawyers could take on board to improve their drafting.
Gibbons suggested reading and studying poetry as it makes ‘you appreciate the importance of every word’.
McFetridge said learning a foreign language could also help gain an understanding of the ‘quirks of the English language’.
The talk ‘Dysfunction in Contract Drafting: Are the Courts, Law Firms, and Company Law Departments Stuck in a Rut?’ was hosted by UCL at the British Medical Association headquarters.