I routinely encounter the assumption that lawyers understand contracts better than others, and that the challenge is for lawyers to help everyone else by making contracts clearer. For me, that sets alarm bells ringing.
Consider this in terms of my usual framework, which divides contract drafting into the tasks of determining what you say and determining how you say it.
What You Say
As regards determining what you say in a contract—in other words, determining what the deal is—the purely legal part of contracts consists of (1) figuring out any legal framework (whether derived from caselaw or statutory law) that applies to the transaction and (2) establishing the rules for resolving disputes. (For more about that, see this 2011 post.) I assume that in most transactions, the business part occupies more attention than the legal part. But whatever the imporance of the legal part for a particular deal, the business people have to understand what’s going on. So if in fact only the lawyers understand the entirety of the deal, something is amiss.
I expect that some of you might be thinking, Wait, clients are only too happy to leave some legal stuff to lawyers! A popular candidate for that would presumably be the limitations-of-liability provision. But I would award the limitations-of-liability provision the prize for least-understood boilerplate: I have the sense that most deal lawyers have only a tenuous grasp on what they’re trying to accomplish with that litany of consequential losses, indirect losses, etc. (I discuss this in my recent post about GE Aviation’s template initiative, here.) I offer the following hypothesis: if clients are willing to consign something to the lawyers and wash their hands of it, it’s because lawyers have bollixed it.
How You Say It
I suspect that most of those who feel that lawyers should make contracts clearer are referring to the how-to-say-it part of contract drafting: that the difficulty lies not with the deal but with how the deal is expressed. That concern is justified. But it’s not that in expressing the deal, lawyers are able to call on inscrutable skills. Instead, the problem is that traditional contract language is a semiliterate stew of archaisms, redundancies, random verb structures, and a host of other glitches.
Furthermore, it’s not as if lawyers are somehow equipped with a magic wand that allows only them to make sense of traditional contract language. Instead, some accept it—are co-opted by it—because it’s all they know. Others might be aware of the dysfunction, but they’re trapped in the copy-and-paste system. Either way, lawyers too pay a price for the shortcomings in traditional contract language.
So if there’s a sense that your lawyers understand the deal better than the business people, either your lawyers aren’t doing a good job of explaining the legal component of your transactions or they’re expressing the deal in the dysfunctional prose that characterizes traditional contract language. You might want to do something about that.
And more generally, it would be for the best if lawyers were to loosen somewhat their grasp on contracts, so that contracts are more clearly recognized as the responsibility of different constituencies.