Time-Tested Advice For Young Lawyers About Contracts Which They Should Ignore
The Blog of The Legal Times talks about the Sotomayor confirmation hearings:
Under questioning from Sen. Ted Kaufman (D-Del.), she spoke in greater detail than she has before about her career as a commercial litigator. She said she learned the importance of predictability in business law when partners would revise the drafts of settlement agreements she had written. The partners, she said, replaced her plain language with what she considered "gobbledygook," in order to conform the agreements to court precedent.
"In business, the predictability of law may be the most necessary," she said, "in the sense that people organize their business relationships based on how they understand the courts interpret their contracts."
When I was a summer associate at a business and transactional firm, the managing partner told me a similar story. Back when he was an associate, a partner at the firm asked him to draft a real estate bill of sale. He did so, with considerable difficulty, and a considerable investment of time, and took it to the partner, who skimmed it and threw it away.
Why?
"Because I don’t know what any of that means. I do, however, know what these old agreements I’ve been using mean. Their meaning hasn’t changed in five hundred years."
It seems Sotomayor got the same lesson. Lots of lawyers do.
Let me tell you: the lesson is wrong.
It’s not always wrong. In certain circumstances — like some real estate transactions — there is language used so frequently that it has become the standard against which all other grammar and syntax is measured. Any deviation will likely be interpreted against the person who suggested it.
If you have one of those situations, be sure you know what the "standard" language is. Otherwise, focus on making the text of the written agreement reflect the reality of the parties’ understanding, not on adding in "gobbledygook" to make it look lawyerly.
But even where you have a "standard" contract, the lesson may lead you astray. Long ago, I lost track of the number of times a lawyer told me "court precedent" dictated the use of particular language yet couldn’t produce any actual "court precedent" to back that up.
Do you think every partner who told Sotomayor how the contract "should" have been written actually reviewed that "court precedent" prior to rejecting Sotomayor’s draft? I doubt it. I’m betting more than a few of those "replaced" agreements included "standard" language that meant something different from what their clients intended.
Pay heed your elders, but shepardize your cases.
