Review: A Manual of Style for Contract Drafting

I haven’t written a book review in over 10 years, so I’ve probably lost touch with the conventions of the form. I’m not sure, for example, if it’s kosher to just say “This book is great, you need this book, go and buy this book.” Is there supposed to be some kind of prelude or set-up before making a recommendation? I can’t remember. So I’m just going to say it: lots of lawyers should go buy Ken Adams’ fourth edition of A Manual of Style for Contract Drafting. That’s the nutshell version of my review. This book is great. You need this book. Buy this book. (The image on the right has a link to the publisher’s site, where you can buy it.)

As an authority on legal writing, Adams is the contracts-specific version of Bryan Garner. If you’re a lawyer who drafts contracts, this book is obviously for you. (Did you see the title?) In fact, you probably already own a prior edition. I’m not familiar with the prior editions, so I can’t speak to what has been changed or added for version 4.0. But contracts continue to evolve and continue to be the subject of litigation—and Adams’ manual is well designed to help you improve the clarity and precision of your contracts, which is another way of saying it is well designed to help your contracts hold up in litigation—so, even if you already have an older edition, I can’t imagine why you wouldn’t want this, the latest, most up-to-date guide for improving the clarity and precision of your contracts. In short, if you’re a contract writer, you need this book.

But more importantly (from where I sit), litigators need it too. Seriously. I dug into this manual as someone who cares about good legal writing in general—but I also went through it with the eyes of a litigator. And I’m telling you: any litigator who handles litigation over contracts (or agreements, or covenants, or even rules, regulations, or statutes) ought to be interested in having this manual on her desk.

Chapter 1 has a brief discussion of “optimal” contract language. Chapter 3 discusses categories of contract language (e.g., “Language of Performance,” “Language of Obligation,” “Language of Discretion”). Chapter 4 discusses contract organization (e.g., sections, subsections, cross-references). Chapter 6 discusses the use of defined terms. And Chapters 7–15 discuss aspects or components of contracts that regularly become issues in litigation (e.g., the term “material adverse change,” references to time, syntactic ambiguity).

Each chapter is of interest not only to the contract drafter, but also to the contract litigator. For example, Chapter 8 discusses the common contractual requirement that a party use “reasonable efforts.” This discussion is helpful not only for the lawyer who must draft a contract to include this requirement, but also for the lawyer who must handle litigation over this requirement. First, the chapter is a good place to begin researching the law on this contractual term (see ¶¶ 8.36–8.64, discussing caselaw about the meaning and enforceability of “reasonable efforts” provisions). And even better: the chapter includes original research content (see ¶¶ 8.19–8.32, discussing the history of and difference between “reasonable efforts” and “best efforts”), which litigators might want to cite as authoritative, when making arguments about how a court should interpret these provisions—the same way we sometimes cite Scalia and Garner’s book on canons of textual interpretation.

Like I said, you need this book. And as an added bonus—for the true legal-writing nerds out there—the book even includes a chapter on contract typography (Chapter 16).

I don’t agree with everything that Adams says, when it comes to style recommendations. For example, Adams takes a hardline stance against using contractions in contracts. (See ¶ 17.36.) As I’ve made clear in the past, I don’t share this aversion to contractions, even in the most formal legal writing. And I also wish Adams had provided a more extensive discussion of the proper or best uses of punctuation (at ¶ 17.37)—perhaps with some examples of how punctuation has become the subject of litigation. But maybe that’s part of what he’s planning for version 5.0.

In the meantime, go buy version 4.0. It’s a must-have for your legal-writing reference desk. And I’ll race you to see who cites it first in a brief about contractual interpretation.

UPDATE: Adams points out (correctly) that I missed some of his discussions of punctuation in my perusal of this edition, because they pop up in other parts of the book instead of in the short section labeled “Punctuation.” Readers looking for tips or insights on punctuation should be sure to check the index for terms like punctuationcommacolon, etc.

4 thoughts on “Review: A Manual of Style for Contract Drafting

  1. […] That’s why judges and litigators who handle contract disputes would benefit from becoming acquainted with MSCD. The foreword to the fourth edition by Vice Chancellor J. Travis Laster of the Delaware Court of Chancery (here) might help spread the word. And so might appellate guy Jason Steed’s recent review of the fourth edition (here). […]

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