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.

Sentence Diagramming

Judge Gorsuch of the Tenth Circuit is in the news lately as a short-lister for the Supreme Court vacancy. (See here and here, and my previous post here.) Gorsuch would be a great pick and a fitting replacement for Justice Scalia because, like Scalia, Gorsuch is known for his clean, incisive, and sometimes witty or colorful writing.

Almost two years ago (2/15), Gorsuch wrote an en-banc opinion in United States v. Rentz that I saved because it provides a great example of using sentence diagramming to facilitate statutory interpretation. In other words, it’s a great example of using a visual image to advance an argument.

Rentz is about criminal sentencing and interpreting section 924(c). Here’s a screenshot from the opinion:

gorsuch

 

I’ve done this in a case involving contract interpretation, and it can be very effective—especially when dealing with a complicated statutory or contract provision that contains lists or has lots of subordinate clauses. It’s also the sort of thing I could see Scalia doing. (Seriously, he probably did it numerous times over the 30 years he sat on the Court, and I’m just not remembering those opinions.)

Anyway, while everyone’s talking about the SCOTUS vacancy and Gorsuch as a short-lister, I thought I’d throw this out there as something to remember in your brief writing. And the whole opinion is worth reading for examples of good writing.

SCOTUS Recap & Predictions

TexasBarToday_TopTen_Badge_VectorGraphicThe Supreme Court has completed its October sitting, having heard arguments in 8 cases. I’ve already talked about the first 5 cases in a previous post. Read on for a recap of the other 3 cases argued this month, and for predictions about how those cases will be decided…

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SCOTUS Recap & Predictions

supreme-court-building-120628The Supreme Court kicked off its 2016 Term by hearing arguments in five criminal cases. Read on for recaps, predictions, and even a few practice tips…

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5th Circuit Decisions

Criminal defendant who pleaded guilty, then appealed his conviction based on his attorney’s failure to tell him he would be deported, could not show he had been prejudiced by this failure because, (1) just before accepting his plea, the judge told him he would likely be deported, and (2) he could not show he was likely to obtain a more favorable result by going to trial. United States v. Batamula (No. 12-20630) (en banc).

Defendant successfully defeated trademark claims in what should have been characterized as an “exceptional case” under Octane Fitness LLC v. Icon Health and Fitness, Inc., 134 S. Ct. 1749 (2014); therefore, Defendant was entitled to remand for reconsideration of awarding legal fees under the Lanham Act. Baker v. DeShong (No. 14-11157).

Three officers used stun guns repeatedly on a man who was running away, then used physical restraints and stun guns again while the man was on the ground. The officers then hog-tied the man (against PD policy). When EMS paramedics arrived, the man had no pulse and wasn’t breathing. He died the next morning at the hospital. But the officers had qualified immunity because no right was violated and no unreasonable or excessive force was used. Pratt v. Harris County, Texas (No. 15-20080).

Sullivan v. Abraham

Opinion boxSteed, J., dissenting.

The text matters. Words matter. Punctuation matters. But we have to ask ourselves: At what point does a devotion to strict textualism become an elaborate game of pretend?

Here, the Texas Legislature clearly stated the meaning it meant to convey in this particular provision of the Texas Citizens Participation Act. But the majority has decided that the most reliable indicator of the Legislature’s intended meaning is not what the Legislature said about its intended meaning. Instead, under the guise of textualism, the majority has decided that the clearest indicator of the statute’s intended meaning is the Legislature’s comma usage.

I cannot bring myself to join the majority in pretending that the Texas Legislature was so purposed and precise in its punctuation that it meant to undo its stated intentions by omitting a comma. Therefore, I must respectfully dissent.

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5th Circuit Decisions

Caltrops tossed out of a fleeing truck and disabling law-enforcement vehicles (by puncturing tires) are “dangerous weapons” for purposes of sentence enhancement. United States v. Olarte-Rojas, No. 14-41408 (Apr. 29, 2016).

The transfer of a tax lien does not constitute an extension of “credit” that is subject to TILA. Billings v. Propel Fin. Servs., LLC, No. 14-51326 (Apr. 29, 2016).

Problems of Textualism

Take the sentence “I never said she stole my money.” This sentence has at least seven possible (and different) meanings. But the changes in meaning aren’t conveyed through the text; they’re conveyed through emphasis —something you can’t discern from the text alone.

Just look at the different meaning each sentence conveys:

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“Duty” and the Constitution

df8f8073-4210-48b8-8a1f-afd643e59e7d[I posted some thoughts at HuffPo last week. I’ve revised and polished those thoughts slightly, and reposted them here.]

There’s been a lot of back and forth over “constitutional duties” lately. Smart people on both sides are digging up historical sources (some better than others) to support their arguments. One side claims the Senate has a “constitutional duty” to consider Merrick Garland’s nomination to the Supreme Court, and the other side claims no such duty exists. And this got me thinking about “duty” and the Constitution.

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