Contract Forms as Computer Viruses

A pithy piece over at  the Lawyerist makes the point that while lawyers tend to be well-educated and academically accomplished, those facts do not make them inherently good writers. One particularly unhelpful contribution to the problem by legal education is the fact that “law students spend their days reading legal writing that is often verbose, stilted, and chock full of legalese.” While I suspect that statement was most directed toward classic-but-musty cases like Hadley v. Baxendale and Hawkins v. McGee, it got me thinking about the reading and drafting of contracts.

Whenever I teach a contract drafting course, proper use and evaluation of existing form provisions is a recurring theme. Clients will not want to pay for reinventing the wheel, and form documents help prevent needless reinvention. Indeed, drafting everything from scratch will tend to turn much transactional work into a sunk cost, the complete antithesis of the value-adding service lawyers need to provide in this automation age. At the same time, the murky and verbose language of so many forms has its own transactional cost: more lawyer and client time is required for every instance of deciphering poorly-drafted language. Unsurprisingly, many students will resolve this tension in favor of copying legalese instead of clarifying it. Pressures of real-life contract drafting are likely to reinforce this tendency in law practice.

Poor contract forms are much like computer viruses–once they are in the system, they will replicate themselves when given the opportunity. Only a lawyer who understands the deal underlying a contract and who has developed the judgment to discern between what to fix and what to keep can prevent the virus from spreading, but even then only once. The form is still out there.

One of the challenges of teaching contracts and commercial law in today’s tight legal marketplace is guiding our students toward having understanding and judgment capable (among other things) of stopping contract viruses. Some think that building such transactional cognition is beyond the capacity of law schools, but for our students’ sake, I disagree. The lawyers who will avoid being automated out of existence are the ones capable of making sound and complex judgment calls.