The brief guide to MSCD 5

My primary goal when trying to improve a contract’s drafting is not “plain english”. The goal is simplicity, clarity, and consistency, because complexity is a source of errors. As a pleasant side-effect, contracts drafted with rigorous attention to consistency and clarity are generally shorter, and almost always much easier to read.

Ken Adam’s Manual of Style for Contract Drafting has helped me immeasurably in reaching that primary goal, both by teaching me habits of mind and by being a reference for better linguistic structures.

But it’s also hefty.

So I prepared this mini-guide to MSCD for an outside counsel: it’s what I recommend first-timers read, skim, and skip. I share it here in hopes it may be useful for others.

All section references are to the Fifth Edition, but at least at the chapter level most should apply to earlier versions as well.

MSCD core concepts

These are the most impactful sections of MSCD.

Introduction

If you are confused about why I recommend the book, read “About this manual”, “Traditional Contract Language is Dysfunctional”, and “Excuses for Sticking With Traditional Contract Language”. Skip or skim the rest.

Ch. 1: Characteristics of Optimal Contract Language; Ch. 17: Drafting as Writing

These can be skimmed, since in some sense most of it will be obvious to anyone who has given any thought to better contract language. But both are good, and brief, and explain (in part) why traditional drafting is so bad. So if you find yourself confused by something in other chapters, come back to these two—they may help explain things.

While reading, I particularly recommend these sections, which have had the biggest impact on my personal drafting style and are, in my experience, the biggest red flags for errors that stem from bad “traditional” drafting:

• “Contract Language Shouldn’t Be Legalistic” (1.7-1.28)
• “Contract Language Should Express Ideas without Redundancy” (1.35-1.56)
• “Contract Language Should Be Consistent” (1.57-1.60)

Ch. 2: Front of the Contract; Ch. 5: Back of the Contract

In my practice area, the front and back matter are not usually the source of critical errors, so I do not religiously follow these sections. However, I find that attention to detail on these topics is both a good introduction to MSCD’s style of thinking, and (when I do them in a contract) help put me in a rigorous frame of mind for the rest of the document. So these chapters are worth skimming and then consistently using as a reference.

If you are pressed for time, 95% of chapter 2’s value can be obtained by:

• reading 2.129-2.150, Recitals. Once you get used to improving the drafting of the recitals, it sets a good tone for the rest of the document.
• reading 2.159-2.164, Wording of the lead-in. Understanding, and sticking with, Ken’s recommended use of “agree” here sets up Ch. 3’s critical “categories of contract language”.
• skimming Samples 1 and 2, and Appendix A’s front matter, to get the flavor of the kinds of improvements that can be made to most contracts.

Ch. 5 is similar—just skim the back matter of Appendix A, then refer to the samples in the chapter for models.

Ch. 3: Categories of Contract Language

If you only read one chapter, read this one.

This chapter is the core of MSCD’s style of thought: the core of clear and correct drafting is that different parts of contracts do different things, and you should rigorous using specific language to implement each of those things.

You can do a lot to improve a contract simply by looking at each table in this section, reading the relevant section to understand the tables, and cleaning up every reference in a contract from the table’s disfavored language to the favored language. Doing this consistently across the entire contract will force rewrites that leave the resulting language much clearer, more precise, and more accurate.

Two words discussed in this chapter are particular warning signs for me when I see them misused in a contract: “shall” (particularly 3.115-3.132 and Table 2) and “agrees” (3.27-3.30). Again, simply cleaning these up is a great way to do a “first pass” edit of a document—doing this helps you think about what each clause of a contract is actually trying to do, and often leads to more correct, more readable drafting.

Ch. 13: Selected Usages

This is a reference section, not something to read end-to-end. But it’s invaluable. When you find something that “feels wrong” in a contract, you’ll often be able to come to this section and find a much better, clearer way to state it. You may have to rewrite things substantially, but you’ll have a more logically consistent, consistent, correct, clearly-readable document when you’re done.

I suggest skimming the table of contents, and then reading a few examples to give you the flavor of it. A couple of my favorites:

• For the Avoidance of Doubt: 13.312-319
• “Including”—long, but a great analysis of the complexity and nuances of a single word: 13.359-407

Ch. 14: Numbers

Read the brief part on “Words or Digits” to learn why there should be zero(o) instances of number(numeral). Skip or skim the rest.

Advanced Drafting to Reduce Ambiguity

These chapters are useful primarily for the most complex drafting problems. I tend to do a “first pass” edit based on the “core concepts” chapters I identified previously.

If that first edit pass identifies a particularly complex/problematic section, then the concepts in these chapters can be quite helpful in making the challenging contract sections more correct.

• Ch. 7: Sources of Uncertain Meaning: 95% of the value of this chapter is one concept: the distinction between ambiguity (bad, unintentional, should be eliminated) and vagueness (intentional, may be strategic, must be deployed carefully).
• Ch. 11: Ambiguity of the Part v. The Whole: most useful in commercial contracts where it’s important to be precise about what is being sold (or not).
• Ch. 12: Syntactic Ambiguity: a collection of techniques that are frequently useful in deconstructing, and then reconstructing, extremely long or complex sentences.

Interesting but not useful (to me/my practice)

These chapters are intellectually interesting but I have not found them to be particularly high-impact on my practice. Might be different for your practice!

Ch. 6: Defined Terms

I do not find definitions to be a significant source of problems, as a practical matter, so don’t find this chapter hugely valuable.

However, there are a few sections that cover errors that I find frequently, so are more useful than the rest:

• “Be Consistent” (6.8-6.13)
• “stuffed definitions” (6.49-58)
• Mistakes: 6.110-6.122

I don’t usually follow the advice of “where to put the definition section” (6.96-6.98), but I think it’s at least worth trying in many documents.

Other interesting-but-less-useful-to-me chapters

These chapters are all interesting for drafting nerds, and may be relevant to some practices, but not frequently an issue for me.

• Ch. 8: Reasonable Efforts
• Ch. 9: Materiality
• Ch. 18: Amendments; Ch. 19 Letter Agreements

Neither interesting nor useful (to me/my practice)

I mostly ignore these—they’re not wrong but the bang-for-buck of rewriting with them in mind is pretty low, in my experience.

Ch. 4: Layout; Ch. 16 Typography

I tend to rely on Butterick’s Typography for Lawyers for these topics.

Ch. 10: Time

Suspect most relevant for certain types of commercial contracts where extreme specificity about time (delivery, etc.) are common sources of disputes.

Ch. 15: Internal rules of interpretation

Have never seen one of these in the wild that I can recall.