We contract drafters and -reviewers tend to strive for perfection. But in the bigger picture, we may be doing more harm than good that way.
We’ve been trained to craft language for each contract that gives that particular client as much of an "edge" as possible. We can cite compelling ethical reasons for doing so; we also have reputational pressures and other institutional incentives that move us in that direction. And many wordsmiths (like many computer programmers) are secretly convinced, in the depths of their souls, that "I can do it better."
But is it worth the cost for us to do this?
Table of contents
The forceps analogy
I was struck by an analogous "case study" in the world of medicine, described by surgeon and Harvard Medical School assistant professor Atul Gawande (who is also a Rhodes Scholar and a 2006 "genius grant" MacArthur Fellow).
Gawande reports that obstetricians began questioning their use of forceps and other techniques for handling difficult deliveries, as well as their preference for avoiding surgical Cesarean-section deliveries where possible. Their questioning was motivated in part by their competitive desire to improve their newborns’ Apgar scores (and doubtless also by the threat of malpractice liability).
The obstetricians knew that, in the hands of skilled practitioners, forceps can produce fine results. But they also recognized that the proper use of forceps is based largely on feel, which is very hard to learn (and to teach). And improper use of forceps can seriously injure both child and mother. In contrast, while Cesarean-section surgery is surgery, and thus has inherent risks, it also is readily capable of being taught (because the instructor can observe and coach the new doctor in real time).
So the obstetrical profession found itself having to decide whether occasional terrible results from the use of forceps were an acceptable price to pay for the quest for perfection, viz., the avoidance of C-section surgery:
If medicine is a craft, then you focus on teaching obstetricians to acquire a set of artisanal skills—the Woods corkscrew maneuver … , the Lovset maneuver …, the feel of a forceps for a baby whose head is too big. … You accept that things will not always work out in everyone’s hands.
But if medicine is an industry, responsible for the safest possible delivery of some four million babies a year in the United States alone, then a new understanding is required. The focus shifts. You seek reliability.
You begin to wonder whether forty-two thousand obstetricians in the Unites [sic] States could really safely master all those techniques. You notice the steady reports of terrible forceps injuries to babies and mothers, despite all the training that clinicians received.
After Apgar, obstetricians decided they needed a simpler, more predictable way to intervene when a laboring mother ran into trouble. They found it in the Cesarean section.
Atul Gawande, Better: A Surgeon’s Notes on Performance, at 192 (Henry Holt & Co. 2007) (emphasis and extra paragraphing added).
A baseball analogy
You could think of delivering babies in baseball terms. Obstetricians knew that, in the clutch, their leading players could regularly "hit home runs" by using forceps. But not all their players could do this when needed, especially the rookies.
The obstetricians realized that their collective clutch performance was not what they wanted. So team-wide, they de-emphasized swinging for the fences, i.e., using forceps, in problem situations. Instead, they began stressing doing what it takes to just "get on base," i.e., C-sections.
Contract creation is likewise an industry, not just a craft
We contract creators can take some lessons from the obstetricians’ experience. Many of us tend to think of contract creation primarily as a craft: within the constraints of professional ethics, we focus almost entirely on achieving the best result for this client. We sometimes secretly take pride in fashioning (what we imagine is) the best possible contract language for the situation. We inculcate this ethos into our junior professionals, both expressly and by subtle cues.
But contract creation is an industry, too. This means we professionals must also think in terms of achieving the safe and healthy "delivery" of thousands of new business relationships every year.
And therein lies a problem: Fashioning the best possible contract language, like using forceps (or hitting clutch home runs), is tough to learn and to teach. Doing it wrong can lead to significant complications. Moreover, many of those complications are hard to predict in advance even for seasoned pros — yet much of everyday contract creation is done by junior professionals who have not always had the requisite experience.
Just as obstetricians found themselves rethinking their use of forceps, we may have to rethink our emphasis on custom-crafting the language of each contract. As Dr. Gawande notes about delivering babies (see id. at 192), sometimes reliability is more important than "the possibility of occasional perfection."