Dysfunction in Contract Drafting: Are the Courts, Law Firms, and Company Law Departments Stuck?

Contracts make the business world go round. And English law firms and company law departments will tell you that they’ve got contract drafting under control, in terms what you say in a contract, how you say it, and how you go about creating contracts.

But according to Ken Adams, international authority on the building blocks of contract language, scratch the surface and you’ll find dysfunction. Traditional contract drafting largely relies on casual copying of precedent, buttressed by flimsy conventional wisdom. In England in particular, courts are prone to offering unjustifiable distinctions in contract terminology that English law firms are only too willing to endorse. And using copy-and-paste to create contracts is slow and inefficient. For a summary of Ken’s views, see this item in The Lawyer.

The Moderator

Mark Anderson is a visiting professor at UCL Laws and the director of an annual week-long course at UCL on intellectual property transactions, which has won both a Provost’s Teaching Award and a Law Society Excellence Award (Highly Commended). He is an author or general editor of six practitioner textbooks, including Drafting and Negotiating Commercial Contracts (3rd ed. 2012, Bloomsbury) and Execution of Documents (3rd ed. 2015, Law Society). His main role is as managing partner of Anderson Law LLP, a 12-lawyer firm based in Oxfordshire, which is known for its work in the field of intellectual property transactions. He is also chairman of the Intellectual Property L  aw Committee of the Law Society of England and Wales.

The Panel

Ken Adams is a US-based lawyer, consultant, and speaker. He’s author of A Manual of Style for Contract Drafting (3rd ed. 2013, American Bar Association). He helps companies with their contracts, gives seminars internationally, and acts as expert witness in contract disputes. He’s adjunct professor at Notre Dame Law School. And he blogs at Adams on Contract Drafting. The Legal Writing Institute awarded Ken the Golden Pen Award for 2014, ‘to recognize his exemplary work in contract drafting’.

The Honourable Mr Justice Flaux is a judge of the High Court of Justice of England and Wales. He was called to the Bar in 1978 and practised at the Commercial Bar from 1979 to 2007, specialising in disputes involving insurance and reinsurance, shipping, international trade and professional negligence. He was appointed a Queen’s Counsel in 1994, an Assistant Recorder of the Crown Court in 1997, a Recorder in 2000 and a Deputy High Court Judge in 2002. He was appointed a High Court Judge in May 2007. He was Judge in Charge of the Commercial Court from July 2014 to December 2015.

Kate Gibbons is a Finance and Capital Markets Partner at Clifford Chance with over 30 years’ experience at the firm. She has worked in Banking in its Tokyo and Hong Kong offices and latterly in the Trusts and Securitisation practice in London from which she leads the Knowledge function for Finance and Capital Markets. She is also the Firm’s Global Knowledge partner, chairs the Firm’s Knowledge Committee and Thought Leadership Board and sits on the firm’s London and Global Legal Opinions Committees as well as the firm’s Executive Operations Group. Kate graduated in law from UCL.

Kristin McFetridge is a Chief Counsel for British Telecommunications plc, managing a team that drafts and advises on standard commercial contracts for BT’s global, wholesale, and small-to-medium-enterprises business divisions. She is currently in charge of a programme to redraft all standard contacts of these divisions so they’re clearer, better address customer needs, and reflect a balanced approach to risk. Kristin is a lawyer who is qualified in both New York and England. She was previously an associate in the New York and London offices of Weil, Gotshal & Manges. She has published articles in the US, UK, and Australia and was recognised as a ‘Rising Star for 2014’ on The Legal500’s ‘GC Powerlist’.

WATCH THE FILM OF THIS EVENT

You might also find of interest five Ken Adams blog posts prompted by the event:

· Effecting Change at English Law Firms: An Exchange of Emails
· My Position on “Endeavours” Is a Lonely One, and That’s OK By Me
· Best. Quote. Ever.
· I Dissect a Specimen of “Magic Circle” Contract Drafting