• Ken Adams

Don't Count on Courts to Make Sense of Confusion

[We like to share here Ken Adams’s upbeat takes on the state of the contracts ecosystem. (This piece was first published on the website of LegalSifter partner American Inns of Court.)]

Contract disputes waste time and money. They’re unpleasant and stressful, except when they’re tedious. And they put at risk whatever business objectives a company had in mind when it entered into that contract. But at least those who end up in court can be confident that justice will be done, right?

Actually, no.

I expect that most of us have no illusions regarding shortcomings in the U.S. court system. But looking to courts to resolve contract disputes might be even messier than you expect.

Attributing Meaning in a Copy-and-Paste World

One problem is that making sense of confusing contract language is often a hopeless task. Pretty much everyone copies, on faith, from precedent contracts of questionable quality and relevance, so it’s standard—it might even be the norm—for people not to understand what they’re copying. Even worse, what they’re copying might be confusing, in the hopelessly legalistic way that’s common to contracts. Hence the fundamental paradox for courts—how do you attribute meaning to contract language when you can’t be sure those responsible attributed meaning to it?

That explains a fudge employed by courts, namely “canons of construction.” They’re rules used to resolve ambiguity by arbitrarily favoring one of the alternative meanings. (Perhaps courts unconsciously hope the grandiloquent name will make canons of construction seem more substantial.)

One example is the “rule of the last antecedent,” which states that a qualifying phrase is to be applied to the word or phrase immediately preceding it and shouldn’t be interpreted as modifying others more remote. Unfortunately, the rule of the last antecedent “has little weight or value,” according to Joseph Kimble, The Doctrine of the Last Antecedent, the Example in Barnhart, Why Both Are Weak, and How Textualism Postures, 16 Scribes J. Legal Writing 5 (2015) (here). And in this 2015 article I cheerfully demolish a variant of the rule of the last antecedent.

That frailty is exhibited by canons of construction generally. It has given rise to the impression that for any canon of construction, there’s another that points to an opposite meaning. And matters aren’t helped by judges—including those on the U.S. Supreme Court—who confuse canons of construction for “rules of grammar”; see this 2016 blog post.

Inept Textual Interpretation

As if interpreting confusing contract language in a copy-and-paste world weren’t challenging enough, it’s aggravated by judges ill-equipped to understand the ambiguity responsible for much confusing contract language.

Much of my book A Manual of Style for Contract Drafting is devoted to exploring different kinds of ambiguity. It’s a complex and technical subject that no one is equipped to understand without study, and courts routinely make a hash of it.

One of my more grueling activities is dissecting inept court analyses of ambiguity. This sort of critique is headache-inducing for me to write and, doubtless, for others to read, but I think it important to note when courts fail us. In this 2020 blog post I consider this problem generally, and since then I’ve written about further such instances (see for example this post and this post).

Staying Out of Trouble and Making Things Better

So you should do your darnedest to avoid getting into contract disputes. They’re always bad news, and they’re made worse by the perils inherent in interpreting confusing contract language.

The best way to protect yourself is by being an informed consumer of contract language. To get there, you’ll need A Manual of Style for Contract Drafting—it offers the only set of comprehensive guidelines for clear and concise contract language.

More broadly, avoiding confusion would require offering training to those who work with contracts and those involved in resolving contract disputes. Automation has a role to play in helping people review draft contracts; that’s what I’m working on as chief content officer of LegalSifter. But the most effective cure for confusing contract language would be an automated library of customizable and annotated templates, with state-of-the-art content that complies with A Manual of Style for Contract Drafting. That’s the only way we’ll sever our reliance on copy-and-paste.

Let’s see what the future holds.