Contracts are a necessary part of running an agency. And every year they seem to get longer, more complicated, and harder to read. When drafting your contracts, consider that you only have your reader’s attention for a short period of time. You don’t want to waste that time or attention needlessly. Anything that makes a contract more difficult to read or understand may be the thing that causes a reader to simply “switch off” and not engage. Ever flipped to the next TikTok video only a second into watching because the video quality wasn’t great or the sound was bad? It’s the same with contracts. Bad writing kills.
Why Clean Writing is Important
But don’t you want someone just to quickly sign, hopefully without even reading the details? Unequivocally no. This is your opportunity to work out problems before they arise. If a client just closes their eyes and signs, you are missing the chance to talk through potential areas of disagreements, misunderstandings, or clarifications. It is MUCH easier to solve problems about scope or fees or termination rights BEFORE a project starts than when a deadline is looming, money is on the table, and pressures are mounting.
Below are 15 recommendations of simple things to avoid when writing your contracts. If you follow these rules when writing your contract, they will be easier to read, simpler, get negotiated more quickly, and be an overall more effective piece of writing.
- Best Efforts. Avoid superlatives such as “best efforts” to describe what you’ll do. It’s a vague and confusing standard. What does it mean? Would your agency have to bankrupt itself in performing a contract to fulfill a best efforts standard? Exercising more than reasonable efforts is unreasonable. If you feel that emphasis is needed, describe specifically what actions need to be performed.
- Words and Numbers. Don’t write numbers using the words and the numeral in parenthesis (e.g., thirty (30) days). Use words for numbers one through ten and use numerals for 11 and above (unless starting a sentence when you should always use words).
- Pointing Words. Don’t use words like herein or therein, above or below, to point to different areas of the contract. They just aren’t needed. For example, if you are in Section 6 and you refer to Section 3, you don’t need to say “above” and you don’t need to say “herein” (or “of this agreement”). The fact that you are referring to another section of the current agreement is obvious.
- Redundant Synonyms. Avoid strings of redundant synonyms (often presented as doublets or triplets). Things like “true and correct”, “sell, assign, transfer and convey”, “books and records”, “costs and expenses”, “covenants and agrees”. While they may have rhythmic appeal, the historical reason for the practice (contracts needing to be understood in multiple languages) no longer exists. Often there is a single word that best expresses what you are trying to say. Use it.
- Sales Language. Keep puffery and sales language out of your contract. It can mistakenly create unreasonable legal standards that your agency is held to. “We’ll deliver a best-in-class solution” sounds good in a sales deck, but is meaningless or even dangerous in a contract.
- Process Language. While it’s true that many clients want to “buy process”, your contract is not a good place for a detailed explanation of your process. Maybe the deliverable is completion of your process, but any more than that should be reserved for your sales or proposal materials. Think about an analogy: when you hire a plumber to fix a toilet, the contract doesn’t say all the things they will do in their process to diagnose and repair the problem.
- Execute. Don’t say “execute” when you mean “sign”. Sign is just fine.
- Legalese. You don’t need any legalease or latin in your contract. You can also avoid things like “IN WITNESS WHEREOF” or “Know by all men these presents” or “WHEREAS” and similar phrasing.
- Redundancy / Unneeded Language. Redundant and unneeded language takes a toll on your reader, making them do extra work to get through your contract. You may think you are just providing emphasis (this is really important so I said it three times in three different places), but in fact you are just making your contract harder to use. Also, always assume that extra language will be used against you. The tighter you can write your contract, the fewer opportunities there are for confusion, ambiguities, and disputes.
- Table-setting / throat-clearing. You don’t need to preface sentences with language like “the parties agree that”, “the parties stipulate”, or “the parties acknowledge and agree”. The fact that these words are in a contract is evidence that they are agreeing to these things.
- Needless Emphasis. Be mindful of superlatives like absolutely, completely, in any way, immediately. Often these are added rhetorically to suggest “we really mean it!!” But these words are generally ambiguous and don’t add anything. When you are tempted to use these words, think about if there are other specific details about performance that would express the concept better. Instead of “immediately”, maybe you’d say “within 24 hours of receipt”.
- Random Capitalization. Avoid random capitalization of words as a form of emphasis unless elsewhere in the document you provide a specific definition for the word (e.g., “Deliverables” means the final version of the work produced by Agency under an SOW).
- Passive Voice. In most cases, writing in the active voice makes the subject and object of your sentence more clear. For example, “Invoices are due within 15 days of receipt.” doesn’t tell us much. Who is obligated to pay? To whom? “Client shall pay Agency’s invoices within 15 days of receipt.”
- ALL CAPS. Avoid all caps for all the reasons you’ve been taught to avoid all caps (namely, they are hard to read). While this tactic was used in typewriter days to create emphasis, we have other tools to do that now. Bold works fine, is easier to read, and is just as conspicuous (for when the law requires a provision be conspicuous).
- Wordy Phrases. Things like “due to the fact that” or “at the time of” or “for the purpose of” or “in order to” or “under the provisions of” are just … wordy. There are simpler alternatives for all these things: because, at, for, to, or under will do just fine.
Good writing is low-hanging fruit for making your agency’s contracts more effective. Use this list (and this one!) to improve your writing or to evaluate whether the contract your lawyer prepares for you is as effective as it can be. Need an outside opinion? Try our Report Card analysis for a free evaluation of your contract across nine categories and more than 50 criteria to see if its up to snuff. Or just contact us.
