The Effect of Overly Complex or Lengthy Drafting in Commercial and Corporate Contracts. By Seth Doe Esq.

Introduction

Contract drafting is an essential skill in commercial and corporate law, where clarity, precision, and enforceability are paramount. However, a pervasive problem in legal drafting is the use of overly complex language or unnecessarily lengthy documents. Such drafting practices compromise the fundamental purpose of contracts by creating confusion, increasing the risk of disputes, and escalating transactional costs. This article examines the causes of overly complex and lengthy drafting, the detrimental effects it has on contractual relationships, the critical role lawyers play in correcting these issues, why the problem persists, and practical approaches to improve drafting quality.

Overview

Overly complex or lengthy drafting refers to contractual documents that are excessively verbose, convoluted, or contain redundant provisions. Complexity often arises from dense legal jargon, multiple nested clauses, extensive cross-references, and repetitive wording. Lengthiness results from inclusion of unnecessary details, over-expansive clauses, or failure to consolidate terms.

The core problem with such drafting is that it impedes the reader’s understanding of parties’ rights and obligations, frustrates efficient contract negotiation, and increases the likelihood of errors or misinterpretation. Consequently, contracts become tools of confusion rather than clarity.

Causes of Overly Complex or Lengthy Drafting

1. Legal Training and Tradition

Lawyers are trained to be cautious and comprehensive, often producing drafts laden with contingencies and qualifications to mitigate risks. This traditional legal mindset encourages verbosity as a protective mechanism.

Practical Illustration:

• A warranty clause enumerating dozens of exceptions and conditions to avoid liability, resulting in a paragraph so dense it obscures the actual warranty.

2. Overuse of Legalese and Jargon

Complex language, archaic terms, and Latin phrases are commonly used without consideration for clarity, making contracts difficult for non-lawyers to comprehend.

Practical Illustration:

• Using terms like “hereinafter,” “inter alia,” or “notwithstanding anything to the contrary” multiple times in a contract without adding substantive meaning.

3. Over-Inclusion of Boilerplate and Redundant Clauses

In an effort to be thorough, drafters include lengthy standard clauses verbatim, some of which may be irrelevant or repetitive.

Practical Illustration:

• Multiple clauses detailing notice procedures scattered throughout the contract rather than consolidated into a single section.

4. Fear of Omissions and Liability

Drafters err on the side of over-inclusiveness, fearing that leaving out any detail may expose their clients to risk or litigation.

Practical Illustration:

• Drafting exhaustive “definitions” sections with dozens of terms that may never be used in the body of the contract.

Why Lawyers Are Essential in Correcting Overly Complex or Lengthy Drafting

Expertise in Simplification Without Sacrificing Precision

Lawyers understand the legal implications of each clause and can streamline language while preserving the intended meaning and protection.

Ability to Tailor Contracts to Specific Transactions

Experienced lawyers avoid one-size-fits-all approaches, tailoring contracts to the commercial realities of each case, thereby eliminating unnecessary content.

Guidance on Structure and Readability

Lawyers organize contracts logically, using headings, numbered paragraphs, and clear formatting, enhancing accessibility.

Facilitating Negotiation and Enforcement

Concise, clear contracts reduce negotiation time and help ensure enforceability, minimizing disputes arising from ambiguous or complex provisions.

Why the Mistake is Common

• Cultural and Professional Norms: Legal education emphasizes comprehensive coverage, often at the expense of readability.
• Risk Aversion: Lawyers prioritize legal safety over commercial pragmatism.
• Template Reliance: Repeated use of long standard forms perpetuates complexity.
• Client Expectations: Some clients equate length and complexity with thoroughness and professionalism.
• Lack of Interdisciplinary Collaboration: Insufficient engagement with business stakeholders results in documents that are legally precise but commercially impractical.

How to Address Overly Complex or Lengthy Drafting

1. Use Plain Language

Avoid unnecessary jargon and archaic terms. Use simple, direct wording that conveys meaning clearly.

Practical Illustration:

• Replace “heretofore” with “before,” and “notwithstanding anything to the contrary” with “despite any other provisions.”

2. Apply the Principle of Necessity

Include only clauses and language that are strictly necessary for the transaction and risk management.

Practical Illustration:

• Eliminate duplicate clauses by consolidating provisions on notices, payments, or dispute resolution in single dedicated sections.

3. Adopt Modular Drafting

Structure contracts into clearly defined parts with descriptive headings to guide readers.

Practical Illustration:

• Separate operational clauses (e.g., obligations, payments) from boilerplate (e.g., governing law, assignment), each in its own section.

4. Iterative Review and Redrafting

Engage multiple stakeholders, including legal and commercial teams, to review drafts for clarity and relevance.

Practical Illustration:

• Use track changes and comments to remove redundant phrases and clarify ambiguous terms collaboratively.

5. Utilize Templates Judiciously

Adapt standard forms to the specific facts and commercial context rather than copying wholesale.

Practical Illustrations

Example 1: Simplifying a Warranty Clause

Overly Complex:
“The Seller hereby represents and warrants that, except as may be otherwise disclosed in writing heretofore, the goods shall, to the best of the Seller’s knowledge and belief, be free from defects and comply with all applicable statutory and regulatory requirements in force from time to time.”

Simplified:
“The Seller warrants that the goods are free from defects and comply with all applicable laws.”

This revision retains legal effect but improves readability and reduces ambiguity.

Example 2: Reducing Length by Consolidation

Lengthy Drafting:
Separate notice requirements appear in clauses 3.1, 6.2, and 9.4, each detailing different addresses and delivery methods.

Improved Drafting:
A single “Notices” section consolidates all requirements, specifying addresses and permitted delivery methods once, avoiding repetition and confusion.

Example 3: Eliminating Jargon

Before:
“Notwithstanding anything herein contained to the contrary, the party of the first part shall indemnify the party of the second part…”

After:
“Despite any other provision, the first party will indemnify the second party…”

Conclusion

Overly complex or lengthy contract drafting undermines the very purpose of a contract — to provide clear, enforceable terms governing the parties’ relationship. This problem stems from legal tradition, risk aversion, and reliance on templates. Lawyers play a crucial role in rectifying these issues by applying expertise to simplify language, tailor documents, and ensure clarity without sacrificing legal protection. Embracing plain language, necessity, modular drafting, and collaborative review is essential for effective contract drafting in commercial and corporate contexts.

Recommended Further Reading

• Stark, Tina L. – Drafting Contracts: How and Why Lawyers Do What They Do (Aspen Publishers, 2nd ed., 2013)
  A leading manual on contract drafting, combining theory with practical exercises to build precision and clarity.
• Garner, Bryan A. – Legal Writing in Plain English (University of Chicago Press, 2nd ed., 2013)
  A practical guide to improving clarity, conciseness, and readability in all forms of legal writing.
• Oates, Laurel Currie; Enquist, Anne; & Edwards, Linda H. – Legal Writing: Process, Analysis, and Organization (Aspen Publishers, 6th ed., 2016)
  A structured approach to legal writing that emphasizes organization, analytical skills, and effective communication.