We’re paid to be prophets.
When we study law we are not studying a mystery but a well-known profession. … The reason why it is a profession, why people will pay lawyers …, is that in societies like ours the command of the public force is entrusted to the judges …, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.
Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harvard L. Rev. 457 (1897) (emphasis added).
Contract drafting is an exercise in prediction. We are writing for an intended outcome, based on predictions we make about how a fact-finder, judge or arbitrator will process and construe the language we’ve written. It is no less true in this endeavor than in any other: collaborating with trusted peers, and opening ourselves up to meaningful challenge, is the best way to refine our craft and improve the accuracy of our predictions.
