I noted in my previous post (here) that of the Australian contracts that I’ve been reviewing, some include a conspicuous law-firm logo. But I also noticed that a majority contain one or more of the following document-design embellishments:
- varying point sizes
- use of a serif typeface for body text and a sans-serif typeface for headings
- use of colored headings
- use of horizontal and vertical lines to separate blocks of text
I may be a hopeless reactionary, but I can’t be bothered with such document-design bling. Contract prose is analogous to software code, so in terms of document design all I want is a rigorous layout, a clear typeface that works across systems, and rudimentary ways to emphasize text (all capitals, bold, italics).
Embellishing your document design presumably gives your document a distinctive look. But people read contracts not for fun but because they have to, so it’s not like contract drafters are looking to lure readers away from other documents.
And if you add enough document-design bling, it can be distracting.
[Updated December 1, 2011, 6:00 p.m. Eastern time:
I just consulted the most obvious authority on such matters, Matthew Butterick, he of Typography for Lawyers. In our brief email exchange, he offered the following:
Anything that is “bling” is, by definition, superfluous, and I’m no fan of that. I always prefer a simpler, more organized layout over one with extra moving parts. In a contract, I’d frame the question this way: given that you have to put certain marks on the page (headings, words, numbers, etc.), how do you get maximum visual utility out of those marks?
I sent Matthew a sample of the MSCD “articles” enumeration scheme and asked him to suggest what he’d change. The changes he proposed didn’t include anything along the lines of the embellishments in the Australian documents. Instead, he suggested changing the one thing that I can’t change, namely the enumeration and indenting of the blocks of text. (As I explain in MSCD chapter 3, the features of the MSCD enumeration scheme take into account how sections and subsections relate to tabulated enumerated clauses.)
So after Matthew’s input, I end up being, if anything, more confident of my spare approach to document design.]
There’s much more to design than bling and embellishment. The use of contrasting colors and fonts, alignment, consistent format, proximity and much more are important tools to make contracts less painful to read and easier to understand. Of course these must all be done with design expertise, otherwise the contract will be a mess.
I think all lawyers should take a few graphic design classes and even hire a typesetter or graphic designer to help improve their contracts. If people read contracts “because they have to”, why not make it a more pleasurable experience. Good design might even encourage them to actually read the contract.
Andrew: I’m willing to believe I have something to learn on this topic. I’ll look into it some more. Ken
I think the design of your book is a good example. The spiral bound layout adjacent to the spine makes it easy for me to set it next to my computer to refer to while I type. Your book also has sans-serifed headings with serifed body text providing a nice contrast which makes it easier to find what I’m looking for. Each paragraph creates a nice line down the page making it easier to scan. The overall design makes it a much more pleasurable experience.
I think design can play a much bigger part in contracts. Why do contracts need to be text? Why can’t they include video, illustrations, diagrams, infographics, pictures, and the like. All of these items have the potential to decrease ambiguity and make the overall experience much better.
Andrew:
I’d be careful embedding methods of communication other than text into a contract. For example, most workflow diagrams I have ever seen are ambiguous as to who the actor is. It would be like writing an entire contract in passive voice, without using the word “by.”
Another problem is that I have seen the text conflict with a flowchart. Which prevails in that case?
Finally, I would be worried about format for some embedded materials, especially video. Paper’s terrible, but it doesn’t have the problem of needing to find and install the codec, reader, or whatever.
There certainly is a place for some diagrams or pictures — for example, when specifying construction or a physical object to be delivered. But that’s a little different from trying to express the obligations non-textually.
Andrew: Regarding your reference to illustrations, see the this post. Ken
Thanks Ken. Here’s an example of an animated presentation of a complex subject. It’s called the crisis of credit: http://www.crisisofcredit.com. It’s somewhat corny, but does a great job of presenting information visually.
I imagine some day that contract provisions could be presented visually like this. My son is learning how to do these sorts of animations with Adobe AfterEffects. I could see him making some animations for contracts.
Andrew: After picking Matthew Butterick’s brains (see my update to the post), I’m sticking with my austere approach! Ken
You should take a look at modern code sometime. Almost no one reads or writes code in plain text anymore. In fact, formatting code to make it more easily parseable is a booming cottage industry, and hardcore coders are pretty passionate about what types of elements should be formatted in which way.
Take a look at http://coding.smashingmagazine.com/2007/07/12/time-savers-code-beautifier-and-formatter/ for an example of some of the applications folks can use to “beautify and format” their code.
Chelsea: I hereby declare a moratorium on my using software code as an analogy! Ken
Ken:
I agree with your preference for rigorous layout, clear typeface, and limited methods of conveying emphasis. I also find that people who use lots of formats tend to end up being inconsistent, thus sending unintended messages. (Is this really the same level as that? They have the same odd typeface.) I also find that people who use lots of typefaces tend to just paste in text from different documents, with the result that looks like a mishmash.
But there can be bling that makes reading easier because it carries visual cues to the reader. Also, remember that in commercial practice, a lot of us spend an inordinate amount of time designing form agreements that we give to business people and never see until they show up signed. in that context, it is also important for the document to (a) be short, (b) be easy to figure out how to complete, and (c) look professional.
So I use the following types of bling on a regular basis:
1. White space
2. Larger font sizes for titles (of the entire document and for things that would be exhibits, schedules, or the like).
3. Two-column format most of the time.
4. A bottom border on article titles (which looks like a little line extending across the column).
5. On form agreements:
a. highly structured tables to organize the data that the form needs to collect (e.g., customer name, type of entity, jurisdiction of organization, billing contact, biling address, notice contacts, notice addresses, etc.);
b. very light shading of areas that someone need to fill in; and
c. tiny text with instructions on how to fill in the form.
6. Signature blocks in a table, with a border to set it off from the text.
7. An informative, but very thin footer.
Chris
Ken: Matthew has a good point about what “bling” is, but I really like to read a contract that has a published feel, and I’m partial to having a little color on the page. Whether that adds to or detracts from a document’s functionality…good question.
“people read contracts not for fun but because they have to, so it’s not
like contract drafters are looking to lure readers away from other
documents”
But, if people – i.e. clients, can read your contracts more easily and the so-called “bling” adds to the readability of the document, aren’t clients more likely to prefer your contract to an endless sea of black prose? It seems to be working for the Aussies.
If the embellishments in question actually make contracts easier to read, I’d be all for them. I just don’t think that they do. But they might have some superficial appeal, just as some drafters use full justification because they think it looks more “professional,” even though typographers agree that it makes word-processed documents harder to read.
And just because some Australian law firms like embellished document design doesn’t mean that it necessarily works to their benefit.
If the embellishments in question actually make contracts easier to read, I’d be all for them. I just don’t think that they do. But they might have some superficial appeal, just as some drafters use full justification because they think it looks more “professional,” even though typographers agree that it makes word-processed documents harder to read.
And just because some Australian law firms like embellished document design doesn’t mean that it necessarily works to their benefit.
“people read contracts not for fun but because they have to, so it’s not
like contract drafters are looking to lure readers away from other
documents”
But, if people – i.e. clients, can read your contracts more easily and the so-called “bling” adds to the readability of the document, aren’t clients more likely to prefer your contract to an endless sea of black prose? It seems to be working for the Aussies.
My issue with bling is that it either requires extra time to be spent in ensuring the document is consistent with the scheme throughout, or inevitably results in inconsistencies. And if a client asks you why you have spent time, at $X00 per hour, formatting their document to look pretty, I’m not sure any answer is going to sound convincing from their point of view. If you get your secretary to do it, I think you’re wasting your own money.
There is a big advantage of efficiency in having one font, one font size, on colour, one paragraph spacing. Our firm has buttons in Word that lets you immediately set which level of heading or level of paragraph the text is, which is extremely useful, but that’s all the formatting that I think is needed. It is perfectly easy to make documents clear and readable while sticking to simple formatting, provided your scheme is a good one – and provided you use it well.
In fact, I think I prefer to read documents that don’t change font or font size etc. – the inconsistencies start to look like inelegant clutter!
While I can appreciate that “bling” has no place in a contract, I find that by using a consistent header for all of my contracts which simply includes my company’s logo and the agreement title, I can tell, at a glace, that this was a version that I drafted (as opposed to the other side). I also find that having a blank word document with all my document properties (logo, title, 2 column, calibri font, autonumbering preferences, page numbering preferences, etc.) is a handy way to start all my contracts as opposed to a blank page. Oddly enough, as the company’s logo has changed over time, I find the logo is a super speedy way to get a sense of how “old” a contract is just by looking at it…an unintended but helpful coincidence.
I see a lot of puritanism here. Why shouldn’t a contract be pleasing to read and pleasurable, with color and illustrations as well as graphic cues about organization and priority? After all, a contract is a beautiful thing, an agreement of trust between two people. There is a tradition in law to make text as unpleasant and unreadable as possible. It was all a part of the priestly attempt to assert power. Isn’t it time to crack this arrogance and consider the reader with some magnanimity?
Bill: All I care about is having a contract articulate the intent of the parties clearly and comprehensively. That by itself represents a significant departure from business as usual, and I think it’s all that really matters to the reader. Ken
Contract terms and conditions that look like something produced by marketing say “we don’t plan to negotiate this document.” I’d argue that the two-column, small margin, 8-point layout is sometimes a special case of formatting that is intended to convey an unwillingness to haggle. Incorporating terms and conditions that are posted on the web serves similar purposes (among others).
If your company does a high volume of agreements with counterparties big and small, some will want to negotiate and some will not. Moving some percentage of your customers from column A to column B decreases your legal expenses (or increases your attorneys’ and paralegals’ quality of life), decreases the average time that an agreement sits with the legal department and hopefully reduces the amount of time the sales staff spends fantasizing about bringing doom to the lawyers.
The legal posture you take in standard T&Cs does much more than bling to determine how much time you’ll spend negotiating. But some of my clients believe that the bling helps, too, and I’m inclined to believe them. (At least until I find a client willing to engage in a little exploratory A/B testing.)
I suggest that using a two-column, 8-point format is too basic to constitute bling. But it does convey to the other side that you think that the document is essentially in its final form. And perhaps using bling does that too. As such it might have some value, in the right context, even though I find it prissy.
The use of a compatible sans-serif face for a heading along with a serif face for body text (or vice versa) is pretty well accepted in typographic circles, but I wouldn’t recommend it for contracts. In contracts, where run-in headings are common, it can be distracting to have both faces on one line of text. Moreover, system fonts tend to make bad choices for combined use. Using professional grade fonts that aren’t on all computers for contract drafting, where collaboration is important, raises embedding and licensing issues.
And, on the practical side, it takes some effort. Most lawyers I have worked with are not very disciplined in use of Word’s styling system, which, practically speaking, is a minimum requirement to format a structured document with any kind of visual variety effectively using Word.
I use separate faces for headings and body text in letters or memos where the headings all stand alone and I am only distributing the document in PDF (or, less commonly, on paper), but selecting compatible faces can be tricky. I often use Adobe’s Minion Pro and Myriad Pro together, which have a designer in common and which Robert Bringhurst used together in his book, A Manual of Typographic Style. I sometimes color the headings a shade of blue that’s compatible with the accent color used on my letterhead.