A participant at a recent “Drafting Clearer Contracts” seminar sent me an email saying how much they had enjoyed the seminar. They went on to say that “incorporating the concepts into our templates and drafting will require a slow, steady cultural change.”
Regardless of whether cultural change has to be slow and steady, I suggest that it doesn’t reflect reality to think that you can change your contract templates gradually.
Invariably, traditional templates use dysfunctional prose. Fixing that requires addressing many aspects of contract language—verb structures, archaisms, redundancy, defined terms, ambiguity, rhetorical emphasis, layout, arrangement, and so on. It’s not realistic to expect that you can limit your scrutiny to a selected topics and leave the remaining dysfunction untouched: once you start pulling at a thread, the fabric of dysfunction starts to unravel. And there’s substantive change to consider on top of that. So meaningful change in your templates either happens all at once or it doesn’t happen at all.
Only in one sense can change be gradual. That’s when you redo your templates one, or a few, at a time. That’s probably how you’d have to handle it anyway.
What about the cultural change that the seminar participant mentioned? Ideally, it would be irrelevant. Your templates and your contracts process should establish the reality on the ground, with your contracts personnel adapting to that. If you’re allowing a group of people with different experience, different aptitudes, and different training call the shots, you have mob rule.
I’ve written often about how you go about effecting change, once you’ve decided that you can tolerate change. Want your in-house lawyers to redo your templates? They’ll probably take too long, and it’s unlikely that they have the necessary expertise. Want your law firm to redo them? They’ll probably charge to much, and it’s unlikely that they have the necessary expertise. You need a contract-drafting specialist; I’m one of those. (See this blog post for more about that, and see this blog post for what I think about your reasons not to hire me.)
