I came across this article in the Contracting Excellence Journal, published by the International Association for Contract & Commercial Management (IACCM). It’s by Rob Waller, Helena Haapio, and Stefania Passera, and the title is Contracting Simplification: The Why and the How.
I could hardly argue with the premise for the article. Traditional contract drafting doesn’t work? Check. Confusing contracts can lead to disputes? Check. Opposition to change? Checkity-check. But I could quibble with some of the points it makes in setting the scene.
For example, in saying that contracts “are largely incomprehensible by people without a legal background,” they endorse the idea that lawyers who sling around traditional contract language know exactly what they’re doing. Here’s what I say about that in this post: “As for the notion that it’s just nonlawyers who don’t understand contracts, it ignores that lawyers are trapped in the quicksand with everyone else. The lawyers shoveling traditional verbiage are among its principal victims.”
And I’m not sure that “Traditional lawyers and law teachers tend to focus on contract law, not contracts themselves, the deal the parties wish to do, or the business relationship they wish to develop.” Contract law—the stuff taught in law schools—is pretty much irrelevant to workaday contract drafting. I suggest that the explanation for dysfunctional contract language lies elsewhere.
As regards the infographics approach the authors recommend, I can’t see it working for anything but the most basic contracts.
But I have a bigger issue with the article. It stresses the importance of clarity. (The word clarity occurs 11 times in the article, the word clear 9 times.) What does clarity mean? The article simply says that “the language must be clear.” How do you make language clear? According to the article, by “paying attention to the language.”
In other words, the article provides no guidance as to what clear contract language looks like. It doesn’t even point the reader to relevant resources. That’s a problem.
Even the simplest business transactions have their subtleties, and many deals are complex, with a lot at stake. Contracts are necessarily as complex as the transactions they express—you can’t make them any simpler. As for contract prose, it’s limited and stylized, and often things are not as they seem. If you tackle contract prose equipped with just a let’s-make-it-clear attitude, you’re likely going to fall on your face. That perhaps explains why the prose used in the samples contained in figures 1 and 2 in the article leaves a lot to be desired.
So the article is a call to action that’s hollow at its core. I’m not surprised. I used to do stuff with IACCM, and I found that it had little interest in the mucky business of constructing clearer contracts. Perhaps that’s because its constituency is contract managers, who might be inclined to cede to lawyers the task of coming up with contract language. Although by reputation lawyers have big egos and sharp elbows, it doesn’t have to be that way, as I note in this 2011 post:
The deal is often handled by lawyers, but doesn’t have to be, as there’s nothing legal about it. One component of the law bit—the legal framework—is usually handled by lawyers, but the more straightforward aspects could readily be handled by nonlawyers. And as regards the other component of the law bit—optimal management of disputes—there might not be much to choose between deal lawyers and nonlawyers.
So it seems that there’s relatively little that is best left to lawyers as opposed to reasonably well-informed nonlawyers.
If I’m right in my assessment of where things stand, contract managers could have more of a voice on contract language. But the only way to achieve that would be for them to roll up their sleeves and become better acquainted with the subject. It’s not easy. That’s why the fourth edition of my book A Manual of Style for Contract Drafting will weigh in at around 590 pages.
I hope the authors of the article don’t mind my chiming in.