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.
I believe that you could rewrite this in a positive tone, adding your voice and a core to the call to action. You could easily make allies of the authors and the IACCM by helping to encourage progress instead of discpuraging others who are trying to nudge or budge the lawyers.
Coming up with the right tone can be challenging, but I’m OK with this. And I’ve made this same point regarding IACCM many times. I don’t see much point in being anything other than politely candid.
Hi Rob. Thanks for playing!
Yes, I’m a lawyer; you can find information about me on this site. As regards my having started “a boxing match,” I’m a fan of forthright exchange in the marketplace of ideas. But I suggest that my approach isn’t that of a trial lawyer. It’s the result of my knowing my subject and thinking that it matters.
For me, the key phrase in your comment is “I don’t know your work.” For better or worse, I’m in the unlikely position of being the only person who has seen fit to devote themselves to the building blocks of contract language. And lord knows, I’ve done my best to spread the word. My book A Manual of Style for Contract Drafting analyzes the building blocks of contract language. I’d say it’s comprehensive, except that the fourth edition, to be published in September, adds another hundred pages. Maybe then it will be comprehensive, at least until the fifth edition! I assume that most people who work with contracts are unfamiliar with my book, but for what it’s worth, it has sold tens of thousands of copies internationally.
To understand how to achieve clarity in contracts, you have to understand the nature of contract language. Hence my tweet to Stefania yesterday: “With contracts, language is *makes up statistic* 96% of clarity.” And I suggest that it’s hard to understand the nature of contract language without consulting my book.
You think that clear language is “just a basic entry-level starting point”? I’m flabbergasted. Contract drafters have a choice between two approaches to contract language. There’s the traditional approach, which is terrible in ways I’ve spelled out in my books, in dozens of articles, and in two thousand blog posts. Then there’s a more modern approach. In terms of clarity, the implications are dramatically different. I’ve been laboring mightily to promote a change from the former to the latter, but it’s challenging, and it’s complicated. So clarity in contract language is nothing to be taken for granted, and there’s nothing basic about it.
Because it doesn’t even allude to what’s involved in achieving clarity through contract language, your article doesn’t provide any context for the techniques you discuss. It’s not a matter of your article being short; it’s a function of your limited perspective.
While I’m at it, I’ll address your objections to my two ancillary points. First, there’s your distinction between lawyers and nonlawyers as consumers of contract language. I don’t draw that distinction. Instead, I hold that for purposes of business contracts, clear contract language serves all readers. And I indulged in no courtroom antics: your observation that confusing contract language can lead to disputes is an unrelated point.
And I wasn’t clear enough in my observation regarding contract law. When I say that contract law is pretty much irrelevant, I don’t mean to suggest that it would be a good idea if lawyers were to pay less attention to it. Instead, what I mean is that they don’t pay attention to it: in the real world, contract drafting pretty much begins where the standard law-school contracts course ends. The focus is on the deal: whether they’re traditionalists or more modern, deal lawyers are called on to turn their attention to contract law only sporadically, as issues arise.
As regards my “swipe” at IACCM, one person’s swipe is another person’s straightforward account. Yes, I used to do stuff with IACCM. (“Stuff” isn’t an elegant way of putting it. To get a sense of my involvement with IACCM over the years, search “IACCM” using my site’s search feature.) And yes, in their writings and in exchanges with me, IACCM personnel never expressed much interest in the nuances of contract language and seemed inclined to leave it to the lawyers. Nothing in your remarks about IACCM contradicts that.
Your article is consistent with that background, which is why it caught my eye. My critique allowed me to make a broader point, which is that if you take control of contract language instead of taking it as a given, you can take control of contracts. That’s an opportunity that’s open to contract managers.
To get a sense of the implications of trying to simplify contracts without paying full attention to contract language, you could do worse than look at this 2014 post about IBM’s cloud-services contract.
I can imagine you feel like someone who unknowingly wandered into the wrong neighborhood and was unexpectedly set upon. What can I say? *insert shruggie here* This is my life’s work, and I think it matters.
Yes, it’s my life’s work too! Not contracts but helping make complex information more usable… coupla things I want to mention:
Rhetoric: in blog discussions and newsletters (perhaps not contracts) people use hyperbole to emphasis their point. Feel free to be faux-flabbergasted (or actually flabbergasted, sorry for my sarcasm) that I suggest clear language is “just a basic entry-level starting point”, but also feel free to attribute good sense and good motives to me: that of course I understand that clear writing is important and difficult. Absolutely pay full attention to it. But don’t stop there.
I don’t take (bad) contract language as a given at all, and I don’t think our article suggests that. What I take as a given is the need for clear language. I take it for granted as a basic hygiene factor which we should now build on. But I also think it’s not the only support that writers can give readers. In the article we move on from clarity to usability, which is a different thing – it’s about seeing a document as a tool, as a link between contract rules/conditions/processes and desirable action.
Genres: document types carry with them implicit rules for their appropriate use. Newspapers are hard to read systematically because they are not designed to be and not intended to be. A typical novel has little visual structure because it is designed to be read as a linear process. A user guide has a strong access structure with visual support for information search and to support practical tasks. A typical contract? In our view its evolution as a genre is imperfect and immature because it has taken little account of its practical uses for contract management. Along with all the other paraphernalia of purchasing, including RFPs ITTs etc, it could do with a good look at what users do and what they need.
I’m not sure how you took Cheryl Stephens’s pointer towards ‘realistic optimism’ as a life strategy, but (as an optimist) I saw this as referring to a difference between the way ordinary people understand language, and the way I’m beginning to suspect some lawyers assume they do. My point about rhetoric is that what people say (in a literal sense) and what they mean are not always the same thing. I’m not well enough versed in linguistic philosophy beyond suggesting that this is addressed by HP Grice’s distinction between conventional and conversational implicatures. How we interpret what is said depends on our assumptions about motives, context etc. A default position is optimistic: that we are cooperating in an effort to share meaning – that what someone says is relevant, adequate, true, and as clear as possible (these maxims are at the heart of Grice’s Co-operative Principle). In many cases, people arrive at contract documentation with optimism shaped by sales conversations, proposals, marketing materials and brand promises. They are right to feel aggrieved if the document does not deliver what was promised (or implied), and what they shook hands on.
Defined term: ‘I’ means ‘we’ in so far as my co-authors agree with me.
Excuse me for not having had the urge to investigate what “realistic optimism” means. Similarly, my linguistics buddies have helped me out with implicatures, but I visit that territory only occasionally. That’s because I have other concerns. I’m up to my neck in dysfunctional contract language, and I have a lot of shoveling to do.
I don’t question the value of what you and your co-authors do. But by not addressing the broader context, your article is misleading.
I’ve droned on long enough. Before reading this post, you’d never heard of me. I suggest that becoming passingly familiar with my work would put you in a better position to assess the role your approach could play in achieving clearer contracts.