The fourth edition of A Manual of Style for Contract Drafting is now in production. That side of my work will certainly continue, but the bulk of it is done. So even though you won’t see the fourth edition for another four months, I’m already focusing on what comes next.
Allow me to go out on a limb: To make meaningful progress toward clearer, more effective contracts, we need a reliable library of annotated and customizable automated templates for the main kinds of commercial contracts. That’s unlikely to happen unless I do it. And I can’t do it without backing.
MSCD has always been a means to an end, the end being clearer, more effective contracting. But it’s evident that although MSCD is necessary to achieve that goal, it’s not sufficient. To get a sense of that, read the comments by Matt Goad and Charles Drayson to this post.
People draft contracts by copying existing contracts and adjusting them as necessary. Building MSCD-compliant contracts requires more work than that. At a minimum, it requires stripping contracts down and building them back up again. Most companies don’t have the appetite, expertise, or resources for that sort of specialized work. And even if they do, it doesn’t make sense to have countless companies laboriously reinventing the wheel.
How would a library of automated templates help? A company looking to improve its templates would run the questionnaire for a given kind of contract, selecting from among the many deal permutations offered. It would then add to the output document whatever further customization is required. That would allow it to build a new template way more quickly, way more cost-effectively, and of way higher quality, than would be the case if it were to try to build something itself. And if the company wants to automate its new template, it would use as the foundation the automated version in the library.
No such library currently exists. What’s available now is woefully inadequate.
But, I hear you say, you already created an automated confidentiality agreement, and it went nowhere. What makes you think a library would be any more successful? I think it’s a function of scale and marketing. If I were to create enough templates in a way that addresses what people need, if I were to get the word out, and I were to charge a fraction of what it would cost a company to create something comparable, I think it would be viable.
I built MSCD myself, with the help of sympathetic readers. But I can’t build a library of templates by myself. Someone has to help pay for it. Legal publishers won’t: they acquire content, they don’t build it. The investment community won’t: they’re not interested in building content either. I doubt a crowdfunding campaign would work: organizations would benefit from the library, not individuals.
The likeliest path to getting a template library built would be for a couple of dozen companies and trade groups to contribute. They would have a say in what templates are in the library and what customization the templates offer, and they would have access to the library at no cost. Everyone else would subscribe for access.
The investment involved would be trivial. For what I’m usually paid to redraft one template that’s not very long or complex, you’d have access to the library. But just as MSCD itself is novel, the idea of this library and how to fund it is novel. Hence this blog post. I have a long history of thinking out loud, and I don’t see any point in stopping now.
I’m now asking my seminar clients and consulting clients whether this is of interest. If you would like to know more, or if you would like to see what my confidentiality-agreement template looks like, contact me.
What makes this notion feasible is that effective contracting isn’t a zero-sum game. If everyone were to have access to quality templates, the machinery of contracts would operate more smoothly.
I am just thinking out loud here but perhaps a starting point is starting with clauses and then moving to templates. You could probably find volunteers to help with this endeavor.