Here’s something I said in this article on LinkedIn:
And more generally, being expert in your company’s transactions doesn’t make you an expert in contract language, any more than knowing how to drive a car makes you an expert mechanic. Contract drafting is a specialized kind of writing: leave it to specialists.
By “specialist,” I mean someone who is expert in how to say clearly and concisely whatever you want to say in a contract. In preparing a given template, that person would work with those who handle that kind of transaction.
My specialist resembles Richard Susskind’s notion of “legal-knowledge engineers.” (I added the hyphen. Because phrasal adjective.) Here’s what Susskind says in his book The End of Lawyers?:
In contrast, there will be a much greater need for my third category of lawyer – the ‘legal knowledge engineer’. If I am right and legal service will increasingly be standardized and (in various ways) computerized, then people with great talent are going to be needed, in droves, to organize the large quantities of complex legal content and processes that will need to be analysed, distilled, and then embodied in standard working practices and computer systems. This new line of work will need highly skilled lawyers.
So where does one find contract-drafting specialists (or contract-drafting legal-knowledge engineers)? Well, I’m one. I’m not going to be all coy about it. But the scary thing is that I don’t know of anyone else who meets my necessarily loose notion of what it takes to be a contract-drafting specialist.
You’re unlikely to find specialists at companies. It’s not a matter of how smart you are: if your job is handling transactions, you’re not going to have the bandwidth to be expert in contract usages, even if that possibility crosses your mind. What unites the many big-company templates I’ve looked at is that they all exhibit shortcomings indicating that they were prepared by people for whom knowledge of contract usages was not the first priority. That’s to be expected. And it’s the case whether you’re dealing with contracts prepared by traditionalists or by people trying to create something more modern. (For an example of the latter situation, see this 2014 post about IBM’s cloud-services contract.)
And you’re particularly unlikely to find specialists at law firms. The billable hour is a disincentive to efficiency. Balkanized power structures and the law-firm-partner ego make it difficult to apply standards firmwide. Law firms are generally called on to draft a relatively broad and unpredictable range of contracts, so it’s harder to achieve contract-drafting economies of scale. And if you’ve been highly profitable running a copy-and-paste factory, why change? The result is that law firms are unlikely to support the sort centralized initiatives that could make use of contract-drafting specialists.
Part of the problem is lack of certification, so there’s no clear path to becoming a specialist. One could become a specialist through self-study, but that doesn’t seem particularly likely. And unless a specialist goes out of their way to parade their expertise, they might be largely invisible. There might be specialists out there quietly minding their own business.
If we want contract-drafting specialists, it would make sense to establish a credential, so people could train to become a specialist and signal that the have the necessary expertise. I’ve sporadically contemplated developing an online certification program, but becoming a specialist would probably require more than than—perhaps a one-year LLM course. That’s something I might turn my attention to down the road.
I’d welcome there being more specialists. The more people working in discipline, the more rigorous it becomes. And having more contract-drafting specialists would make me less of an outlier.