I noted with interest Tim Cummins’s post asking whether contract managers and lawyers actually care about contract results (here).
Read the post for yourself, but here are the bits that caught my eye:
How many contract and commercial managers, how many lawyers, actually care about the quality of the contracts they produce? How many actively monitor or seek to learn from the operational impacts and issues associated with contracts? How many take time to read research studies or to ask questions about what works and what doesn’t?
In my experience, most contract and commercial managers have limited ambition to learn, to question or to challenge the status-quo – even those who are functional leaders or directors.
There’s no questioning the dysfunction that infects the contract process, even at companies that have all the resources they need to do better.
But I suggest to Tim that it isn’t due to people not caring. Whenever you’re dealing with a complex system, it might be that the actors are simply swept along.
In the case of the traditional contract process, consider the factors at play:
- Contracts professionals draft contracts by copying, generally taking it on faith that what was used previously is what works.
- Due to a lack of guidelines, traditional contract language is chaotic, archaic, and confusing.
- You don’t get rigorous training in contract drafting. Who needs it when you can copy?
- Because they have to draft by copying, contracts professionals rely on the flimsiest of conventional wisdom, so it’s routine for contracts to contain provisions that make no sense.
- The contract process at big companies involves different constituencies handling a high volume of complex contracts with a lot at stake.
So the system is such that whether someone cares or doesn’t care might be beside the point.
For one thing, if all people know is dysfunction, expecting them to fix that dysfunction of their own volition is perhaps unrealistic.
And even if you decide that the contract process could be handled differently, that’s tough to accomplish when you’re a cog—even a big cog—in a complex system.
So what’s needed isn’t for individuals to transform an organization’s current system by caring more. Instead, what’s needed is a new system—a centralized one that uses clear, modern, and consistent contract language, is built using on real substantive expertise rather than phony conventional wisdom, and is powered by document assembly.
For more on all this, see my recent article Dysfunction in Contract Drafting: The Causes and a Cure (here).