Why No Contract-Process Value Challenge?

Legal OnRamp, the online forum for in-house counsel and invited outside lawyers and vendors, has announced the “FMC Technologies 1° Law Litigation Value Challenge.” It’s a beauty contest for law firms interested in doing FMC’s litigation work.

I suppose what distinguishes it from the run-of-the-mill beauty contest is that Legal OnRamp represents a particulary public platform. And for all I know, the three stages involved—public online, private online, in-person meetings—might also differ from the way such things are normally handled.

Jeffrey Carr, general counsel of FMC Technologies, is an advocate for change in how law departments operate and how they obtain the services of outside counsel. The Litigation Value Challenge evidently represents a push toward, in Carr’s words, “a more transparent, value-driven legal marketplace.”

But on reading about this, what crossed my one-track mind was, Why no Contract-Process Value Challenge? I can’t imagine that anyone would argue that the contract process isn’t essential to companies, as well as a significant drain on resources. And unlike litigation, it’s pretty much a fact of life at all big companies.

The simplest answer is that companies generally don’t farm out to law firms much work related to their sales or procurement contract process. When they outsource that work, it tends to be to high-volume, low-intricacy shops offshore, as I described in this NYLJ article.

Conceivably, for each forward-thinking litigation-related initiative such as FMC’s, there’s a company somewhere bringing to bear an internal initiative geared at assessing how it might improve its contract process. That seems unlikely, for the simple fact that it’s easier to scrutinize outsiders than to critique your own work. (That’s something I discuss in this recent NYLJ article on retooling your contract process.)

And the objective evidence would seem to back me up. The number of companies engaged in rigorous contract-automation is still a small fraction of those who would benefit from it. And very few companies seem to be giving their contract language close scrutiny.

Given that the contract-process isn’t conducive to beauty contests, I offer, to FMC Technologies and any other substantial company, an only-half-facetious challenge of my own, the AdamsDrafting Contract-Process Value Challenge. Are you confident that your contracts aren’t, in the words of a recent Dilbert cartoon, impenetrable gibberish? Send one of them to me—odds are that I’d be able to show you how to make it much shorter and vastly clearer. Are you eager to even out the kinks in your contract process? I can introduce you to the brave new world of contract automation.

Updated May 14, 2009: Jeffrey Carr has responded to this post in a discussion on Legal OnRamp. Here’s what he had to say:

Ken—If this works, stay tuned!  We actually have what have become known as the Jeff Carr Contract Drafting Rules—and they drive outside counsel crazy. Imagine, a effort to eliminate the impenetrable gibberish and write things that mere mortals (in house counsel and their business folks) can actually understand! After all, how can we expect companies to understand and meet their contractual obligations if they can’t penetrate the magic words that we as lawyers seem to think are oh so important. Clarity doesn’t mean length, double negatives, not withstanding the foregoing or for the avoidance of doubt—and it sure doesn’t mean complexity. Your initiative is laudable and we just may take you up on it!”

Members can access the discussion thread by clicking here. By all means wade in, there or here.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.