Diagrams? Sure, But First Fix the Words

ContractsProf Blog has this post by Brian N. Larson about a study by Stefania Passera and others that apparently shows that diagrams made a contract easier to understand.

The study’s findings don’t come as a surprise. Plenty of contracts describe mechanisms with alternative outcomes, with those outcomes then prompting further outcomes. Tag-along and drag-along rights come to mind. Also preferred-stock antidilution provisions. Describing such mechanisms using just prose can be challenging. Including a flow chart might help.

But the introduction to the article about the study (here) focuses on the drawbacks of traditional legalese in contracts. In particular, it mentions the famous Canadian “case of the million-dollar comma,” a dispute between Rogers Communications and BellAliant in which I acted as expert witness. The fix for legalese generally isn’t flow charts: it’s eliminating the legalese! And the dispute between Rogers and BellAliant was caused by a mistake in translating the French-language version of the contract into English. Flow charts would have had no role in fixing that. So perhaps the authors of the article could have done a better job of putting diagrams in context.

I didn’t have access to the article describing the study, but Brian’s account includes figure 8 from the article, which shows an extract from a contract and how that extract could be expressed using a flow chart. The prose used in the extract isn’t the worst I’ve seen, but it could be significantly improved. The mechanism described is hardly of mind-bending complexity; I suggest that clearing up the language would make it sufficiently accessible that you could do without the flow chart.

So the unintended message I get from the article is that before you fire up your favorite flow-chart software, tend the the prose of your contracts.

Another issue—one that Brian points out—is that if you use both prose and a flow chart to express a contract mechanism, you’re saying the same thing twice. What if they’re inconsistent? I’m not sure I’d be willing to use just a flow chart.

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.