After Tuesday’s panel discussion in London I received the following email from a mid-level lawyer at one of the major English law firms:
I thought you were great. I also thought that your contribution had a slight air of shouting into the wind—I agree with everything you say, but conceptually there is not a sufficient meeting of the minds elsewhere.
I think the problem is that anyone who responds to you is saying “yes, but that doesn’t apply to me.” Whereas I think your message (and way of conveying that message) says “I wouldn’t be so confident.” The minute the talk becomes about the challenges of making what everyone says is the right approach (ie your approach) work in practice, I feel the whole point is lost.
I for one, as much as possible, mark up everything I look at to conform to your recommendations. It is easier to do on shorter agreements, but I took one to pieces over the summer, sent it back to a major Bank, they changed nothing from my mark up.
To the extent you need any encouragement, keep fighting the good fight. Us true believers benefit massively.
Here’s my response:
The only way to get past the it-doesn’t-apply-to-me reaction is to say regularly that in fact it likely does. For example, that’s what I tried to do in this post today.
Talking about how hard change is ignores that contract usages aren’t subject to popular vote. You can create your own clear, concise, and modern contracts, and the only people you have to convince are those on your side of the table and those on the other side of the table. That’s not a tall order. Apart from a handful of in-your-face examples, my guidelines result in prose that is clearer but otherwise isn’t controversial.
The odds of getting partners and clients to accept clearer contract language improve if one eases them into it. Explain what you’re trying to do. Send them some information. Heck, I’d be willing to spend a few minutes on the phone with you to convince anyone who needs convincing.
Even if you’re unable to get people to accept change, you’re better off being an informed consumer of contract language: you’re able to pick your battles, executing strategic retreats while continuing to push points that relate to the deal or clear up confusion.
Bear in mind that as you become more senior, you’ll be in a better position to call the shots.
Taking the long view, I’m confident that change will happen. My book has sold tens of thousands of copies. When the alternative is the bloated chaos of traditional contract drafting, a rigorous and comprehensive reference work that has been refined over the years stands a real chance of having an impact.
But ultimately, I do what I do for people who find it of value. If my sense of self-worth were tied to mass adoption of my guidelines toot sweet, I would have long ago shriveled up and blown away.
As people are too prone to say in the United States, Thank you for your support!
4 thoughts on “Effecting Change at English Law Firms: An Exchange of Emails”
My thoughts when listening to the exchange on implementation at the discussion were that firms will start making changes when they start losing business to other firms who do. Large clients like BT are the drivers of this change, just as they have been drivers of the changes in billing practices firms use.
I try to edit contracts to conform to your modern styles as much as possible, but even when the changes don’t change anything substantive, I often get resistance. One term of art I can’t stand is “shall mean” (when shall it mean something?). I always change this to “means” instead (the more active voice). I’ve even had attys on the other side change all my “means” back to “shall mean”. If that happens, I just give up. It’s not worth the fight at that point. ;-)
I feel your pain, but I recommend that if your changes don’t change anything substantive, then you shouldn’t make those changes. When you’re reviewing the other side’s draft, make only those changes that relate to the deal or that are necessary to avoid confusion. Overuse of shall is mostly benign, so I’d leave that alone.
I always have to try at least once. Can’t help myself. :-)