In this December 2011 post I questioned the utility, for purposes of contracts, of what I called document-design “bling.” And in this February 2012 post I suggested that you can go too far in breaking up contract text.
But I’m aware that I have negligible credentials in document design. And I’m aware that when it comes to the look of a document, people like what they’re used to. So I decided to pick the brains of the vastly accomplished authority on design, Ellen Lupton. (I learned of Ellen through her great book, Thinking with Type.)
To give Ellen some points of comparison, I steered her to a sample Koncision contract (here) and two contracts drafted by Australian firms, one by Minter Ellison (here) and one by Gilbert + Tobin (here), both of which I found online.
Here’s what Ellen had to say:
To be honest with you, I find the most readable of the three documents (Koncision, Minter, Gilbert) to be Gilbert. The use of strong horizontal dividing lines helps to unify the page, which in all three documents is excessively indented, but least so here. Adding color to the headings is unnecessary, yet the headings are easier to find in this document than in the other three, owing to the horizontal rule as well as to the appropriately subordinated type treatment of the next level of heads. The hierarchy expressed in the other two documents is rather flat.
I agree with you that many documents (and nearly everything on the web) have too much space between paragraph elements. Yet here again the Gilbert document reads strongest, because the inter-paragraph spacing is countered by tighter spacing/smaller type in the main text. Thus we read each paragraph as a true element, which facilitates visual scanning.
I’m with you on keeping page numbers/footers simpler and less branded.
I’ll be giving serious thought to Ellen’s suggestions.
14 thoughts on “Ellen Lupton Wades In on Document Design for Contracts”
I agree with Ellen’s perspective. While the Gilber spacing does seem to me a bit excessive in parts, the contract is a pleasure to read and also easy to mark up.
Also, as the legal industry slowly moves away from paper, I’m interested in seeing how color and dynamic links can and will be used to make legal documents even easier to read and navigate.
Finally, I am intrigued by the notion of placing the reps and warranties in a schedule. I could see how this could be useful as these provisions are often some of the most negotiated. I’ll need to let my mind chew on this one.
Ryan: The one notion I couldn’t countenance is putting statements of fact in a schedule. Ken
If one continues down this path of moving everything to a schedule or exhibit, you eventually end up with a government contract, which is a harrowing thing indeed. :)
I second Ryan’s comments.
As for putting the warranties in a schedule, I suspect that in a commercial contract, the location of the warranties is not very likely to affect how they are interpreted. However, in my experience, enough other provisions of an agreement are being negotiated that moving the warranties out to a schedule does not expedite discussions or drafting. Also, the warranties are often about facts that are themselves summarized in schedules (“There are no Leases affecting the Property except those listed in Schedule ___”), and having schedules to schedules would get cumbersome.
The MSCD formatting scheme is difficult for my eyes to follow, with level 2 headings indented an inch and level 3 flush left. I really have trouble tracking the levels when my eyes scan the page, but this might just be me.
I have adopted the use of horizontal rules and even color in headings in some kinds of correspondence – my engagement letter uses a blue horizontal rule in its headings. I haven’t done this for contracts yet, but am not far from trying it out.
One of my longer-term projects is a commercial lease form based on MSCD drafting principles, and I am trying to apply a few – only a few – design elements like this. With the press of business, though, that project has been delayed several months.
(Edited to try to restore paragraph breaks Disqus lost.)
Tim: Good point about schedules to schedules. Regarding the MSCD enumeration scheme, you won’t be surprised to hear that I’m wedded to it! But I too will experiment with design possibilities, and I wouldn’t be surprised if I run something by you all. Ken
I also find the MSCD formatting scheme a bit awkward, so you’re not alone. Love to check out your engagement agreement sometime.
“I’ll be giving serious thought to Ellen’s suggestions.”
Isn’t the above usage discouraged? Consider the following instead: “I’ll give serious thought to Ellen’s suggestions.”
Max: You’re right! I’ve found myself lapsing into the future continuous (if that’s the right term). Thanks for admonishing me. Ken
“Future Progressive” is the technical term.
It would be interesting to get Matthew Butterick’s take on these documents. I’m not quite sure he would agree with Ellen about excessive indentation and white space in the agreements.
Walter: Have a look at my “bling” post—I quote Matthew regarding the look of Koncision documents. Ken
Ken, in your “bling post,” you say that “Matthew suggested changing the one thing that I can’t change, namely the enumeration and indenting of the blocks of text.”
So I’m guessing that he suggested something like having your left and right margins at 1.75″ and being more liberal with indentation and white space.
Ellen apparently objects to this, which was the point I was trying to make. Moreover, I think Matthew would consider much of what Ellen likes about the Gilbert format–e.g., the horizontal section borders–to be distracting eye-candy (or perhaps more concerned about aesthetics than legal drafters need to be).
Accordingly, I’d seek a second opinion on the readability of the respective documents. Personally, I prefer yours (and even more so, with 1.5″ to 1.75″ margins).
Walter: Thanks, that’s good to know. And I’ll think some more about margins. Ken
I like the look of the Gilbert document the best too, though it may be a shade too complex for a law firm’s standard style. On most deals, lawyers will not spend much time checking the stylings to ensure consistency, so the harder it is to introduce errors the better. Different font sizes and colours tend to do this – in my experience half the headings will end up black, or the smaller font size. Better that the stylings use them in the first place than have an inconsistent document because you’re chasing an ideal.
I have no huge objection to white space – it doesn’t waste as much paper as you might think. That said, I don’t think the Gilbert document would lose much by having all the paragraphs from the second level (1.1 etc.) onwards moved one tab to the left, as Minter Ellison does.