I’m coming late to the discussion of “good enough” in the context of legal services.
I’ve encountered several blog posts that come at this issue from different perspectives, including this one by Carolyn Elefant, this one by Ron Friedmann, and this one by Wayne Schiess.
Some of the recent discussion of this topic was prompted by Robert Capps’s August 2009 article in Wired magazine, “The Good Enough Revolution: When Cheap and Simple Is Just Fine.” Starting with a discussion of the Flip camera, which has triumphed over more expensive and feature-laden cameras, Capps argues that consumers are increasingly valuing convenience over quality:
So what happened? Well, in short, technology happened. The world has sped up, become more connected and a whole lot busier. As a result, what consumers want from the products and services they buy is fundamentally changing. We now favor flexibility over high fidelity, convenience over features, quick and dirty over slow and polished. Having it here and now is more important than having it perfect. These changes run so deep and wide, they’re actually altering what we mean when we describe a product as “high-quality.”
But to lump together the Flip camera and provision of legal services is to mix apples and oranges. When I’m pondering which video camera to purchase, I can readily acquire the information necessary for a cost-benefit analysis—information regarding price, video quality, ease of use, and so on. And I’m entirely able to do the cost-benefit analysis myself.
By contrast, when someone purchases legal services, those services don’t represent an end. Instead, they’re a means to an end, such as a favorable outcome to a dispute or successful consummation of a transaction. But achieving that outcome usually involves factors about which one has imperfect information or over which one has limited or no control. That adds uncertainty to any assumption that a given level of legal services is “good enough” to achieve the desired outcome. A client may well be ill-equipped to make that sort of judgement call. And when lawyers makes that call on behalf of a client, they may find themselves second-guessed if the result is unsatisfactory. So “good enough” is problematic in the context of legal services, as Bruce MacEwen noted in this recent post on Adam Smith, Esq.
But I have a bigger beef with “good enough” in the context of contract drafting. Here’s what Capps’s article has to say on that subject:
In fact, Good Enough tech is already gaining a foothold in two other huge industries: the legal profession and health care.
Richard Granat is a pioneer in a field called elawyering. It shouldn’t be confused with Web sites that merely offer legal documents for downloading, Granat explains. Elawyering involves actual lawyers, and clients who use these services get help sorting through legal issues.
Granat, who runs his own law firm and cochairs the American Bar Association’s task force on elawyering, has designed and marketed a number of Web tools that walk people through common legal procedures. He created a child-support calculator, for example, which assists couples going through relatively amicable divorces. There’s also a tool to help people decide whether they need Chapter 7 or Chapter 13 bankruptcy. These widgets then generate legal forms, which may be reviewed by a licensed attorney who can make suggestions or offer advice over the phone.
It turns out to be a remarkably efficient way of offering what Granat calls legal transaction services—tasks that are document intensive. For everything from wills to adoptions to shareholder agreements, elawyering has numerous advantages. It’s cheaper, for example; a no-fault divorce, Granat says, might run a fifth of what seeing an attorney would cost. It’s also faster—customers can access the tools anytime and never have to interrupt their day to meet with someone in a distant office. Simply put, elawyering makes certain legal services more accessible.
There are trade-offs, of course. “The relationship has less richness than what you’d get from sitting in a lawyer’s office,” Granat says. “And if you have an issue that’s more complex, then you still need to see a lawyer face-to-face.” In other words, it’s a lower-fidelity experience.
But for most simple legal interactions, elawyering is, well, Good Enough. It gets the job done, even if it doesn’t let you ask every question or address every contingency. And not surprisingly, it’s on the rise. “Elawyering will be mainstream in three years,” Granat says. “I predict that in five years, if you’re a small firm and don’t offer this kind of Web service, you’re not going to make it.”
“Good enough” may work as a label for allowing consumers to generate their own legal documents, but it would be wildly misleading if applied to using information technology to commoditize the drafting of business contracts. It suggests reining in one’s urge to perfection, whereas mainstream contract drafting is redolent of anything but perfection.
To do it rigorously, commoditizing the drafting process would require (1) using a sophisticated and intuitive document-assembly software such as ContractExpress (developed by my sponsor, Business Integrity), (2) developing document-assembly questionnaires that accurately reflect the law and industry practice, and (3) using modern and efficient contract language. Those who use such a system—whether their own or one maintained by a yet-to-be-established vendor—would not only produce drafts in a fraction of the time that it would take using the traditional process, they would also produce drafts that are much clearer and better express the transaction. There’s nothing “good enough” about that—instead, it would represent a dramatic improvement.
Of course, any drafter would still be faced with the question of how risk-averse to make a given draft—whether addressing a given risk would represent more of a distraction than it’s worth. But it would be misleading to lump that in with “good enough,” as such judgment calls don’t involve the quality trade-off inherent in the label “good enough.”
12 thoughts on ““Good Enough” and Contract Drafting”
On one hand, I believe that it is great to allow people to take their own legal matters into their own hands to a certain degree and resolve their issue without exacerbating the situation with long trials and contentious words being thrown back and forth between legal counsel.
However, won't more elawyering programs take necessary business away from small/solo shops? It is true that if you are living on doing small matters like no-fault divorces or child support reduction cases, then you are in trouble already. However, what is to stop some innovative legal software designer from developing software for more complex cases? Won't this give layman the false sense that they don't "need" a lawyer if all they have to do is go buy the legal equivalent to "turbo tax"?
If solo and small firm lawyers are relying on "one off" work like contract drafting, then they are going to be in big trouble. The advantage that solos and small firms bring to the table isn't so much in providing the product itself as the ongoing "bespoke" advice. As I get my website MyShingle.com up for relaunch, I find that I am much more interested in an attorney as a business advisor than someone who can simply file a copyright or prepare an LLC for me.
Ken, you believe-and accurately so- that mainstream contract drafting is suggestive of anything but 'perfection'. and therefore, the label 'good enough' is a misnomer here. However, perhaps we need to explore the meaning of 'perfection' in more detail so that we can shed more light on 'good enough' in the contract drafting context.
The key word in my opinion and which you allude to is: Risk. There is a tradition of a more collaborative contract drafting style which is practiced in some jurisdictions outside the Anglo-American one and in some industries in the UK. In the latter, this was driven by in-house counsel irritated with the financial and time costs of the risk-averse model inherent in some external lawyers' risk-averse style of drafting.
Perhaps 'good enough' should be for, e.g. boilerplates (in the sense of 'true' boilerplates and not those masquerading as ones) and 'perfection' for e.g. indemnity, liquidated damages and liability clauses. A win-win because of cost savings and inter-party relations. The collaborative style of templates would ensure that there is no fruitless back-and-forth on the meaning words in what are peripheral clauses.
Gil: In my post I carved out the question of the level of detail you should bring to bear on a given contract issue, as that’s narrower than what underlies the broader discussion of “good enough.”
Regarding your proposal, contract language is like software code: everything matters, so you should make sure that everything works. I'd be reluctant to gloss over the less glamorous boilerplate issues.
"Good enough" seems to operate at several levels, including:
1. Do you need expensive lawyering time, or can you do-it-yourself as a layman with some online documents and procedures? This seems to be part of what Capps was discussing.
2. Do you need excellently drafted documents, or can you make do with something rough and ready?
3. In commercial transactions, do you need to address all foreseeable risks, and fight for every last point, including drafting points (an oversimplification of the BigLawFirm approach), or should you focus on the main issues and take a cooperative approach to negotiations, accepting imperfection in the interests of a good working relationship and limiting transaction costs?
All three of these points touch upon contract drafting issues. I guess it is an open question whether the advocates of "good enough" in the legal sphere would think it desirable to invest in high quality drafting that follows MSCD. I can see that it might:
(a) help lay people to take the decision to avoid using lawyers if they have cheap access to well-drafted documents, but this might not be a good decision to take; and
(b) help commercial organisations to conduct more efficient negotiations and make quick and cooperative compromises, if they start with well-written draft agreements.
Overall, though, I am doubtful whether the good enough party and the better drafting party will find sufficient common ground to form a coalition government. Still, stranger things have happened in coalitions…
Mark: I could break it down even further. For example, what does "rough and ready" mean? Winging it in terms of language? Substance?
As for the benefits of rigorous contract language, your point (a) is outside my sphere of operations, as I don't deal with consumer documents. I concur with your point (b), but I see these gains as being dramatic. And I'd add a third point: you'd reduce the risk of a dispute arising due to some ostensibly minor drafting glitch.
Using clear and modern contract language in all an organization's contracts would require that organization to devote considerable resources to redrafting. So even if the cultural hurdles have been overcome, it may be beyond an organization's reach, at least in a short timeframe. But the need for such compromise is no reason to attempt to turn "good enough" into a virtue.
Ken, I was attempting to look at the issue from a different angle. I'm not unaware of the wider vs narrower usage of 'good enough'. I'm saying that one feature of the collaborative approach is that documents could be shorter because the parties could agree a priori that terms bearing a clear meaning in the underlying legal system are not negotiated. This frees time up to concentrate on the more risky issues. This may not be directly related to the commoditized document- assembly aspect of the issue.
On the whole, I now find the debate about 'good enough' and 'perfection' in the legal drafting sense actually not very helpful and too ambiguous to be meaningful.
Gil: Sure, if it's clear that the courts would treat a given issue in a certain way and you find that acceptable, then you can safely leave that issue out of a contract.
And I agree that you have to be careful what you mean by "good enough." In that regard, I've done my best!
As a consumer of legal services I'm 100% on board with this. Spending thousands of dollars on legal fees for a transaction that's only in the low tens of thousands is, quite frankly, a ripoff. Software developers use standard libraries and code generation routines that pull together components to make a complex whole without any code; of course they have limitations but for non-programmers they get 95% of the value with 5% of the work. I see no reason why technology shouldn't revolutionize the legal profession as well.
As for the comment from BMBLL above that this will take "necessary work" away from lawyers is exactly what people hate about the legal "profession." Good lawyers have value, especially in unique circumstances. But the way lawyers bill, the incentive to spend far longer than has value to the client on every small point, these things need to change.
I see “good enough” contracts drafted by opposite parties all the time. My goal is to turn them into very well-drafted contracts to help prepare the way for a productive relationship going forward. Or put another way, “good enough” is not good enough for this contracts lawyer!
As an attorney, I had always been quite contemptuous of the quality of contracts produced by in-house counsel. When I became an in-house counsel, I was adamant that I would introduce 'perfection' into the company's contracts but I quickly learned that ivory tower thinking does not work in the corporate world.
There were many reasons why units in the company would not always want perfection: they needed to close the deal quickly and there was too much of a risk of losing the deal through waiting for 'perfection'; a complex (albeit watertight) contract would scare the other party off; the potential cost to the company of using a 'good enough' contract did not justify resources (i.e. the in-house counsels) being spent excessively on the deal, as there were more pressing or important matters to attend to.
Essentially, the exigencies of successfully running a business justified the use of 'good enough' contracts.
By the way, I have since gone back into practice and to enjoying pedantically nit-picking every clause!
There is a point of diminishing returns when the cost of spending additional time reviewing and revising a draft contract exceeds the value of the improvement of the contract. At that point the drafter should say "it's good enough".