Oh, hi! It’s you! Do come in. Please take a seat.
Would you like some tea? Water? No? OK.
Thank you for coming. I’d like to have a chat. It’s about your template contracts. It’s hard to say this gently: they’re not good.
Your company is a substantial one. You do business all over the world. Your numbers have lots of zeroes after them. But your templates are painfully amateurish. They exhibit archaisms, redundancies, bollixed verb structures, and the other standard shortcomings of traditional contract legalese. So they’re bloated and confusing. In compiling them, the order of the day was presumably unthinking regurgitation with an admixture of flabby conventional wisdom.
Oh, dear. I know you’re upset. The tissues are over there. But don’t feel too bad—your templates are no worse than the templates used by many big companies.
How can this be? Yes, I know that some of your lawyers have a copy of A Manual of Style for Contract Drafting. But having a few people who are interested in clear and effective contract language is different from having an organization that’s committed to it.
I suggest that we short circuit the annoying “five stages of grief” and move straight to “acceptance.” Are you OK with that? Good. So let’s focus on the positive. How can we fix this situation?
The In-House Fix
Let’s consider, as a representative example, your master services agreement. Who’s been in charge of it? Timkins? OK. How do you want to fix it?
Hmm. You want … Timkins to take care of it? Giving Timkins the same task and expecting a different outcome would approximate that popular definition of insanity. Timkins might know your business inside-out, but he’s a duffer when it comes to contract language.
OK, instead you want to form a committee? Who would be on that committee? No, I don’t think you should put Timkins in charge of the committee!
So you want to put people from Procurement and Legal on this committee. That might make sense. But how will the committee revise the templates? You’ll have Timkins do a first draft then have the committee offer comments? Enough of Timkins, already! And does anyone on the committee have credentials as a specialist in contract language? No? Then you’re asking for drafting-by-committee hell, with protracted ill-informed haggling.
And anyway, don’t your people have enough to do without taking on the task of overhauling your templates?
The Outside-Counsel Fix
Oh, so now you want to engage your outside counsel to do the job? Yes, of course I’ve heard of them! And very prestigious they are, too! Elite, even!
Who’s the partner on your matters? Will he or she do the work? Some other partner? No, of course not! Your template matters a lot to you, but drafting it won’t be the kind of work that gets a law firm’s attention—they want to do deals. So a junior associate will end up doing the work. A junior associate who’s a specialist in contract language? I’m not sure such a creature exists.
Mind you, I don’t think it matters much who does the work at your law firm, because generally, BigLaw drafting is dysfunctional. Do you remember this? This? And this? Sure, there are plenty of BigLaw people out there who know what they’re doing, but they’re greatly outnumbered by those who don’t.
And whatever the quality, your BigLaw template would end up costing a pretty penny.
If you’re creating a new set of very specialized templates, maybe it would be best to use outside counsel, despite the drawbacks. But for anything else, I think not.
The Specialist Fix
Here’s an idea for you: Instead of trying to overhaul templates in-house or getting outside counsel to do it, enlist a specialist in contract language and have them work with your lawyers and businesspeople.
Why? Well, they’d be able to come up with optimal language to express the appropriate concepts. They’d know to steer clear of the usual urban legends that afflict mainstream drafting. They’d have lots of off-the-shelf language ready to go. The result? Clearer, more relevant templates, leading to quicker deals, reduced transaction costs, and reduced risk, all for less than it would cost to have the work done in-house (in terms of personnel time) or by outside counsel (in terms of legal fees).
Where do you find such a specialist? Well, ahem, you’re looking at him.
Yes, it’s rather embarrassing. When you’re the only person developing a particular expertise, arguing for the utility of that expertise can make you seem crassly self-interested. So be it.
Making the Decision
Recognizing what makes sense is one thing; getting an organization to go along with it is another thing entirely.
You’ll find resistance at every step of the way. Legal will be suspicious of Procurement. Procurement will be suspicious of Legal. Timkins will resent your looking over his shoulder and questioning his skill. Customers will think that you’re trying to pull a fast one (more on that here). And lawyers will fight for the autonomy to do a crappy job (more on that here).
To have a chance of effecting change, your organization will need two things. First, any decision would have to be in the hands of someone more senior than whoever is responsible for the current contracts. And second, it’s likely that your organization will embrace change only if its contract process is under enough pressure that people are willing to set aside some of their resistance to change.
Well, I’m delighted we’ve had this chat. I hope you feel better. And I hope you do the right thing. Perhaps at our next session we can discuss other steps required to put your contract process on an efficient footing: Adopting a style guide for contract drafting. Training your personnel. Perhaps automating.
So I look forward to seeing you again soon. On your way out, please tell the next person to come in.
Oh, hi! It’s you! Do come in. Please take a seat …