Today I noticed this post on LinkedIn, by Marty Finestone. Among other activities, he’s a legal designer. (Hi, Marty.) Because what I have to say would exceed LinkedIn’s character limit for comments, I permit myself a low-key comment by means of this post.
Marty’s post features a photo with the slogan “Contracts shouldn’t be designed for lawyers.” I suggest it reflects a common misapprehension. In traditional contract drafting, contracts aren’t designed for lawyers. I’m not sure they’re designed at all. Instead, they’re the product of heedless copy-and-pasting over generations, aggravated by legalistic hair-splitting. And lawyers are among the bamboozled.
So you can’t flick a switch and make contracts suited to a broader constituency. In their current form, they’re suited to no constituency—they’re rotten. What’s needed is a three-stage overhaul.
First, decide what you want to say. That requires knowing the deal and the broader business context, so you can decide, among other things, what risk you can tolerate. That in turn allows you to determine how simple or complex the contract should be.
Second, decide how to say clearly and concisely whatever you want to say. Because contract language is limited and stylized, and because a lot is at stake, confusion lurks in unexpected places. Anyone who assumes that being a halfway decent writer is enough to keep you out of trouble is mistaken. (For more about that, see this 2017 post, in which I critique an article in the Harvard Business Review written by a general counsel at GE Aviation.) Instead, you have to be an informed consumer of contract language. As a practical matter, that means being familiar with what’s discussed in A Manual of Style for Contract Drafting.
Only after you’ve decided what to say and how to say it can you tackle the third stage, design. But design is likely to be mostly relevant for consumer contracts, as readers will likely need help and encouragement to get them to bother reading the thing. For business contracts, assuming you’ve arranged the provisions in a suitable order, what’s required is good typography rather than anything grander.
But I’m open to other ideas.
[Update: What I didn’t make explicit is that this post addresses the role contract design might play. That’s because contract design has mostly been a lot of talk. I get into that in my response on LinkedIn (here) to a comment by Graeme Johnston. Here’s the closing sentence: “In sum, I’ve grown weary of people extolling the glories of contract design without giving me reason enough to care.”]
6 thoughts on “In Contract Drafting, Design Is the Third of Three Stages”
I’d suggest that breaking up text into blocks by way to numbering, titles, whitespace, and fonts can usefully be done in collaboration with someone who knows good document design. But a lot of that is already in MSCD (though I continue to disagree with many of your specific suggestions on that, for reasons we’ve already beaten to death).
I’d group that stuff under typography, but certainly expertise is necessary if you want to make good calls. And by “good calls,” I mean my calls! (Joke!)
Further to what Chris Lemens said: The most bang for the buck in “design” comes from short, single-subject paragraphs — easier to review; easier to revise; easier to “re-pot,” that is, copy and paste from one contract to another. In fact, I’d guess that this comes close to a Pareto distribution (the 80-20 rule), and probably even to Pareto optimality.
Leaving aside step 3 (typography), I can’t sharply distinguish between steps 1 and 2. ‘Decide what you want to say’. With or without words?
If without words, I don’t know what that means.
If with words, you’re already into step two (how to say it).
The words with which one initially describes what one ‘wants to say’ either include everything necessary and exclude everything unnecessary, or they don’t.
If they do, the drafting is mostly done.
If they don’t, they need editing till they do.
At that point and not before, the party has ‘decided what it wants to say’.
After that, editing consists of improving clarity and concision, two of the three great virtues of contract drafting (the third is accuracy, ie the conformity of the document to the deal).
To say that editing improves the ‘accuracy’ of the draft (its conformity to what the party wants to say) implies that before editing, the document was less accurate about what the party ‘wanted to say’, so step 1 was incomplete.
In sum, steps 1 and 2 are usually interwoven. That’s why some parties want to do the drafting. In the drafting, issues come to light that show that the ‘deal’ isn’t fully baked, and the drafter has first crack at what to do about it.
Indeed, no sharp distinction: it’s a spectrum. I find the distinction a convenient way to express what MSCD is about.
we have considered ‘design ‘ at the end of three points mentioned whereas i feel this should be taken up ‘first partially’ and then finalised at serial no 4 in the given order as design has to be in view all along