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.”]