Innovation and Contract Drafting: Thoughts Prompted by Ivy Grey’s Article

A couple of recent articles make the sensible point that it’s meaningless just to clamor for innovation in legal. There’s this article by Mark A. Cohen (@legalmosaic, but this post is about this article on Above the Law by Ivy Grey (@IvyBGrey). The title is Innovation Is A Red Herring Without Cultural Change, and in it she asks, “So how do we get beyond hand-wavy and half-baked references to ‘innovation’ to identifying the real work to be done?”

She goes on to consider the six factors that contribute to productivity: autonomy, perceived security, respected use of time, aligned goals, social cohesion, and trust. She observes that law firms pay little attention to these factors, but that if law firms are able to change their culture, the potential rewards are enormous.

This article has garnered a fair amount of attention, so I hope Ivy doesn’t mind if I do my contrarian thing and observe that when it comes to contract drafting, “innovation” has nothing to do with her six factors. They’re irrelevant.

That’s because Ivy’s article is about what Ivy calls “knowledge work.” Figuring out what to say in a contract is knowledge work. Coming up with the verbiage to say what you want to say isn’t knowledge work. Or more accurately, it shouldn’t be knowledge work—it should be a commodity task.

Contract drafting currently relies on copy-and-pasting from precedent contracts of questionable quality and relevance, supplement by artisanal tinkering. It’s as if your car were some clapped-out jalopy that you keep running with string, chewing gum, and the occasional strategic kick.

Innovation in contract drafting doesn’t involve applying a more enlightened attitude to the current process. Instead, it involves getting most lawyers out of the business of drafting contracts and handing that task over to contract-drafting specialists who oversee automated templates. That allows you to draft a contract by completing an annotated, customizable questionnaire, then making any further adjustments required to reflect your deal. But to make that a reality for more than the few able to achieve on their own the necessary economies of scale, some of those calling the shots at law firms, companies, and trade groups have to be willing to dismantle the current system and invest a modest amount in a new system. The primary obstacles are hubris and lack of imagination.

So I suggest to Ivy that unless you get into the specifics of whatever legal work needs doing, all discussion of innovation in legal work will be hand-wavy.

Postscript 8 September 2018:

This post prompted some discussion on Twitter, starting with this tweet by Ivy. I see from that exchange that some readers might think I’m suggesting that if you offer efficiency, that’s enough to prompt change. That’s not the case: I’ve written often about the power of inertia to thwart even the most basic forms of change.

But I don’t think wishing for culture change is going to get us anywhere. Whether an organization embraces proposed change is a function of a host of factors: who makes the decisions, the state of the organization’s business, the state of the industry, the state of the economy, and so on. In the face of that, hoping that something as intangible as culture change will do the trick does indeed seem hand-wavy. Focus on the specifics, on the cost-benefit analysis, and on that basis strive to win hearts and minds.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

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