Nonlawyers and Contract Drafting: Commentary by Some Connections

In today’s post about how nonlawyers can help with contract drafting (here), I advance an idea I don’t recall having seen expressed before. It hardly seems a revolutionary idea, but I thought it appropriate to hear what other had to say about it. So I reached out to a handful of my connections, some long-standing, others more recent.

I wanted to hear only from those who broadly support my analysis—this post isn’t the place for debate. But no one to whom I sent my post suggested that they disagreed with me.

Here’s what they had to say. I thank them all for contributing.

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Chris Lemens, chief compliance officer at HireRight (and my co-author on this 2015 article in the ACC Docket)

I couldn’t agree more with Ken’s core point that nonlawyers can be just as effective as lawyers in contract drafting, reviewing, and negotiating. I’ve had experience with nonlawyers who were just as effective as nonlawyers. (Hi, Eric!) But I can think of a few issues I’d call out beyond the ones that Ken has identified.

First, nonlawyers involved in contract negotiation tend to delegate a particular type of thinking to lawyers: spotting edge cases and addressing them. There’s nothing about that that would prevent nonlawyers from doing it—they just don’t have the experience. As such, they’re like first-year lawyers. But holding mutually contradictory possibilities in our heads while thinking through a problem is a skill. As such, it can be taught.

Second, there’s a lack of knowledge on substantive law. For example, when drafting an arbitration clause, the drafter needs to know to give the arbitrator exclusive authority to decide questions of arbitrability. This can be taught by lawyers to nonlawyers, or nonlawyers can learn it themselves—it’s not rocket science.

And third, nonlawyers seem tempted by the bad drafting behavior they observe in lawyers. This might be due in part to a desire to borrow some status by adopting legalese. This best antidote is to insist that drafters comply with the organization’s contract-drafting style guide or—at least until style guides become more commonplace—A Manual of Style for Contract Drafting.

None of these issues are insurmountable: they can be addressed with reference materials, training, and supervision.

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Noah Waisberg, co-founder and CEO of AI software company Kira Systems

Contracts should not solely be the domain of lawyers.

Although I spent years as a Biglaw corporate lawyer, I’ve been in a business role over the last decade. My legal training has been helpful to me in reviewing contracts as a business principal rather than as a lawyer representing a client. That said, I’ve found that so much work relating to contracts requires common sense. For example, simply understanding whether the contract says what it’s supposed to say. I’ve also seen nonlawyers who could show impeccably credentialed lawyers a thing or two about understanding how contracts work. Our CFO, for example, more than holds her own in debates over contract meaning.

Furthermore, nonlawyers sometimes bring other valuable skills to the table. They might know key facts, like how security policies or technical details work. And—critically—their subject-matter expertise could greatly improve how to express certain kinds of transactions.

There’s a lot of room for improvement in contracting. Ken’s work shows over and over that lawyers routinely create mediocre contracts. Beyond poor wording choices, contracts tend to be poorly designed (from a visual standpoint), and are often not automated. Contracts are rarely thought of as one element in a process that would work better if it were highly standardized.

In building Kira, I could have tried to learn to code. Instead, I collaborated with experts (like my co-founder, who has a PhD in computer science). This choice really propelled us to where we are today. As such, Kira is an example of how the contracts process works better if lawyers have the benefit of knowledgeable outsiders. We should embrace them.

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Rick Colosimo, independent director and corporate governance lawyer

Nonlawyers aren’t merely possible additions to the process: they’re already a critical part, just too often neglected or marginalized. In my corporate and startup practice, most of my clients needed to be taught about how to identify the missing terms and “read” the contract.

But those with more business experience—not just former lawyers—can often read the words on the page and know that the terms don’t reflect their needs. As those professionals learn more about how contracts work, and we clarify contract language so that it’s intelligible standard written English (or even “plain language”), they can certainly get better at drafting so they can express themselves directly.

I’ve seen this approach work with an investor in commercial real estate. He started with initial offer forms from brokers. Then we revised one together; soon, he started sending them out on his own because he was able to understand his issues and how to express what he wanted in text.

For those who are wary of having nonlawyers start on merger agreements or New York City leases, you can start nonlawyer business folks off with informal drafting—in term sheets, emails, and letters of intent—as a bridge to more formal documents. As they see ideas being transformed into deal terms expressed in the pages of a contract, they learn more about what they really want and how to be sufficiently clear when they write things down. In other words, when they draft contracts.

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Kevin Miller, CEO of LegalSifter, which uses AI and expertise to assist in review of draft contracts

Can constituencies other than lawyers help with establishing deal terms and deciding how best to express them? Yes, for the reasons Ken offers.

But what I find particularly interesting about his post is what it has to say about the nature of expertise. It’s not necessarily the case that a given group has a lock on a particular expertise. And expertise can shift and change.

Ken himself has demonstrated that. Before he arrived on the scene, expertise in contract language wasn’t really expertise, it was threadbare conventional wisdom passed off as expertise. Because it didn’t make sense, it wasn’t accessible; instead, it was passed haphazardly among lawyers.

Ken has in effect codified the building blocks of contract language. By doing so, he has made them accessible to others. For the first time, we’re now in a position to discuss who is equipped to contribute to contract drafting. And we can see that there’s no reason to continue leaving that task exclusively to lawyers.

All this makes me feel good about LegalSifter’s approach. We make a point of saying that we’re about AI and expertise. And we realize that tapping into expertise involves more than, say, having a squad of lawyers in the back room vetting your stuff. A good sign that we’re after real expertise is that Ken is our chief content officer.

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Richard Mabey, co-founder and CEO of Juro, a contract collaboration platform

As lawyers we are anchored to think that contracts are all about us. That we are the end users of contracts. That’s because lots of the time we devote to contracts goes on (or should go on) bespoke drafting or negotiation of ‘legal’ points. It’s often all we see.

But the notion that contracts are purely ‘legal’ constructs is wrong. Contracts are first and foremost economic instruments. And the end users of contracts are not lawyers but consumers, HR professionals, sales people, and many others.

Empowering the end users of contracts to negotiate them is eminently possible not least because the vast majority of contracts are high in volume and low in complexity. The negotiations seen on contracts in this category—even if on non-commercial points—are generally repetitive.

Knowing to strike out an indemnity clause in every NDA you see does not require a Stanford Law School JD in my view. It just requires simple training and playbooks. If there is complexity that truly requires legal advice, it can be routed to a specialist. But as a fraction of contracts, the number that actually require this level of attention is absolutely tiny.

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Craig J. Conte, board member of the International Association for Contract and Commercial Management (IACCM)

Contracting is a team sport. Lawyers and legal expertise are certainly needed. But contracts are meant to reflect a business relationship. As such, we need the “business” or others in the ecosystem (for example, risk, sales, procurement, and finance) to be involved, invested, and engaged for the best type of contracting. And there’s no reason why that involvement shouldn’t include having a say in how deal terms are worded. After all, lawyers aren’t generally regarded as having a monopoly on good writing!

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David Skinner, co-founder and president of Gimbal, experts in legal process management

I agree that nonlawyers can contribute meaningfully and significantly to the contract drafting process. The best contracts I encountered during my more than 20 years of practice resulted from close collaboration between the business and technical professionals and members of the legal team.

Nonlawyers usually are keenly aware of the broader business considerations. This helps keep the parties focused on the risk-reward matrix and working to achieve a mutually beneficial outcome.

Also, nonlawyers tend to use more plain language than legalese in contracts. Just as well—we want them to understand the rights and obligations, because they often have primary responsibility for monitoring performance.

Ken’s guidelines for clear contract language offer one way to allow nonlawyers to contribute to the contracts process. As general counsel, I saved much time, energy, and effort—and could better allocate my scarce legal resources—by making use of other tools: standard forms; training to explain the purpose of different documents; playbooks establishing the parameters for drafting and negotiation; and a review and approval process.

Those who suggest that only lawyers should be responsible for contract drafting miss out on an important opportunity to collaborate with and benefit from the insight of other key stakeholders. Nonlawyers have much to contribute to the process of building strong agreements that result in valuable business relationships.

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.