Recently I tweeted this:
Legal builds contracts because lawyers are good at claiming turf. Contracts are business documents: that they're legally enforceable and contain dispute resolution provisions isn't a reason to make them a legal fiefdom. Give them to people skilled in deals and contract language.
— Ken Adams (@AdamsDrafting) August 16, 2020
I’ll now explain myself in more than 280 characters.
Nothing Requires That Lawyers Be in Charge of Contract Drafting
Contract drafting involves determining what to say in a contract and how to say it. We tend to think of contract drafting as the task of creating a new template, but most contract drafting involves the day-to-day tasks of revising a template to better reflect a new transaction and revising the other side’s draft so it better reflects your expectations.
One associates contracts with lawyers. But business contracts pertain to business dealings. A relatively small part of business contracts involves the law. In this 2011 post, I call that part “the legal framework” and “optimal management of disputes.”
So although lawyers are routinely involved, to a greater or lesser extent, in setting the terms of a deal, it’s also standard for businesspeople to handle most or all of that task. In particular, it’s not the case that only lawyers are equipped to handle the law part of contracts: not being a lawyer doesn’t preclude you from being familiar with how the law works and being responsible for how the law applies to your affairs.
By contrast, if you get to decide how to say what you want to say in a contract, it’s likely you’re a lawyer. But seeing as nothing prevents a businessperson from being responsible for setting deal terms, it would be odd to preclude businesspeople and other nonlawyers from handling how best to express those deal terms.
Giving Nonlawyers Responsibility for Contract Language
So in theory, nothing prevents nonlawyers—including businesspeople, project managers, contract managers, and paralegals—from being more involved in both aspects of contract drafting. But does that make it a good idea? Let’s consider that from the perspective of the how-to-say-it part of contract drafting.
Giving nonlawyers greater responsibility for how deal terms are expressed would make available a deeper pool of talent. Over the years I’ve encountered nonlawyers who have demonstrated serious skill, or at least serious potential, in their understanding of contract language. The contracts community would benefit from having greater access to such people.
And nonlawyers would be less expensive: with lawyers, you’re paying for a credential that generally has no bearing on how clearly a transaction is expressed in a contract. After all, in my work with contracts I’ve applied hardly anything I learned in law school. I suspect that’s the case for most of us lawyers.
Being an Informed Consumer of Contract Language
Nonlawyers generally aren’t involved in how to express transactions, so currently they aren’t equipped to assume that responsibility.
Nonlawyers can prepare for assuming greater responsibility by becoming informed consumers of contract language. That requires semantic acuity—an ear for subtle nuances that can have major implications. It requires technical precision—optimal contract language is analogous to software code, with distinct choices rather than shades of grey. And it requires a relentless eye for detail. A bonus would be a facility for narration, to help you arrange elements of a transaction.
Training
Training is required to help nonlawyers become informed consumers of contract language. I’m uniquely equipped to help with that. (Excuse me if I don’t play coy.)
The foundation of any training has to be a set of guidelines for clear and effective contract language. There’s only one such set of guidelines—my book A Manual of Style for Contract Drafting. But giving someone a book doesn’t constitute training. Instead, there’s my new online course Drafting Clearer Contracts: Masterclass. It’s built around eight live hour-long sessions held once a week and supplemented by reading, quizzes, and short assignments.
Anyone who takes the course would quickly realize whether they’re capable of taking control of contract language. And they could move a significant way up the learning curve in a few weeks. Participating in the course could be used as a credential—as a way of showing that you’re serious.
To encourage contract managers to take a shot at becoming an informed consumer of contract language, I’m offering them a $150 discount on the cost of my course. (The next three series of the course start on 1, 2, and 3 September 2020.) When paying, use the discount code contractmanager.
Including Different Constituencies in Your Contracts Group
Having nonlawyers be informed consumers of contract language won’t do them any good unless companies and perhaps even law firms are willing to make use of that competence.
If you accept that nothing requires that only lawyers be responsible for contract language, and if you wish to tap into a broader pool of talent, invite nonlawyers to join whatever group is responsible for your contracts. But limit that group to only those—whether lawyer or not—who demonstrate the necessary competence.
Having a mixed group could help mitigate tendencies on the part of different constituencies. For example, businesspeople have a reputation for wanting to get the deal done at the expense of other considerations. And lawyers have a reputation for being unduly risk-averse and for overemphasizing legal issues.
Although nothing prevents nonlawyers from being involved in establishing the deal terms, including the ostensibly legal parts, you should involve legal and other specialists as necessary.
Working with contracts would be more effective if a supporting infrastructure were in place. Some form of knowledge management, to capture and maintain institutional knowledge. Automated contract creation, to preclude relying on copy-and-paste. (Regrettably, currently you can’t buy high-quality automated templates of customizable commercial contracts as an alternative to creating your own.) And technology to assist with review of draft contracts. (As chief content officer of LegalSifter, I’m helping to develop their contract-review technology.)
Combined with this sort of infrastructure, bringing new blood to contracts could help offer an escape from systemic dysfunction.
(See today’s related post, Nonlawyers and Contract Drafting: Commentary by Some Connections.)
As someone who’s spent the last seven years translating contracts from German to English, I feel seen!!
:-)
I’m not a lawyer, but I was a Certified Licensing Professional and drafted probably 100 agreements over my career. I would take a little from this corporate-approved template and little from that one, but much of the content had to be my own language because of the uniqueness of the deals being negotiated. Of course the contracts were reviewed by lawyers before being put into play and again before being executed, but their edits were minimal.
I’ve always viewed contracts as having two components – the business terms that the principals negotiate, and the legal terms that they usually don’t think about or pay attention to. For example, in a commercial lease the business people will negotiate over the term, the start date, the rent, and who’s going to pay for tenant improvements. The client typically never thinks about the provisions relating to permitted use, condemnation, damage and destruction, maintenance responsibility, etc. Having reviewed dozens of leases, I know what is acceptable and what is not in those provisions. But even with business terms, often clients simply can’t express what they’ve agreed to – partly because they haven’t thought through it in a critical manner, and partly because, unfortunately, many spent too much time learning to code and too little time learning to read and write English. So I get these cryptic messages that are impossible to put into a contract without a dozen or more back and forth emails to get clarity from the client. They use fluff business jargon that is almost certain to put everyone in court within 6 months, when it’s time to pay commissions and nobody knows what the commissions are based upon. I’m sure the judge can figure it out.
So really, the two prerequisites for anyone to write a contract, whether that person is a lawyer or not, are (1) the ability to think critically about what language means and what the consequences will be of phrasing something a certain way, and (2) the ability to read and write in English at a college-level or higher.
I’m a non-lawyer that has led drafting efforts (using MSCD principles) in conjunction with in-house legal teams at several clients over the last 10-12 years. These efforts have generally resulted from failed fitness for purpose of generic template documents drafted by external counsel(s).
General feedback received has been that the resulting template documents provide a more usable and useful representation of the business relationship, due to the day-to-day experience of both pitfalls and benefits that I can ensure are incorporated, while maintaining legal integrity.
From direct experience, this type of tag team approach provides results which deliver significant added value to clients (and counterparties) and lead to more efficient negotiations and cleaner, clearer working relationships.
I’ve even discovered the organic adoption of some of my template work in other client organizations I’ve subsequently done work for, which gave a real sense that we had done valuable work and created a worthy product.