Potholes on the Road to Clearer Contract Templates

It’s likely that to some degree your templates are constructed of traditional contract language, with all the confusion, wordiness, archaisms, and redundancy that entails. You want to improve your templates so they’re clearer, more concise, and better address your needs.

Well, here’s how that might not happen.

You assign one of your in-house lawyers to do the work.

  • Pothole 1: The in-house lawyers responsible for your contracts presumably handle deals. That involves a range of tasks: drafting contracts from templates, negotiating, reviewing the other side’s drafts, monitoring performance, and so on. None of those tasks requires strong command of the building blocks of contract language. So it’s likely that drafts created by your in-house lawyers will leave something, or a lot, to be desired. That can be the case even if they think they’re going all plain-English (see this post).
  • Pothole 2: Your in-house lawyers are busy, so the lawyer working on your new template might have to fit that work into whatever time isn’t taken up by the regular press of business.

You appoint a committee to do the work.

  • Pothole 3: The effects of pothole 1 and pothole 2 are magnified, in that you now have a group of nonexperts with different backgrounds, training, and experience who debate, based on imperfect information, which of their favorite usages to include in your new templates. It’s not unusual for such groups to spend many months working on a template.

You hire a law firm.

  • Pothole 4: At their best, law firms are great at pushing deals through. But when it comes to contracts, expediency usually takes priority over quality: no one cares about inefficiencies in the contract if the bet-the-company deal gets done. That approach isn’t so helpful if you’re asking them to create your crucial sales template, the one you expect to use 3,000 times a year.
  • Pothole 5: The law firm might want to assign a team to your project and bill accordingly.
  • Pothole 6: Because your template isn’t bet-the-company work, don’t be surprised if the law firm proposes that someone junior, a relative stranger to coherent contract drafting, do the bulk of the work.

You hire an expert.

  • Pothole 7: After hiring an expert in contract language, you just have too much going on to devote attention to the mucky business of figuring out exactly what you want to say in your templates. The work never gets done.
  • Pothole 8: After the expert does the work, you acknowledge that the new template is way clearer than the old one, but you and your team realize that novelty is scary. The current template is dysfunctional, but you’re familiar with it. So that’s what you stick with.
  • Pothole 9: After the expert does the work, you show the expert’s draft to your regular outside counsel. They proclaim that the draft is unacceptable, compared with the “tested” current template. You don’t want to sour your relationship with outside counsel, and you don’t want to devote a bunch of time to subjecting the new draft to some sort of inquisition. So you shelve it.

There’s no reason why you shouldn’t be able to steer around all these potholes. But anyone contemplating creating new templates should be aware of them.

I’m sure you can think of other possible potholes.

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.

1 thought on “Potholes on the Road to Clearer Contract Templates”

  1. Well distilled! Most of this resonates strongly with me. A few thoughts on your numbered points:

    1. If an internal source is to do the work, they need to be very good at drafting. Sometimes they will have a leadership role (eg, in the past, Philip Wood QC of Allen and Overy); other times, they might be in a support role.
    2. A common problem with all non-fee-earning work, eg marketing. The person needs to be encouraged, incentivised, etc to make this project a priority, perhaps by reducing their client workload.
    3. Never draft in committee. If a committee is formed, let its role be defined as one of review of work product (produced by the lead individual) and to make general suggestions.
    4. I have seen some reasonably-good templates from City of London law firms in use by large companies. Apart from the general conservatism of the drafting, two problems come up: (1) the documents are far too lengthy, and (2) they are applied slavishly without thought, and sometimes don’t fit the deal. I have been advising on such a document recently, and fortunately in this case there was a sufficiently self-confident lawyer on the deal to override the template, but on other occasions one finds a procurement manager who won’t budge.
    5. That’s a matter for the client – to pick the right firm and agree the price and scope. Intelligent procurement (rather than head-banging and box-ticking), sadly sometimes missing or undervalued as a skill.
    6. See point 5. A common problem with standard terms of sale or purchase, that the work is boring and client instructions are often very limited, and the task goes to a trainee.
    7. Agreed. I have seen several template projects (on which I was instructed as external counsel) which fizzled out because the client legal department kept putting the project to the bottom of the pile.
    8. Don’t think I’ve come across this one, but can see why it might happen if the new documents are too “out there” for the client.
    9. Sad. Comes down to client skills in picking and managing advisers. The temptation to rubbish the previous supplier is endemic in the construction sector and unfortunately sometimes seen in the legal sector too. I have had this on deals too, where our simple focussed agreement is rubbished by the next adviser for not covering all the bases and they produce a monster of a document instead.


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