A few years ago I did an in-house Drafting Clearer Contracts presentation for a group that included several people who had attended one of my public presentations a couple of years previously. Here’s the gist of a brief discussion we had:
Me: Why are your company’s templates still so crappy?
For a while now I’ve said that my Drafting Clearer Contracts presentations help participants become better-informed consumers of contract language. But it’s time for me to make explicit what is implicit.
One drawback to my “better-informed consumers” formulation is that it could be understood as referring entirely to reviewing contracts, as opposed to preparing them. But that’s not what I’m concerned about. Instead, I wonder whether some view my training as a glorified “soft skill,” like how to write emails—something that’s a nice bonus for those who work with contracts but irrelevant to the corporate function.
My writings stand for the proposition that dysfunctional contract language is a debilitating affliction to the contracts process. The fix is comprehensive guidelines for clear contract language, and A Manual of Style for Contract Drafting is the only such set of guidelines. But if you want to fix contract language, you have to apply the guidelines to the entirety of your contract language, not just to whatever noodling individuals find themselves doing. In other words, you have to apply the guidelines to your templates.
I’m keenly aware that this isn’t what most people want to hear. Redoing your templates requires major surgery that only contract-drafting specialists are equipped to do. (What’s a contract-drafting specialist? See this 2017 blog post.) And of those companies that got me to do that surgery during my years of consulting, many of them couldn’t cope with the results—what I gave them was too different. Hence the temptation to regard my expertise as something that can be left to individuals.
Of course, anyone looking to apply MSCD guidelines would have little option to do so if they’re forced to use traditional templates or the casually modernized alternatives I discuss in this 2017 blog post. That’s what led to the exchange that opened this post, and I’ve seen the same dynamic play out at other companies.
Yes, changing templates is hard, but you have a stark choice. You can tolerate dysfunction of the sort on display in most contracts (for an example selected at random, go here for links to my analyses of the Salesforce master subscription agreement), and you can posture by, for example, calling your contracts initiative a “contracting center of excellence” (see this post). Or you can aim for real quality, the kind that saves you time and money, frees your contracts personnel from much drudgery, and keeps you out of contract disputes.
In the long run, what would most facilitate overhauling templates is the library of automated templates I keep talking about. (See this post from ten days ago.)
In the meantime, I’m not about to return to consulting—I have too much on my plate as it is. But to advance the cause, I’d be willing to act as an editor for companies looking to have their templates comply with MSCD guidelines. And instead of simply referring to helping people become better-informed consumers of contract language, I’ll say that my training helps you improve contract language, whatever the source, and if you’re not in a position to change contract language, you’ll be better able to assess it.
2 thoughts on “Real Change Requires More Than Better-Informed Consumers of Contract Language”
I’ve found that many non-legal (and some legal) professionals don’t fully respect the contract. I usually know a deal will die when someone says that they’ve reached the deal and its the lawyers job to just dot the i’s and cross the t’s. They treat the contract as the minutes to their handshake deal. I find myself frequently reminding my clients that the contract is the deal. It is not just a nicety or technical formality. People won’t be too worried about dysfunctional contract language if they’re not too worried about the function of contracts.
Thanks for that, Brian.