Revisiting Contracts, Lawyers, and Change

I noticed a 3 Geeks and a Law Blog podcast (here) that features Toby Brown answering a “crystal ball question.” Here’s the teaser:

Toby Brown takes on our question this week by talking about the fact that attorneys are resistant to changing behaviors, not because they are unwilling to adapt to new technology, but because this is an industry that is very reputational based.

Lawyers resisting change? Well, I think I’ve encountered that! So from the perspective of working with contracts, let’s look at what Toby has to say; then I’ll tell you what I think.

The question posed to Toby was, What changes or challenges do you see in the legal market, the legal industry over the next three to five years? Here’s my edited version of what Toby has to say, omitting parts and omitting interjections by others:

Pretty much the same one that I’ve always seen, and it’s getting lawyers to change the way they practice law.

[I]f you look at most of the innovation that’s going on, either it’s really trying to push work to cheaper sources, or it’s trying to get lawyers to change the way they actually do the work. And those ones tend to fail. Because lawyers basically say you don’t understand what I do. And I have to do it this way. …

… I just think lawyers do things the way they do things. And if you tell them to do it differently, then quality will suffer. And so they’re not going to, for them that’s I see [sic] our industry is very reputation based. And if they’re going to make a change, and they’re putting their reputation at risk that the quality might go down. …

For me, the key phrase in Toby’s assessment is “lawyers do things the way they do.” But the question is, why? According to Toby, lawyers tell you that change can hurt quality, poorer quality can affect your reputation, and a diminished reputation can hurt your business.

The problem with that assessment is that it requires you to take what lawyers say at face value. For purposes of contracts, that’s unpromising.

Regarding quality, I devoted a recent blog post (here) to the notion that quality is irrelevant when it comes to working with contracts. Here’s part of what I said:

When it comes to contracts, quality is indeed absent, because quality requires standards. Contracting has long been driven by copy-and-paste, which doesn’t involve standards. Instead, the overwhelming majority of deals are done by replicating precedent contracts of questionable quality and relevance. And we rely on urban myths to justify choices mandated by the copy-and-paste machine. Without standards for what you say in contracts and how you say it, you have a void where quality should be.

In that context, invoking quality is a sham:

Instead of actually making contracts better, companies are willing to pay lip service to quality. Consider that feature of the corporate contract process, the “contracting center of excellence.” … Tacking “of excellence” on to the name would seem a transparent exercise in wish fulfillment—the act of satisfying a desire by indulging that desire in dreams or daydreams. It’s a fantasy of quality.

Another sign that addressing quality is irrelevant to most is that I continue to have essentially to myself study of the building blocks of contract language. See this 2020 blog post about that. The title pretty much says it all:  The Deafening Silence: Why People Generally Don’t Take Me On in the Marketplace of Ideas.

If quality isn’t a real concern, what explains the resistance? Here’s my take:

The problem is that we have a dysfunctional system—the copy-and-paste system. It’s a vast and sprawling mechanism that belches smoke, leaks steam, and is held together by bailing wire and duct tape. It produces dysfunction, in terms of what you say in a contract and how you say it. I’ve built an entertaining career out of chronicling that dysfunction.

It’s tough to change a dysfunctional system that’s built on replicating precedent contracts of questionable quality and relevance. You would essentially have to start over. Currently, that’s not a viable option, for three reasons. First, most people who work with contracts don’t have the expertise to build new contracts. Second, it isn’t remotely economical to expect to rebuild a contracts system one organization at a time. And third, to overcome black-hole levels of inertia would require an organization-wide retooling of a sort that no organization is currently equipped for.

Yes, contracts are hard. So what do we do? The foundation for building a better contracts system would be a substantial library of automated templates available to all that features content developed by subject-matter experts and language that complies with a comprehensive set of guidelines for clear and concise language. (That means the guidelines in A Manual of Style for Contract Drafting. No other guidelines exist.) One could build various educational initiatives on top of that.

It would be a substantial undertaking, but I’m up for it. We face many, many substantial undertakings if we’re to salvage our civic society.

My thanks to Toby for giving me an opportunity to revisit a preoccupation of mine.

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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