Yesterday someone suggested to me that the main problem with contracts is that they’re too complicated. That’s consistent with the message of an article that appeared in Legaltech News this week, entitled Are Law Firms Too Sophisticated for Their Own Good? (here). It’s also consistent with a recommendation I’ve heard over the years: lawyers should take pity on those who aren’t lawyers and make contracts more accessible to them.
This line of thinking misses the point. Contracts are as complicated as the transactions they express. Often, that’s plenty complicated. Depending on the transaction, contract complexity is a fact of life.
That’s entirely different from what makes traditional contract drafting such a chore to wade through. It’s a function not of complexity but of obliviousness. In traditional contract drafting, contracts are compiled by copy-and-paste monkeys who copy, on faith, from contracts that were themselves compiled by uncritical copying. Generally, those who do the drafting aren’t required to comply with guidelines for contract language. And generally they haven’t received rigorous training; instead, they rely on shaky conventional wisdom.
The result isn’t complexity, it’s a slurry of dysfunctional verbiage. It’s what results in—to cite one example at random—a recent General Electric contract containing ten difference efforts standards. (More about that here.)
As for the notion that it’s just nonlawyers who don’t understand contracts, it ignores that lawyers are trapped in the quicksand with everyone else. The lawyers shoveling traditional verbiage are among its principal victims.
Updated 15 July 2017: As Mark notes in his comment, contracts can be overly complex. That’s a different problem, but the obliviousness underlying traditional contract language can also result in contracts that are unduly complicated.