I’m at Tremblant, the Quebec ski resort, at the invitation of the Canadian Healthcare Licensing Association. I just finished giving a short version of my “Language and Layout” seminar to sixty business-development people from Canadian pharmaceuticals companies.
The participants included some lawyers, but for the most part this was a group of businesspeople. And although about a third of those present indicated that they do some drafting, their principal interest in contracts is as consumers of contract language.
Given that I speak mostly to lawyers, I thought it would be interesting to get their take on the contracts they work with. So at the start of the seminar, before offering any thoughts of my own, I invited them to jot down a single sentence summarizing their views.
At the bottom of this post is a selection of their submissions, but what they had to say boils down to this: Because drafters attempt to address all sorts of eventualities, no matter how remote, contracts are bloated. And the language used is convoluted and full of legalese. No one offered positive comments.
This shouldn’t come as a surprise. It’s typical for businesspeople to gripe about how lawyers are obstructionists and for lawyers to moan about how businesspeople turn a blind eye to legal considerations in order to get the deal done.
One can imagine that salespeople motivated by commissions might be quick to regard contracts as a nuisance. But today’s audience didn’t consist of salespeople. Instead, CHLA members are dealmakers, responsible for spotting interesting products and potential partners and for structuring licensing arrangements. And they work closely with lawyers.
If CHLA members are representative—and I think they are—the message for transactional lawyers is that it’s likely that your clients aren’t crazy about your work product. I wouldn’t be too quick to shrug that off. These days, a lawyer can’t assume that any client is captive.
Of course, any drafter that’s so inclined could change this state of affairs. As one participant noted, “Contract language can make a difficult transaction simple or a simple transaction difficult or even incomprehensible depending on the style or skill of the drafter.” Try using clear, modern, and efficient contract language—I think you’ll be gratified by the response.
Here’s a selection of what CHLA members had to say:
Typically the flow of ideas is not sufficiently clear and fluid.
Contract language seems designed to protect the parties against ambiguities that may exist in the term sheet. As such contracts are often extensive and complex but unnecessarily confusing and unclear.
Attempt to cover all future eventualities—onerous.
Contracts tend to be convoluted and address potential problems more than truly focus on clarifying the transaction and what the parties want to accomplish.
Painful necessary evil.
By trying to cover everything it creates holes that further need to be filled. 1 page becomes 15.
KISS. Keep It Simple (Stupid)
10% of contract focusses on the intent of the agreement. 90% of contract attempts to predict what can go wrong.
The contract language I come accross is utterly convoluted and dry. Furthermore, the main problem I see is inconsistencies in contract language.