The notion of “design” is all the rage.
For example, this article about Stanford’s D.school appeared in the New York Times earlier this week. As regards the legal profession, there’s this ABA Journal article by Paul Lippe on the role of design in legal services.
Then there are all the references to “contract design” in academic stuff I’ve been reading. So far, I haven’t seen anyone define what they mean by “contract design.”
Contracts can be broken down into what a contract says; how it says it; what order the provisions are arranged in; what enumeration scheme it uses; and how it makes use of typography. Which one or more of those does “contract design” refer to?
I suspect that prevalence of the term “contract design” is entirely due to the design-fixated zeitgeist. I’d rather be specific. I will flagellate myself with a wet noodle if anyone ever catches me using the term “contract design.”
As usual, I’m open to persuasion.
15 thoughts on “What Does “Contract Design” Mean?”
Ken, there’s an interesting book by George Howarth on legal work as design (published by Edward Elgar, I think). I think of design as the process and techniques by which you link intention (what you want to achieve) with what you actually achieve.
No snark intended, but what you define as “design” seems to be the same thing covered by “purposive behavior” or “conscious action.”
Yep, I take the criticism.
In my practice I represent designers and other creative professionals. I talk about contract design with them all the time. The term is very meaningful to them (so therefore, meaningful to me).
While I am not a designer, I think there is another dimension to the word that your post doesn’t capture. That is “design” as a verb, a process (I think Richard is saying the same thing). The steps one goes through to evaluate the problems to be solved by a contract and then devise solutions using typography, layout and other tools is design. I think the decisions are heavily affected by audience. A designer’s client contract is going to have a much different design than the partnership agreement among the business owners (even when the MSCD might suggest more uniform output)
I think the proof is in the pudding though. Hire a designer to apply a design process to contract content you provide and the problem to be solved by the contract. I suspect you’d end with a much different (and better) result.
My engagement letters specifically leave “design” to the client (not that I’m worried a client will assume otherwise, but I’m just addressing up front a common question from my design clients). I also say that I will help them ensure that their design on my contract content doesn’t create legal issues.
Maybe these are distinctions unimportant to lawyers, but I think designers would have a different take. You should ask some designers what they think.
The distinction between the “design” of a contract and the “content” of the contract reminds me of the (false) distinction between the “deal” and the “wordsmithing” and of Marshall MacLuhan’s dictum that “the medium is the message.” I can understand why party planners might want balloons on their form contracts and law firms might want dignified engagement letters, but that’s more stationery design than contract design. If “contract design” is to mean something deeper, maybe it should mean “writing contract assembly software.” Maybe somebody should give some examples of good and bad “contract design” and of the standards by which such design can be judged.
Ken, I would add “layout” to your list of what contracts can be broken down into. I seem to recall that you’ve posted on that subject, I believe linking to an Australian contract form as an example of (what Americans would think of as) unconventional design.
In the last two components of my list I attempted to encompass what layout entails.
You’re right, it’s the zeitgeist talking. “Clever school” or “Inventor school” are a little too on-the-nose or old-timey and “engineering school” and “architecture school” are too narrow.
Contract design is merely, “good lawyering”, full stop. It’s not a discipline.
Contract architecture at one level speaks to the aesthetics of the document —paragraph sculpturing, headings, type of font, line spacing of 1.15, numbering regime, footer. What makes it a inviting to read or readily understand the flow.
Contract design can speak to content in the mutually exclusive element school sense: every clause is either a definition, statement, covenant, rep & warrant or condition (which can subdivide further, but the point is they are mutually exclusive). This is the content issue: properly structured sentences, crisply written, focused etc.
That’s why you say “design” refers to, but there’s nothing to stop the next guy from thinking that it means something very different. That’s why it’s an unhelpful label.
And your second paragraph sounds like the territory I cover in my “categories of contract language” analysis.
Interestingly, the IACCM is having a webinar on this subject on January 14th. Here is a link to the registration page with more information for those that are interested.
Wet noodle please someone. You just did use the term “contract design” my dear fellow; But seriously, very interesting post Ken. The idea of the design ethos in contract design is that contracting is a co-creative, relational process that cannot be objectively conceived and enforced, and design is typically problem focused not solution focused – contract is aimed at the ends without fully acknowledging the end does not really exist in any real sense – hence the premise of a contract is flawed in such situations. Contract is a strategic device, made up of language and intentionality, and language is purely relational, and always public (see Wittgenstein). I think it is a concern that many in the legal profession under appreciate that the nature of business relationships are changing globally in sometimes unimaginable ways – old modes of contracting may work for old modes of organizing where one culture and one ideology tended to dominate, but all the contracts in the world will not stop projects failing or blowing out. Contracts give a semblance of control, and risk reduction and certainty, but in many ways this is illusionary. No I am not a lawyer, my background is psychology and I work in a business school, my prediction, if it is not already happening, is law graduates (aside from the elites who will always be ok) will increasingly find themselves unable to find work in contracting. I suggest some law students start to learn how to cook noodles – it might be their first job out of law.
The term “contract design” might be due to the zeitgeist. Not because it is “design-fixated” but because de facto design thinking starts to be used in many professions that weren’t traditionally associated with design.
Those who purposefully try to bring a designerly dimension to activities, such as contract drafting, that were not designerly beforehand might prefer this term to identify their approach.So, I cannot talk for others, but I can explain what I mean by contract design, at least.
“Designerly way” refers to both process and outcome. In terms of process, it means attention to end users of contracts, their scenarios of use and their information needs. It means crafting the language and the form of contracts in a way that is not only understandable to lawyers and judges, as they are not the only user groups. In terms of outcome, it means a contract that look and feel different, because typography and information design techniques have been used to make the content as clear and readable as possible. It also means that text is not king anymore, but visual solutions help in making its meaning or structure more transparent. And following a design approach, such documents might even be co-developed or tested with users when time or the document type (e.g. an industry-wide standard set of terms & conditions) allows.
So “contract design” might be a buzzword for those who still make contracts exactly as before, focusing only on legal reasoning. But I feel that those that are really using a design approach (user-centeredness + cognitively ergonomic visual displays) are not wrong in calling it contract design.
I find four aspects of contract design: material, structure, function (or transfer), and time flow. Material means type of sentence, and I prefer Tina Stark’s categories: covenant, warranty, representation, declaration and discretion, because such categories can be divided further into Chinese concepts of heaven/earth(future v. now) and Yang/Ying( can be breached v. and will never be breached). Structure of contract is similar to structure of a story: introduction, development, transition and ending. Introduction part contains title, parties, recital…. Function means items to be transferred: service, goods, money, information and rights. Time flow means timeline of a transaction such as sample providing, test, forecast, order, delivery, acceptance/return, payment, and claim. Such a design mojo can help drafters/readers to catch key points of a contract.
You’re welcome to you Chinese concepts. Me, I’m more comfortable with reflecting semantic reality! :-)