Whether You Can Change Your Contract Templates Depends on Your Attitude

I’ve found that those in charge of contract templates at companies are experts at finding obstacles to changing their templates. I’ve heard all sorts of reasons why change is hard: “We don’t have time.” “The customers won’t like it.” “We’re all so used to the current templates.” “You don’t understand the business constraints.” And so on. Even when they opt for change, it can be an ordeal that takes many months.

So I read with interest this item in the Harvard Business Review. It’s by Nick Tasler, and it’s entitled Stop Using the Excuse “Organizational Change Is Hard.” I recommend you read it—it’s not long—but I hope Nick doesn’t mind if I give you the gist of it:

During nearly every discussion about organizational change, someone makes the obvious assertion that “change is hard.” On the surface, this is true: change requires effort. But the problem with this attitude, which permeates all levels of our organizations, is that it equates “hard” with “failure,” and, by doing so, it hobbles our change initiatives, which have higher success rates than we lead ourselves to believe.

The good news is that we can address this problem simply by flipping the script. In one of their studies, the University of Chicago researchers reminded study participants how most people do in fact successfully improve with a little bit of effort. In this study, the results were exactly opposite: study participants were quicker to notice changes for the better rather than changes for the worse. By priming people with a simple fact about the high probability of successful change, the researchers completely eliminated the negative bias.

As an advocate for change in contract drafting, I’ve long been trying to flip the script. At the level of the individual, it’s worked great. At the level of the organization, it’s been challenging, as I note in this post. But Nick’s article offers encouragement, for two reasons. First, it reminds me that instead of being unique to my subject, the roadblocks I encounter are endemic. And second, it shows us how much you can accomplish through a change in attitude.

The benefits to dragging your contract templates into the twenty-first century are clear. And it’s likely that to a great extent, the obstacles to achieving those benefits are only as insurmountable as you allow them to be.

So focus on the benefits of change. Don’t assume you have an array of obstacles blocking your path. Instead, take the approach that your path is clear except to the extent that objective analysis brings to light constraints to change. If you encounter any such constraints, deal with them dispassionately, instead of with change-is-hard existential dread.

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.

5 thoughts on “Whether You Can Change Your Contract Templates Depends on Your Attitude”

  1. Ken, it’s HBR. Charismatic pablum. You could replace “organizational change” with “professional change”, “personal change”, whatever change. In fact, the author does:

    > The researchers found the same negatively-biased evaluations in all sorts of situations: when pessimistic people try to become more positive, when angry bosses try to cut back on vein-popping outbursts, when B students try to become A students, when candy-cravers try to become lettuce-lovers, and when pundits are deciding whether the economy is primed for a rebound or a recession.

    Bias leads folks to think one way. Priming leads folks to think another. First-year psych concepts. Set the two against each other, like toy trains on a collision course, get funding for the study, and publish. People resist change. Prime a contrary statement, cognizable in the argot of management consultancy. Catch the eye of the management press. Vague and inactionable, though perhaps “inspiring”, conclusions follow.

    Other than a bit of renewed pep—Once more unto the breach, dear friends, once more—what does this give you? Anything new to try? Anything errant to correct? What do you do now, other than what you’ve already done, again?

    Of course it’s easier to convert individuals than organizations. One of the useful reasons to start an organization is attenuation of all the intellectual-emotional fluctuations that visit, round robin, upon all of us as individuals. It is much harder to prime 10 people, and keep them primed.

    Of course “professional change is hard.” Especially if we go about it with individual psychology. Like mowing the lawn with toenail clippers…

    • Hey, there’s no question that I’m a rube when it comes to this stuff. Even “first-year psych concepts” are above my head. I’m just a contract-language guy.

      But I suggest that we’re not in a realm where offering new things to try and errant stuff to correct is going to prompt organizations to action. I’ve compiled hundreds of pages detailing errant stuff to correct. I’ve also repeatedly described what’s involved in assessing and fixing template contracts. But progress remains achingly slow.

      Some of this is doubtless due to practical considerations, but the level of disengagement I encounter suggests that the simple notion of change is a large part of the problem. Resistance to change comes in many forms (check out my blog category “Inertia”), but I’m open to any approach, no matter how simplistic, that might snap people out of a we-can’t-change trance.

      Perhaps that constitutes “individual psychology,” but it’s individuals who make the decisions at organizations, and it’s individuals whom I have to convince.

      • Forgive me if I got on a roll, and became less clear in haste. My concern wasn’t finding more errors drafters commit that they should not, or techniques they don’t apply that they should. I’m here because just because you’ve done so much of that!

        My concern was whether the piece tells _us_, the thoroughly convinced, anything to do or not to do to hasten the day when more folks benefit from the research and reevaluation. I don’t think it does. We being few and our time being short, I’d class it a distraction.

        My criticism is that this has been fluff. What would I call concrete?

        An example from the past. Translating the concept of the style guide from the print world to the contracts world was an idea I saw first from you. Good idea! One person can adopt the Manual and make it marching orders for a whole organization.

        Someone will get a nice chunk of my change for 4e shortly. What can 5e do to further the goal of adoption, not just description, that 1e, 2e, and 3e have not? Perhaps you’ve already answered this question in your preprints for 4e, which I greatly regret I was too near to drowning to review in detail.

        A few ideas, thinking forward:

        1. Have you considered a much-condensed, prescribe-but-don’t-explain, dare I even say “pocket-sized” version of the style guide, for easier adoption? Something in the weight class of A Manual on Usage and Style, perhaps? The Gita you can hand out at the airport, rather than all the Vedas and Upanishads at once.

        2. My old saw: Example contracts. Fully worked examples. Broadly available. Demonstrably better than what you’ve got in the form file.

        3. Systematically identify and publicize examples of your approaches yielding their expected benefits. The Clarity journal, from the plain language folk, does this pretty well, though they could push it harder online.

        • No argument! But I don’t think it’s either-or. Along with taking practical steps, a side order of consciousness-raising wouldn’t hurt.

          Regarding your ideas:

          1. You’ve somehow missed my occasional plugs for my 2018 concise contract-drafting style guide for organizations. Work will begin in earnest once the fourth edition is out.

          2. The world ain’t getting nothing like this from me until someone, somewhere, gives some indication that they’re willing to pay for it.

          3. Once an organization has bought into my approach sufficiently, I’ll do a case study.

          • On plugs: Strange that I’d miss that. Plug more obnoxiously!

            On contracts: Good news! There are other suckers available.

            On case studies: If you want to try priming positivity, I think you need some good case studies, even if they aren’t formal Case Studies. You could see it as a chicken-and-egg problem. Don’t throw out any eggs! Folks who have bought in, but not “sufficiently”, can still show results.

            In summary: Once more unto the breach, dear friends, and if anybody’s got any new ideas this time, Hell, we might as well try ’em…

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