Why (Most) Contract-Drafting Training Is Useless

Via @CharlesHGreen I learned of this 2006 post by David Maister, an authority (now retired) on managing professional service firms. The title is “Why (Most) Training Is Useless,” and much of what it has to say applies to the training I provide.

The Limited Value of Stand-Alone Training

Consider the following extract:

Unfortunately, training and other kinds of meetings and conferences are too often organized as stand-alone events, with a life of their own, disconnected from the firm’s progress.

What companies don’t seem to understand is that, as I shall discuss later in this article, training is a wonderful last step in bringing about changed organizational and personal behavior, but a pathetically useless first step.

Companies train people in new areas but then send them back to their operating groups, subject to the same measures and management approaches as before.

People can detect immediately a lack of alignment between what they are being trained in and how they are being managed. When they do detect it, little, if any, of what has been discussed or ‘trained’ ever gets implemented.

Check! Contract drafting is complex, involving substance, language, and process. Without the appropriate context, having me introduce your personnel to the wonders of clear contract language and pressing a copy of MSCD in their hands will provide individuals with some survival skills, but it won’t necessarily do much to address the broader contract process.

Providing Context

Another extract from Maister’s post:

Bringing about change is immensely difficult. It requires that managers address questions in four key areas:

  • Systems: Does the company actually monitor, encourage, and reward this (new) behavior?
  • Attitude: Do people want to do this? Do they buy in to its importance?
  • Knowledge: Do they know how to do it?
  • Skills: Are they any good at implementing and executing what they know?

Issues that exist at each of these levels require a different intervention. But note that skills development, as important as it is, is the last step, not the first.

There is no point putting on skills training if there is no incentive for the behavior; the people don’t believe in it and they don’t yet know exactly what it is they are supposed to be good at!

That’s why I now tell companies that my “Drafting Clearer Contracts” seminar would ideally be just one of three or four steps taken to bring efficiency to the company’s contracts process. The other steps are (1) adopting a style guide for contract language, (2) redrafting the company’s templates consistent with the style guide, and (3) if deal volume, deal value, and the level of customization make it worthwhile, automating the company’s templates using document-assembly software.

Getting Buy-In from the Top

A third and final extract:

Too often junior people are sent off to be trained and they continue to speculate whether their seniors or leaders are really committed and serious about the topics being discussed. As previously noted, they often are not.

Even if the group leader is not conducting the training, it really helps if the operating group leader attends the training as a participant. In fact, it should be mandatory. This ensures an action-orientation to the discussion and credible public commitment built in to the closing of the program (“We’re going to do this!”).

That’s why when I give a seminar at a law firm, I recommend that a partner attend. Given the obstacles to an efficient contract process at law firms (discussed in this article), I know that having a partner attend is not enough, but it’s a start. Of course, there’s always a slight chance that on being exposed to my seditious ideas the partner will have an adverse reaction (for more about that, see this post), but it’s best to face that possibility head-on.

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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