Contract professionals, contract writers and lawyers are trained to build in ‘comfort blankets’ ie to make contracts cosy for their client or organisation. As a result contracts have become overly full of clauses which are little more than comfort blankets eg the miscellaneous or boilerplate terms.
Since not many users understand this content, it stokes mistrust and encourages queries or push-back.
Moreover, this ‘comfort blanket’ content is often intended to bring comfort to just one of the organisations in the contractual relationship… making the agreement less balanced and even harder to negotiate.
What we really need contract professionals, contract writers and lawyers to do is to increase the functionality of contracts. We can do this, according to Stefania Passera and Paula Doyle, by:
- understanding the users
- discovering the goals of the relationship, transaction and project
- considering the role of the document from all perspectives
- improving the balance between the parties
- reviewing how risks balance with rewards
- using a logical structure that reflects the document’s scope
- ensuring the ‘needs to know’ of users are brought together coherently
- telling a much clearer story
- interrogating the meaning of, then revising or rejecting poor content
- assessing risks for the relationship, transaction and project
- asking questions to check the content says what the parties really mean
- stress-testing the language and structure
- deeply scrutinizing the content and its impact.
The data shows that simpler contracts can reduce negotiations by up to 50% – both in terms of the cost and time involved. And shorter cycle times means you won’t (as Paula said)
start a project when everyone is mentally exhausted from months of negotiation
Don’t the quarter of your team who are directly involved in contracts deserve better?
What should you do?
Contract design is a team sport: it requires experts in information design, visual design, UX, research, plain language and pragmatic legal expertise. It also requires the document owners to be prepared to answer a lot of questions as we always want to know ‘why’.
If you’re interested in getting some help with shedding your comfort blankets and creating simpler, more functional contracts, get in touch!
Source: This post was based on the Legal Creatives Podcast episode 38 with Stefania Passera and Paula Doyle – doyennes of simplification.
