It is relatively simple to work out what the success of a project looks like.
For a construction project, the focus will be on the core aims of time, cost and quality, and more recently wider issues such as environmental, social or governance (ESG).
A construction project score might rate these aspects to demonstrate success:
- Was it finished on time?
- Was it within the original budget?
- Were there any financial surprises for the client or project team?
- Did the final product satisfy the quality standards agreed by the project team
- Did the scheme minimise disruption to the environment?
- Were there any health and safety incidents?
- How is the project impacting the local community?
- Did the process meet our internal policies and local laws?
- What was the perception of the project’s users or stakeholders?
But what about the success of a contract?
The project success might not be directly correlated to or linked with the contract itself, but it is often related to the relationships of the project team and the people involved.
So how can we determine what contract success looks like?
Contracts are more effective (and so successful) when they drive better outcomes for their users. So as contract writers we need to think about the contract users – not just the ‘client’ ie the organisation who has tasked us with writing its contract.
This may require a shift in mindset.
Lawyers, at least those subject to the current Code of Conduct for Solicitors (from the UK’s SRA), are required to take account of their client’s needs… but must also maintain trust and act fairly. However, they can become focused on their client at the expense of others involved in the transaction.
But legal design – with its focus on user empathy – can help us improve the performance of the contract by ensuring that all the contract users can understand it. Contracts created with legal design are both legally robust and more effective (read any one of my books to find out why).
What should we do?
The easiest way to shift our mindset and our perspective is to get to know the contract users – talk to them, engage with them, or train them on contracts to find out what really rattles their cages. It was training others on UK construction standard forms that made me realise just how little they were understood!
We also need to ask them to test our drafts and prototypes to ensure our contracts will be a success for all its users.
Sources: A critical evaluation of the success of project partnering Const. L.J. 2008, 24(4), 314-325; Simon Brookes; Legal Creatives Podcast Episode 8 with Tessa Manuello
