It’s clear what’s required to improve the contract-creation side of a company’s contract process:
- adopt a style guide for contract language, most likely by means of a “statement of style” (here)
- train your personnel in drafting and reviewing contracts consistent with the style guide
- overhaul your templates consistent with the style guide
- automate your templates, to the extent that deal volume, deal value, and the level of customization required would make it cost-effective to automate
That’s easily said, but it involves challenges. I wrote about them in this post, but since then I’ve thought further about what it takes to accomplish change.
In discussing change with clients, I’ve tended to rattle the elements off, as if the idea is to impose the new order in one clean sweep. Drastic change might work in some circumstances, but when you’re dealing with a bunch of lawyers? In a field that’s so precedent-driven? I’m not so sure. For example, I recall how in the 1990s (I think) the law firm Jones Day attempted some sort of wide-ranging overhaul of how they draft contracts. The lawyers who were meant to use the system rebelled, and the project was abandoned.
Here’s a different way of implementing change.
First, assess the appetite for change. Last fall I gave an in-house “Drafting Clearer Contracts” seminar at a Fortune 100 company. The feedback was very positive. That suggested to the person who organized the seminar that there’s an appetite at that company for my kind of drafting—in other words, “active drafting.”
Second, when you have that sort of appetite for change, it can be less a matter of imposing change top-down and instead a matter of providing company personnel with the tools to allow them to effect change themselves. More specifically, in terms of what I do, company personnel could be supplied with publicly available materials (my books, webcasts, and blog) and materials and guidance offered directly to the company.
Third, people are more likely to embrace change if it makes their lives easier. The fact that active drafting offers a structured alternative to the chaos of traditional contract language means that it saves time and money. But automation is what has the potential to be a game-changer. It offers speed, control, customization, and the best way to scale rigorous contract language.
And fourth, perhaps change is less disruptive, and less expensive, if it’s approached without a lot of fanfare. For one thing, if company personnel have demonstrated an interest in active drafting, I suspect that it would be best not to adopt a style guide up front. That’s something that can come later—if the initiative is well received, people would gravitate toward the preferred style without being told to.
And regarding automation, everything can be done incrementally and at minimal expense. It would be a simple matter to use a free trial of ContractExpress to see how people respond to automated contract creation plus the process controls offered by ContractExpress. I could use my inventory of automated language to get a pilot template up and running very quickly. And because we’d be using ContractExpress, the process could be handled by company personnel and me without the need for a team of programmers or hand-holding by the vendor.
I’ll report back once I see how this slow approach to change works out in practice.
Contract-Automation Clearinghouse is where I put my posts on contract automation and related topics. My regular blog is at Adams on Contract Drafting.