Let me start by saying this post is targeted partly – if not wholly – at myself. When God was dishing out quotas of snark and cynicism, I received a generous dose. And it’s healthy to keep that in check, so please forgive a little indulgence on the topic of contracts and kindness. 

When I first read this tweet it resonated immediately. It’s been bookmarked since, loitering at the back of my mind as a potential blog post. It comes from the world of user experience design, but I think it applies equally to contracts – and particularly to contract lawyers.

I lose count of the number of times I’ve heard someone describe a contract (that they weren’t involved with drafting) as a load of rubbish (or worse). We’ve all done it. It’s almost part of the sport of lawyering. And let’s face it, lots are a bit rubbish for lots of reasons.

It’s in the very nature of contracts that, when you’re writing them, you don’t know what the future holds and, more often than not, you’re under intense time pressure to get a deal done the best you can with limited information and resources.

By contrast, when you have reason to look back at a contract with all the luxuries of hindsight, it’s often because something’s gone wrong – or there’s now a very specific question that needs answering, which was just one of many at the start.

All this can be compounded by the fact that those who like to look back at contracts with the finest of toothcombs are typically those who are rarely, if ever, involved in writing them (and by that, I mostly mean litigation lawyers, judges and academics). If ever you’ve been in the uncomfortable position of having litigators debate the meaning of your drafting (I have), then you may recognise the strong urge to shout “YOU DON’T KNOW, ‘COS YOU WEREN’T THERE” like a character from Apocalypse Now.

But then again, I must remember to be kind to litigators too. And actually, I get most frustrated when it’s contract lawyers who default to “Wow, what idiot drafted this?” rather than “What constraints were the team coping with that made this drafting feel like the best possible solution?”.

Anyway, this may not be an especially original thought. This blog was, though, prompted by a couple of others too.

There’s an increasingly visible and vocal move towards creating better contracts, of which I am very much involved. A big part of this is championing clearer contract drafting, better contract design and more.

By its nature, championing something better involves contrasting it with something you think is worse. And in that sense, the process of being critical comes from a positive place. The challenge is not doing it in a negative way, whether deliberately or not.

Let me give a couple of examples.

The ‘straw person’ problem

It’s not hard to find examples of overly complicated and dysfunctional contract drafting. Sharing the most egregious examples can be fun – almost therapeutic. But let’s face it, it’s often just a case of attacking a straw man, which is mostly harmless, if not a little pointless. Most people already agree with you. And the ones that don’t probably don’t disagree, they just operate in a (legal) culture where it’s the norm and they don’t give it much thought.

In many ways, cultural change is the big challenge for those trying to improve contracts – and that is always going to be hard, slow and patchy. (I’m reminded of the famous William Gibson quote: “The future is already here – it’s just not very evenly distributed”.)

With that in mind, merrily mocking straw men can become a problem if it comes with heavy overtones of ‘what a bunch of idiots’. If I learnt anything from reading How to Win Friends and Influence People, it’s that making people feel like idiots doesn’t win much influence.

The ‘take down’ problem

Something else I find uncomfortable are overly zealous critiques of other peoples’ attempts to create better contracts. Rather than taking aim at the traditional way of doing things, this sort of thing can risk stymieing efforts to improve contracts too.    

I don’t want to overplay this point, because constructive critiques and collective learning are an important – nay essential – part of moving things forward. As with all these things, it’s mostly just a question of degree and tone. Does the critique feel like it comes from a place of kindness or something closer to professional protectionism?

Now that my job focusses full-time on helping people improve contracts, it’s something I reflect on regularly.

One of the benefits of becoming something of a specialist, is that you get better at instinctively spotting how contracts can be improved. But this can be framed another way: you can also get worse at instinctively focussing on why every contract is crap. And if you’re not careful, you lose connection with all the day-to-day constraints that cause many contracts to be a bit crappy in the first place.

I’m sure this dynamic plays out in all walks of life. But I also think there are features of contracting that make it a particular challenge.

For one thing, the more I work on improving standard contract templates, the more I learn that it can be hard. There’s lots of things we tend to say about contracts that can be easier to say than to do. It’s easy to say contracts should be written in plain language. It’s easy to say that contracts should be shorter. It’s easy to say that contracts should be well designed. I know, because I say them a lot.

Whilst there’s no doubt you can achieve big strides by taking some simple steps, there’s also some nuance to all of this.

For example, writing in plain language sometimes needs more words, not less. If you want to design a contract that’s easier to navigate and use, it will often take up more space on the page, not less. Typically, some bits of a contract are easier to de-lawyer than others; so how do you balance consistency with accuracy? And this is before you hit all the common challenges, like budgets, time limits, internal policies, cross-team working, technology constraints and so on.  

The result is that there’s no such thing as a perfect contract, just better contracts.  

That can be uncomfortable for anyone working in this space, which seems to hover between the legendary pedantry of lawyers looking backwards and the potential platitudes of those looking forwards. That’s a place where you’ll never achieve purity.

So, let’s remember to be kind to everyone who tries.

Every attempt I’ve seen to improve a contract has had its issues, but it’s also been better than what went before. And this is very much true of my own projects too, which leads me to a final thought.

Be kind to yourself

If you’re anything like me, you will be your own worst critic. I once surprised a client by commenting that I’ve never delivered a project I’ve been happy with. By this, I didn’t mean that I thought the projects were ‘bad’; just that there was always something that could have been better.

When I look back at things I’ve worked on, it’s easy to default to “Wow, what idiot did this?” even though the idiot was me and, of all the people in the world, I should know the constraints that made it look like the best solution at the time. And this can, of course, be made worse when lots of us play in a sport full of perfectionists!

So, please remember to be kind to yourself, too.