Lots of people are working hard to improve the way contracts are created, agreed and managed. It’s a fascinating hive of activity.
Now, if you’ve worked with me you’ll know I like nothing more than to come up with a model or diagram to explain things around me. It’s my way of bringing order to a brain full of chaos. And if I can reduce a world of nuance and complexity to a few words that start with the same letter then all the better.
So, turning this hobby to the world of contract improvement, I humbly offer my Contract Improvement Personas. A semi-serious and criminally reductive attempt to capture some of the different movements in the contracting world as I see them.
They are the Drafters, the Designers, the Digitisers and the Doers.
The Drafters
Drafters focus on the words on the page. Those who write the content of our contracts.
They aim for clearer language and work hard to remove verbiage and legalese.
These days, they may also help you write contracts that can be generated more easily, perhaps with flexible or ‘modular’ content. This is a relatively new part of the Drafter’s role, but is becoming increasingly relevant with the march of technology and the rise of the Digitisers.
With their focus on the written word, Drafters could be thought of as sitting at the traditional end of the spectrum. But let’s not forget that traditionalism is all relative in the land of the Contract Improvers.
There are crusaders arguing for radically shorter contracts, as well as those fighting quieter incremental battles to simplify and standardise contract language wherever possible.
The most prominent Drafters have tended to be independent consultants and trainers. Ken Adams – author of the popular book A Manual of Style for Contract Drafting – is probably the most well-known. Others include Daphne Perry, who founded ClarifyNow, and Sarah Fox, who founded 500 Words.
For the most part, these champions of better drafting focus on how contracts should be written in general, rather than what particular contracts should say. But this is starting to change.
Amongst the Drafters, I would include the growing band of people who are pushing for greater standardisation of contract language and balance in negotiating positions.
Industry standards are the Holy Grail of contract improvement, but they are notoriously hard to achieve. Getting two lawyers to agree on the best way to write anything is difficult. Getting industry-wide alignment virtually impossible.
But, there have been some green shoots in recent years. Most notably the oneNDA project – brainchild of Electra Japonas and Roisin Noonan – which has achieved some genuine momentum in creating a standard confidentiality agreement with the involvement of big-name law firms and businesses. Another example is Bonterms, a commercial venture founded by Todd Smithline, which continues to launch various ‘standard’ contracts, with the hope that businesses will agree to use them with little or no negotiation. Long may this trend continue.
The Designers
Designers work to improve the accessibility and useability of contracts through better design and visual communication of information. Some are legally trained; others not.
From my experience, Designers exist on an imaginary spectrum that has ‘pure’ designers at one end and ‘pure’ drafters at the other. Where they sit on that spectrum depends, in part, on how much they see creating the written content as part of their role (perhaps with an element of legal and commercial advice in the mix).
In reality, everyone involved in creating contracts is engaged in design, even if it’s unconscious. Every contract has a design of sorts. It’s just that, often, the visual elements of a contract – the structure, layout, typography and so on – are applied almost by default, with their significance reduced almost to nothing.
The rise of Designers has seen the importance of (deliberate) contract design championed and elevated to a discipline in its own right.
The application of contract design is most obvious in the world of consumer terms and conditions. This makes sense, as it’s an area where making information accessible is especially critical. There is also more freedom to apply creative design choices to contract documents that won’t be negotiated, unlike many business contracts.
That said, better contract design is increasingly being recognised as important for business-to-business contracts too. The impact may be more modest, given that most word processing tools make complex graphical designs impractical. But often it’s the simple choices that make the biggest difference anyway, like how you order content or use headings to help readers.
There are more and more Contract Designers emerging. However, the leading lights have undoubtedly been Stefania Passera and Helena Haapio. Both have been instrumental in championing the importance of contract design. But not just that, they have also added rigour to the discipline through their academic work, as well as their creation of World CC’s Contract Design Pattern Library (and more).
The Digitisers
This is a broad group. It captures all those focussed, in some way, on the digital transformation of contracts and the contracting process. That includes those working on document automation, contract management platforms, technology-led contract reviews, data extraction, e-signatures and so on.
At the slightly more aspirational end of the spectrum, it also captures those developing the technology to support so called ‘smart contracts’.
To say this category has ballooned is an understatement. In recent times, new contract management platforms seem to have appeared daily. (I’m reminded of the scene in The Simpsons where shop fronts transform into Starbucks almost as quickly as Bart can stroll through the shopping mall.)
There has definitely been a lot of hype in this space, but I think the rush also reflects a genuine history of unmet need and new opportunities.
This means you will continue to find more Digitisers working for contract technology vendors (both massive and mini) and tech consultancies (both trendy and traditional) – with roles like developer, product manager, project manager, implementation consultants and so on.
Digitisers are also increasingly found in law firms. Most often working as document automation specialists, but also in an ever-growing band of consultants, data scientists, developers and more, who are trying to connect the traditional role of law firms with the wider world of how contracts are used and managed beyond their usual shores.
There are too many Digitisers to pick out specific examples. But put “CLM” or “Contract Technology” into Google and you’ll find no shortage of links to all sorts of companies in this space.
The Doers
Last – but definitely not least – the Doers.
(‘Doers’ is weak. I know. But it had to start with D.)
This category is the widest yet. In fact, it could house a few sub-categories and its boundaries are blurry. But what the Doers have in common is that they are all, in some way, involved in the practical process of agreeing and managing individual contracts. Getting actual deals done and shepherding them afterwards.
When I think of Doers, I think of the word ‘relationship’. The living, breathing and often messy dealings between people and organisations that our contracts imperfectly try to capture and regulate.
This includes smoothing and improving relationships between individuals. But it’s also the very practical day-to-day aspects of managing contracts over their lifetime. In other words, it’s both the human side of relationships and the ‘corporate’ side of it, which could include a long list of things like change management, compliance monitoring and so on.
In all this, a key question for the Doers becomes: ‘how can our contracts better support all this activity?’.
Doers may be procurement professionals, account managers, contract managers and more. They may also include lawyers who are at the coal face of contract work. (Although, if we’re talking about Contract Improvers here, this is more likely to be an in-house lawyer, as they typically have a more direct interest in creating contracts that support relationships beyond the point of signature.)
Reading that list, perhaps it’s no surprise that you can find Doers everywhere. But of all the Contract Improvers, I’d say it’s the least visible group (particularly if you move in legal circles, like me).
This is partly because the reality of improving relationships and processes is generally one of incremental hard-won wins, rarely one of grand designs or shiny products that can be packaged and sold. So whilst the Doers may be everywhere, they are more likely to be working hard behind the scenes within organisations and less obvious outside of them.
I think it also reflects the fact that, on the whole, a lot more effort is still spent on getting contracts to the point of being signed, rather than on what happens afterwards.
Typically, there’s a break in the chain when contracts get signed. This is true in a very practical sense – the lawyers’ work is often done; salespeople move on; procurement teams handover to contract managers and so on – but it can also be true in a wider sense when we think about where our improvement efforts are targeted.
Before contracts are signed, they tend to exist in our consciousness as a document. Afterwards, they continue their life as a relationship that needs to be looked after.
Documents are things that can be drafted, designed and digitised. Relationships are not. No surprise, then, that a decent majority of the Drafters, Designers and Digitisers roam on one side of the pre-signature divide, whilst Doers are more likely to live on the other.
The good news is that the rise of the Contract Improvers is seeing more bridges being built across the gap.
You can see this in the growing influence of service design, which many Contract Improvers have ushered into this space over recent years (particularly the Designers). One of the guiding principles of service design is to be ‘user-centric’ and take time to understand and reflect the interests of all the users of a service (or contract) when designing new ways of doing things.
Very often, Doers are the users of the contracts that Drafters and Designers create, as well as the processes that Digitisers develop. So if we are going to do a better job of building on the best of the service design principles, it’s only right that the Doers become a more visible group to those that haven’t always been looking for them.
For me, some of the most interesting work happening in the world of the Doers relates to relational contracts. Relational contracting emphasises the importance of creating sustainable long-term relationships built on trust – and although this may be underpinned by a written document, that is not the primary focus.
The ideas behind relational contracting have been around for a while – and similar themes sometimes appear in different guises, such as collaborative contracting, partnering and so on.
Relational contracting has garnered more attention recently, through the support of World CC and the work of a multi-disciplinary group that includes Oliver Hart (Nobel prize-winning economist), Kate Vitasek (consultant, author and trainer), David Frydlinger (lawyer) and Tim Cummins (President, World CC), amongst others. If you’re interested to learn more about it, a good place to start is this 2019 article by Frydlinger, Hart and Vitasek, published in the Harvard Business Review: A New Approach to Contracts: How to build better long-term strategic partnerships.
So what?
Well, I said it was semi-serious.
On the more trivial side, I find it fun to imagine where I might sit on a Boston-style matrix if each of the four quadrants was a different persona. We’re all a combination of different skills and experience. So whilst some of us may sit squarely in one group – perhaps a pure Drafter or Digitiser – many will be a blend. I know I’ve moved around the matrix over time and I’m sure I’ll keep travelling.
The thought experiment probably becomes more useful when thinking about teams. If you’re starting out on a contract improvement project, have you got the right blend of perspectives?
And actually, this is where all this does tend towards a more serious point.
As the old saying goes: if the only tool you have is a hammer, it’s tempting to treat everything as if it were a nail; an age-old bias that also applies to the new world of contract improvement – both for those providing services (like me), as well as those needing their help.
On the supplier side, we’re always at risk of selling hammers to someone who actually needs a fridge. On the other side, it’s not uncommon for clients to start with a clear idea of what will solve their woes based on how they frame the contract problem. Some may think technology is the answer (‘I need a Digitiser’). Others may set out looking for Designers or Drafters, perhaps based on the latest article they’ve read or conference they’ve attended. It’s just natural.
In the end, the simple point is that it’s always helpful to acknowledge that there’s lots of different ways to improve contracts and it’s going to take a metaphorical village to keep chipping away at it through learning and collaboration.
And maybe, in some very small way, the different Contract Improvement Personas are a helpful way of doing that.
As well as just being a bit of fun.