Changing Your Templates: Slow and Steady or All at Once?

A participant at a recent “Drafting Clearer Contracts” seminar sent me an email saying how much they had enjoyed the seminar. They went on to say that “incorporating the concepts into our templates and drafting will require a slow, steady cultural change.”

Regardless of whether cultural change has to be slow and steady, I suggest that it doesn’t reflect reality to think that you can change your contract templates gradually.

Invariably, traditional templates use dysfunctional prose. Fixing that requires addressing many aspects of contract language—verb structures, archaisms, redundancy, defined terms, ambiguity, rhetorical emphasis, layout, arrangement, and so on. It’s not realistic to expect that you can limit your scrutiny to a selected topics and leave the remaining dysfunction untouched: once you start pulling at a thread, the fabric of dysfunction starts to unravel. And there’s substantive change to consider on top of that. So meaningful change in your templates either happens all at once or it doesn’t happen at all.

Only in one sense can change be gradual. That’s when you redo your templates one, or a few, at a time. That’s probably how you’d have to handle it anyway.

What about the cultural change that the seminar participant mentioned? Ideally, it would be irrelevant. Your templates and your contracts process should establish the reality on the ground, with your contracts personnel adapting to that. If you’re allowing a group of people with different experience, different aptitudes, and different training call the shots, you have mob rule.

I’ve written often about how you go about effecting change, once you’ve decided that you can tolerate change. Want your in-house lawyers to redo your templates? They’ll probably take too long, and it’s unlikely that they have the necessary expertise. Want your law firm to redo them? They’ll probably charge to much, and it’s unlikely that they have the necessary expertise. You need a contract-drafting specialist; I’m one of those. (See this blog post for more about that, and see this blog post for what I think about your reasons not to hire me.)

Reasons Not to Hire Me to Help You with Your Contracts

I divide my time between giving seminars and helping companies upgrade their contract templates. Here are some reasons why you might not want to hire me for the latter service.

“Our templates are great.”

Actually, it’s likely that in terms of what they say and how they say it, your templates are somewhere between a train wreck and in need of significant help. That’s the case no matter exalted your company. But there’s a quick way to give your templates a stress test: I’d be happy to give you some general comments at no cost.

“Our templates are good enough.”

We’re all familiar with the idea of making do. But I suggest that when it comes to your contract templates, it’s shortsighted to skimp—they’re too important. Besides, you might not be equipped to assess your templates objectively.

“We can handle the job ourselves.”

I’m sure you can, but probably nowhere near as well as I can. That’s because you and your colleagues have day jobs. I don’t—I’m one of that elusive breed, a contract-drafting specialist. (See this blog post for more about what I mean by “contract-drafting specialist.”)

“We’ll get our outside counsel to do it.”

Generally, law firms are in the business of getting the deal done. They’re driven by expediency—making contracts clearer and more efficient isn’t a priority. And even if it were, it’s unlikely that a law firm would be equipped to make that happen. And they would presumably charge a nontrivial amount of money.

Of course, there are exceptions. If your outside counsel has done good template work for you, consider yourself fortunate. But experimenting with a law firm instead of hiring me? Color me dubious.

“Fixing our templates wouldn’t be that complicated.”

Actually, my writings all go to show that expressing transactions in contracts is in fact complicated and that you need more than good intentions to do the job effectively. For a cautionary tale, see this blog post about GE Aviation’s template initiative.

“We can’t afford you.”

Compared with the drain on time and resources caused by dysfunctional templates, my fees are modest. Besides, the only way to determine whether you can afford my fees is to ask what I’d charge.

“We don’t have time to fix our templates.”

You might not, but I do. And if you put me in charge of the process, you’d get it done way faster than you would otherwise.

“We can’t handle the change involve in overhauling our templates.”

Yes, change is hard. But the pain in short-term; you quickly start reaping the rewards. And I now work with clients to figure out what change is required, so it comes as less of a shock; see this blog post.

“It’s not in our interest to be seen as not up to the task of fixing our contracts.”

I get it—you think that bringing in an outsider might be seen as a sign of weakness. But it’s no more a sign of weakness than calling in a plumber is a sign of weakness. You know what really is a sign of weakness? Crappy templates.