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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.)

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Who You Gonna Trust?

I used to use King Arthur organic all-purpose flour for all my baking. Now I use King Arthur only for bread and pizza; for cakes and pastries, I’ve switched to Gold Medal all-purpose flour. Why? Because Stella Parks (@BraveTart) recommends Gold Medal. When it comes to baking sweet things, what @BraveTart recommends, I do, with a salute and a smile on my face.

That’s because Stella is a baking expert, and I’m not. I wouldn’t dream of attempting to replicate the years of research and experimentation that have made her an expert. Instead, I happily rely on Stella’s expertise, although I don’t expect her to be infallible. What convinced me to rely on Stella? Her impressive book, BraveTart: Iconic American Desserts. Her posts at Serious Eats. The success I’ve had in following her recipes. And her fun Twitter feed.

We might not always be aware of it, and it might be out of fashion in some circles, but we rely on experts all the time. We have finite amounts of time, energy, and talent to expend in our lives. We’d rapidly run dry if we aren’t willing to rely on experts.

That of course applies to contract drafting. The whole copy-and-paste engine reflects that building contracts from scratch for each transaction doesn’t make sense and wouldn’t be possible. But with each act of copying, you’re relying on someone.

When you copy something you’ve found online, you’re relying on … well, who knows who you’re relying on. At best, you’re relying on an institution’s reputation. This is an Acme contract! Acme wouldn’t have crappy contracts, would they? Well, actually, they would: I’ve shown time and again that BigLaw contracts and global-company contracts are reliably dysfunctional.

Even if you use a contract prepared by your law firm or law department, it might not be clear who you’re relying on, given that precedent contracts morph over time. The starting point might have been a contract from outside your organization, with further adjustments being made from transaction to transaction.

What if you’re using a contract template offered by a commercial service? You’re likely relying on an unnamed refugee from BigLaw, doing their BigLaw thing. That’s not particularly promising.

When it comes to individual usages, who are you relying on? When during my seminars I ask participants about the implications of a particular usage, usually those who offer their views are hazy as to the source. Someone once told me … I’ve heard that … To rely on conventional wisdom is to rely on no one.

My livelihood is based on my having decided twenty years ago that as regards the building blocks of contract language, no one was authoritative enough for me to be willing to rely on them. Since then, I’ve worked to make myself someone you would be willing to rely on.

What factors might be relevant? Your experience with MSCD? The general reputation of MSCD? My blogging? My marketplace-of-ideas smackdowns? What others say about me? The fact that I do seminars around the world? The shortcomings of other commentators? All that’s for you to decide.

In any event, I hope you’re willing to rely on me as an authority on contract usages just as I’m willing to rely on @BraveTart for purposes of baking cakes and pastries.

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