I have been drafting contracts for a long time and I have written about them a lot in this blog, including posts on boilerplate clauses, how to create a contract playbook, and how to read a contract. Looking back, I see that I have never shared my three core goals of contract drafting: 1) clarity (anyone can understand the deal); 2) get what you need vs. what you want (there is a big difference), and; 3) “quick” signatures (i.e., a short time frame from the start of the process to signature). As in-house lawyers (or any type of lawyer for that matter), we often seem to do everything in our power to undermine these goals, primarily by producing or enabling, clunky, unbalanced, unreadable, overly-long documents that end up awash in redlines from the other side. This, in turn, frustrates the business (along with the lawyers). And it takes forever to get to signature, so everyone involved in the process is miserable longer. That said, I understand that sometimes it cannot be helped. Despite our best intentions, we may be dealing with a true Luddite on the other side of the table and they simply refuse to work the contracting process in a way that makes it easier for both sides, i.e., finding security in standing firm on Latin phrases, redundant wording, and complex sentences that require a residency at Bletchley Park to decipher.
Still, we can and should do better by the business with contracts. If you agree with me that the highest and best value the legal department can provide is getting good contracts done faster, then in-house lawyers are likely not devoting enough time to making their contracts easier to sign. Below are some things I have used over the years to try to correct this problem. These are generally not for boilerplate terms used in consumer-facing user agreements on your company’s website or for simple SaaS contracts where a software provider requires that everyone sign-up for the same thing. Rather, these tips are for business-to-business deals, where there will be lawyers representing both parties. This edition of “Ten Things” shares my ideas for making contracts easier to sign: