Better contracts, Episode 9: No excuses (the one with the blind skateboarder)

What you’ll get out of this episode

It’s nearly 2023. There are things that are no longer an excuse when writing and sending out contracts. This is my list. Things that I still see a lot of in 2022 and which I’d like to see far less of in 2023. What's on your list?

The backstory

My oldest son Max has been going blind over the last year and a half. It started off as a bit of blurred vision in one eye. We eventually took him to the optician, which set off a series of events that resulted in a trip to A&E and then 7 days and nights in hospital for all sorts of tests. It turned out to be Lebers Hereditary Optic Neuropathy (LHON), a rare genetic mitochondrial disease (affecting mitochondria, the genes involved in the production of energy in cells), which inflames the optic nerve and can lead to loss of vision.

Despite the best medical care, Max has continued to lose his eyesight, now in both eyes. He has about 1/30th of his vision remaining and is legally blind. We’re thankful for that, and for the fact that his loss of vision seems to have stabilised for now. He has a small amount of peripheral vision left. His central vision is a white blur with distracting red and green static. He uses a cane to signal his limitations to others and to help with getting around unexpected obstacles. Frankly I still don’t quite understand how he manages to orientate himself so successfully especially at speed, when he can’t see my facial expressions and or what’s in his plate at dinner.

For now there is no real cure. There are medicines he is taking which might alleviate things in due course - and there are gene therapy trials which might result in a cure in a few years. So there’s hope.

Max is not letting his loss of vision stop him from doing the things he loves. He can’t ride a bike and taking him for hikes is tricky because he finds trees too confusing. But he loves skateboarding and goes out with his longboard and cane (including down hills). It kills me every time.

His refusal to compromise has inspired this episode. If Max can skate blind, then there is really no excuse for lawyers, contract professionals and anyone who is responsible for contracts in their business, to continue doing the things that I’ve listed here.

No excuses

This is my shortlist. The most obvious and basic first.

1. Shouting. There is really no reason to SHOUT AT PEOPLE IN YOUR CONTRACT. Even if you’re north American. It’s difficult to read, patronising, annoying and adds zero to risk mitigation. There are far better ways to highlight important content.

2. Archaisms. Contracts that contain “therein”, “theretofore”, “hereby” and other such archaisms signal to the reader that this is an old-fashioned legal document that’s created by lawyers for lawyers. There are better ways to shorten your sentences.

3. Cross-references. A complex agreement might need clauses which refer to other clauses. A well drafted complex agreement should have very few of these; a simple agreement should not have any. Cross-references make reading a document more difficult, while requiring a lot of fiddly effort in the drafting and editing of documents (even if they’re set up as automatic cross-references). If you have a smart information architecture, you will not need to send readers back and forth across your document.

4. Complex numbering. Agreements should have 3 levels maximum e.g. 1, 1.1,(a). An agreement that has more than 3, signals a lawyer-centric mindset, excessive complexity and failures in how the content is structured. A good information architecture and lean drafting will remove the need for multi-level numbering, which makes both drafting and reading easier.

5. Wordstrings. I’m talking phrases like “sells, conveys, transfers and assigns” and “warrants, represents and undertakes”. Well, is it a warranty, representation, or a contractual obligation? A related pet peeve is the lumping of undertakings (obligations which are really a “shall”) into warranties. Another is the use of a mix of different words to signify obligations (will, shall, undertakes to, agrees to etc). All are examples of lazy drafting, which only adds verbiage, contradiction and uncertainty to the contract. If conventional legal language still has a place (and it does) then let’s get disciplined about it.

6. Too many definitions, in the wrong places. There is usually no need to define “Agreement” and “Parties” (lowercase “this agreement” and “the parties” is perfectly clear and needs no definition). Few things are more annoying than a definition that simply says “as defined in clause 2.7”. Definitions that are only used in a particular section of a contract, should just be placed there - it’s not helpful to put them in a separate definitions list. Help your readers by putting the definition in their natural habitat. Finally, most of the boilerplate wording you see in the “interpretation” section of a contract - usually after the list of definitions - is unnecessary and is simply copy-pasted without any thought. I say finally, but the list goes on.

7. Starting with boring. Contracts that start with definitions or legal boilerplate language. Or with disclaimers, finger-pointing and other CYA (that’s Covering Your Arse) language. It’s not only dull, but puts the least important legalese upfront while leaving the really important things at the back or hidden in the middle. Contracts should start with what’s important to the reader and to the business. Give people some orientation. Tell the story. Surprise them. Give your readers some love.

8. Wall-of-text online terms. Businesses spend so much time and effort on how they communicate with their customers. Contracts are the final frontier and it’s left almost completely untouched. I want to see more on-brand, simpler Ts and Cs and legal notices. We make a big deal of this at Majoto and you can see some examples here.

9. 100 page MSAs. I’ve seen too many slow and painful deals, where a large customer insists on using their MSA with a small vendor - but the MSA is not fit-for-purpose and is heavily balanced in favour of the customer, pushing excessive risk on the vendor. Large enterprises who want to innovate faster by working with start-ups and small businesses, should be prepared to put their contracts where their mouth is. That means being open to working on the vendor’s contract terms (which are more fit-for-purpose than your standard MSA) or proposing fit-for-purpose agreements that are appropriately balanced for the type of relationship and risk involved. I’ve helped both start-ups and MNCs with this, in some cases reducing contract times by 50-80%. It requires investment but it’s really not that difficult, and the results are eye-opening.

10. Bland legalese that you got from Chat GPT. Yes it’s amazing. But we’re here to improve, to create “what should be”. Not just perpetuate “what is”, regurgitating a blend of anodyne legalese from EDGAR. We’re better than this.

Final thoughts

Once you get started, it’s hard to stop. There are so many other things. What are your pet hates?

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