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Make 2020 the year of action - Denis Potemkin

Denis Potemkin, 23 January 2020

Better legal design

As 2019 came to a close and the legal community shared tech roundups and new year predictions, I noticed a prevailing thread amongst the voices.

2019 focused too much on legal tech, and not enough on collaborative behaviours, listening to customers, and and the "boring" task of delivering a better service.

There’s plenty of active discussion around innovation, how the industry needs to change, and what innovation means for the legal industry. But on the ground, change is slow. New technology is often seen as a cure-all, instead of part of a holistic answer. A lot of the great work on legal redesign plays around the edges or remains in the experimental phase. 

It’s time to dig in and embed the solutions people have been discussing and developing throughout 2019. For those who have not started, the time is now! For those who have already started, broaden the scope and prioritize it. Stop prototyping and start implementing. Make 2020 the year of action. 

Language and design 🎨

I aim to focus on language and design in an upcoming blog series. There’s a growing community of experts working on contract improvement, visual contracts and plain language, but it’s not percolating through the industry. Language is broken within legal, but it can have a massive impact once it’s fixed. Some of the work I’m doing currently revolves around lean drafting, plain English and reducing friction. I believe you can get up to 50-60% time savings just from improving these elements in a contract. 

"Lawyers don’t write from scratch; they ‘Frankenstein’ existing precedents to create something that works for them - and that means perpetuating bad habits and layering more bad habits on top"

What are the simple solutions that everyone should be thinking about? 🤔

There are several quick fixes that anyone can achieve without necessarily launching a larger project or engaging a consultant. These are simple to get started with because they work at an individual level as well as at a company level - you don’t need a business plan to embed these into your work! 

Modernize language 

Improving the language in a contract is essential - this is the first step towards efficiency, usability and legal clarity. This includes: 

  • Getting rid of archaisms and unnecessary legalese. “Therein”, “thereof”, “hereinabove” and the whole extended family, for example

  • Removing unnecessary word strings, like “represents, warrants, covenants and undertakes” or “assigns, transfers and conveys”

  • Disciplining your language by being consistent in the use of different contract concepts, simple examples being “shall”, “will” and “must” 

This can be a challenge because of how lawyers tend to operate. Lawyers don’t write from scratch; they take existing precedents, chop and change, ‘Frankenstein’ the sentence to create something that works for them - and that means perpetuating bad habits and layering more bad habits on top.

Contract drafting expert Ken Adams wrote a book (arguably THE book) highlighting how ridiculous conventional drafting can be, but also how it actually reduces legal clarity and increases risk. His book teaches lawyers how to do it better.

Sharpen and simplify language

Focus on writing in plain English. Say what you want to say, make it real, avoid trying to sound professional for the sake of it. Write how you would if explaining the concept to a stranger on the street. Replace passive voice with active voice. 

Can I say this quicker? Can this paragraph be shorter? Can I use a simpler word? Should I replace “documentation” with “documents”?

(Answer: yes.)

"Prioritising the business end involves taking the key commercial points from the contract and placing them at the top of the document. This makes the contract more comprehensible and easier to navigate"

Restructure contracts

Contracts are poorly-structured documents; all words, no pictures, and long blocks of long paragraphs, often following neither a narrative nor a particularly sound logic. A key improvement people can make to their contracts is to restructure them in a way that makes them productive and easy to work with. 

This can be done by putting the business end first - there are many shining examples of well-structured contracts, from IACCM’s contract pattern library to the Reverse Sandwich by Verity White, legal counsel at Telstra.

Prioritising the business end involves taking the key commercial points from the contract and placing them at the top of the document. By making this change, the contract should start with a one-pager of the most useful business information, with the following pages focusing on legal and risk. 

This makes the contract more comprehensible, easier to navigate, and allows you to standardize key points, which is useful for data and analytics.

Make playbooks useful

Picture the scene: the business invests heavily in creating a playbook. People will pour their guidance and experience into crafting a playbook in Word, spending months (or even years) on the process until it’s a huge project. It’s finally published … and no-one uses it. 

Why? Because the playbook doesn’t function as an actionable tool. Playbooks need two things to be effective: 

  • Substance. Don’t try to turn playbooks into a guidance document. Playbooks need to identify the issue and give actionable rules. Users should be able to know exactly how to proceed - and where to escalate

  • Form. Think about how you structure information and what tool you’re using. When I write playbooks, I use spreadsheets instead of Word because spreadsheets are multi-functional, flexible and expandable - and that can help you focus on the substance. Get in touch to find out how you can use spreadsheets to improve your playbooks and other documents 

Avoid time traps

Lawyers spend so much time fixing numbering, formatting, sorting out clause cross-referencing and managing schedule numbers. Automation and Word add-ons don’t solve the problem entirely, and not without a lot of work anyway. So how about eliminating these annoyances altogether? 

By applying lean drafting, you can reduce and even eliminate clause cross-references. With complex contracts, you may need a numbering system, but simpler agreements don’t need it. By using informative headings you can avoid having to cross-reference numbers altogether. Creating modular agreements can side-step all the fiddling normally associated with removing or adding big chunks of text. The lawyer saves time, and the business gets something more efficient, more readable and easier to automate.

The next steps 📈

Once you’ve tackled the quick fixes, kickstart a project. Move to deeper design and language work. Focus on contracts as being more about business outcomes rather than legal risk. Involve the end user. Explore visuals, on-brand communication style, alternatives beyond Word. Embed improvements quickly. Iterate. 

Of course the best results require planning and preparation, cross-functional alignment, expert insights, listening and collaboration - but if the smaller steps add up to a major project that redefines the legal function, it’s all worth it. 

Denis Potemkin is a consultant, legal innovation enthusiast and founder of majoto.io. Follow Denis on LinkedIn for his upcoming blog series. 

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Topics: Better legal design

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