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As legal educators and practising lawyers, we spend most of our time creating, sharing and communicating knowledge. Our advice is sought because lawyers are known to be capable of solving complex problems and providing clarity as to legal rights and duties. We tend to think that we are good communicators, and many of us are. Yet could we grow from good to great? How well prepared are we – or our students – to communicate clearly, particularly when courts and opposing counsel are not the primary audience?

In most instances, we communicate our knowledge in written and oral form. Most legal literature is text-only, black and white, with no pictures, graphs or examples. We may use charts in our teaching, but when it comes to legal research, memoranda, opinions, textbooks, or contracts, most of us tend not to think of visual communication. Why?

Tremendous opportunities for improvement exist! If we want to be really great communicators, visual communication offers ways in which we can organise our thoughts, add clarity, and enhance understanding, especially when working with people from different backgrounds in terms of culture, native language or profession.

In answering the questions presented in the heading, a lawyer’s answer might differ from that of a business person. For the latter, commercial contracts are not made for legal purposes but for business purposes.¹ While contracts always have a legal dimension, the contract is not the goal;successful implementation is.² As Danny Ertel notes, «[t]o be successful, negotiators must recognize that signing a contract is just the beginning of the process of creating value.»³

Contracts perform many functions. They set requirements, communicate crucial information inside and between organizations,⁴ and work as tools to share, minimize and manage risk. In case of a dispute, contracts not only work as a record and evidence of what has been agreed but can also provide means to control and resolve the dispute.⁵ – Taking into account the many different functions of contracts, how well do our contracts perform? Are they fit for purpose? A number of people are likely to say that our contracts do not perform well enough and are not fit for purpose.⁶

Contracts are expected to provide businesses with predictable outcomes and legal certainty. Yet contract interpretation remains the largest single source of contract litigation between business firms.⁷ While empirical research is needed to enhance our understanding about the reasons for this, one thing is clear: Contracts do not make things happen –people do.

After negotiating and signing, the parties must follow their contract. Understandability is a prerequisite in order for users to perform any task. The better users understand a contract, the more effectively they can work. Business people frequently say that lawyer-crafted contracts are complicated; lawyers tend to draft as if they were drafting for one another. On top of this, business people say, lawyers get paid twice: once for drafting contracts that only the lawyers understand, and then again for interpreting what the contracts mean.⁸

The time has come to change the ways in which we approach contracts and communication. We must spend more time and thought on how our skills can be enhanced in order for us to become better communicators and our contracts to become better suited for their ultimate purpose. Lets’ face it: for a vast majority of commercial contracts, courts, arbitrators, and other lawyers are not the primary readers and users – people in the operational and delivery teams applying the contracts are. These people are seldom lawyers. They need information contained in contracts to manage budget, scope, schedule, and resources and to coordinate in-house and outsourced functions, and so on. So the question arises: Do we as contract crafters know or think enough about ease of use?

Commercial contracts must be tailored around what they are supposed to cover: the parties’ objectives; the business deal and relationship; the pricing arrangement; the scope, duration, and so on. If they are not, there is a real danger that, echoing Stewart Macaulay, there is a huge gap between «the paper deal» and «the real deal».⁹

Based on experience and research, the focus of lawyers is typically on enforceability, risk-related terms, and contingencies – onassumed failure and theminimization of its negative consequences. Business people, in turn, focus more on effectiveness andestablishing a framework for success .¹⁰ Yet these are all intertwined. Contracts need to work both as business tools and as legal tools. On top, contracts must communicate the deal clearly so as to avoid future disputes over its meaning.

Macneil and Gudel divide contract planning into two main dimensions: 1) performance planning and 2) risk planning.¹¹ The first dimension is about the core of the relationship and the parties’ goals: translating goals and shared expectations into contracts which secure business success and ensure desired outcomes. The second dimension is about risk and contingencies: contract terms dealing with failure, risk allocation, liabilities, remedies, and dispute resolution, and so on.

Today’s contracts are seldom crafted by one person. Rather, contracts are crafted by a team of several people. Contracting is a process in which a wide range of people and functions are involved: a collaborative venture that requires a knowledgeable and well-connected team.

Contracts can be viewed through the analogy of a jigsaw puzzle. With a complex project in mind, Figure 1 shows a contract as a puzzle of 1) technical and contextual, 2) performance and delivery, 3) business and financial, and 4) legal and risk management related parts, with 5) project and contract management as the centre piece.¹²

Figure 1. The Contract Puzzle

If correctly assembled – and only if correctly assembled – the pieces of the puzzle form a complete, synchronized picture. The goal: working on the basis of such a contract, the supplied solution will meet the customer’s requirements, while the project will satisfy the supplier’s needs in respect of profitability and risk management.¹³

Recent research into the contract design capabilities in high-technology firms’ contracts confirms the experience-based fact that the input of managers and engineers is needed in key areas, in order to lay the foundation for the deal and construct operationally efficient contracts.¹⁴ Reciprocal interaction and cross-communication are required, as each stakeholder only has a fragmented understanding of the issues involved.¹⁵ As in any situation where many people and functions are involved, there may be different and conflicting needs and interests, which must be aligned.

So managers, subject matter experts and lawyers must be willing and able to listen, ask questions, and understand each other’s perspectives and input. They need to reconstruct the others’ insights correctly and to connect them to their own prior knowledge. As between experts and non-experts in any field, they can benefit from tools and techniques – such as visualisation – that help the other side to become actively involved in the communication and engage in a collaborative, goal-directed sense-making process: a prerequisite for the construction of new knowledge.¹⁶

If contracts are expected to translate into successful performance, why do their authors limit themselves to text only? Do they really believe that text-only terms are always read and understood by those who are expected to comply? Or thatknowledge communicated automatically translates intoknowledge received ?

Visualisation is used in many areas to help reduce complexity and convey information quickly. Images can convey information in a way that makes it more easily accessible and understandable. Visualisation can also play a role as a persuasion tool in various settings, from the court room¹⁷ to the board room and the conference room. Business managers and engineers commonly use flowcharts, timelines and other visuals. In today’s law schools, business schools, and executive education, graphs and other visuals are increasingly used to explain legal concepts. Visuals can enhance the classroom experience for students who have grown up in a multi-media environment and seem to be less receptive to black and white text than former generations.¹⁸ Some pioneers have already asked the question: Why use just text, black on white, to convey contractual information?

The idea of contract visualisation is to use visual communication tools to convey contract data, information, and knowledge in a way that makes them more easily accessible and understandable for the intended audience. This also involves making the underlying legal rules and the interplay of contracts and the law visible for non-lawyers.

The express terms of a contract – calledvisible terms here – can get quite complicated, especially in international business. Apart from the visible terms, lawyers and managers alike need to develop an understanding of theinvisible terms .¹⁹ These include default rules contained in statutory provisions, which apply in the case the contract is silent. Lawyers know these terms, non-lawyers typically don’t. For example, sometimes the UN Convention on Contracts for the International Sale of Goods (CISG) applies to a contract without the parties being aware of that fact or the CISG’s content.²⁰ Trade usage and practice may become part of the contract as well. Theseinvisible terms may bring along requirements, liabilities and remedies that the parties did not know existed, even if they had read the contract carefully.Contractual Literacy requires understanding of both the visible and the invisible terms,²¹ and it is up to us lawyers to help make the invisible visible before it is too late.

In Central Europe, visualising legal information has developed into a research field in its own right. One of the pioneers, Colette R. Brunschwig, wrote her doctoral thesis on «Visualisierung von Rechtsnormen – Legal Design» («Visualisation of Legal Norms») as early as in 2001, focusing on the formation of contracts under the Swiss Code of Obligations. In September 2010, Tobias Mahler defended his PhD Thesis on «Legal Risk Management», in which he develops a method for proactive legal analyses and uses visuals to assess the risks and controls related to contracts.

Early experiments by practitioners include the article «Doing deals with flowcharts» in ACCA Docket’s2 001 October issue, where Henry W. (Hank) Jones and Michael Oswald discuss the various benefits, with examples, and the technology tools available to use flowcharts to add value and improve productivity and efficiency. More recently, a small number or articles related to contract visualisation have been published in professional publications²² and law journals²³ .

An early example of using visuals to guide the use and interpretation of complex contracts comes from the UK: the NEC family of contracts. This family consists of several contracts designed for procuring a diverse range of works, services and supply and their associated guidance notes and flow charts.²⁴ The latter two are not part of the contract documents but assist in their understanding. Other examples include the Outsourcing Contract Dashboard, a web-based contract assessment and reporting tool developed by DLA Piper’s UK Office,²⁵ and the Visual Contract Index and other visual tools developed by Susanne Hoogwater, Legal Visuals.²⁶

As regards legal rules, an interesting example is «Visualising Legal Rules: Battle of the Forms » fromThe Wolfram Demonstrations Project .²⁷ Another excellent example is the work of the Street Vendor Project carried out by Candy Chang, a designer, urban planner and artist, in collaboration with the Center for Urban Pedagogy in New York. Having noted that the «rulebook [of legal code] is intimidating and hard to understand by anyone, let alone someone whose first language isn’t English», they prepared a visual Street Vendor Guide called «Vendor Power!» that makes city regulations and rights accessible and understandable. Figures 2A («Before»)²⁸ and 2B («After»)²⁹ illustrate the difference between text and visual guidance.

Figure 2A: Typical page from New York City Administrative Code.

Figure 2B: Street Vendor Guide. Accessible City Regulations. Courtesy of Candy Chang.

After seeing how appealing the visuals are for the intended audience, it is surprising that contracts and legal rules are not visualised more often. Skepticism certainly exists. When a paper related to the topic was presented at a recent law conference, a session attendee inquired, «Does this mean that we now need a graphic designer every time we want to draft a contract?» The answer is to the negative: this is not what is suggested here. Nor is it suggested that visuals should replace text.

Like all tools, visualisation has its limits and cannot clarify everything. Like text, visualisations can confuse the reader. For example, if the text of the contract contradicts with the visual representation of it, the visualisation can create additional trouble, unless the parties agree which prevails. And visualisation is not without cost, of course.³⁰ Still the opportunities offered by visualisation should not be overlooked due to unfamiliarity, fear, one’s own preferences, or similar reasons.

Despite its limitations, the potential for the visualisation of contracts and legal information is intriguing. With the help of visualisation, the pieces of the contract puzzle (Figure 1) can be assembled so they form a complete picture, one where all the pieces are fit for purpose, aligned, and support successful implementation. A visualised contract or rule can help clarify requirements, rights, and responsibilities and help those who need to comply know what they need to know.

Lawyers involved in commercial contracting readily admit that contracts are not just about the law. Their core is theperformance the parties expect, not risk and contingencies. The planning and design of commercial contracts is a co-creative effort between business and legal professionals. Lawyers, too, need to understand the parties’ business deal and relationship. This requires close collaboration and dialogue with management and subject matter experts. Working together, the managerial-legal team can translate goals, expectations and promises into legally sound contracts expressed in a language that is understood in the way intended. Here, courts are not the primary audience; people working in operational and delivery teams implementing the contracts are. In order for them to know what they need to know so they can comply, conventional text-only contracts and guidance are seldom optimal. Visuals can help reduce uncertainty and make information more appealing, more easily accessible, and understandable.

In many respects, the visualisation of contracts offers a promising new direction for both research and practice. Visualisation can help cross-professional communication so that contractual choices become easier to make and contracts easier to design, understand, and use, for legal and business professionals alike. In future, the ability to visualise contracts, draw a map of the legal landscape, and provide easy-to-understand guidance for desired performance can become what distinguishes good lawyers from great lawyers.

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Argyres, Nicholas & Mayer, Kyle J. , Learning to Contract: Evidence from the Personal Computer Industry. Organization Science, Vol. 15, Issue 4, July-August, pp. 394-410 (2004).

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Haapio, Helena, Innovative Contracting, in Haapio, Helena (Ed.), A Proactive Approach to Contracting and Law. International Association for Contract and Commercial Management & Turku University of Applied Sciences, Turku, pp. 105-152 (2008).

Helena Haapio, Invisible Terms in International Contracts and What to Do About Them. Contract Management, July, pp. 32-35. National Contract Management Association NCMA.www.ncmahq.org/files/Articles/81EEB_cm_July04_32.pdf last accessed 3. January 2011 (2004).

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IACCM, The Top Negotiated Terms: Negotiators Admit They Are On Wrong Agenda. Contracting Excellence, July. International Association for Contract and Commercial Management IACCM.www.iaccm.com/news/contractingexcellence/?storyid=923 last accessed 3. January 2011 (2009).

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Helena Haapio, International Contract Counsel, Lexpert Ltd, Pohjoisranta 20, 00170 Helsinki, FI,Helena.Haapio@lexpert.com ;www.lexpert.com

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