Jusletter IT

Making Contracts Work for Clients: towardS Greater Clarity and Usability

  • Author: Helena Haapio
  • Category: Short Articles
  • Region: Finland
  • Field of law: Legal Visualisation
  • Collection: Conference proceedings IRIS 2012
  • Citation: Helena Haapio, Making Contracts Work for Clients: towardS Greater Clarity and Usability, in: Jusletter IT 29 February 2012
While some contracts may need to work as evidence in court, most contracts do not. Instead, they need to work for the parties so they get the results they want to accomplish. Yet this is not what guides most of today’s contract design. Water-tight, legally “perfect” contracts that seek to allocate all risk to the other party may not work as intended. Such contracts are not easy to read, comprehend, or implement. If not implemented correctly, business and legal problems will follow. The time has come for contract drafters to focus on the usability of their work products, not just as legal tools but also as business tools. Both consumer contracts and commercial contracts should be communicated in more user-friendly ways, and they can. After introducing some of the challenges, this paper presents work in progress aimed at overcoming them by developing new methods to improve the clarity and usability of contracts. It proposes information design and visualisation – adding tables, charts, and images to supplement text – as promising new ways that can help in this venture.

Inhaltsverzeichnis

  • 1. Introduction: Seeing Contracts and Contract Users in a New Light
  • 1.1. The Users of Commercial Contracts
  • 1.2. Perfect, Complex Contracts – or Good Enough, Usable Contracts?
  • 1.3. From a Reactive to a Proactive Approach
  • 1.4. Information Design: Plain Language and Beyond
  • 2. Experiments: Communicating Contracts in New, More User-friendly Ways
  • 2.1. Early Experiments with Contract Visualisation
  • 3. Making Contracts Work for Clients
  • 4. References
  • 4.1. Acknowledgements

1.

Introduction: Seeing Contracts and Contract Users in a New Light ^

1.1.

The Users of Commercial Contracts ^

[1]
The users of commercial contracts can be divided into two major groups: the legal community and the business community. So far, the focus of contract drafters and doctrine has been predominantly on the needs of the former: legal practitioners and scholars, law teachers, judges, and arbitrators. Most of the discussion about using contracts has been about applying them in court, reactively, ex post, after a dispute has arisen.
[2]
While some contracts may need to work as evidence in court, most contracts do not. Instead, they need to work as business tools for the parties so they get the results they want to accomplish. Still today, most contracts seem to be written by lawyers for lawyers, the goal being water-tight and legally “perfect” contracts. This paper focuses on the needs of the business community: the sellers, buyers, and entrepreneurs whose actions, rights and responsibilities are impacted by contracts. It builds on the research and practice of Proactive Law and Proactive Contracting,1 merging these with information design: the skill and practice of preparing information so people can use it with efficiency and effectiveness.2

1.2.

Perfect, Complex Contracts – or Good Enough, Usable Contracts? ^

[3]
For a young lawyer just out of law school, the goal of contract design may be a legal masterpiece, a contract as close to “perfect” as possible: one that is legally binding, enforceable, unambiguous, and provides solutions for all thinkable contingencies.3 In contrast, the business community in the “real world” requires a different approach.
[4]
Voltaire (1764) is quoted having stated “The perfect is the enemy of the good”. Pursuing the “perfect” solution may end up being less beneficial than accepting a solution that is good enough and effective. Rather than perfect contracts, businesses need usable, good enough contracts; these may be more helpful for achieving desired business goals and reasonable risk allocation at an acceptable cost. For businesses, the contract itself is not the goal; successful implementation is. Signing a contract is just the beginning of the process of creating value.4 So the core of contract design should be securing the performance the parties expect, not just a contract.
[5]
Contracts do not make things happen – people do. People need to follow their contracts. Contracts are seldom easy for their users in the field, mostly non-lawyers, to understand and to implement. Their language and complexity may overload readers’ cognitive abilities.5 If this happens and contract implementation fails, it would be wrong to assert that those contracts are “perfect” or even of good or reasonable quality, fit for their purpose. Quite the opposite: they fall short of their ultimate purpose.6

1.3.

From a Reactive to a Proactive Approach ^

[6]
The approach specifically called Proactive Law emerged in the late 1990s. The pioneers were a group of Finnish scholars, practitioners and business clients who wanted to merge quality and risk management principles with forward-looking legal skills to improve their contracting processes, online and offline. The network of enthusiasts grew, and the early experiments led to a series of publications, conferences, and eventually to the formation of the Nordic School of Proactive Law.7
[7]
The proactive approach has two dimensions, both of which emphasize ex ante, forward-looking action: (1) a preventive dimension, seeking to prevent problems and disputes, and (2) a promotive dimension, seeking to secure the respective actors’ success in reaching their goals. In the context of practicing law, the idea of prevention was first introduced by Louis M. Brown, a US attorney and law professor. One of his fundamental premises was that in curative law, it is essential for the lawyer to predict what a court will do, while in Preventive Law, it is essential to predict what people will do.8 In his ground-laying treatise Preventive Law published in 1950, he notes a simple but profound truth that has not lost any of its value: “It usually costs less to avoid getting into trouble than to pay for getting out of trouble”9 .
[8]
In December 2008, the European Economic and Social Committee (EESC) adopted its Opinion on “the proactive law approach: a further step towards better regulation at EU level.”10 In the Opinion, the EESC urges a paradigm shift in EU law, stating: The time has come to give up the centuries-old reactive approach to law and to adopt a proactive approach. It is time to look at law in a different way: to look forward rather than back, to focus on how the law is used and operates in everyday life and how it is received in the community it seeks to regulate. While responding to and resolving problems remain important, preventing causes of problems is vital, along with serving the needs and facilitating the productive interaction of citizens and businesses.11
[9]
Collaboration between participants in the Nordic School of Proactive Law, the ProActive ThinkTank12 , and legal scholars in the United States exploring aspects of using the law for competitive advantage and of law and strategy, has enriched the proactive approach and expanded its reach.13 The proactive approach emphasizes the importance of collaboration between legal professionals and other functions and disciplines.14 In contracting, the focus is on the users of contracts and how they can be enabled to reach their goals and prevent disputes. Contract users need easy access to relevant contractual information. Current contracts – lengthy legal documents full of dense text – do not necessarily provide such access. This is where information design and visualisation as ways to enhance the usability of contracts enter the picture.

1.4.

Information Design: Plain Language and Beyond ^

[10]
While many tend to favor plain language in contract design, conventional (especially Anglo-American) contract drafters still consider legalese superior. They talk about the benefits of language that has been “tested”, and so has a clearly established, “settled” meaning. Change could be risky. But this refers to language that has been litigated. Which raises the question: why rely on language that resulted in litigation in the first place?
[11]
Kenneth Adams, a recognized expert on contract drafting, is a strong opponent of legalese. In his words, “[t]he fog of legalese makes it more likely that a contract will contain a flaw that leads to a dispute or deprives a client of an anticipated benefit.”15 In addition to Adams’ work, several studies confirm the benefits of plain language and its preference among different groups of readers – clients16 , judges17 , and the public18 . Yet plain language alone cannot solve the problems of legal complexity or make the law intelligible to the non-lawyer.19
[12]

Adding to the challenges is the deeply-rooted preconception that readers want to see documents that “look legal” in order to deem them legitimate.20 A similar (mis)conception is probably one of the highest barriers to the adoption of visual language in those documents: graphics don’t “look legal”.21 However, visual elements can play an important role in supporting understanding, sharing knowledge, and retaining information.22 Some thought leaders have gone beyond text in legal design. In Canada, recognizing the need for new ways to inspire public access to the law, the Government commissioned a White Paper proposing a new format for legislation in 2000. The White Paper by David Berman, a communication designer, also introduced the concept of using diagrams to help describe laws, noting that this concept is “revolutionary, and likely the most innovative information design feature in the new design”23 . Somewhat surprisingly, visual elements have recently made their way even to court decisions, both in Europe24 and in the United States25 .

[13]
In light of the growing number of examples, information design and graphic representations may finally be on their way into legal design – a development that has been promoted by Colette R. Brunschwig26 and other pioneers for quite some time. This development has already taken place in various other fields, such as technology, medicine and economics.27 It is obvious that contracts, too, could benefit from a new and more visual approach to knowledge sharing and presentation.

2.

Experiments: Communicating Contracts in New, More User-friendly Ways ^

2.1.

Early Experiments with Contract Visualisation ^

[14]

Some pioneers have already applied visualisation to contracting processes28 and documents29. Experiments exist that prove how credit card agreements and other consumer contracts can benefit from a new, more user-friendly approach.30

[15]
At the Aalto University, a multi-disciplinary research project was recently started seeking to develop and apply new, easier methods for cooperation, co-creation, contracting, and interaction.31 Drawing from research in Proactive Law,32 information design, user-centeredness, and other fields, the aim is to develop, prototype, and test new approaches to commercial contracts in order to increase their understandability and usability. The project looks into visualisation and other possible means towards simpler contracting and enhanced ease of doing business. The early results indicate that visualisation indeed offers a way to support effective contract-related communication. It helps increase awareness and interest, make complex messages clear and understandable, facilitate cross-professional communication, and improve contracts’ usability and user experience.33
[16]
The examples illustrate the many opportunities offered by visualising contract-related information. In the context of sales of goods, for instance, pictures and drawings can be used to identify and describe the goods and how they should be marked or packaged. Sequences of events, responsibilities, relationships, and trade terms can be simplified through timelines, maps, and diagrams. Visuals can also be used to make the invisible visible: show the presence and impact of invisible terms,34 helping the parties obtain clarity about their rights and responsibilities and avoid unintended obligations, liabilities and risk. Many more contract related concepts are certainly capable of being visualised. The only limit, really, is our imagination.

3.

Making Contracts Work for Clients ^

[17]
The legal community has a wealth of contract-related information that could benefit the business community. However, much of it is currently not accessible to the latter: too many barriers exist, both perceived and real. While contracting is a core business activity, most contracts today seem to be designed for litigants, not for day-to-day users; contracts are written by lawyers for lawyers.35 When looking at the ways in which contracts are communicated, it seems that the information is intended just for lawyers who apply it in court or arbitration or when negotiating in the shadow of a dispute. Business people – clients – as users of contracts are to a great extent neglected.
[18]
This paper proposes the proactive approach and information design as a framework for removing the existing barriers and softening the legal dominance. In order to work as business tools, contracts need to be accessible and understandable, not just for lawyers, but also for business people, including, in particular, people in sales and procurement who need to capture and articulate crucial contract requirements and other data, and people in project, delivery and operational teams who are in charge of implementing the contracts: translating them into desired action.
[19]
Visualisation offers tools that can help increase business people’s interest in and awareness of contract-related information. Visualising contracts’ core contents can help clarify the choices that are available and their practical impact on business performance and risk. The Author of this paper invites everyone interested, practitioners and scholars alike, to join in a Visualisation Project – Making Contracts Work for Clients to explore the opportunities that visualisation can offer in this context. A Wiki, Creative Commons, or a similar platform could be created for sharing and exploring ideas and visualisations that can advance the transparency and accessibility of contracts and increase their clarity and usability. The project could lead to significant reforms in how contracts and the law are perceived, communicated, and used.

4.

References ^

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4.1.

Acknowledgements ^

Part of the work presented in this paper was carried out in the FIMECC research programme User Experience & Usability in Complex Systems (UXUS) financed by Tekes, the Finnish Funding Agency for Technology and Innovation, and participating companies.

  1. 1 See, e.g. Siedel & Haapio 2011, Siedel & Haapio 2010, and Haapio 2010, with references.
  2. 2 Wikipedia contributors 2011. Information design.
  3. 3 Pohjonen & Visuri 2008, 82–84.
  4. 4 Ertel 2004, 62.
  5. 5 Hagerdorn & Hesen 2008 and Posner 2010.
  6. 6 Passera & Haapio 2011a and 2011b. – The same challenges apply to legal documents more generally, of course. Instead of plain language, most are written in legalese, or, in the question of the EU Commission, Commissionese. Currently, as stated by the Chair of the Commission’s Task Force on Clear Writing, text in Commission documents – even in public information booklets and web pages – is written so that “the man or woman in the street won’t want to read it, and our message will fail to get across.” Yet things may start to change: in 2010, the EU Commission launched a Clear Writing campaign. Its outcomes include a dedicated website and the “How to write clearly” booklet in 23 languages. (Strickland 2011, 15).
  7. 7 See the resources available at the Nordic School of Proactive Law website, http://www.proactivelaw.org. This site is maintained under the leadership of Professor Cecilia Magnusson Sjöberg, University of Stockholm. See also FN 1.
  8. 8 See Brown 1986, Brown & Dauer 1978 and Brown 1950.
  9. 9 Brown 1950, 3.
  10. 10 See EESC Opinion 2009. In addition to the English language version, the EESC Opinion is also available in all other official EU languages: 23 languages altogether. The Section for the Single Market, Production and Consumption, under the leadership of Mr Jorge Pegado Liz, was responsible for preparing EESC’s work on the topic, and the Author of this paper, Helena Haapio, acted as Expert in this work.
  11. 11 Id. § 1.4.
  12. 12 The mission of the ProActive ThinkTank is to provide a forum for business leaders, lawyers, academics and other professionals to discuss, develop and promote the proactive management of relationships, contracts and risks and the prevention of legal uncertainties and disputes. See ProActive ThinkTank Mission Statement, http://www.juridicum.su.se/proactivelaw/main/thinktank/missionstatement.pdf. The number of people who have signed up has grown at a remarkable speed: from 12 founders in 2007 to more than 950 in 2012.
  13. 13 E.g. Siedel & Haapio 2011, Siedel & Haapio 2010, and DiMatteo, Siedel & Haapio 2012.
  14. 14 See Pohjonen 2006, 54: “In Proactive Law, the emphasis is on achieving the desired goal in particular circumstances where legal expertise works in collaboration with the other types of expertise involved. In Proactive Law, the need for dialogue between different understandings is emphasised.”
  15. 15 Adams 2008, xxv.
  16. 16 Adler 1991.
  17. 17 Kimble 2006, 13.
  18. 18 Plain Language Institute of British Columbia 1993.
  19. 19 Assy 2011.
  20. 20 Trudeau 2011.
  21. 21 Passera & Haapio 2011b.
  22. 22 Bresciani & Eppler 2010, Bresciani & Eppler 2008 and Eppler & Burkhard 2004.
  23. 23 Berman 2000, 23.
  24. 24 See Hovrätten för Västra Sverige 2009 (Court of Appeal for Western Sweden (Gothenburg), case number B 1534-08, 15.7.2009). The judgment includes two timeline images showing the chain of events that are crucial to understand the facts of the case. This judgment won the plain language award, the Plain Swedish Crystal 2010, not only for being written in a pedagogical and innovative way, having a clear structure, good paragraphing, clarifying summaries, and subheadings, but also for the fact that reading it was facilitated by bullet points and images. (Språkrådet 2010)
  25. 25 An Opinion by Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals uses the ostrich metaphor to criticize lawyers who ignore court precedent. Two photos are shown in the Opinion: one of an ostrich with its head buried in the sand, another of a man in a suit with his head buried in the sand. See Posner 2011.
  26. 26 See, e.g., Brunschwig 2001.
  27. 27 See, e.g., Gunnarsson 2009, 72–80.
  28. 28 For examples of visualising the public procurement and contracting process, see the Scottish Procurement and Commercial Directorate’s Procurement Journey at http://www.scotland.gov.uk/Topics/Government/Procurement/buyer-information/spdlowlevel (click on Route One, Two, and Three to see the three different routes on the map) and Supplier Journey at http://www.scotland.gov.uk/Topics/Government/Procurement/Selling/SupplierJourney.
  29. 29 For early experiments with and examples of contract visualisation, see Jones & Oswald 2001, Jones 2009, Rekola & Haapio 2009, Mahler 2010, Barton, Berger-Walliser & Haapio 2011, Haapio 2011a, Haapio 2011b and Haapio 2011c. – One of the early pioneers, Susanne Hoogwater of Legal Visuals, has developed the Visual Contract Index, a legal “dashboard” for accessible contracts, waivers, and terms and conditions. See http://www.legalvisuals.nl/index-en.html and http://www.legalvisuals.nl/upload/flyer_visual_contract_index.pdf. In the UK, the NEC family of contracts for procuring works, services and supply, offers an example, along with the associated guidance notes and flow charts which assist in their understanding. For a sample, see Figure 1 in Passera & Haapio 2011b.
  30. 30 In 2011, the US Consumer Financial Protection Bureau (CFPB) launched a new “Know before You Owe” project aimed at simplifying credit card agreements so that the prices, risks, and terms are easier for consumers to understand. The CFPB website shows a simplified prototype credit card agreement and offers a database where existing credit card agreements can be viewed to compare. (CFPB 2011) – For further examples of projects aiming to simplify, for example, an online game’s terms of service, a rail network’s disclaimer, and a law firm’s standard terms of engagement, see the Clarity2010 blog, http://blog.clarity2010.com. See also OFT 2011.
  31. 31 The project looks into contracting in the Finnish Metals and Engineering Competence Cluster (FIMECC) as part of User Experience & Usability in Complex Systems (UXUS), a five-year research program financed by participating companies and Tekes, the Finnish Funding Agency for Technology and Innovation.
  32. 32 According to Thomas Barton, Preventive/Proactive Law offers a different, and arguably deeper, way of understanding law, legal problems, and how lawyers can help clients achieve their goals. Barton’s article focuses primarily on one recurring barrier: “an exaggerated and largely unnecessary separation between the business goals that clients seek to achieve, and the legal methods by which contractual relationships are created and managed”. See Barton 2012. See also Cummins 2011 and DiMatteo, Siedel & Haapio 2012.
  33. 33 See Passera & Haapio 2011a and 2011b. – See also Brunschwig 2011 and IACCM 2011, with references.
  34. 34 See Haapio 2004 and Haapio 2009. As to a business manager’s and a lawyer’s different way to see contracts, with visualisations, see Haapio 2006, 155–163, especially Figure 2. Elements of a Contract – a Lawyer’s View, and Figure 5. Contract – Mind the Gaps!.
  35. 35 See, e.g., Cummins 2011 and Berger-Walliser, Bird & Haapio 2011.

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