1.
Introduction: What ^
As regards style, most contracts resemble laws, with all their dense text, paragraphs, and internal references. They are structured in a peculiar way and use language that non-experts often find overly complicated and hard to understand. Contract drafters tend to copy-paste clauses and prefer «tested language» in widely used clauses. Such language is presumed to have a clearly established and «settled» meaning. The result is often a writing style that has, according to one critic, four outstanding characteristics. It is «(1) wordy, (2) unclear, (3) pompous, and (4) dull».3 «Tested language» and «settled» meanings are in fact language that has been the subject of litigation. Which raises the question: why rely on language that resulted in litigation? While such language may help to win a battle in court, it does not help those who want to avoid such conflict.
As regards content, current contracts tend to focus on worst case scenarios rather than on how the parties will work together to secure business success. Year after year, limitations of liabilities and indemnities top the list of most frequently negotiated contract terms.4 While the terms dealing with consequences of failure, claims, and disputes are important, contract drafters should not overlook the fact that a large part of contracts – and the information needs of everyday contract users – are about business and financial terms, such as statements of work, specifications, and service levels.5
2.
Clients Need (and Deserve) Better, Readable Contracts ^
In order for contracts to work effectively as both business tools and legal tools, they need to communicate information effectively to both business and legal audiences. So far, the focus of contract drafters has been predominantly on the needs of the latter. Generations of law teachers have equated contracts with contract litigation, the subject of their courses.6 Most of the discussion about using contracts has been about applying them in court, reactively, ex post, after a dispute has arisen. Business people – clients – as users and readers of contracts have been neglected to a great extent. Contract readability is seldom even discussed. If it is, this happens in the context of ambiguity, vagueness, loopholes and other legal problems encountered when interpreting contracts in court or in the shadow of a dispute. While these discussions remain important, readability in clients’ commercial contexts is a different issue.7
3.
Readability through Information Design and Visualization ^
4.
Examples of Using Information Design and Visualization in Contracts ^
Figure 1: Examples of visualized clauses in a Framework Agreement: validity (top) and storage conditions (bottom). (© 2012. Aalto University / Stefania Passera. Used with permission.)
In these examples, the text of the contract has remained the same. Here, visuals are not intended to substitute text; they are used to clarify it. The sample contract prototype produced using information design and visualization in this case study incorporates
- document design principles that make them easier to read and to use
- images and summaries that show the big picture framework
- icons and graphics that provide an overview and emphasize key points
- visual cues that provide prominence to certain pieces of information
- a layout and colors that engage readers and help them navigate the materials
In addition to the obvious benefits this merger can bring to clients, it offers benefits to lawyers as well. For instance, a visualization of the scope, delivery limits, or technical aspects of a product or system can help lawyers elicit information about and understand the core issues involved. Process maps and swim lanes can be used to visualize business processes that involve more than one department (for example, customer, sales, contracts, legal, and fulfillment) to clarify the sequence of events, how information or material passes between sub-processes, and how various parties’ actions depend on one another. Swim lanes can also be used to illustrate the steps and who is responsible for each one, as well as how delays and mistakes are most likely to occur.28 Timelines can be used to clarify contract duration and help the parties articulate tacit assumptions and clarify and align expectations.29 And the list goes on.
5.
Conclusion ^
6.
References ^
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Acknowledgments
Part of the work presented in this paper was carried out in the FIMECC research program User Experience & Usability in Complex Systems (UXUS) financed by Tekes, the Finnish Funding Agency for Technology and Innovation, and participating companies.
- 1 Rodell 1936, 38.
- 2 Haapio/Siedel 2013, 11.
- 3 Mellinkoff 1963, 24.
- 4 IACCM 2011.
- 5 Nearly 80 per cent, according to Cummins 2003, 4.
- 6 Macneil/Gudel 2001, 2.
- 7 Readability can be defined in many ways and various readability formulas exist. This paper uses readability as an umbrella term for clarity along with functionality, usability, user-experience, and other (good) qualities of contracts that clients can easily understand and act upon. – For making contracts work for clients, see Haapio 2012. For what makes a good document more generally, see Waller 2011b. For differing approaches and criteria used to evaluate the clarity of documents, see also Evans 2011.
- 8 Barton 2012, 108.
- 9 Etzkorn n.d.
- 10 Malhotra 2012.
- 11 Haapio/Siedel 2013, 44–46, 147–149 and Haapio 2012.
- 12 Macneil/Gudel 2001, vii–viii.
- 13 See, e.g., Haapio 2011, with references.
- 14 Hayhoe 2012, 23. – The author calls the first the ornamental approach and the second the holistic approach.
- 15 Albers 2007.
- 16 Two readability formulas, Flesch and Flesch Kincaid, are built into MS Word, as part of Tools / Spelling and Grammar. See Readability scores. Microsoft Office Word Help 2003. The scores MS Word gives for these formulas reflect readability in the narrow meaning of the word, rather than readability as used in this paper: see FN 7 above.
- 17 Pohjonen/Visuri 2008, 82–84.
- 18 Haapio 2011 and 2012.
- 19 Kimble 2006 and 2012.
- 20 Waller 2011a and 2011b and Etzkorn n.d.
- 21 Hetrick 2008.
- 22 Weatherley 2005 and Siedel/Haapio 2010 and 2011.
- 23 Hetrick 2008.
- 24 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. See also Haapio 2012.
- 25 See, e.g., Haapio 2010, Siedel/Haapio 2011, and DiMatteo et al. 2012.
- 26 See, e.g., Passera 2012 and Passera/Haapio (forthcoming). The examples are part of a case study carried out in a Finnish company operating in the metals and engineering sector. More prototypes and case studies are underway.
- 27 Passera 2012 and Passera/Haapio (forthcoming).
- 28 For an example, see, e.g., the Wikipedia entry Swim lane, available at http://en.wikipedia.org/wiki/Swim_lane accessed 24.1.2013.
- 29 Haapio 2013 and DiMatteo et al. 2012.