(this piece is for: anyone writing a contract, but it’s useful for anyone negotiating one, too)
I sometimes feel like people have put so many systems in place to be able to live our lives, that we forget that they’re there for us to live our lives. Living, breathing, human lives.
Of course, making systems is a perfectly normal thing for humans to do. We see and make patterns; it’s pretty much our entire shtick. And those patterns help us make order out of chaos, so that the next time we have to go out hunting, we know that we’ve learned the right way to catch a sabretooth pheasant (education), that we can trade it for three fish (economics), and that all of our stuff will still be there when we get back (law).
But sometimes I think we miss the point of those systems. We end up doing things because the system says so, and not because they’re actually practical anymore. Which means we’re stuck with outdated syllabuses, unaffordable prices, and unethical laws – at least until we’ve come around to updating the way we do things.
I want to update the way we do contracts. The way we think about contracts.
Why? Because the current way is – as one client put it – psychopathic.
What’s going on?
A lot of lawyers, and by extension the businesses that hire them, approach contracts from the perspective of fighters. They’re out to win, which is a great quality in a lawyer. But to them winning also means someone else losing, which isn’t always a good strategy in commerce. The result? A warm, personal relationship that you’ve built up over many meetings and phone-calls, and that is completely undermined by the mechanical itemisation of dos and don’ts in the contract. Marketing finds the relationship. Sales butters them up. And Legal punches them in the kidneys.
Because the contracting “system” takes over. Because we’ve always included a liability clause like this. And we’ve always written an IP clause like that.
We forget, though, that a contract is a set of rules governing a relationship. Between people. And like most relationships, you’ve got some say in what it looks like. In fact, that’s the whole point, right there. You’ve got a decision to make. Does your contract reflect your off-paper relationship, or is it a little metal box that everyone just has to fit into? Can you even tell the difference?
What’s going wrong?
The main reason why contracts tend to be Norman Bates in text is language: what you say and how you say it.
How you say it is the easy part. Most people are already on board with plain language contracts, and not using sentences that require you to warm up first. But it’s still all too common to find sentences that are built out of words that you’re sure you know individually, but that you just can’t make sense of together.
It’s simple, really: readers should be able to understand what you’re saying. If they don’t, then you’re not actually communicating with them; you’re communicating with some imaginary future court. You’re writing with the hope that if it all goes to poo, at least the person who has to sort it all out will be able to decrypt things in your favour. And ultimately, that’s counterproductive. If your reader can’t understand what you want them to do, it’s more likely that they won’t actually do it. Which is exactly what you feared in the first place. Whoops.
On the other hand, what you say is the less obvious problem. Contracts are designed to futureproof your relationship, and guard as much as possible against a host of things that may or may not happen further down the line. But is your reader expecting to see them in the contract? Do they match the off-paper conversations you’ve had with them? If so, great, you’re both on the same page! If not, well, then all the reader see is someone who turns into a completely different person on their wedding day.
Most businesses don’t care about this. They will, for example, sell a sweet story of collaboration and equal partnership, but then make sure the contract lets them keep the IP for themselves. Sometimes that’s reasonable, sometimes it’s not. The point is that most businesses don’t think about it either way. And that has the potential of ostracising the reader, and making them not want to do business with you at all.
What can you do?
The key here is communication. Does your reader understand what you’re afraid of, and why? Do they worry that you might abuse your powers in a way you haven’t described?
It’s a choice you’re making. Are you more concerned about vague possibilities than you are about the person you’re signing with? One business I know goes to extremes to show that it values the person more, by stripping their employment contracts of everything that isn’t completely necessary, even if it would benefit them. They value their relationships more than the possibility of problems down the line. Oh, they’re fully aware that problems could arise. They’re just willing to gamble that they won’t, if they treat their people well.
If that’s too rich for you, you can always try looking at it all like an antenuptial contract: A good antenuptial contract is written by people who love each other, for people who don’t anymore. It takes all the love and goodwill that you feel for each other now and turns it into an agreement that’s fair and understandable to everyone – because right now you don’t want to see each other suffer, and you want to lock that mentality in place. If the marriage sours, at least the breakup has been handled by people who aren’t out for blood. More than that, it starts the relationship off on a good footing, making sure that everyone knows what’s going on and are (hopefully) holding the same number of cards.
Ultimately, contracts are between people. Write for them.
