So you want to create a confidentiality agreement. You could find endless examples online, but you’re in the mood for a fresh start. What do you do?
Making a Fresh Start
You could use a template offered by one of the standard-form initiatives. The idea of standard forms has much to commend it, but by definition it offers limited customization. Or you could use Practical Law’s mutual confidentiality agreement template (the one I analyze in this blog post). That too offers limited customization: in addition to questions asking you to provide information about the parties, give a date for the contract, state the purpose of the contract, and choose the governing law, only seven yes-no questions invite you to adjust the contract in other ways.
Then there’s Adams Contracts’ confidentiality agreement template. It’s different—it’s a beast, in a good way.
Beast Mode
The interview currently consists of almost 200 questions. Don’t panic! Those questions cover the entire decision tree, so no user is presented with anything close to all those questions. Instead, the answer given to some questions leads the user down one branch of the decision tree, rendering irrelevant other branches, with questions of their own. But whatever the exact number of questions a given user ends up answering, it will be way more than the handful offered by the standard-form initiatives and the Practical Law template.
And plenty of those questions don’t just swap in or out a single block of text. For example, whether the contract is one-way or mutual affects hundreds of places in the document-assembly markup underlying the template, including what defined terms you use for party names. The last time anyone checked how many places it affects, it was over 800.
What Extensive Customization Looks Like
Much about the coding of this template went over my head, but anyone knowledgeable about document assembly wouldn’t find it particularly complicated. Instead, what’s challenging is the interplay of all the options for customizing.
To show you what I mean, let’s look at the customization available in one section, “Procedures for Disclosing”. It states four conditions that must be met for what is defined as confidential information to actually constitute confidential information. (Let’s call those the “CI conditions”.) Each CI condition is optional—the user might include one, two, three, or four conditions, or none.
That section also says that something that otherwise wouldn’t constitute confidential information under that section would be confidential information if one or both of two more conditions are satisfied. (Let’s call those conditions the “recapture conditions”).
Because of interplay of those components, the template must provide for these formatting possibilities:
- Nothing (if no CI conditions are selected)
- A section without subsections (if one CI condition is selected and no recapture conditions are selected)
- A section without subsections but with two, three, or four tabulated enumerated clauses (if two, three, or four CI conditions are selected and no recapture conditions are selected)
- A section consisting of two subsections (if one CI condition is selected and one or two recapture conditions are selected)
- A section consisting of two subsections, the first of which has two, three, or four tabulated enumerated clauses (if two, three, or four CI are conditions selected and one or two recapture conditions are selected)
Other questions affect that section: Is the contract one-way or mutual? Does it relate to an ongoing commercial relationship, a proposed transaction, or an employment relationship? What does the confidential information relate to? And so on. The result is that each alternative format is packed with further options. Keeping track of it all has kept me on my toes.
Different Kinds of Transactions, Different Needs
So offering such extensive customization has its challenges, and the customization presents the user with a lot of choice and a lot of guidance.
Why did I pursue this approach? Because standard-forms are best suited to transactions that require minimal customization to protect your interests. It’s likely that even in the case of some confidentiality agreements, the benefits of a more customized approach would exceed the convenience offered by a standard form. And other kinds of transactions might skew in favor of a more customized approach.
If you elect to take advantage of a more customized approach, maybe it’s for a transaction where more is at stake, justifying a longer, more detailed contract. But that need not be the case—maybe a more customized approach results in a contract that isn’t longer, just more relevant.
And more generally, remember a point that I now associate with Alex Hamilton and his book Sign Here—aim to make your contracts shorter. Our confidentiality agreement template lets you say all sorts of stuff clearly and concisely, but say it only if it’s truly relevant.
I’ve been told that people aren’t familiar with using document automation to generate templates. Instead, they’re familiar with using document automation to fill in templates, and for that, the Adams Contracts is way too much. But the world of contracts doesn’t need a better way to fill in blanks—it needs a fresh start. And once you’ve used an Adams Contracts template to create one or more contracts, you can then access fill-in-the-blanks functionality, and avoid having to go through the questionnaire again, by saving and reusing whatever answer sets you gave previously on completing an interview. (For more on that, see this blog post.)
The Beast in Me
Adams Contracts is the only business offering highly customizable templates. I’ve spent a dozen years looking for someone to partner with me in creating highly customizable templates, but until Kevin Miller, LegalSifter’s CEO, approached me six years ago, I found no one interested in even discussing it.
Shouldn’t that be a sign this approach is a dud? Hardly. If I limited myself to what was popular, I wouldn’t have bothered embarking on my 20+ year project to create a comprehensive set of guidelines for how to say clearly and concisely in a contract whatever you want to say. After all, no one else has demonstrated a sustained appetite for that kind of work. It’s too time-consuming, too challenging, and—dare I say it—too disruptive.
I see a similar explanation for the lack of interest in highly customizable templates. People don’t have the stomach for rummaging in the entrails of contract language. And when you start piling on the options, automation becomes challenging. (See this blog post for more about those two factors.) And selling highly customization templates involves suggesting to people that they jettison their current templates and start over. Again, disruption.
But I was willing to take on the copy-and-paste establishment in coming up with guidelines for clear and concise contract language, and I'm satisfied with how that has gone. (See this blog post.) For the same reason, I’m willing to offer Adams Contracts templates as an alternative to copy-and-pasting as usual, and—depending on your needs—as an alternative to using a standard form.
The Goal
The immediate goal of Adams Contracts is to let you reap the benefits of creating, in a radically cost-effective way, contracts that are much clearer, much more concise, and much more relevant.
But the ultimate goal is to put an end to the centuries-long copy-and-paste experiment. It’s an experiment that has never worked. That’s why the default mode for contract drafting is shameless dysfunction.
It’s unrealistic to think that artificial intelligence will save us. (See this blog post and this blog post.) Instead, the fix is straightforward: subject matter expertise under firm editorial control + comprehensive guidelines for clear and concise contract language + document-assembly technology. None of those components is exotic or expensive, and Adams Contracts has access to them all. (We use the document-assembly software XpressDox.)
Figuring out what to say in a contract and how to say it is challenging. Bespoke drafting hasn’t worked. Copy-and-pasting hasn’t worked. And artificial intelligence will just replicate the dysfunction. So let’s put contract language in the hands of those who know what they’re doing and scale it up using document assembly.
What’s Next
Adams Contracts has established the smallest of beachheads—currently we have on offer only our confidentiality agreement template and our boilerplate template. Given what it takes to build this sort of highly customizable template, that was the only sensible approach. We’re now deciding what kinds of transactions to tackle in our next templates. If you’re wondering whether this approach might work for your transactions, whatever they might be, contact me at ken@legalsifter.com. I’d be happy to arrange for you to take the confidentiality agreement template for a test drive.
