Let's unpack the three propositions in the title to this post.
Your Templates Are Dysfunctional
First, the notion that your contract templates are dysfunctional. On what basis do I say that? In the case of almost all of you, I haven't even read your templates! Well, over the course of 25 years I've read a representative sample, and everywhere I look I see dysfunction. Recent examples are Practical Law's confidentiality agreement template (see this post) and Salesforce's master subscription agreement (click here to download a Word document containing before-and-after extracts).
Generally, this dysfunction is no discredit to whoever is responsible for a company's templates. We've long been stuck in the copy-and-paste system, so we don't have a real grasp of what's in our contracts. Instead, we copy-and-paste, on faith, relying on addled conventional wisdom. To some extent, we're all riders on the copy-and-paste train.
The Best Fix Would Be a Fresh Start
Retooling dysfunctional templates requires expertise in what to say in a contract and how to say it, and companies are unlikely to have access to all the necessary expertise. Even if you do have the expertise, retooling mainstream contract language is laborious and leaves you somewhat committed to the structure of the original.
For training purposes, I indulge in the initial step in that process, namely critiquing existing templates, but in my consulting years, usually I would tell the client we'd be better off with a fresh start. Instead of renovating a dilapidated building, usually it makes sense to tear it down and build something new that fits your needs. The same logic applies even more to contracts, where esthetics and historic preservation aren't an issue! That's why aiming for slow and steady change doesn't do anyone any favors, as I explain in this 2018 blog post.
An obvious obstacle to a fresh start would be inertia. Any change to a wide-ranging process takes time and costs money. If you're committed to short-term thinking, any change would be unacceptable. But inertia isn't an argument against change. It's just a force, like gravity.
Adams Contracts Would Be the Best Way to Accomplish a Fresh Start
The usual way to embark on a fresh-start template initiative would be to indulge in drafting by committee. Generally, those involved might have considerable experience in the relevant kind of transaction, but that doesn't mean they're experts in either what you say in a contract or how to say it. And they're likely unaware of what they don't know. So drafting by committee usually takes too long, and the results usually leave something to be desired.
You could have a law firm prepare your new template, but that seems an unlikely proposition. Law firms are generally geared to working with contracts to get a specific deal done, with expediency being the order of the day. By contrast, when you create a template to be used in many transactions, notions of quality and efficiency have a greater role to play. Furthermore, law firms likely wouldn't have the deal-specific knowledge that companies get from constantly doing the same kinds of commercial deals. And law firms quickly get expensive.
A much better bet is having Adams Contracts create your template. Yes, we have only two templates, one for confidentiality agreements, the other for boilerplate. But those templates are primarily a showcase for what we can do. (Go here for a demo video.) We intend to build each of our next templates in consultation with a group of companies that want to use that template. Working with Adams Contracts would offer the benefits on display in our confidentiality agreement template:
- Using document assembly would allow us to make the template highly customizable, allowing end users from a broad section of the market to create a contract that addresses their needs.
- Because I'm involved, the contract would likely be clearer and more concise than any template others might prepare.
- Because we'd benefit from the input of experienced people at the companies involved, and because we'd enlist experts (under our editorial control), the substance of the contract would be reliable and would reflect how deals are currently handled.
- Instead of the months that drafting by committee generally requires, it would take users only hours to go through the template for the first time.
- Whatever we charge would be modest compared with the cost of personnel time required for drafting by committee and the cost of any outside law firm you retain to help with the process.
Another approach to a fresh start would be to use one of the "standard forms" now on offer from various sources. In this blog post I say that approach has considerable merit, but what we're doing is different.
I hope you find this intriguing! If you'd like to explore working with Adams Contracts and other companies to create a template for a particular kind of transaction, contact me at email@example.com. It's high time we all exited the copy-and-paste labyrinth.