Those of you who know me, know I am something of a contract nerd. I love contracts, I love writing contracts, studying contracts, and even to a certain extent, I love reading contracts. To be honest, some of the contracts I have to read make my blood boil because the lawyer who wrote the contract gives my profession a bad name, but I try to be understanding.
One of the benefits of working with designers and serving as their legal counsel is all the learning I have done about design thinking. For the most part, members of my profession have zero training in design thinking which and it often shows in our work product. Lawyers are trained in a method similar to scientists and engineers in a method called IRAC, Issue, Rule, Analaysis, Conclusion. The problem with such an approach outside of litigation is that lawyer often forget that we are dealing with humans who have human needs and need to address a human problem.
When I started studying design thinking, I kept returning to one concept over and over —humanizing the problem. The biggest problem with most contracts is not the overblown legalese or overarching tone of fear and standoffishness. The biggest problem is that contracts don’t address the humans involved in the contract—the parties to the contract themselves.
Here is what a typical contract development schematic looks like:
The lawyer is hired by a business to draft a contract. The Business and the Customer, not the lawyer, will use this contract. The problem is that the lawyer does not have knowledge of the Customer. The lawyer might make some educated guesses about the customer, but rarely enough truly humanize this relationship. Here, the Business needs to step in and help the lawyer understand.
A contract is a written description of a business relationship. The document is about a human relationship and should be designed with the end user in mind. Who is the end user of a contract? The Business and its Customer. Who is going to be in a better position to understand the business relationship than the parties to the relationship? A hint: it will not be the lawyer. Here is where design thinking needs to come into play much more in a contract development cycle. The Business is in a far better position to affect the outcome of a contract draft than the lawyer and the Business should take advantage of its knowledge to create a contract their Customers will like and ultimately sign.
The Business needs to educate the lawyer on the characteristics the Customer, the nature of the relationship, and what is going on between the parties. Then as the contract draft is being put together, the Business should be imagining the contract from the viewpoint of the Customer. Questions should be focused on one central theme, “How do I as the Business put my Customer’s mind at ease so they will sign this contract?” Other questions to ask:
- Do you know the Customer’s concerns about the relationship and the contract?
- Does the contract address the Customer’s concerns about the relationship?
- Does the contract address the risk the Customer is facing in this relationship?
- Are the steps in the contract stated clearly?
- Are the expectations and obligations placed on the Customer clearly stated?
- Are procedures that must be followed sufficiently detailed so that doubt as to what to do is eliminated?
- Can this customer read and understand the language in the contract?
- Is there too much jargon or legalese?
- Is the contract signature ready?
If the Business and the Lawyer are imagining the contract from the viewpoint of the Customer, the contract is likely to be far more successful. Success is measured by a very simple metric—did the Customer sign the contract without having to negotiate terms? If the answer the question is yes, you have a successful contract. If not, it is time to test another version of the contract.
When addressing a legal problem, just like a design problem, it is helpful for a business to look at the end user, which in this case is the customer or client. As with any design project, the business relationship with the client needs to address the customer concerns and needs. If you design a logo for a client and they hate it, they will let you know. If you design a contract and your customers hate it—they won’t sign it and you won’t even get your brilliant logo design rejected.
Designers, as part of the profession, look at the aesthetics of the end product. Even if the end product is a contract filled with lots of words doesn’t mean it is not a design project. And just because you hire a contractor (your lawyer) to help you with a contract design doesn’t mean you should abandon the very design principles you use when dealing with your Customers.
MATT JOHNSTON IS A SOLO ATTORNEY WITH A FOCUS ON SMALL BUSINESS REPRESENTATION, COPYRIGHT AND TRADEMARK LAW, AND DISPUTE RESOLUTION. MANY OF MATT’S CLIENTS ARE DESIGNERS AND CREATIVE PROFESSIONALS WHOSE CONCERNS OVERLAPPING MATT’S PRACTICE AREAS. MATT CONCENTRATES ON DRAFTING CLEAR CONTRACTS OF ALL TYPES AND HELPING DESIGNERS WITH THE LEGAL SIDE OF THE DESIGN BUSINESS. AS A BENEFIT TO AIGA MEMBERS, MATT OFFERS A 10% DISCOUNT ON ALL CONSULTATION APPOINTMENTS, FLAT FEE PROJECTS, AND HOURLY FEES.
THE CONTENT OF THIS COLUMN IS FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE APPLICABLE IN ANY SPECIFIC SITUATION. NO ATTORNEY-CLIENT RELATIONSHIP IS CREATED THROUGH THIS COLUMN. IF YOU NEED CONFIDENTIAL LEGAL ADVICE, MATT IS AVAILABLE FOR PRIVATE AND PRIVILEGED CONSULTATIONS. CONTACT MATT IF YOU HAVE SPECIFIC CONCERNS.