These are all things that could easily have been caught if lawyers had tools like software developers. Even so, the analogy of contracts (or other legally binding language, like statutes or regulations) is useful. I think it’s especially useful for business lawyers to think of contracts as software, and remember that just as software coders are taken to task when their code crashes, so will the lawyers when a client loses a case, some business, or even just their time trying to deal with poor drafting.

In the world of software, the support function is highly evolved. Licensees can contract for various levels of support, and in general, software development companies, desiring to reduce support costs, employ srict rules of development and “drafting” or “coding” as they call it. Reuse of proven code is a virtue. Extra words are a waste of precious processor cycles or memory space. Too often attorneys waste time redrafting the same clause, using their favorite legalese, and simple declarative sentences, easily understood, would do just as well.

For the client, the benefit of well-crafted contracts, based on standardized language, becomes readily apparent when they called her attorney for advice. If they used the attorney’s contract, rather than a DIY hodgepodge that they downloaded from the Internet, there’s a good chance that the attorney can give them a more confident answer, sooner, and therefore at less cost. And if attorneys, instead of billing by the hour, price their services like software support providers, they would have the incentive to write better “code” and document it properly, so that when the client calls the answer is readily at hand.

Until attorneys start think more like programmers, the business of law, and in particular, contract law, will remain mired in the past, and lawyers will be less valuable to their clients. Both would be better off by with a more structured approach. Of course, attorneys will complain that mindlessly reusing “boilerplate” is unprofessional. Of course it is. But thoughtful use of boilerplate is at the very heart of professionalism. Just as you would not want your doctor to cook up your prescriptions according to his own biochemical theories and notions of safety, why should your lawyer spent any time redrafting perfectly good language. Lawyers should save their creativity for dealing with new business concepts, technologies and market structures. It is wasted on endless debates over what amounts to little more than stylistic preferences.

Thanks for commenting, and for the kind words.

I’m probably belaboring the metaphor, but Apple’s software (and we’re talking software here, I think; I’ve never heard anyone complain that the paper I’m printing my contracts on is not expensive or shiny enough)… um, Apple’s software famously makes decisions for its users that may or may not be what the user wants. Like iPhone users don’t need an option to buy a model with a physical keyboard. Or, for a long time, iPhone users don’t need cut and paste. Or iPhone users don’t need to be able to install applications from third party sources. That’s some pretty fundamental stuff, like deciding for your client (without consultation or willingness to bend) that their supply agreements don’t need incidental damages limitations.

Android may offer a better metaphor for good contract drafting. It is highly configurable (at least on the ‘Google experience’ phones), rather than one size fits all. But much more importantly, it is an ongoing open source endeavor, which is improved through iteration (which I’d analogize to negotiation). It’s the opposite of “here’s my client’s draft; it’s perfect for this transaction, so just send back signature pages because we won’t be considering revisions”.

Also: “normal people”? I’m not sure Apple’s demographic is all that representative.

I really love this blog, by the way.

1. I haven’t read the entire 400-plus page opinion, but it’s not clear to me that BSkyB v. EDS involved a killer contract, for either side.

2. Even if BSkyB had a killer contract, if they could choose between having a winning lawsuit and a working CRM system, I think I know which one they’d prefer. (I’m working on a posting to that effect.)

Thanks for the comment.

So have I, but I always hoped that it was pointless. And there are the rare cases where the agreement is so short in substance that adding another long sentence to a one-sentence entire-agreement clause is offensive, which could lose you the deal.

Chris