In this recent post I wrote about how customers can be an obstacle to change. But inertia has been on my mind more generally, too.
I’ve come to the conclusion that if an organization knows only traditional contract language and the copy-and-paste process, rational arguments won’t be enough to coax them into change.
More specifically, I’ve found that providing an organization with a detailed analysis of the shortcomings in one of its templates is unlikely to serve any purpose unless the organization is primed for change. Similarly, making a pilgrimage to an organization’s offices to explain why they’d benefit from overhauling their contracts is a waste of everyone’s time unless the organization is able to give me beforehand a clear sign that they’re willing to take the discussion seriously.
You can find on this site no shortage of material explaining who I am and what I do. (For example, there’s my “before” and “after” versions of a master professional services agreement; go here.) That should be enough to allow you to decide whether you want to seriously discuss whether I can help to put your contract process on an efficient footing.
But the broader question is what determines whether an organization is able to overcome inertia. I’m dimly aware of a vast literature on the subject, and I know that there are no pat answers.
I can think of some necessary factors: The organization has to be under pressure, but still have sufficient resources to effect change. And it has to have strong centralized control, so as to be able to overcome the urge to protect your turf and stick with what you know.
But those factors are perhaps not sufficient. Maybe you also need that intangible, the vision thing.
If you have any ideas, I’d be happy to hear them.
Ken,
As you say pressure – either internal (eg CEO or GC will read it) or external (subject to Lender’s counsel review) is one of the triggers. Possibly the other one is risk or the perception of potential liability/litigation. How does our standard model address this change? (claim based on defective drafting, new precedent, new legislation or risk arising from trying to use the standard under a different applicable law, etc.)
I encourage but have seldom seen peer-reviews, internal redrafting workshops, exchange of models with other companies or advisors.
Ken,
As you say pressure – either internal (eg CEO or GC will read it) or external (subject to Lender’s counsel review) is one of the triggers. Possibly the other one is risk or the perception of potential liability/litigation. How does our standard model address this change? (claim based on defective drafting, new precedent, new legislation or risk arising from trying to use the standard under a different applicable law, etc.)
I encourage but have seldom seen peer-reviews, internal redrafting workshops, exchange of models with other companies or advisors. There is rarely a convenient time for these …
Some people in law firms are very conservative. On a similar note, I have decided not to attend speculative meetings about running in-house training courses, after finding that a couple of discussions that I thought were about “what” were really one about “whether”. If people need persuading (despite the person who contacts you being very enthusiastic), there is probably some internal debate going on and you are being brought in as an advocate on one side of that debate. Much better to wait until the debate is over and they decide they want you.
Ken, I’ve been wondering much the same thing. I think it can’t be arguments or rational (stuff we’re good at). It must be an emotional appeal, which is more difficult to craft but which I think will be more effective. It needs to actually leverage the general mindset and emotional biases of attorneys to persuade. I’m still working that out….
I think that what it will take to overcome the inertia is to convince judges to speak out about this issue in published opinions. I became convinced of the need when when working for arbitrators who are constantly called upon to review poorly drafted contracts. Indeed, I remember a dispute between two companies each valued at a billion or so dollars that turned on a horribly drafted contract — it was unbelievable.
Arbitrators don’t have the ability to publish opinions that are picked up by the press or read by lawyers. But judges do. So, if that is right, I think that next question is how do you convince judges to speak out. I think the answer to that is (1) conferences, and (2) their clerks. The latter seems like the most effective way to go, in my opinion.