A Man With A Vision: Changing The Image Of Contracts
Jason Anderman is on a mission. In common with a growing number of IACCM members, he is frustrated by the repetitive and unproductive nature of many contract negotiations, which he describes as ‘boring’. He is convinced there must be a new way, so that time and resources are expended on shaping deals and relationships to deliver better results. But as many have experienced, resistance to change is strong; the agenda for negotiations remains stubbornly fixed on traditional, legally dominated topics (see previous article on ‘The Most Frequently Negotiated Terms’).
The difference with Jason is that he has decided to do something about it. Abandoning his work as a senior in-house counsel with a top medical technology company, he built and launched WhichDraft.com, a free on-line resource for simplified contracting. In Jason’s words: “WhichDraft.com aims to be a company that brings sophisticated understanding of contracts to those who cannot afford traditional advice or expensive software”.
To an extent, this definition downplays the extent of the task, because to deliver this service requires investment in the creation of contract standards or models, at both a term and a document level. The core templates that Jason is producing have the potential for much wider application than just ‘those who cannot afford traditional advice’. Indeed, his work may ultimately complement and draw from a number of current IACCM projects, in which we are working on global standards for contracting and contract principles.
“During my career, I have observed how contracts seem to be getting longer and taking more and more time,” observes Jason. “Can you imagine anything more boring than writing – and rewriting – a contract? The interest, the intellectual engagement is in shaping the deal. That is where – as a lawyer and adviser – I want to be spending my time”.
According to Jason, many lawyers exhibit limited interest in the business terms within a contract – yet they house most of the risk. His dream is that we can move towards a set of global principles and standards for these business terms – for example, provisions such as exclusivity, forecasting and change control. He sees the IACCM community as the body uniquely equipped to address these areas of contract.
The WhichDraft.com web site has been developed using the latest programming language and protocols, which enable changes to flow automatically to other affected areas. This is important because it massively reduces the workload behind maintenance and updates of content and ensures accuracy - a critical characteristic in something as sensitive as a contract. “In many ways contract language is like software code”, comments Jason. “You are creating function by putting words together.”
A Basis For Negotiation
Jason shares the philosophy that underlies each of the current IACCM standardization projects. He believes that a standard template will often do no more than provide a basis for negotiation, through terms that are mutually agreed as balanced. “Many of today’s standard forms of contract are complex and inflexible. They impose rigid rules which may be inappropriate or outdated and often represent the views of one side – so we often start working around them or resisting them. This is not the way standards have to be.”
Today WhichDraft.com still offers ‘buy-side’ and ‘sell-side’ forms of agreement, yet already narrowing the degree of imbalance between them. Over time, Jason hopes that we can move towards using an agreed and common base. This would allow discussions to focus on principles, rather than coming from polar opposite positions, as they do with the traditional ‘battle of the forms’. He refers to a recent Contracting Excellence article by Ashif Mawji, CEO of Upside Software, which highlights the benefits of such templates within advanced contract management applications. (See “Why integrating your buy-side and sell-side agreements in one contract management system is advantageous")
Overall, these efforts should reduce the potential for misunderstanding, shorten cycle times, reduce the costs of contracting and ensure time is spent on shaping the deal and its related business terms. Yet it is of course these very benefits that create strong aversion from many legal and contract negotiation professionals. Standards undermine their traditional work. “There is a fear of change, technology is seen as a threat.”
Overcoming Resistance: A Dynamic New Approach
Jason agrees with an analogy between this resistance to modern technology and the way that the legal profession in Europe clung to the use of Latin in court and legal systems. For centuries, lawyers refused to use the language of the common people in order to maintain the mystique of their profession and its standing. In some respects, we face a similar challenge today, with a community that is resistant to use of the latest communication and efficiency tools. But with cycle times ever shorter, such resistance is bound to crumble and Jason wants to be sure that he is at the forefront of the change. That is perhaps why his web site draws unconsciously on another mediaeval term and carries the by-line ‘Contract Alchemy’.
So what progress has Jason made with his grand vision? WhichDraft.com has gone live and already boasts an impressive array of content and functionality (see http://www.WhichDraft.com):
Templates for common business agreements
A question and answer wizard that shows clause permutations
Software that writes clauses and assembles a contract
Contract assembly tool to create your own personalized Q&A wizard and templates
Multiple version tracking and red line comparisons
Free, provided at no charge
The content is proving useful worldwide, though of course some provisions should be tested for local validity (they are based on US and Common Law principles). There is also need to develop content for different industry environments. But all of this is work in progress and by partnering with groups like IACCM and similarly enthusiastic individuals, Jason is confident that his vision will continue to become a reality – and that we can indeed take the boring parts out of contract development and drafting!
Jason Mark Anderman is President and Co-Founder of WhichDraft.com. He graduated in 1992 from Washington University in St. Louis and received his J.D. and M.A. degrees from Duke University School of Law and Graduate School. Following a period in private practice with law firms Paul, Hastings, Janofsky & Walker (New York, NY) and Goodwin Procter (Roseland, NJ), Jason served as counsel at Becton, Dickinson and Company, a Fortune 500 medical technology company. He is a certified Six Sigma Green Belt and has led projects to drive efficiency in legal services.