Wind your neck in: you’re not Kate Moss

It’s 2002. I’m in a suit and actually look comfortable in it. Six years of working in a City law firm will do that to you.

I’m equally comfortable in this meeting room and in this office, both places that I’ve known for a number of years now.

I’m also comfortable with doing the work that I’m now doing, having helped clients with it for almost as long. I know how to do it, I know what matters and what doesn’t (from the perspective of private practice lawyers, at least).

I also know, without fail, what most of the comments from clients on a contract will be.

Typos.

They’ll be fixing spelling mistakes. Changing the defined terms we’d use – ‘vendor’ for ‘seller’. Or changing small ‘a’ “agreement” for capital ‘A’ “Agreement”. That sort of stuff.

Even though a typo doesn’t stop a sentence being understood, as demonstrated by Officer Crabtree from 80s war-time based sitcom ‘Allo ‘Allo. His strange phrases may have been funny – “I was pissing by a window when I heard a shat”. But only because you still knew what he was actually trying to say.

Every time I’d get comments back like this, I’d think “is that it? There’s over 30 pages here, surely I can’t have got everything right, can I?” I mean I’m good, but no-one’s that good.

To be honest, I used to blame the clients for not being sufficiently engaged with what was their deal after all and so just devolving everything to us.

I don’t think that now.

Now, almost 24 years later, I know that their lack of engagement was actually all my fault.

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There’s no point doing all the ‘relationship first’ things we’ve talked about so far – finding out about your business partner, building rapport with them, constructing a deal that works for both of you, translating that deal into a set of reasonable terms – if the way that deal and those terms are then written conflicts with that.

If that wording is biased in its own right (whether deliberately or inadvertently), or is written in difficult, incomprehensible wording, you’re going to undo a lot of your great ‘collaborative not combative’ work so far.

Yet that’s exactly what I see for the vast majority of contracts that come across my desk:

· Thump! Here’s a long first draft legal document, just dumped ‘as is’ (and if its from America, stuffed full of legalese)

· Take that! Here are mark-ups just added to a revised version, without any commentary, standing proudly on their own as if their necessity and worth is obvious

· Forget it! Suggested improvements and changes just deleted without so much as an “I beg your pardon”

· And if there ever is a commentary, it’s usually dismissive and pompous, seeking only to highlight how stupid I am

All of those behaviours and actions threaten your hard-built relationship further down the line. It's almost as if the lawyers are doing all that on purpose so that everything takes longer…

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There’s some dispute as to whether this phrase was coined by the Queen of Buckingham Palace, the late Elizabeth II, or the Queen of Croydon, the very much current Kate Moss. But whoever it was, “never complain, never explain” absolutely works for both of them.

But that does not mean that “never complain, never explain” works for you. That doesn’t mean it should form part of any legal strategy. Because it definitely won’t help deliver long-term business success.

You see, Kate and the Queen didn’t need a long-term relationship their opposite numbers, aka the public. You, on the other hand, do actually need a strong relationship to deliver long-term business success. And relationships depend on understanding. Which in turns requires clear communication.

Unlike Kate and ‘Our Liz’,  you need what you think and what you say to be understood, and engaged with, by everyone you interact with.

So you, most definitely, do need to explain, in plain English, every single thing that still needs to be sorted out in your contract. 

(You also should complain too, if something is not right – although please do it respectfully and quickly, to stop that ‘not right something’ becoming much much bigger).

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Luckily, there are some simple ways to do that

First, do NOT see your agreement as a legal tool that is setting you up to take someone to court. Remember, litigation is gambling in wigs: expensive, stressful, time-consuming and in no way guaranteed. 

Instead, see your contract as an aide memoire for everything you’ve discussed with your business partner, and so something that anyone who reads it to quickly need to “get”.

Next, deliberately set yourself the aim of making everything in your contract as easy to understand as possible. Develop a hatred for misunderstanding. Be intolerant of dull and uninspiring.  And instead go out of your way to think about any and every possible way to help your audience engage with your point. 

There are some obvious things here (although, while they may be obvious, I don’t see many actually practicing them):

· resist legalese and acronyms

· shy away from long words

· keep sentences short

· tell the story of your deal like a story

· explain your reasons for every change you’ve made or point you want.

But don’t be afraid to also be whacky and a little bit mad in your ideas.

One of my main regrets at ASOS was that not following through writing a compliance requirement to our staff on the free banana that they got every day. As daft as that sounds, ASOSers LOVED their free banana and I knew the ‘message on the banana’ would be taken in by everyone.

So get creative and go crazy, particularly when it comes to formatting.  A few weeks ago, I talked about how the innovative one page Toney’s Chocolonely employment contract was a brilliant representation of who they were as a business and a brand. But that’s not the only genius behind it.

The format of this agreement is also brilliant at engaging the employees who receive it. (Unlike traditional contracts) it invites them to read it and understand it.  Toney’s want their staff to know what’s in their employment contract, and they’ve been innovative in making that happen.

There should be much more of this sort of stuff, and much less of the traditional contract with the two parties at the top, and then some recitals(!) followed by a bunch of definitions, and then some rubbish about “including” meaning “including without limitation”. 

I’ve even set myself a goal of seeing if I can make a “Video Contract”© happen at some point. 

Think about it: we watch TV/youtube (delete depending on age) because we’re visual creatures that take more in from a visual medium. We must be able to use that to our advantage in contracts, surely?  

I can see it now: two businesses looking each other in the eye and explaining what they will do, what they need and what return they will make, all while actually showing the specific product and what makes it great. Faster and easier to understand, and also a better underpinning for the relationships.

I must make the “Video Contract”©  happen. After all, engagement and understanding is what really matters.

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So leave the “never explain” schtick to royalty. From now on, go out of your way not just to explain, but to engage. Because that’s helps cement the prosperous long-term relationship you’ve already started to build.

As always, please let me know if you’ve any questions or disagreements. I love chatting about this stuff.

Till next week

Andrew