The New York Times Technology Section has an article entitled “Mark Shuttleworth’s Five Lessons on Organizational Change.”  For those of you who have never heard of Mr. Shuttlesworth, he’s the man behind Ubuntu, which is one of the most popular Linux operating systems in the world.  As open source software such as Linux becomes more and more popular, applications like Ubuntu can overturn the traditional way of doing things.  Ubuntu, for instance, has several huge advantages over Windows.  For one thing, it’s free.  It also can be altered to your heart’s content (assuming you have the programming chops to do so).  As such, Ubuntu is becoming increasingly popular around the world, making inroads in both the for profit and not for profit worlds.

Why would contract people care?  Well, given the uproar Ubuntu has caused in the IT world, one would think Mr. Shuttlesworth might have a pearl of wisdom for us about implementing change (a huge issue for people pushing for clearer language in the confusing contract world):

“To persuade people to make changes, you have to offer them compelling and dramatic improvements. If you are asking people to change the way they work, it isn’t enough for a product to be slightly cheaper or slightly faster or slightly newer. One needs to deliver a 50 percent saving in cost and improved reliability (or efficiency or functionality) to create space for one’s product in a crowded marketplace. You have to be 50 percent, 100 percent better. Not just ten percent.”

Basically, the argument breaks down to the idea that people just will understand that something dramatically better is worth obtaining, so if you offer a breakthrough product, then you can make a difference.

I wish I could say I shared such a similarly rosy view of the world.  Unfortunately, I think Shuttlesworth’s faith in breakthroughs misses the incredible power of path dependence.  Douglas North, from my alma mater, Washington University, won a Nobel Prize in economics for explaining how people will make highly inefficient decisions if they support a particular way of doing things (or path) that they are particularly attached to.  This is not because the transaction costs are so high that people can’t afford to switch.  It’s simply because people are uncomfortable with change.  At my previous job, I created a new method for negotiating contracts that reduced the time to conclude a deal by more than 60% (on average), but none of the other lawyers wanted to adopt this method, mostly because they would have to change the way they do things.

Ken Adams, perhaps the best expert on contact drafting in the United States, touched on this very idea recently, referring to “The Forces of Tradition.”  Adams discusses the frustrations of lawyers who try to provide clear, concise contract language and run into lawyers who absolutely refuse to accept this, instead insisting on the complex, mind numbing legalese that makes our work impenetrable.  As Adams says, “it’s chaotic, and it feeds off confusion, expediency, inexperience, and timidity.”

Adams reminds me of the time I was working at a major law firm and all the associates were required to take an all-day seminar with a contract drafting expert (who charged the firm a hefty fee, I’m sure).  At the end of the day, I revised a contract I was working on to match the expert’s suggestions.  When I received my draft back from the partner on the deal, I noticed that he crossed out every change I made and replaced my concise provisions with lengthy, confusing language!  While Adams thinks The Forces of Modernity will eventually win, I am not so sure.  Regardless, it will take a very long time.

I do think, though, that there are pockets of opportunity for smaller firms and solos to push forward better contract language.  And, of course, here at WhichDraft.com, we hope to play a useful role in this regard.

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