CONTENTS OF LAST ISSUE
Legal design in working with agreements
The approach of lawyers to the creation of documents has changed significantly. We began to pay more attention to the format of information presentation.
Legal design concerns the form and content of the document in equal measure.
The first and most noticeable part of Legal design is the form, i.e. the way the document looks. Earlier on, more attention was paid to decorating a document: complex font, beautiful thick paper, and other ‘high status’ elements. But now, in the age of digitalization, the focus has shifted towards simplifying the presentation of information, adding tables, graphs, charts, comics, timelines to the text. Working with font and color is also important, though no longer for decoration but for text structuring, accents and ease of use.
Here is a very common example of a section with signatures of the parties to a bilingual agreement. This happens most often when the agreement was drawn up in one language and handed over to translators, who translated it as it is, and the lawyers did not correct it. This is not a mistake, but it leads to the fact that the parties skip the signature block or sign the document in the wrong place.
Alternate solution:
To work effectively with the document form, it is important to understand its essence and structure so as not to make infographics for the sake of infographics. Obviously, the relevance and common sense must not be forgotten as well. Thus, infographics are more appropriate in news posts, consultations, articles. When it comes to agreements, it is more appropriate to work with typographics.
The second part of Legal Design is less spectacular, but no less important, it is working with text. This side of the work most often gets mixed reaction from both clients and conservative lawyer colleagues.
Here is a simple example:
A client comes in with a request to have, say, a loan agreement prepared. The law firm issues an invoice for X rubles, the client pays the invoice and receives a 1-page agreement (agreement template).
It is fair to assume that the client would be slightly confused: how this one page of text can cost X rubles because it is more common to get a multi-page agreement that looks more ‘respectable’. A multi-page document makes a non-lawyer user think that in this document the Lawyer (that’s right, with a capital letter) has combined the experience of many generations of lawyers, all the wisdom of the universe, foreseen all unforeseen situations, built a solid barrier ‘just in case’, and that this document is totally worth XX rubles, unlike the 1-page thing that he got for peanuts.
It is a different matter that it is unlikely that someone has ever read this agreement to the end, with all these compound turns, bureaucratic balderdash, and fine printed sentences that take four printed lines. This is an agreement written by smart people who think smart and write smart, for they are Lawyers – brokers of Legal Knowledge, Creators of Legal Documents.
These days, the abovementioned way of thinking gives way to a different approach: they who think clearly, articulate clearly.
Legal literacy is growing, which motivates lawyers to improve the quality of their work. The client wants to understand the content of the document that they plan to sign and, if possible, not to spend too much time looking for meaning in the meaningless clauses of a ‘big, respectable looking’ document.
Here are some examples of clauses with, say, unproven effectiveness:
| This Agreement has been made in two counterparts of equal legal force, one for each of the Parties.
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– so many questions and so few answers, like: if one of the parties loses its counterpart, and the parties sign the third counterpart, will it have legal force? |
| The Parties may amend this agreement by mutual agreement. | – foresighted to the core. What would the parties do if this clause were not in the agreement?
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Back to the 1-page agreement example, it is worth pointing out that there is no need to go to the other extreme and put brevity at the forefront. Essential terms of the agreement, which depend on the type of agreement, are still there, and if they are not agreed, such agreement is deemed to be not concluded. Judicial practice, good business practices and common sense should be taken into account as well. They reflect the lawyer’s work, their experience and immersion in the specifics of the client’s business processes.
In conclusion, it should be recognized that in practice in most cases when the parties enter into an agreement, they are eager to agree and fix the agreed terms in writing, and for that purpose, each party should understand the contents of the agreement. Thus, it is worth excluding ambiguous interpretation, structures like ‘and so on’ and ‘etc.’. If the agreement involves a certain sequence of actions that follow one another and are limited in time, the best practice would be to collect them in one section and fix them as a step-by-step plan.
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