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No doubt you’ve heard the phrase, “garbage in, garbage out.” It applies to creating a contract: inferior inputs and faulty processes hinder the timely creation of agreements, and those contracts that you do create may prove unenforceable.

 

To prevent this, you first need to understand the context of your existing agreements and business relationships before automating contract workflows. Second, you need to design proper intake forms in to elicit the right information and goals to drive your workflows. Whether you work at a company or run a law practice, these two preliminary steps are crucial to workflow automation.

This article tells you how to practically prepare for contract workflow automation.

Contracting successfully occurs only when legal experts and business professionals communicate clearly, efficiently and accurately when they are sharing common knowledge. Many companies use workflow automation tools like Nintex, 1 UIPath, 2 and Automation Anywhere3 to connect legal teams with their in-house clients. Although such tools reduce the time to move documents through the review cycle, too often companies overlook what needs to happen first.

Data cannot do your thinking for you! So, before implementing technology, you must be clear about the information you’ll be manipulating with it and how that fits into the broader context of your business. Although technology speeds documentation workflows, without proper planning, scoping, and interfaces, technology may actually slow down your processes and produce agreements that don’t work in practice.

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Evaluate time savings within the context of entire contract lifecycle, not just a piece of it. Of course, it’s understandable -- you want to speed up the process of creating new agreements in your organization because you will save money. But to save time in the long run, the first step is to put these time savings into context.

For example, taking several days’ time when creating the agreement is a tiny percentage of the life of that agreement. In fact, the entire negotiation period — even if not slightly hastened by applying new technology — is likely to be a fraction of the total time that the agreement is relevant to your organization.

For that reason, isn’t it more important to take the time to evaluate the total life of the agreement from its preliminary negotiations to the time when no aspect of the agreement is valid or useful for reference purposes? Odds are high that many of your agreements could last for one or more years and contain survivability clauses that require adherence to certain terms and sections (such as confidentiality obligations) long after the agreement expires.

Once all the parties sign the agreement, then the real time-consuming work begins. Your organization needs to understand its obligations and act on its rights under each agreement. Because these agreements often contain requirements related to security, technology, finance, compliance, and service, many departments could be involved in implementing them.

To save time and ensure that you’re extracting value from the agreements, build processes and supporting systems of accountability and implementation tied to the particular terms in each agreement.

The more you practice shaping these systems of accountability and implementation into your relationships and using key terms habitually, the easier it will be to create a single process and system that other practitioners can learn, reuse, and optimize over time.

How might you discover the contours of your relationships? You need to examine your existing agreements. It’s your existing contracts, not the new templates, that create the bulk of obligations and opportunities for your organization. So, before purchasing new technology that will flow your new proposed agreements through the review cycle, look at what your organization has already agreed to. Dig into your existing contracts and study the key operational clauses to look for trends and outliers.

For example, the preponderance of dispute resolution clauses in your existing supplier agreements may require good faith attempts at negotiation and mediation before proceeding to a factfinder such as an arbitrator or judge. Ask yourself questions like these:

  • How is your legal and procurement team and software set up to find mediators and schedule mediations?
  • Are you hiring people who have experience negotiating prelitigation resolution of matters or are you focusing on recruiting hard litigators?

Whatever steps your contractual relationships require should drive many of these decisions.

If you purchase goods and services that must meet certain specifications and quality standards, look through your existing purchase agreements to understand the time frames allotted to inspect these purchases and require compensation for errors. Many agreements provide a finite period of time for such inspection so the parties can eliminate future uncertainty about monies owed and close their books.

You need to know which of your current business relationships have such inspection rights, what the time limitations are and the practical steps to avail yourself of those rights. Only after understanding what these rights look like in your existing agreements can you effectively design a business process to ensure that the right members of your team conduct inspections before the time limitation, and that they focus on the specific quality metrics described in your agreements.

Your ability to implement any new agreements and upgraded workflow software during the pre-signing process depends on whether their terms are compatible with existing business processes that you’ve built around all your existing agreements. Rather than drafting new templates from scratch, try to figure out what’s in all your contracts to date. Then decide how you can make your new agreements compatible with your existing commitments. Doing so will make it easier to put new agreements into your operations.

Finally, surfacing the wrong objective quickly is not a victory. Before you can trade agreements efficiently, you must involve all the relevant stakeholders. Yes, technology that reaches across your far-flung enterprise can speed up each stakeholder’s communication with you, but speed is less important than precision and clarity. Being the first one to arrive at the wrong destination is, at best, a devastating victory.

Intake systems and forms – what they can do for you

In light of the increasingly complex roles legal professionals are required to play these days, many law departments are trying to better quantify and schedule their interaction with stakeholders across the organization by installing intake systems that gather stakeholder requirements and funnel them to the appropriate attorney. The underappreciated weak link in these systems is the design of the intake forms themselves.  

We get it. You’re busy. And you just want to improve your workflow so you can concentrate on the important parts of your job. So, when you need to collect information from stakeholders and internal clients in your company, you put together an intake form that you think does the trick and you move on. But, only after many months of work, your clients realize that some of your agreements do not actually reflect what they were seeking.

If you took a moment to understand which elements may make your intake forms work better, you could streamline your workflow, elicit more accurate responses, and gather more complete answers the first time you have people fill out these forms. And, to get positive results with your forms, you must juggle your needs with the needs of the people who fill them out.

Just how do you do that? Here are a few pointers on what legal professionals should think about:

  • To start, write clearly to a less informed reading audience. Don’t assume they understand what you need, what you want, or what you’re talking about. You thoroughly know the law that applies to a particular topic and special terminology appurtenant thereto (for example, that you should be sure to include a usufructuary interest in any land you need to purchase in Louisiana); they might not. What comes naturally to you makes many non-lawyers scratch their heads. Put yourself in the shoes of someone who has no legal training and limited time to read thoughtfully. Then edit what you just wrote. People with all different abilities may have to fill out your forms, so any time that you communicate with them, do so clearly and compassionately.
  • Organize your forms for the person who has to fill them out, not for you. Make your questions go from the easy to difficult, from the familiar to the unfamiliar. That way people will easily develop a rhythm of responding and won’t be put off if some hard questions take a bit more work. People don’t usually enjoy filling out forms, so the more you can ease their burden, the more likely you’ll get the information you need.
  • Use conversational language. Don’t make readers work too hard to understand what you’re asking. If they can’t read easily and don’t understand from the beginning, they may give up in frustration, give you half-answers just to complete the chore, or cause you more work because you have to go back to them for more data.
  • Make your design work for you, not against you. A clear form has a good design that helps readers work their way through painlessly and, at the same time, helps you review their responses easily and quickly. Poor design can slow the process for both of you. Comfortable typography, vertical alignment, and adequate spacing are a few elements that will go a long way to collect information easily. Whether people fill out your form electronically or on paper, design plays a key role in how successful they will be. (And even though you might say, I’m not a designer. You actually are one every time you create a form. You’re manipulating design elements. You just might not know it or want to admit it.)
  • Don’t make readers work too hard. Put information where it belongs and visually break out key information. Display contact information so it’s easy to find; don’t bury it in text. If only a few people need to answer follow-up questions, embed those within a segment of your forms dedicated only for those people -- rather than making everyone wade through them unnecessarily. Don’t waste their time and they won’t waste yours.

To illustrate some of these points, we took a sample of an internal intake form and redesigned it to show you some before and after key elements. We reorganized the information to improve the flow, rephrased some questions to make them more conversational, regrouped some information, and changed the layout to make the questions easier to answer.

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“If you don’t know where you are going, you’ll end up someplace else.” — Yogi Berra

Designing clear forms enables you to learn where your contracts should be going. Likewise studying your prior agreements ensures that your relationships all go down a path you can follow. The fastest way to miss your destination is to be unclear in your communication with your clients or take them down an unfamiliar path.

If you want your contract creation technology to effectively produce real benefits for your organization, you need to first allocate budget and resources to ensure that you communicate clearly with your stakeholders. And you need to understand what’s in all your existing agreements and how to operationalize those before you start creating new agreements that will end up being incompatible.

Fortunately, cost-effective resources exist to help you. Spending even a few hours with a forms design expert can yield years of benefit, because you reuse the form over and over again. Thanks to advances in machine learning technology, there are now services that can cost-effectively study all of your existing agreements, sort the business terms into trends, and tie those to actual workflows in your organization.

END NOTES:

  1. https://en.everybodywiki.com/Nintex
  2. https://en.wikipedia.org/wiki/UiPath
  3. https://en.wikipedia.org/wiki/Automation_Anywhere

ABOUT THE AUTHORS

Neil Peretz has served as general counsel of multiple companies, as well as a corporate CEO, CFO, and COO. Outside of the corporate sphere, he co-founded the Office of Enforcement of the Consumer Financial Protection Bureau and practiced law with the US Department of Justice and the Securities and Exchange Commission. Peretz holds a JD from the University of California, Los Angeles (UCLA) School of Law, an LLM (master of laws) from Katholieke Universiteit Leuven (where he was a Fulbright Scholar), bachelor’s and master’s degrees from Tufts University, and has been ABD at the George Mason University School of Public Policy. Peretz’s most recent technology endeavor is serving as general counsel to Contract Wrangler, which applies attorney-trained artificial intelligence to identify the key business terms in a wide variety of contracts. Follow him on LinkedIn at: https://www.linkedin.com/in/neilperetz/.

Carolyn Boccella Bagin is President of the Center for Clear Communication, Inc., which advises government, NGO, and private-sector organizations on making complicated forms and information easy to read and understand. She has conducted some of the most high-profile forms development projects in the U.S., including developing the Social Security Statement, federal bankruptcy forms, and innovative IRS business forms. She makes complex information easy to read and easy to understand, combining clear language with functional design. Throughout her career, she has worked with American Express, American Bar Association, Blue Cross and Blue Shield of Louisiana, NCAA, The Home Depot, GE Capital, Chrysler Corporation, and others. She was twice selected by Center for Plain Language for its ClearMark Award: Once with the American Bar Association for her work on creating a clear Healthcare Power of Attorney form and guide, and once for guiding the judiciary in modernizing and simplifying the entire system of bankruptcy forms. Contact her at cbbagin@gmail.com and read more about her work at http://centerforclearcommunication.com

 

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Neil Peretz General Counsel of Aliya Financial and Contract Wrangler & Carolyn Boccella Bagin, President of the Center for Clear Communication, Inc.


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