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Conservatism and over-caution

Updated: Mar 22, 2022

Last time we looked at "time poverty" (being a key inefficiency in the contracting process), which in turn built-upon the problem of one-sided documentation.The next item we consider here is conservatism / over-caution. This item is, we think, very much linked to time poverty - but is also, we think, a symptom of 2 additional and distinct factors (over and above the time poverty referred to last week):

  1. a lack of understanding - we fear the unknown and hence try to protect ourselves against it; and

  2. the natural disposition towards conservatism (and preference of one’s own language) by those often charged with drafting duties.

The conservatism described in point (b) is often the most difficult to tackle - and is one of the biggest challenges that legal technology providers like us face when trying to transform the legal process. There are still far too many in the legal industry who think that contracts cannot exist without Microsoft Word.

At Clausify, we believe that the over-dependence on MS Word is part of the problem - rather than the solution.

MS Word signifies: “all of this content is editable”. It invites mark-up. When posed with this option, many lawyers simply cannot help themselves but re-word that severance clause so as to read they way they like it. It is almost a borderline obsessive, compulsive behaviour that many lawyers have. If it is there to be edited, we feel we must demonstrate some sort of review value by making a change or two.

This is the reason many attempt to use “click-through” licences or convert their terms and conditions into PDF format.

What do you think? Can legal contracting professionals work in a format other than Microsoft Word?


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