Agreements should be made as simple as possible, not just simpler

The other day, the lawyer with whom I was negotiating an IT agreement said that, in the last few years, these sorts of agreements had developed and thinking had been refined. He tried to use this to justify lengthy unacceptable changes to a vital clause! Just after that I reviewed a draft Scottish public sector contract and was pleasantly surprised to see that it was relatively short, sweet and even-handed.

These contrasting experiences got me thinking about how commercial agreements have altered in the 30 years since I qualified. Yes, of course, drafting has become more sophisticated, thinking more advanced and risks need to be addressed today that didn’t arise in the 1980s.  But I am nostalgic for the brevity and deceptive simplicity of the commercial contracts of that era. Today contracts can be hundreds of pages long and contain provisions that are unnecessarily long-winded, complex and convoluted.

Modern document production may have tempted lawyers to indulge in verbosity.  When I started training at a City law firm in 1983, magnetic cards were inserted into a box linked to a typewriter that recorded text as it was typed. There was a thin strip of a screen on which could be seen no more than one line of text. Mag cards were used to recall and reprint documents but editing documents and saving changes was difficult. Document production was labour intensive and slow.  Keeping drafting succinct and to the point was advantageous; legal draftsmen focused their minds on conciseness and clarity.

During my first year, word processors with floppy disks were introduced, allowing documents to be amended and saved properly.  This was revolutionary. Today’s document production capabilities far outstrip that WP system but are really no more than