‘Making it simple’ in law
Why it matters, why it’s hard, ideas for approaching it
This is an article which Denis Potemkin of Potemkin Legal and I wrote together to summarise our video conversation with Ben White of Crafty Counsel.
Introduction
Most people would sign up in the abstract for the idea that legal things should be made as simple as possible. But in practice it’s tough. This article discusses why it’s worth fighting for, why it’s hard and some ideas for making progress.
We’ve kept it short. Seems appropriate.
Why does it matter?
Simplicity matters for two simple reasons.
First, unnecessary complication insidiously damages the ability of people to engage and understand. It increases alienation. It reduces trust and accessibility. That is a bad thing.
Second, it increases cost — expressed as time, risk and money. The cost may be hidden — ‘just get it done.’ But it snowballs. Complexity begets complexity. And increases fragility.
So, making things simple is critical to solving both productivity challenges (doing more with less, doing it faster, making agile working work, reducing fragility to crises) and the big issues of the day (trust, access, equality).
Why is it hard?
There are at least four reasons why it’s hard to achieve simplicity.
One is that it requires real effort and discipline but the effects are mainly felt downstream. “Simple” is rarely an express top objective or KPI in projects. Complication can be less costly in the shorter term even though it imposes multiplying costs downstream. Pascal’s aphorism about not having had time to make his letter shorter sums up the problem.
Another cause is that legal work involves collaboration between people who don’t necessarily trust each other, who have different agendas and who are concerned to cover all sorts of risks, disclosed and otherwise. Simplicity (and its bedfellow transparency) is unlikely to be the first thing on everyone’s mind when trying to get things done in such circumstances.
A third factor is that, all things being equal, technology seems to complicate legal things. For instance, not so long ago, most lawyers worked by dictating text into a tape recorder, waiting for a draft prepared by a secretary and amending it in manuscript. And in litigation, the things that found their way into writing were fairly limited and formally expressed. All history now. Automation tends to focus on generating more content faster rather than reducing or simplifying it — and distracts people from making the effort of simplifying the underlying content and processes. Judged by impact alone, the technology which ameliorates such complexity has developed at a much slower pace than the technology which increases it.
A fourth reason is that simplicity isn’t in everyone’s interests. It may work for you to make things complicated, slow, expensive. Perhaps not normal, but there are definitely some people who think like that. Or maybe in your head you’re not actively trying to make things more complicated or costly but it’s just not a priority for you to make them simpler. That’s very common. The result is similar.
How can you make things simpler?
Making things simpler isn’t easy. Some thoughts for getting started.
One, make it a thing. Talk about why it matters. Explain to colleagues and counterparties, debate it, discuss it. Put it as an express top 3 objective in your projects. Develop KPIs. Raising consciousness of a problem is hard work but it helps when more superficial solutions fail.
Two, when producing your own legal text, really challenge yourself to simplify it. That means simplifying both the language (how you are expressing it) and the content (focusing more on users and outcomes). Ask what’s really important for the purpose in hand.
Three, when other people present you with overly complicated things, come up with an alternative and explain nicely why you think it’s better. It’s often tempting to adopt the path of least resistance in the face of convention (fine, let’s use your gargantuan generic MSA as a starting point and we will mark it up). But that will result in complexity down the line (lengthy negotiations based on an agreement that’s not fit for purpose). The “true simple” approach is to insist on first spending time to understand the deal and agreeing the best starting point. The easy path is not necessarily the simple path.
Four, don’t expect technology alone to solve it for you. Having the right tools can help but deploying them appropriately is your responsibility. This means understanding what can be solved in a simpler way without technology. It also means focussing on simplifying content and processes in the early stages of the project — leading rather than being led by the tech.
Five, consider imposing some constraints or at least some metrics on your own team’s outputs. Page or word count could be simple starting points — thinking ‘80/20’ — though no doubt subtler ones can be developed over time. Measure something relevant and try to improve over time. Then discuss the metrics within your time and agree some ways to improve. Then keep measuring and iterate.
More ideas (including contract redesign, anti-fragile processes, using “simple” to build trust) are discussed in the video mentioned at the start of this article.
Final thoughts
Make things simple where you can in your day to day work. Put it at the front in big projects. Demand of tech vendors to make it simpler for you, not just faster. Challenge yourself and others. Be brave.
