Is knowledge management sometimes dangerous?
Sun General Counsel Michael Dillon’s blog post Contracts with clarity implicitly raise this question. Dillon describes an effort at Sun to simplify contract language. He notes that
“attorneys seldom create agreements from scratch. Instead, in the interests of efficiency, we build off existing templates and add additional language covering any contingencies that we have experienced or imagined. When the next attorney uses your template, he or she rarely challenges the necessity of the additions that you have made. With each revision, the agreement grows in size and complexity…. The result is lengthy and verbose documents that create more ambiguity than they resolve.”
KM is all about re-use. How many lawyers try to simplify as Dillon suggests? Simple requires re-thinking, not re-using. I am not sure how many Practice Support Lawyers fundamentally re-think documents when they develop models. And re-using the last deal’s documents certainly does not encourage simplification.
I’ve seen the high cost of a bad model document. I was recently involved in negotiations for a complex service as an IT department’s business representative on a team of lawyers. We spent 50% of our time just trying to understand the provider’s convoluted contract. The provider believed its document was clear, complete, and consistent. It was not. Frequently, after multiple discussions about a clause, the provider would finally say “Oh, now we see your point, we can change that language.” Once they clarified the language and we understood what it meant, we could either accept or negotiate on the business merits.
I am still a KM advocate, but Dillon’s post illustrates that KM has the potential to close our eyes to altogether better approaches.