Lots of agencies come to us looking for a rewrite of their master services agreement. But how do you know when your agreement needs an update? Even if you don’t understand a word of the legal language, there are some things you can look for to determine whether your contract may have substantive problems.
The non-legal problems we see generally fall into three categories:
Readability. A good client-facing contract considers its audience and the impact the contract has on the reader. Contracts that are visually hard to read, use bad typography, and user-hostile layouts often also contain legal provisions that are hostile to the reader. Even if the legal language is perfect. a poorly designed contract can be made much better in how it is presented.
Use of Legalisms. Legalese and what many people view as legal writing is not required to make a contract … legal. In fact, the opposite is true. A good contract expresses itself clearly and as simply as possible. Legalisms are the opposite of that. When we see legalisms, we know there are opportunities for simplification and clarity that benefit the all users of the contract.
Missing Pieces. Lots of contracts are created by copy and paste. And while this might result in a contract with the basics, it might miss lots of things relevant for creative agencies. Or more specifically, for *your* creative agency. When we see certain things missing, we often find that little has been done to customize the contract for the specific agency using it.
Below we’ve listed some of the elements that you can look for in your contract — even if you don’t know a whit about what the legal language means. Each of these items is a canary in the coalmine for a contract that doesn’t well-consider its audience, the agency, or the business benefits of a tightly written, clear agreement.
Use this checklist to see how your contract stacks up. Or, if you’re looking for deeper guidance, learn more about our Matchstick Report Card.
Is your contract easy to read? How you use design and typography affects the readability of your contract. Good contracts are designed with the reader in mind. Enhanced readability helps with understanding, speed of review, and comprehension. A contract that is easy to understand often gets signed more quickly, with fewer markups, and less legal expense. If readability isn’t a high priority in your contract, it probably means there are other problems as well.
Font. If the font of your contract is something other than one you’d use in the branding of your agency, you may need an update. Your contract is a piece of business communication just like your website or a listing of capabilities. Make sure it reflects your agency.
Justification. Fully-justified rather than ragged-right? There’s a sense that fully-justified text reflects someone’s notion of “professionalism”. But that notion is, well, unjustified. Ragged-right text (generated by a word processor) is easier on readers. Your goal should be readability and ragged-right text is better for contracts.
Two Spaces after a Period. There should be one. Your lawyer may use two spaces after a period, but you don’t have to succumb to this craziness. This practice went out with the typewriter.
ALL CAPS. Have any paragraphs in your contract that are in ALL CAPS? Sure, the law requires some things to be conspicuous. But there are better and more readable ways to accomplish this. Bold works.
Type Size, Spacing. Use a 10 to 12 point typeface, with 1.10 – 1.15 line spacing and spaces between paragraphs.
Smart Quotes. Your document should use “curly” / smart quotes and apostrophes. Straight quotes and straight apostrophes are inch and foot markers, respectively.
While adhering to typographic best practices is important, what you write is more important than how you format it. Bad writing and archaic contract language are a good indicator that there may be more substantive problems lurking in your contract. Legalisms and bad writing make for a longer contract that is harder to understand and negotiate. Archaic language in your contract also reflects on how your agency communicates with its clients.
Look for these hallmarks of an out-of-date or archaic contract to determine if your agreement needs refreshing.
Any Latin, At All. If your agreement contains any Latin, it shouldn’t. Yes, some legal terms have Latin equivalents, but nothing needs to be expressed in Latin.
Redundant Strings. Look for redundant strings of synonyms. These come in doublets and triplets but rarely are they all needed. These are some classics: right, title and interest; assign, transfer, and convey; indemnify and hold harmless; books and records; costs and expenses; law and equity; sole and exclusive; execute and deliver; force and effect; null and void; form and substance; terms and conditions. All of these are hallmarks of an antiquated agreement and opportunities for improvement.
Use Standard English. This one may get some push-back, but we recommend that contracts NOT be written in a conversational tone. The affordances given when we speak to each other aren’t present as much in the written word. While you can hear your tone of voice when you are writing a chatty contract, your audience can’t. Also, chatty contracts are often longer and less precise. We aren’t advocating for stilted legalese. Rather, your contract should be written simply and clearly (even though to speak this way would sound funny).
Here, There, Everywhere. Keep an eye out for herein, therein, hereof. Even more concerning are things like notwithstanding and hereinbefore. Even most pointing words like above or below are unnecessary.
Best Efforts. This one has all types of problems. For one, the law doesn’t respect a meaningful hierarchy of efforts (e.g., best efforts, reasonable efforts). But more than that, what does “best efforts” really mean? Do you need to bankrupt yourself to meet best efforts standards? Move heaven and earth? Is that the best you can do? “Reasonable efforts” is fine.
Workmanlike. Stop using this archaic, sexist, ambiguous and dumb word. “Competent” and “industry standards” as substitutes are fine. Archaic language comes in many forms — none of which is helpful to the reader.
Numbers. If you see numbers written in both words and digits (e.g., thirty (30) days), then you likely have a contract in need of an update. This type of writing is prone to error (e.g., ten (30) days) and is harder on the reader.
Active vs Passive Voice. Active voice is better. Passive voice and buried verbs are a hallmark of bad writing. Buried verbs are harder to understand and create ambiguity.
Feel like typography and language are just window-dressing? That all that matters is the legal bits? When these items are included (or excluded) often tell us that a contract hasn’t been properly customized to an agency or its work.
Excluded Work. Your description of Deliverables should also include a section about what work is excluded from scope. Sometimes saying what something isn’t is the best way of saying what something is. When this is missing, there are more opportunities for scope creep and unwanted obligations.
Client Obligations. Lots of your contract says what you, the agency, must do. But for a project to go smoothly, you need the cooperation of your client. If your contract doesn’t spell out what your client must do to make the project (and your fee / schedule) successful, you’ll have few tools to manage a difficult client relationship.
Sales Language. Does your contract have language about capabilities, process, and shiny pictures of your team members? It shouldn’t. Yes, you can use those things to sell your agency, but they shouldn’t be part of your contract. Sales and process language aren’t contract language.
Bigger Pieces. We see lots of contracts that are missing key clauses: intellectual property, termination, limitation of liability, legal fees. Even if you don’t know what these provisions should say, their absence suggests you may need a tune up.
What’s it All Mean?
The presence or absence of any one of these things doesn’t mean your contract is fatally defective. Rather, it just may mean it’s time for a refresh. Your agency is constantly changing and your contracts should change along with it. Lots of these drafting conventions are a function of “traditional” contract drafting. If you aren’t a traditional agency, then maybe you need a modern law firm. If your lawyer tells you that any of these things are absolutely necessary, find a new lawyer.