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Contract simplification cannot proceed without client agreement on basic business positions

Until recently, an easy recommendation to a law department said to simplify the gaggle of contracts they dealt with both in number and in content. With some experience, however, it has become clear that lawyers on their own can only go so far to clean up contractual language. They can’t unilaterally select or revise significant terms of contracts for the reason that the terms reflect fundamental risk tolerance and business decisions. So for example, you can’t reassemble a document until there is agreement on underlying business terms like revenue recognition or the business model of support offered or sought.

A legal project team can look at multiple agreements that deal with similar issues and pick the better text in the sense of clearer language. Boilerplate provisions may be amenable to a reasoned and agreed-to choice by lawyers. The substantive parts of the agreements, unfortunately, rest on business considerations far more than on legal drafting.

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