Visualization: Seeing Contracts for What They Are, and What They Could Become

Commercial contract users read their contract documents infrequently, and understand them inadequately. The disincentives may be several: perhaps because contract language is too technical and too long; or that contracts tend to be organized around ensuring or avoiding legal liability rather than providing guidance toward performing contractual responsibilities; or that contracts rarely build in frameworks that would prompt the parties to explore new opportunities. For whatever reason, the neglect by users of contractual documents can lead not only to unpleasant surprises in the performance or enforcement of particular contractual duties, but also to chronic underuse of contracts generally as potential instruments for planning, innovation, commercial relationship-building, and optimal business results. Visualization techniques — adding graphic images to supplement written words — could perhaps invigorate the effectiveness of contract documents and processes. Greater understanding and use of contract materials could reduce transaction costs, prevent disputes, and help to achieve business goals. This paper thus calls for those in the commercial contracts community — contracts managers, sales and procurement personnel, engineers, project managers, lawyers, and anyone else who negotiates, drafts, signs, implements, monitors or studies contracts — to join collectively in a “Visualization Project” to study the effectiveness of graphic communications within and about contracts. “Visualization” uses graphical images to convey information, organize data, promote learning, or stimulate imagination and reflection. Sometimes images stand alone, as in art or in traffic signs. In other contexts, images accompany words so as to enliven the language and make underlying concepts more comprehensible. This paper posits that visualization techniques might be applied to contracting processes and documents in order to make them easier to plan, draft, read, understand, and implement. Doing so may inspire and support stronger commercial relationships. Although the paper states this hypothesis, it does not itself attempt to prove it. Instead, its methodology as well as its goal is to prompt widespread community experimentation in which individuals and businesses would, over the coming years, try adding graphic images to the words of their contracts or communications about those contracts. Through what hopefully would be hundreds of separate investigations and experiments with different graphic images, data could be collected and shared freely among the entire community about both the successes and failures of particular images to make contract language and terms more easily comprehended by users. This “Visualization Project” thus foresees creation of an intellectual commons in which all of these results could be collectively shared. Through gradual improvement by trial and error — a process made efficient through widespread reporting of individual efforts — best practices would emerge that could benefit commercial contracting worldwide. The Visualization Project could thus lead to significant reforms in how contracts are perceived, crafted, communicated, or used. Such reforms could reduce the economic, legal, and social problems that stem from misunderstood contracts. They may also facilitate stronger, more valuable contractual relationships and better business outcomes. The body of the paper first introduces the idea of “visualization,” and speculates about its possible advantages. It then describes the possible kinds of information that could be more easily understood by supplementing words with accompanying graphic images. Some ideas are far easier portrayed graphically than others. For example, equipment and other physical objects of exchange are usually quite readily (and helpfully) identified through pictures and symbols. Sequences of events, responsibilities, and relationships can be simplified through diagrams. Far more challenging are graphical portrayals of contract law concepts and the “invisible terms” of default contract provisions. Finally, the boundaries of a contract, including its purpose and relational expectations, can conceivably be depicted graphically. Doing so effectively requires imagination and would not always be successful. But images have the potential to communicate in ways that are different from words, potentials that are worthy of community-wide investigation and assessment. The paper concludes with some suggestions that may hopefully spark experimentation with images and participation with the Visualization Project. While the paper is not itself an empirical investigation, it attempts to initiate decentralized investigation, assessment, and possible contract reform. It calls for engagement by readers in a project that hopes to harness many minds, and much trial-and-error, in auditioning a broad variety of graphic images and reporting back to the community about successes and failures. As such, the voice adopted throughout this paper is not that of disinterested scientific investigation, but rather of advocacy in the hope of enlisting participants in a common enterprise of exploration, experimentation, shared evaluation, and potential reform.