The word “playbook” is a relatively recent addition to the contract drafting lawyers’ lexicon. It stands twitching nervously in the crowded room, wondering if it belongs, gazing reverently at established members like “representations” and “liability” or long-standing, if exotic, old-timers like “mutatis mutandis”. Relative newbies like “process” and “technology” are asserting themselves but “playbooks” are tolerated by some, despised by others, misunderstood by most, and embraced by only a few. The presumption seems to be that real lawyers don’t need playbooks. However, there are good reasons why these attitudes should change as, although playbooks aren’t necessary for every lawyer reviewing contracts, they certainly deserve their place in the rapidly changing legal world.
What is a playbook?
Part of the problem is the lack of a succinct definition of a playbook and its purpose in relation to contract review. What is often called a playbook could more accurately be described as either:
- Training material.
- A checklist.
- A process manual, chart or description.
- A collection of negotiation tips and tools.
While each of these resources is useful, they serve a different purpose from a playbook.
Here is what I consider a helpful definition:
“A “Contracts Playbook” is a comprehensive arrangement of information designed to facilitate a standardised, efficient, and collaborative review and negotiation of recurrent contracts by a team based on a predetermined negotiation strategy.”
Let’s look at each of these elements in reverse order.
Recurrent contracts
The playbook aims to cover the information that a team uses repeatedly. While it cannot substitute a lawyer’s unique ability to analyse a situation, arrive at an appropriate strategy and suitable language, and argue for its insertion, a playbook can capture that knowledge for the benefit of the whole team.
Collaborative review based on a predetermined negotiation strategy
Contract review typically involves, at a minimum, collaboration between:
- Supporting lawyers.
- Business requestors.
- Procurement.
- Sales personnel.
A playbook is not a substitute for the training, conceptual understanding and aptitude of a lawyer or business person and it therefore shouldn’t be used as the basis for excluding necessary players from the team. However, a playbook can ensure that each contributor’s time is used more effectively, facilitate a better understanding between each participant, and improve collaboration based on a common strategy.
Efficient review
Efficiencies are gained both from better collaboration and by having the relevant information organized systematically in one place. In addition, playbooks can and should be built, where possible, with facilitating technology in mind. For example, it’s important to consider whether you’re designing a playbook that will either be:
- Printed and distributed as hard copies.
- Used in an electronic form (the most common approach) where indexing and hyperlinking the content is key.
Taking it further, if contract lifecycle management tools or other technology fit with your overall strategy, integration will become a central driver of playbook design.
Standardised review
In a distributed team negotiating similar contracts, dealing with identical issues the same way is vital to managing risk. Standardising the language used when deviating from standard positions will ensure that the entire team benefits from the prudence of the most experienced lawyers so that the related risk is understood and managed. A well-designed playbook can drive standardisation or differentiation as appropriate.
Comprehensive arrangement of information
An effective playbook should cover all or most of the information that the team repeatedly requires and classify and structure the information so that it is instantly available. The information could include:
- Sample language that illustrates making effective changes to the contract. This is the central driver for playbook usage in terms of standardisation and efficiency since even the most experienced lawyers cannot memorise all the sample language alternatives.
- Instructions on when and what to change in the other party’s language (or when or how to respond to a proposed change in your language).
- An explanation of the risks associated with certain changes or an explanation of how to best argue for (or against) a particular change.
- The approvals and inputs required based on whether an issue is a legal or a business decision, or requires approval from or consultation with someone in a senior management position or with specialised knowledge.
- Content that explains underlying legal concepts or the business context of a specific issue.
When a contract lawyer moves from an individual expert role to become part of a larger team performing recurrent review, they can no longer afford to try and commit all this information to memory or organise it in a fashion they prefer. Instead, they must work with other stakeholders and invest some thought in playbook design or how to best organise that information for the team’s benefit. Nevertheless, the contract lawyer will remain the best judge of negotiation strategy, contractual language and the substance of the guidance to be documented as a result.
