ABSTRACT
Visual contracts are what they sound like: contracts that use graphic elements and text to convey the meaning of an agreement. The visuals can include diagrams, cartoons, maps, flowcharts, timelines, and more. Other scholars have detailed many of the benefits of visual contracts and their adoption has become increasingly common outside the US, with large corporations like Airbus and Shell utilizing them. However, in the US adoption remains limited.
The less than enthusiastic reception to visual contracts in the US likely stems from lawyers’ risk aversion. Lawyers prefer established processes with predictable outcomes and often opt to repeat patterns that they and others have already used. This protects them and, while not necessarily optimal, provides their clients with greater predictability. But are visual contracts really risky in the US? While it’s true that no US courts have actually interpreted a visual contract, as we define the term, our research indicates that US courts regularly interpret visuals. They do so when deciding what visual aids to admit during trials and when adjudicating lawsuits where a visual makes up some part of the dispute. Some judges even add visuals to their opinions to clarify their writing. This comfort with non-textual representations signals that US courts are capable of and willing to interpret visuals and, therefore, would accept visual contracts. But we found even stronger evidence that US courts will receive visual contracts: judges already adjudicate visuals in contract cases. While the contracts in these cases reference visuals outside the actual text of the contract, the cases they feature in show US judges confidently interpreting visuals in adjudicating contract disputes. Our paper details some of these examples and delves further into how they provide the support and predictability that lawyers need to move the visual contract field forward in the US.
Further bolstering our argument, our research revealed that visual contracts are not new. In fact, they came centuries before written agreements. Unfortunately, while most people could comprehend these ancient agreements, only a select few can understand the dense prose that makes up most contracts today. Visual contracts offer a way back to the more accessible origins of contracting.
Why would lawyers depart from the methods they know? In addition to the reasons other scholars have already provided, our paper adds a few new ideas. Initially visual contract adopters may need to spend more to create visual contracts, but they also stand to gain by establishing themselves as experts in a field. Plus, our paper details how utilizing designers can actually reduce drafting costs on a per contract basis.
As with all things new, visual contracts pose risks. However, the benefits they offer and the potential profits early adopters could obtain, make them worthwhile. Here, we dig into the details of implementing visual contracts under the US legal system.
Willey, Rob and Tran, Tammy and Hinkle, Lygie and Matthews, Ashley, Visual Contracts in US Courts (September 2, 2024), Drake Law Review, Forthcoming.
Leave a Reply