Episode 9 7 June 2021
Boom! Kapow! The wonderful world of comic contracts.
Professor of Law, University of Western Australia
Senior Project Leader at Comic Book Contracting Project
Camilla Andersen is an experienced law professor with successes in teaching, research and funded industry engagement. Her innovation and contribution to the law comes in the field of visual law, specifically the unique area of comic contracts. She has pioneered this work over the last 5 years.
For lawyers, her work is a revelation.
Join me as we delve into the fascinating story of how comic contracts came to be, and how they are revolutionising the world of legal contracting.
Camilla Andersen is a Professor of Law at University of Western Australia. Prior to UWA, she held posts at Queen Mary, University of London, the University of Leicester and visiting posts on three continents. She has published extensively on comparative commercial law, international sales and commercial arbitration. She is a member of the ProActive Think Tank.
Camilla's passion is in visual law. She leads the Comic Contract project at UWA and has been pioneering this work over the last 5 years. She worked with the engineering advisory firm Aurecon to draw up its employment contracts in comic-style, an Australian-first. Her recent successful project with BankWest to design its consumer terms and conditions have taken the world of contracts by storm.
[4:01]: Camilla discusses the factors that led her to the world of comic contracts, from her work with the pro-active law movement, to being a mother to two highly-intelligent savant children with ASD thus learning different ways of communicating,
[6:38] Camilla reveals the amazing true story of how comic contracts came to be!
[10:14] Camilla harks back to the early days of comic contracts, beginning with non-disclosure agreements signed by university students.
[12:22] A slot on ABC Radio's Law Report turned into a sponsorship opportunity of a lifetime via great innovative thinking at Aurecon led by their then Chief Innovation Officer John McGuire.
[13:41] We discuss the Aurecon employment contracts in depth, selecting some of the most multitextured parts of the contracts and how they enriched the employer-employee relationship.
[19:05] Camilla relates how images can also end up getting lost in translation when they symbolise different things to different cultures!
[21:03] From Aurecon, Camilla moves on to her biggest project so far - Bankwest's customer terms and conditions in comic form, approved by Australia's securities regulator, the Australian Securities & Investments Commission (ASIC).
[24:02] Camilla tells us how endorsement for the enforceability of comic contracts came from one of the highest judicial authorities in Australia, a former Chief Justice of the High Court.
[26:44] Camilla shows us an example contract from her husband's Alternative Consulting business, a one-page handyman services contract.
[30:49] Customers universally love the comic contracts, it seems. There is also an alternative for the visual impaired that stays true to the comic contract form.
[32:42} We talk about how to negotiate comic contracts - lawyers should sharpen their pencils!
[37:08] Camilla explains how to approach her or her husband's business to develop a comic contract, whether for large sponsors or smaller organisations, and tells us a little of what goes into the whole process.
Camilla's profile page from the University of Western Australia law school.
Comic Book Contracts: www.comicbookcontracts.com.
Alternative Contracting business, founded by Peter Corner, Camilla's husband: www. alternativecontracting.biz
Creative contracts, founded by Robert de Rooy, another pioneer of visual contracts based in South Africa.
ProActive Think Tank (at the International Association for Contract & Commercial Management) which focusses on applying the concepts of proactive/preventive law to business and academic areas.
Pixton comic maker, with which the earliest comic book contracts were drawn.
The ABC Law Report interview from October 2016 that started it all.
Aurecon announces the first visual employment contracts in Australia in 2018.
Press reports on Bankwest's launch of visual terms & conditions for its 'everyday transaction' accounts, in 2021.
Aurecon Global Chief Design Officer John McGuire and Camilla discuss Aurecon's comic contracts on an Aurecon podcast from 2019.
Loui Silvestro, one of Camilla's early illustrators, who works in the Alternative Contracting business.
Former High Court of Australia Chief Justice Robert French's closing address at the 2017 Comic Book Contracts Conference, where he endorses the enforceability of comic contracts in the same way as any other contract.
Stuart Medley and Bruce Mutard's wonderful visual depiction of Robert French's closing address at the Comic Book Contracts Conference.
Hello, everyone, and welcome to the New Earth lawyer podcast. I'm Geraldine Johns-Putra, I'm your host and I'm a lawyer myself based in Melbourne, Australia. This podcast is about lawyers who are changing the practice of law to change the world. My guest today is someone I'm really excited to introduce you to. It's Camilla Baasch Anderson, a Professor of Law at the University of Western Australia. Prior to UWA, she's held posts at Queen Mary, University of London, University of Leicester, visiting posts on three continents and has published extensively on comparative commercial law, international sales and commercial arbitration. She has a very impressive academic CV. But what I know Camilla for is really extra special because her enduring contribution to the law is something called visual law, specifically an innovation that is known as comic contracts. And so this is why I am so very excited to have you on today, Camilla, welcome.
Thank you so much, Geraldine. It's great to be here. And it's especially lovely to talk about comic contracts with you. Because as I've mentioned earlier, I will never forget the look on your face, when you first saw your first comic book contract. It's one of those things that needs to be seen to be understood or to be believed. So I'm very happy to talk about it.
But I would encourage anyone who has even the vaguest interest in this and who hasn't already stopped listening to this blog, to jump on to www.comicbookcontracts.com where we have a couple of examples of these comic book contracts, which are essentially contracts turned into comic book form so that people actually read them. And it might sound a little bit crazy, it might sound a little bit weird, but when it comes down to brass tacks, all we're really doing is wowing you with the banality of something really simple, trying to make legal messages and behavioural drivers for contract conformity easy and understandable, relatable, transparent. We're trying to create contracts that actually get read and get understood and therefore don't cause disputes.
So far, we're five years into this project, we have worked very closely with Robert de Rooy in South Africa as well, who does similar contracts, but mostly for illiterate workers, and but also in other genres, and between the two of us and between Alternative Contracting, a new offer of commercial solutions in this space, we have thousands of contracts out there. Not a single dispute in any of them over the last five years, which I think is, obviously that probably won't last, but in itself, that's enough to just drive home the significance of what a good, well-thought through, relational contract can do. If you actually make the effort to engage and create an instrument that can facilitate better collaboration, then that is what a contract ought to be. That is what a contract can be. And you should have a look, images can help to make that happen. So yeah, I'm very excited.
Well, we will do that, Camilla, we will actually, have you introduce one of your contracts a little bit later on. Because you're right, it's when you see it, that all of the preconceived notions about what a contract could look like, visually, they are not just a bunch of words on a page, fall away. And there's just this clarity, this moment of clarity and understanding and appreciation. So we will do that. But I did want to get into the start, you know, like, how did - you've gone from being a commercial, an international commercial law expert into comic contracts? How did it happen?
Well, you know what, that is a great question. And even now, five years into this comic book contract project, I'm still getting emails from people who used to know me as a diehard black letter lawyer way back then, saying someone is abusing your name on this ridiculous project. And I write back saying no, that's actually me. And it's not ridiculous. It's really cool. And it's really changing the way we do law and you should have a look at. And some of them do, and some of them go, oh, she's lost it. Maybe I have lost it, but I'm enjoying the ride.
But how I got into it was really, as most things in life, it requires a number of boxes to be suddenly ticked in the background. And they were ticked. So I was part of the pro-active law movement, which is headed up by Helena Haapio in Finland, the Proactive Think Tank, where we had been looking at and exploring ways to make law better and more human, more relatable, to try and stop the, you know, preponderance of lawyer jokes around the world. Everybody hates lawyers. Why? Well, let's think about the way that our profession doesn't necessarily target kinder and better ways of doing things. So that's very much but the proactive role movement is about trying to humanise legal services to make them better for everyone. So I was part of that.
I've also been working as a comparative scholar for many years, so looking at different jurisdictions and loving teaching that. Teaching comparative law is what I call the jam in my doughnut, to my students, It's that three hours on a Friday where we get to sit down and talk about really interesting stuff, you know, the societal context between law in action and the only way to truly understand the differentiations of law in different legal systems is to understand its pure meaning and function. So that again, a subtle, ticked box in the background.
And then also, I think, very influential is that I've got two children on the ASD spectrum, both of them savants with very high IQs. And sometimes communicating with them is very difficult. So I received quite a lot of therapy as has my husband and how to make social stories with images to get them to understand information that is quite difficult to absorb, in a better way. And again, not because they're daft, because they're certainly not, they're smarter than me, but so that they can actually process the information better. And that made me understand a very important thing, namely, that even the smartest of people sometimes need images to support understanding. So that again, another subtle box ticked in the background. And then of course, you have to have that drunken cocktail with a friend, which is very important.
I haven't heard that one before. That ingredient for change.
But let me share with you what really happened. I was away at a conference with my friend and colleague, Adrian Keating, from the School of Engineering here at UWA. We were both heads of the HDR - Higher Degree by Research - in our respective schools. And we were sent away to Brisbane for a Go8 training for the heads of Higher Degrees of Research, so that we could better oversee the activity in our respective schools. And it was a really interesting three days of training, but you know, very administrative and on the last day, there was a big blowout, and we went out and we had cocktails.
And Adrian says to me, oh, Camilla, I need you to help me with something. And he had this project at UWA, which is really, really great, called Makers Club. And the Makers Club is a collaboration of engineering students who, for academic credit, liaise with industry to solve an actual real world problem in engineering. And that is great, because the industry gets access to all the freshest thinking and the newest ideas from the fresh talent. It's great for the students because they really get some good networking and connections. And sometimes they produce really good solutions.
But the problem was the industry was constantly having these students sign NDA agreements - non-disclosure agreements - and the students would happily sign them not really realising what they were. And then because they were so excited about what they were working on, they were chatting away about what it is that they were working on, and it was causing all kinds of problems. So the university was threatening to pull the plug on this because it was proving to be quite a high liability in terms of disputes.
... from industry against our students, not something that we wanted. So Adrian had this problem, he says I need you to come up with a way to make an NDA for my students, so that they actually understand what it's about. And so we can do that, we can use plain English and we can put it up and we can do a nice design and... And he was like, no, that's not good enough, they're still not going to understand it. And then he launched this horrible monologue about how dreadful lawyers were, how we were always just like trying to see people as combatants in a legal arena. And we didn't really understand that it was all about trying to create mutual understanding of expectations. And he started talking about his work in 'what if' programming, you know that lawyers need to think more like that. If this then that, you know, do whatever it takes to trigger people's understandings so they'd behave accordingly - don't break the contract.
And I was like, oh, my God, this is all true. But I was also a bit, you know, precious about my profession, because he was being quite offensive and he was using very large words, and the cocktails weren't big enough for these large words. And so I said, what the hell do you want Adrian, a comic book contract? And he said, yes!
Oh, bless you, that is amazing.
So we had a few more drinks, stopped talking about it. I went off in a huff. We were friends again by the end of the evening. And then when we got back to UWA, we had a cup of coffee in the sobering light of the Perth sun and we talked about it seriously. I said, look, I can't promise you how these will be interpreted by courts, if they hit the courtroom. There's no reason why they wouldn't be binding because there's no form requirement on contracts. But I don't know what's going to happen in terms of interpreting images because it's never been done before. And then he said the words that meant that I wasn't afraid, he said, I don't care, I'm not actually interested in being able to sue the students. I just want them to understand what they need to do. Bingo.
Well, that actually is a lesson for lawyers. I mean, we're always thinking about the risk, and that is our job.
But sometimes we pay too much attention to that. We forget about the...
And it's not what the client ...
Yeah, what we're trying to achieve when we're drafting a contract.
He said, look, I'm never gonna sue the students, I just really want them to understand what non-disclosure is. And that's when we came up with the non-disclosure agreement in comic strip form that we did with using Pixton comics, which were very kind and allowed us to use their sort of Comic Book Creator because neither Adrian and I could draw to save our lives. So we came up with this very crude non-disclosure agreement. And it worked just fine. Then we talked about it on ABC Radio. And that's when I was joined up with Robert de Rooy, who was also doing these fruit-picking contracts for illiterate workers in South Africa. We did this interview together on the Law Report on ABC. And after that, and that was about five years ago, everything went: Boom!
So Robert was independently working on these employment type contracts.
I had never heard of Robert's work before. He had never heard of mine. We were both working literally different parts of the world on the same thing at the same time, but with very different audiences. So I was working with images and words to try and convey meaning on people who wouldn't necessarily engage with legalese. Because let's face it, you know, people don't, there's enough research to prove that.
Whereas Robert was trying to create contracts for people who couldn't read, and therefore needed a better framework around what it was they were engaged to do under an employment contract. So similar approaches to different challenges. And the moment we hooked up when we started talking, we, it was so nice to meet someone else who is doing the same kind of thing. A day after the Law Report's interview, everything just took off. I had about 294 emails in my inbox, I had to hire an RA to help me sort them. A lot of them were from illustrators offering to work for free on this project, because they thought it was so exciting. And that's where we hooked up with one of our key illustrators Loui Silvestro. He then took that Pixton comic and made it really beautiful. And that's the one that's available on our website now.
But also, that the innovative, the Chief Innovation Officer of a large engineering consulting company called Aurecon, John McGuire.
An absolutely amazing man, one of the most keen minds I've worked with in my life, and I've worked with a lot of very keen minds. He rocked up in my office with a chequebook saying, how much do you want to work with me, and that never happens to commercial legal academics. So I said a very small amount, Adrian kicked me, but it was too late. Still have the bruise to show for it. But I still think it was good to go low, because then we definitely had our first sponsor. And since then, we have been absolutely oversubscribed, we've had so many fantastic corporate projects and sponsorships on contracts. The first project we did was that Aurecon contract which now...
... is available on the website, because the privacy period has expired. That's now rolled out in seven different jurisdictions in different languages. And it won several awards for business communication. It's a really lovely little comic strip. It takes about 45 minutes to sign up under it because you have to do the onboarding as you sign up. There are links to onboarding. And it's just, it's what you can do if you're not afraid to try something different. And it communicates the spirit of the relationship that the company wants to create where the employee, communicates the values of the company itself, including my key parameters, which is meant to be serious but playful.
Playful with serious intent they call it. And that's what we did. But it also makes employees take a test for their own values, you know what kind of personality are you so that Aurecon have an idea of who they are on their first day, they get a little mug with their main attributes and a little t shirt. But it actually helps in the team building so when Aurecon put together teams they know, how like an innovator and a workhorse and however they classify them, to put together teams with lots of different skills. So it's all about values and personalities and finding a good relationship. And that was, we learned so much from that.
It's an onboarding contract for every single one of Aurecon's employees?
Every single one, from the person who scrubs the toilets to the new CEO. They're all signed up under this contract. Now, obviously upper management have annexes of additional contractual rights, which might not apply to all levels of employment, but it's the same concept.
And do you think, listening to you describe how using this particular medium means that you touch on values, the personal values of the person coming on board, alignment with the organisational values, do you think it's this medium that does that, that opens the door to more creative thinking in a contract?
I think it helps but I don't think it's exclusively that I think it's entirely possible to do conscious and value-based contracting without the images. But the images really help you tap into the actual value of what it is you're doing and the human aspects of it. It's really interesting. We've had that many projects. And Robert de Rooy from South Africa reports the same thing. We've had that many projects where the moment you visualise a contract term that you've been gently nudging for the client or sponsor to get rid of, because it's a little bit unpalatable, and they probably wouldn't uphold it anyway, like an anti-competition clause in an employment contract, right?
The minute you visualise it, and you get the sponsor to really look at it and think, oh, yeah, that is actually quite nasty. And I would never actually uphold that, let's just get rid of it. Whereas in written form, they just look at the words, and they don't really carry the same kind of value.
So you've got that sort of you're kicked out and you can't work it with anyone else in your business, if you leave us. It's like, ah, actually, now that I'm looking at it, I don't really like it, we would never actually ask our employees to do that.
So as lawyers, when we draft these clauses, we're always thinking about using the right words, the right definitions, how does that tie in to that ...
We're a very risk averse profession.
And then we're not actually, we say that we're applying it to the real world, but what we're talking about when we say we apply it to the real world is past examples where there's been a legal dispute. And what you're talking about is suddenly visualising what it looks like, when you're...
It's the reality. What does the reality look like?
We also do a lot of risk assessments for the biggest sponsorship projects, we do a lot of risk management going back in time. And we did the same, and I don't think it's a problem that I share this, it was Aurecon who decided to get rid of their anti-competition cause when we looked at it.
Because they would never actually uphold it. We did some history, we look back 25 years, and potential cases where they could have pursued an employee for this. And they every time chose not to.
Because it's just too unpalatable to actually do it. And then of course, comes that question, then why even have it in the contract? Why contract an unpalatable right, that kind of undermines the value of the relationship if you're not actually going to use that? Right?
Why put that in there? Yeah.
So that's the organisation looking back at the real world context. And there was a, there was actually a part of that contract that I do recall, and that was the parental leave clause. And I just, could you talk about that, because that was so special to me, when you showed that...
Well that was one of my favourite images and since showing that to you, yes, my absolute favourite images, which is coming out in, I've written an article about it, it's coming out soon, is the parental leave at Aurecon, where we've got an, and for anyone who wants to it's available on the Comic Book Contracts website, we've got penguins, symbolising the parental leave. It's a large penguin and the miniature children penguins. And the reason why we chose the penguins was a beautiful insight from the illustrator who loves penguins, is because parental leave isn't just for mums. And it's not just for dads. It's for parents. And the penguins are notorious for sharing parenting, they co-parent, so the dad looks after the penguin babies when they're little, and the mum looks after them a bit later on. So yeah, notorious from the animal kingdom, really thinking about the value of the image and being gender neutral.
I mean, trying to get the right image is the biggest challenge on the project for many of these things, and trying to find out what content stays in and out for what we call storyboarding, as part of our process is a long process that goes into risk management and looking at what the clients actually want, what the sponsor needs going forward. And what are the realities of the relationship they want to create? And what values do they want to put in? All that, but I think most lawyers can get on board with that. But trying to find the right images to convey some some of these behavioural drivers and the spirit and the values of that, can be really lengthy.
It's multi textured, isn't it? In a way that words, words are yes, multi textured, but in a very different way.
Very, and so whenever we can afford to, depending on the sponsorship, we always make sure that we focus group test images very, very carefully. Because it's not just a question of, I mean do I like the image? Do you like the image? Does the sponsor like the image? It's, you know, do the people who this contract is addressed to, do they relate to the image? What about the cultural regions if there are several? Do they have the same meaning, these images in the same regions?
And I've got a couple of really funny stories to tell about how that hasn't worked for some of our contracts. I mean, one of them being the stork, one of our most famous examples.
The stork carrying a baby sort of symbolises, you know, there's a baby coming in many jurisdictions, but not everywhere. And if you roll that image around in some jurisdictions, they'll say, well, why is the stork abducting a baby? Is that my employer coming to take my child? No, no. It's just a cute representation of birth.
Which gives a different meaning to the expression "lost in translation".
Truly, not just lost but not utterly spun around. So yeah, just like words, images can have significantly different meanings depending on context. And that context can be age, culture, region or even industry. We learned a couple of powerful lessons on the WAIS contract, which was the WA's Individualised Services contract for disabled people, where we initially put a little nurse's cap on the carer to symbolise this is a carer, and turns out the industry has been rebelling against that for 20 years. So the moment this sponsor saw the nurse's cap, she went no, no, no, no. A little bit of homework could've shown that that was a massive trigger for disability care across both physical and mental sectors. Big no-no. Yeah, know your industry, duh!
Clearly, after Aurecon, it's taken off.
That was the first big sponsorship, the first big contract.
To roll out comic contracts.
And since then, we've got a number of sponsors, including one of the more recent one's Bankwest. It took us two and a half years to start working on their terms and conditions. It wasn't that difficult to make the contracts, it took about a year, but it took a year and a half to get approval through ASIC and through their mother bank Commbank. And now they're rolling them out. And we're really really proud to be associated with it. Because here in Perth, I don't know what it's like on your side of Australia, but here in Perth they're everywhere.
I haven't seen them yet. We've got lockdown in Melbourne.
I don't think they have a huge presence in Melbourne or Sydney anyway, but here, they're everywhere, buses, shopping malls, you can't turn on the telly, there's an ad for visual terms and conditions. They're really making it mainstream, which is really great.
Because suddenly there's this more general acceptance of the fact that contracts can be in comic book form.
It's a consumer-facing contract. So this is different from the Aurecon contract, which is a relationship between employer and employee.
It is. So we try to do all kinds of contracts. So we're in the very luxurious position and my team that we can be quite selective about which sponsorships we accept. So we try to work with charities because we really like that sort of human values that tend to come from working with charities. Plus, they don't have to pay GST so we get more out of our sponsorship buck, another pragmatic...
...pragmatic reason. But also we've worked with different types - we've got business to business contracts and the new Aurecon project that's coming out, hopefully soon, when we'll be testing actual commercial contracts between business parties, in visual form. So that one's been quite interesting to try and design because it's obviously a lot more sensitive when you're talking about someone's main business and source of income. So very, very interesting stuff there. We've got finance contracts, and we've got, some of us are working on construction contracts. It's really interesting to see throughout the different sectors, it seems like the sky's the limit. I mean, I don't think there's anything we can't do. We had a project with virtual contracts as well. And that one's a little bit slow at the moment, because I'm not quite sure which platforms to use.
For technology that keeps changing all the time.
But once you start rethinking what format a contract can take, it's just a question of finding the one that suits you. Because imagination has no limits in terms of what we can do. You just need to find a way to do it. I mean, Robert de Rooy has successfully created contracts with hardly any words at all. We have quite a lot of words in ours, usually, because they're not tailored towards the illiterate. But somewhere between our contracts and his contracts, there is a span of lots of different styles and approaches and word contents. And it's more like a spectrum of visualisation than anything else.
And you've had success with the enforceability point as well.
We did. Which is interesting, because we have been the victims of our own success for five years. And Robert was complaining about this as well, that we don't have a single court case that says images in an image contract are binding because we don't get disputes. So we were able to in 1997, sorry, in 2017, we had the inaugural Comic Book Contracts conference here in Perth, sigh, in pre-COVID days. Sigh, we all remember back when we could travel.
And we were really lucky that Robert French had agreed to turn up and tell us what he thought, whether or not these contracts and binding.
And he wouldn't tell me what he was gonna say. And he was giving the closing address at the conference. So you know, the whole time I was like, oh, my God, what does he really think of these? And then much to our joy, he gave them a resounding support at the end of the conference, saying that not only did he think that these contracts were binding, in fact he said of course they're binding. The real challenge is in the interpretation, which is absolutely true.
But also, I mean, if you can make intent clearer with images, it's just a boon. Right? So it will just make that challenge of trying to determine contractual intent so much easier in some circumstances.
And in some of the ones we showed him, it does.
Because it's giving more context, it is giving more context, which courts have actually said, you need to look at if the words aren't clear, so it's actually there in the contract.
His closing address is available in the special edition of the UWA Law Journal, which is available online. And also, two of my thinktank, because we have this comic book thinktank of graphic artists that is run out of ECU, Bruce Mutard and Stuart Medley very kindly do this and make graphic illustrators available to us when we need to hash through a really big problem, we can convene a thinktank at very little notice and that's a wonderful thing to be able to do. But they wrote this great article together for the UWA Law Review, which is in comic book form. I think it's the world's first Law Review article entirely in comic book form. And they've got this wonderful image of Robert French, a former Chief Justice and current Vice-Chancellor proclaiming that, of course, comic book contracts are binding. And yeah, so I use that a lot in my visual teaching presentations as I travel. Thank you, great image, Bruce and Stuart.
So many firsts.
So many firsts.
So I would love to actually look at one.
I'm very happy to share one. So let me just share screen. And I hope that that works.
So this contract here is taken from my husband's website, alternativecontracting.biz. And the reason why I've chosen to show it is it's not on my website. So it's not something that lots of people see. And it's also very close to my heart. So for those of you who are listening and not seeing what you would be looking at if you go to alternativecontracting.biz, at the end at 'example contracts' is a Dave Can Fix It Handyman service contract. It is just one page. And why this contract is so special to me is that it was the first one we worked on, and I'm very sure it won't be the last because we're now looking at working with a number of different start-ups, which didn't have an underlying text based contract.
So all of the research we've done so far has always been comparing the text-based contract that was before with the image-based contract that went after. We've been testing them on comprehension, engagement, and perception and determining very strongly that people understand them better, engage better with the process, and also absolutely love these contracts. So that's wonderful.
We've had thousands of focus group testing, especially testing perception, which was sort of my paranoia that people wouldn't love it. And it turns out that people do love it. In these thousands of tests, only one respondent in qualitative feedback said that he found it a little patronising. He was, however, a very young male in the age-group 20 to 25 and he went on to say that others would probably really like it, but he was just too smart for it. So I think, I'm not I'm not belittling his point of view, I understand where he's coming from. And I probably would have put something similar when I was young and a bit of a smartarse, but not to worry.
So Dave, the handyman will...
Yes, so Dave the handyman...
What would he do with his contract, which is in beautiful picture form, it's got ...
We simply started from scratch.
So we sat down with this local handyman service. And I should probably say that we're very grateful to our big name sponsors for being able to put together the team that allows us to work on these contracts on very small budgets. But we sat down with his handyman, we talked about his values.
What's important to him? What are his, what are the behavioural drivers that he wants in the contract in terms of expectations? What does he need the client to know? And we ended up with this one page where we had sort of a caricature of the sole trader. so easy for once to determine the avatar...
Instead of a company. Normally not easy at all. We've made this wall of what he thinks is important in his business. So he's fully insured, he's efficient, he's accurately priced, warranties, tidy and punctual. And in return the customer promises to tell him about the job so there are no surprises, ensure it's safe, and complete payment within seven days of billing.
He even offers a warranty that if he's not happy, he'll return for anything reasonable free of charge. But he also says that if something unexpected comes up. there's this image of digging up a dinosaur in the backyard, like if that happens, yeah that's a problem for my work, then we may not be able to stick to the original quote.
And then in the last panel, he's got his details in that.
Yeah. His details and his account. So I love this contract.
For me, it is exactly what a contract can be, so simple. So based on the values and the behavioural drivers for compliance, so that there are no misunderstandings and no claims, and he's getting really good feedback on this. So he's very kindly supplying me with people's reactions to it. And especially the older people that he works with, they absolutely love it, and they put it on their fridges, and then they remind themselves of, you know, all the stuff that their wonderful handyman is doing for them. So also works as marketing, which is great.
So I'm gonna ask you the first year law student question, which is offer and acceptance. How does Dave get the contract accepted, if it's in comic book form?
Well, I mean, Bankwest have rolled out 28,000 visual terms and conditions for new bank accounts over the last couple of months, which is a fairly large amount.
They haven't had a single rejection of the comic book contract.
And in accordance with the terms of my research proposal, they are not giving their clients an alternative. So it's comic book contract or bust.
There can't be competing versions of one contract out there. It's the comic book one. Then there is there is an audio one, which is a read description of the images and the text.
For the sight impaired, but it is the same contract. And there have been no problems in those acceptances.
So that's an important point for accessibility.
People who aren't able to view a visual contract.,
There is an option.
They have an obligation as a financial service provider to provide these options for accessibility. And the solution for people who are sight-impaired is to have the images described along with the text that the images convey. And we haven't had any issues with those yet. It's a relatively new platform. But it's a very interesting one. And we're monitoring it very closely.
And so that's for consumer contracts. Well, banks do this, commonly, you know, they put out the terms and conditions. And this, the acceptance really is in carrying on to accept the services.
You're talking about negotiating contracts, aren't you?
Yes, I am.
That's the new Aurecon project is a business-to-business contract negotiation project. And we're currently at phase one. And we'll see where it goes. Because John McGuire, the Chief Innovation Officer who's been driving all this change, and who's led Aurecon to become the Innovative Company of the Year, has decided to look for another challenge. So you know, good news for those listening.
If you want an absolutely brilliant innovator to work for you, you could be lucky enough to snazzle him up. But who knows, he won't be available for long, put it that way. It would surprise me greatly. But so he's left the organisation so I'm not quite sure where we're going from here. But at the moment, we're looking at these contracts, as a sort of a normal comic book contract, holding it up as a basis for negotiation. And the next stage was then to try and do a visual tree of choices. So looking at historically, what kind of points are normally negotiated in these contracts, what options are there? And then we almost do like a pick and mix negotiation tree with visuals.
Yes, I don't know if we're gonna get there now.
So it does mean, negotiations are less boring.
Well, hopefully. But it also I mean, most negotiations, we're gonna have to have an other category with a question mark for some of the negotiation points, because you can't foresee everything.
That people are going to want to negotiate. But most negotiation points are fairly predictable.
Yep. Yep. People who've been working on the same sorts of contracts, whether it's a sale of a business, you know, you're going to come down to the warranties at some point, etc, etc.
But there's also an important point in this, and that is to try to remember that those who are familiar with relational contracting, which this very much is.
Will tell you that it's actually not about the nitty gritty and the transactional detail, it's about the relationship and then impliedly, understanding the behavioural norms under that relationship on the basis of the values. So if we're able to take a complex commercial negotiation, and simplify the terms of it simply by referring to the relationship and what would be reasonable or not, it would be to talk to each other about finding a solution, duh. Maybe it doesn't need to be drafted, maybe it's impliedly and inherently there, because of the way the contract frames the values of participants in this collaboration, which the contract ought to be, a collaboration and not a prescriptive framework.
Yeah, you're taking the contract back to first principles.
And maybe we don't need to negotiate all the nitty gritty, maybe it is enough to have a little bit of trust.
Oh, I used the T word. All the transaction lawyers have hung up and stop listening.
Transactional lawyers deal with trust, we just don't really understand that we are.
Look the last guy who said that we should trust more in people, in relation to contract, he got a Nobel Prize. So come on.
I was going to ask you if someone wants a comic contract, what do they do? How do they get in touch with you? Is it possible?
Of course it's possible. There are not many now who provide the service of comic book contracting. So depending on the scale of the project, we actually do have an opening coming up on our research roster, which is pretty unique. As I'm always telling you, it's really weird for a lawyer to be bought out. So all of my research time is paid for by someone else. It's very strange. That happens to medics, but never to lawyers. We've actually got an opening coming up. For future. We've got a couple of people lined up. But for larger research projects, we're always happy to try it and see if we can fit it in. Because I've got a very large team. Now I've got two psychologists, I've got my own graphic artist, I've got connections in both financial literacy in the business school, engineering, you name it, I've even got some medical connections now, because we were working with medical consent forms at some point. So my team is huge.
And multidisciplinary. That's what I like.
That is the key.
Right, that lawyers need to stop thinking we can do everything ourselves. Yeah, sure we can but then we're only doing it for each other. If we want to do something more outward facing then we obviously need to communicate with the people who are good at that, being outward facing and who know their industries, and who know how to maybe draw if that's what's needed, and who know how to communicate with that particular industry. So stop calling that soft skills. Those are really hard skills.
They're the hardest skills for lawyers, you know.
Yeah, I think the hardest skill is just realising that we can't do it all ourselves. If you can get that skill on board, you're fine.
So I was going to ask you, why do you think you ended up branching out into this completely innovative, completely blue sky way of delivering what's fundamental to lawyers - contracts?
It took me a while to trust it. So I didn't give up my day job of black-letter research. And I still love the international sales law and the harmonisation and the uniform application, I still do a little bit of that. But I mean, most of my research time's now devoted to this, because it can be. It's fun, it's different. And at the danger of sounding like a born-again, ex-cynic, I used to assume that whenever I wrote something research wise, very few people would read it. But now we're doing something that is very widely read, that's having a huge impact, that's changing the way that the industry operates. And it's really exciting to be able to work on something and to have the privilege of being at the forefront of change. It's just so cool. Plus, I get to work with the coolest people, Geraldine, the open minded, funky lawyers who are not afraid of doing things differently. It's a really privileged place for me to be as a sort of end-of-career researcher. I mean, I'm in my 50s and I get to do this funky stuff. And I get to put together this amazing team of innovative thinkers, across lots of different disciplines. And it's so cool. And also, of course, what I should have said before, when you say how can you get a contract, I should have plugged my husband's business. He's going to shoot me now.
You should definitely go to alternativecontracting.biz for smaller scale projects, where he can help you out. And for larger scale projects, he has access to my team as well.
Oh, so you're both working. You both working in related businesses. He works with the smaller contracting requirements.
Yes, he used to get very frustrated, because we had to turn away corporations with smaller sponsorships who said, well, can you help us? And I said, look, I'm really sorry, that the university doesn't get out of bed for less than $15,000. So I can't with all the overheads and everything that they charge me for my research time, I can't take on projects that are smaller than that. And then they would typically say, well, what else is there for us. And I would say well, you can try Robert de Rooy in South Africa. Other than that I'm stumped. I don't know who would do this for you. But now my husband does it through Alternative Contracting. And he works with my team. So I get to do, I get some research data.
Consulting on some of his projects, and I can use in my research. And sometimes he helps me out on some of the bigger projects, so I can buy him in, try and get a little bit of help on the storyboarding and stuff. So it's a very good relationship that we managed to establish professionally. And it works.
Yeah, and it's delivering, you know, it's almost like the Qantas Jetstar model, and you've got the efficiencies and combination.
I know which one of us is the Jetstar!
I'm not commenting.
But I'm very slow because I have to go through ethics committees, and there are some IP issues, that we've actually come up with a model for the next couple of research projects that worked really well. So to avoid the nightmare that is IP on these contracts. The joint IP with the university is quite frightening to some sponsors.
So the first basic contract is developed by my husband, for the client so that the client owns it. They then turn to me for the focus group testing, the implementation and the improvement of the images, which is what takes a really long time.
But it's their contract that I'm improving using the same team that works with my husband to create the contract.
But to make sure that the IP issue is very, very clear. So intellectual property sits with the sponsor and the clients for the whole duration of the project.
That's really amazing. And so it's going to be much quicker, someone doing an individual smaller contract will, for example, Dave the handyman.
That was done in less than a week.
Less than a week? Okay, that's quicker than most lawyers.
Well, and it's also really sloppy and loose weaved, and it doesn't have a lot about liability and the insurance details are uncertain and the punitative clauses are missing. But it's about a relationship and the values and the behavioural drivers this handyman needs and his very simple day-to-day work.
Okay, Camilla, I think we'll wrap it up. Although you know I could look at many more comic contracts and really talk about them.
I wish I had time to show you some more Geraldine.
But people can check it out. And I really, really encourage them to do that.
Thank you so much, and thank you for your great questions.