An exercise in contract visualisation using AS4000

Visualisation makes contracts easier to understand, especially for non-lawyer, day-to-day users. Despite its benefits, the practice doesn’t appear to be widespread. In order to explore some of the reasons that lawyers might be reluctant to prepare visuals, I undertook a contract visualisation exercise on a commonly used construction contract, AS4000. In this post I present the visualisations, commentary on the design process and lessons learnt.

Visualising AS4000 Construction Contract

Contract visualisation is “the use of diagrams, images, and visually structured layouts to make contracts more searchable, readable and understandable.” (See PasseraPassera and Haapio have done substantial work on contract visualisation and much of my discussion herein is prompted by their works.) Using contract visualisation to supplement traditional, dense legalise, can make contracts easier to understand, facilitate negotiations pre-contract and assist with compliance during its operation. The benefits are particularly pronounced for non-lawyers, such as project managers, sales persons and contract managers (especially non-native English speakers) who, unlike the lawyers who prepare the contracts, are actually expected to use the document and comply with it on a day to day basis.

However, despite its intuitive benefits, in my experience contract visualisation is not commonly adopted in the legal profession. The occasional visuals I have seen used are often rudimentary or a cluttered, re-arranged version of the text they seek to simplify. The absence of contract visualisation from the legal profession is a loss for the clients across the many industries which have to operate contract with dense legalese every day – sales, procurement, construction, services – who could otherwise be using documents which are substantially more workable.

The current absence of contract visualisation may be caused by a lack of client-side pressure to deliver visual solutions, an absence of visual design training and skills in the profession, the absence of creative ideas or templates illustrating how to visualise certain provisions and the general risk aversion that appears to permeate most legal practice.

To explore those reasons further, I decided to engage on my own contract visualisation process. I wanted to explore:

(1) Whether it is difficult to create visual designs which are helpful, intuitive, accurately reflect the text provisions and increase clarity;

(2) What types of contracts / provisions can visualisation assist with? What can’t it assist with?

(3) Are the drawing tools difficult to use and how long does it take to prepare a visual?

To do this, I have created visualisations of certain provisions from the AS4000 standard form construction contract. The AS4000 is widely used in Australia and has a body of existing case law and commentary. My goal was to make visuals of certain provisions within it which are intuitive on first glance, clean (but not overly simplistic) and increase clarity.

Set out below is my visual representation of the terms and some specific commentary on the thought process and design of each visual. After that I set out the key lessons I learnt from the process. The relevant contract text is extracted at the end of the post for reference.

Visual 1: Notification of Claims

This is a visualisation of the claim procedure set out in clauses 41.1 and 41.3 of AS4000.

Visual 1 - AS4000 cl 41 Notification of claims

I made the several design decisions in preparing this visual. Documents and events are described along the top lines, whereas all timing is indicated along the bottom. Dotted lines connote optional or uncertain documents or steps. Colours blue and orange are indicative of the different parties providing the documents. The “<” symbol used in the timing provision was a simple, shorthand method of indicating “within (xx) days”.

The “CERTIFIED” stamp was used to indicate the approval of the existing assessment, reflecting the common conception of a ‘rubber stamp’ approval. I was of the view that the alternative (writing the word ‘certified’ in normal text in the second orange box) looked like a brand new document was issued at this stage, rather than just a certification of the existing document.

Some of the above matters may require a separate explanatory section or a key, however the preference is to avoid further explanatory sections which may be redundant. What would be useful is feedback from the contract users as to whether the visual makes sense as is or if it requires a key, which may require some user sampling or surveys.

Visual 2: Claims and certificates

This is a visualisation of the progress claim and certificate procedure set out in clauses 37.1 and 37.2 of AS4000.

Visual 2 - AS4000 cl37 Claims and certificatesI have introduced a colour scheme (the green bar reflecting payment), which I will adopt in later visuals. I have also kept the visual rules from Visual 1, such as the colour coding and timeline layout. This provides consistency so that the contract user does not need to re-learn the various keys for each new visual. During the design process, I only added this colour scheme after I had begun working on Visuals 3 and 4, so that the whole package of visuals weren’t complete until I had iterated a few versions.

Visuals 3 & 4: Completions and the reduction of security

This is a visualisation of the completion procedure and the associated partial reduction of security.

Visual 3 - AS4000 cl5, 34, 37 PC and partial reduction of security

This is a visualisation of the final project completion and the associated final reduction of security.

Visual 4 - AS4000 cl5, 34, 37 DLP and final reduction of security

These visuals reflect provisions from 3 different sections of the contract. I had to decide what sections of the contract, if any, most intuitively should be pieced together into a single visual. Other provisions which may become operative at ‘practical completion’, such as the imposition of liquidated damages, I decided not to include.

I used slightly amended notation, the “>” symbol, to reflect “at least (xx) days”. A new colour scheme (the blue bar for the release of security) is introduced. All the other design rules from the earlier visuals are consistent. I also tried using the large green tick and red cross which, similarly to the ‘CERTIFIED’ stamp in Visual 1, can immediately be understood by the user to mean ‘approved’ or ‘rejected’.

Lessons learnt

The key lessons that I learnt in this process are:

(1) Even if the general ‘type’ of visual to use might be obvious given the nature of the clause (eg. timelines to reflect clauses dealing with procedure), the actual detailed design requires lots of smaller decisions. Those include the seemingly mundane details about lines and arrow direction, whether to use dashed / solid lines, colour coding and consistency across multiple visuals. These decisions may turn on small changes in wording in the text and affect the accuracy of the visual;

(2) The visualisation usually can’t accommodate all the particulars of the text provision without becoming cluttered and interfering with the overarching goal of increasing clarity. Therefore, at least for the provisions I looked at in this exercise, the visuals must supplement the text, not replace it;

(3) The type of information from a text provision which can be translated into a timeline visual are timing and sequence, names of documents or events and the parties responsible. The type of factors which cannot cleanly be transferred into timeline visuals are all consequences of non-compliance (which can lead to too much clutter for too rare an occurrence) and precise details of the documents or the required content of documents (which again would often lead to clutter and detract from clarity);

(4) Because the visual cannot describe every scenario and every detail, it is better described as a simplified ‘ideal’ scenario – ie. what the procedure should be, all going to plan. It doesn’t replace detailed text and it doesn’t replace legal advice addressing bespoke factual scenarios. Despite those limits, in my view such visuals can still be greatly beneficial to non-lawyer users of the contract who otherwise would not engage with the contract at all. In the AS4000 construction contract, that might include contract and project managers, site foreman or administrative staff;

(5) The actual mechanics of drawing and preparing the visual are relatively simple to anyone with a modicum of computer literacy. I prepared my visuals in PowerPoint. By far the more difficult challenge in the exercise was the above decisions about design and layout, not the actual drawing preparation.

Summary

I have provided an example of the nature of the queries, the decision making process and the visual output when a lawyer undertakes a contract visualisation exercise. Hopefully this prompts other legal professionals to engage with contract visualisation on their own contracts.

 

Reference – AS4000 contract extracts:

41.1 – Communication of claims
A prescribed notice is a written notice of the general basis and quantum of the claim.
As soon as practicable after a party becomes aware of any claim in connection with the subject matter of the Contract, that party shall give to the other party and to the Superintendent the prescribed notice or a notice of dispute under subclause 42.1.

41.3 – Superintendent’s Decision
If within 28 days of giving the prescribed notice the party giving it does not notify the other party and the Superintendent of particulars of the claim, the prescribed notice shall be deemed to be the claim.
Within 56 days of receipt of the prescribed notice the Superintendent shall assess the claim and notify the parties in writing of the decision. Unless a party within a further 28 days of such notification gives a notice of dispute under subclause 42.1 which includes such decision, the Superintendent shall certify the amount of that assessment to be moneys then due and payable.
37.1 – Progress Claims
The Contractor shall claim payment progressively in accordance with Item 28. [Say Item 28 provides that “On the 20th of each month for WUC done to the 10th day of that month”]
An early progress claim shall be deemed to have been made on the date for making that claim.

37.2 – Certificates
The Superintendent shall, within 14 days after receiving such a progress claim, issue to the Principal and the Contractor [a progress certificate].
If the Contractor does not make a progress claim in accordance with Item 28, the Superintendent may issue the progress certificate.
If the Superintendent does not issue the progress certificate within 14 days of receiving a progress claim in accordance with subclause 37.1, that progress claim shall be deemed to be the relevant progress certificate.
The Principal shall within 7 days after receiving both such certificates, or within 21 days after the Superintendent receives the progress claim, pay to the Contractor the balance of the progress certificate.
5.4 – Reduction and release
Upon the issue of the certificate of practical completion a party’s entitlement to security shall be reduced by the percentage or amount in Item 13(f) [say 50%], and the reduction shall be released and returned within 14 days to the other party.
A party’s entitlement otherwise to security shall cease 14 days after final certificate.
34.6 – Practical completion
The Contractor shall give the Superintendent at least 14 days written notice of the date upon which the Contractor anticipates that practical completion will be reached.
When the Contractor is of the opinion that practical completion has been reached, the Contractor shall in writing request the Superintendent to issue a certificate of practical completion. Within 14 days after receiving the request, the Superintendent shall give the Contractor and the Principal either a certificate of practical completion evidencing the date of practical completion or written reasons for not doing so.
37.4 – Final payment claim and certificate
Within 28 days after the expiry of the last defects liability period, the Contractor shall give the Superintendent a written final payment claim.
Within 42 days after the expiry of the last defects liability period, the Superintendent shall issue both the Contractor and the Principal a final certificate.
The moneys certificate shall be paid by the Principal within 7 days after the debtor receives the final certificate.

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