Last week, I was speaker at a program at Massachusetts Continuing Legal Education, a Boston-based non-profit bringing new developments and best practices to members of the Bar. The discussion among panelists and attendees bubbled up a few interesting observations:

First, there are just a lot of bad contract forms out there. Companies use older forms of contracts, often prepared in-house by lay people and pasted together from a variety of sources. These agreements contain self-contradictory provisions, often make no sense, and may not represent the state of the “market.”

“Closings” of business transactions often no longer occur in person. Electronic closings using the internet have become standard even for complex deals. Gone are the days of everyone gathering in large conference rooms, fidgeting and waiting their turn to sign documents. And indeed, sometimes closings occur not only without the physical presence of the signatories but also even without their actual signatures, as electronic signature execution has become wide-spread. This may be an economically efficient trend, but it avoids people talking with each other and building trust for addressing post-closing issues.

Other developments were noted in drafting for: venture capital investment (growing use of complex documentation for early stage deals); licensing of technologies from universities (solving the problem where licensor wants a solvent licensee and licensee needs the license grant to raise any money); dispute resolution (the choice of arbitration on the sometimes faulty assumption it is faster and less expensive); warranties and representations about cyber security in M&A transactions (a strong trend); and how “earn-outs” in acquisition transactions seem to attract litigation about both the terms of the agreement and the claim of acquiror’s breach of implied covenants of good faith and fair dealing.

Our conclusions: writing almost any contract that is clear and easily enforced is becoming more complicated as the world becomes more complicated; don’t expect a decline in contract litigation any time soon.