Looking for Advice on Contract Drafting

Posted on Categories Legal Education, Legal Writing, Uncategorized

evowaAbout four years ago, when I started working for my current employer, I was an administrative assistant to a division president. It wasn’t exactly my dream job, but all in all I enjoyed it. One of the things I assisted with was the maintenance of our standard contract templates. It was very much an administrative task (I took dictation and changed what I was told to change), but I did it with pride because it was the only part of my job that was remotely related to the legal field. Throughout my advancements within the division, contract edits never left my realm of responsibilities, and I have now ventured into the area of drafting. (Woo-hoo, fun, you’re probably thinking; but, no, seriously, it is fun.)

What I have grown to appreciate is how difficult it is to maintain contract templates and to ensure that Sales has all the right schedules and exhibits. It seems like every week I am getting requests for reviews, redlines, or amendments, all of which have to be done ASAP. I cringe a little when I hear someone jokingly say “Talk to our resident contract expert” because I know that means me and I know the next contract “fire drill” is about to come my way.In reality, I don’t mind dropping everything I am doing to work on contract language for a couple of hours. It’s a ton of work and requires meticulous attention to detail (with my comma problems I sometimes wonder if I am really the best person to do edits, as the last thing I want to do is repeat a contract fiasco like Rogers Communications). And, I would be lying if I said working on contract language is a creative or imaginative process, because it is not. Really, from my own experiences, day-to-day transactional contracts are just boilerplate indemnity language and seemingly ever changing “standard” business terms. Maybe that’s why contract drafting is usually left to a contract administrator or a paralegal . . . or a Marketing Coordinator who goes to law school in her spare time.

What’s enjoyable about the process is simply how complex contracts are. Even if written in plain language, which most are, they usually contain numerous references to other sections, or to acts and laws to derive meaning. Once you learn how to read them you can gain a great understanding of the business you are in. And, as a little side perk, people really respect you when you are able to decipher contract language.

Today though, as I was finishing up a redline, I had a humbling thought: “what if this contract ends up as evidence in court and I did something that is really stupid.” It is kind of a silly thought, since I draft the templates and do initial redlines that will probably go through numerous rounds of negotiations. But I wonder if someone is really checking to make sure all of my commas are in the right place. I always provide my standard CYA disclaimer: “I’m not a lawyer and I don’t work in Legal so make sure this gets reviewed before it goes out the door,” but maybe that’s not enough.
Does anyone have any suggestions of how to improve my contract drafting skills (beyond taking the Contract Drafting Workshop, which I already plan to do)?

(Editor’s note: Β This is a delayed posting from last month’s student blogger, with the delay attributable to the editor and not to the blogger.)

5 thoughts on “Looking for Advice on Contract Drafting”

  1. Hi Tiffany. I’m Jeff – a non-practicing lawyer who “does contracts” for a living.

    A few thoughts about contract drafting:

    1. I want to start by challenging your statement that drafting isn’t creative or imaginative simply by pointing you to your next paragraph where you admit that they’re “complex.” They ARE complex and what requires creativity and imagination is the drafting of language that not only meets the legal requirements but also manages to allow the businesses to work together to do the deal.

    This always sounds easier than it looks – and non-lawyers constantly berate their legal teams about “not getting all lawyerly” or “keep the contract from becoming legalese”. The lawyers actually AGREE with their business people… they don’t want legalese either. But we’ve learned over time and through countless deals that sometimes it’s actually more efficient and effective to use certain phrasing.

    But sometimes it’s also the seemingly mundane that is the most fun – for example, my wife asked me today to review an agreement that would allow for payment based on a certain quantity of work with per-piece payments beyond the initial quantity. In my review, I explained that there were at least two ways to skin the cat in the language and that she could choose whichever she felt more adequately met her needs. She selected one and thanked me for providing a way to explain it such that her clients would understand.

    2. The key to drafting better contracts, though, is to step away from the templates. Good contract drafters didn’t start their careers by drafting a template for anything. They started by reviewing hundreds of other people’s drafts. They learned the nuances and phrasings. They picked up on the jargon and the magic words. THEN they write their own templates.

    In other words, if you’re still using someone elses’ template, you haven’t reached the fun part yet. πŸ™‚ So take a stab at re-writing the template you use most often. Usually it’s a non-disclosure agreement… but perhaps it’s the sales contract. I’m guessing you have some simplification ideas, too (based on your comments about the exhibits and schedules). Build a new document from the ground up. Re-draft every section without necessarily changing the overall result. You want creativity? Here ya’ go. πŸ˜‰

    3. Meet and talk with other contracts professionals. There are a lot of us out here lurking about. Join a group such as IACCM or Caucus to see what other people are doing to solve similar problems. Ask questions and enjoy the variety of responses. Learn that indemnification isn’t boilerplate across all industries or even across parties in a single industry. In general, explore.

    Also, find a few key books on the subject, too. Ken Adams has one, so do I (if you happen to do a lot of technology-related stuff).

    But overall, practice, practice, practice – and ask for help. Chances are, there ISN’T anyone else reviewing what you’re doing. If you think your work needs review, ask. Several of us will help you do that, too (freely for awhile, in fact, if we see you’re really putting forth an effort). And see? You already started asking by writing your post – so I know you can do it. πŸ™‚

    Good luck and welcome to the profession!

    ~Jeff

  2. Tiffany:

    I’d recommend two sources. First, you should read Ken Adams’ Manual of Style for Contract Drafting. It’s available on his website http://www.adamsdrafting.com, through the American Bar Association, and — I think — through Amazon.com. You should read it cover to cover. When you are done, you will want to recreate every contract form you have.

    Second, you should pick up Bryan Garner’s Legal Writing in Plain English, which is also available through Amazon.com. Garner has loads of other books on legal writing that you might also want to pick up once you have read that one.

    How do these books address your cooncern? If you write contracts according to their suggestions, the chances of making a mistake are much lower, because they both avoid the legalese that can trap you.

    Best of luck,
    Chris Lemens

  3. I wanted to thank everyone for the advice. I also wanted to thank Professor Slavin for giving me the opportunity to be a student blogger. I really enjoyed the experience!

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