As a junior lawyer, I remember attending a contract drafting session presented by a top-tier law firm and finding it a bit disappointing. All the information was correct (e.g. use plain English, simple is better etc.) – it just wasn’t very actionable for somebody starting out.
Now that I’ve been drafting contracts for a few years, I wanted to try and break it down into practical steps for newer lawyers.
By the end of this guide, you should understand:
- How to add or amend things in the contract;
- How to delete things from the contract;
- How to create opportunities to improve your drafting skills at work; and
- How to avoid messing up your coworkers’ documents.
How to add or amend things in the contract
1) Understand the intention of the clause
Before drafting, ask what outcome you’re trying to achieve with the amendments. It’s tempting to just copy+paste precedent wording, but if you don’t understand the goal, then you might miss the point.
2) Check the contract language
Skim the definitions and some of the clauses in the contract. This way, you can pick up on the sentence structure, formatting, and terminology (e.g. ‘Contractor’ vs ‘Supplier’ / ‘Principal’ vs ‘Client’ / ‘Works’ vs ‘Services’).
3) Mirror existing wording
To ensure that your new wording stays consistent with the broader contract, it’s helpful to take a quick look to see if there are similar obligations or entitlements already in the contract and how they’re drafted. For example, whenever I draft a new indemnity – I can see whether existing indemnities use wording like ‘arising out of or in connection with’ instead of ‘caused by’ as a starting point. Using the existing language avoids potential interpretation issues with differently drafted clauses, and can also be easier to accept in negotiations.
4) Put your new definitions in the right place
If you’ve added new definitions, make sure they’re placed consistently with the existing definitions. For example, if there’s a definitions section – add yours there instead of floating in the body of the clause (or at least something like ‘Definition has the meaning given to that term in clause X’).
5) Follow the cross-referencing
The changes you make to one part of the contract can have flow-on effects on other parts. Knowing every flow-on takes experience, but checking the cross-referred clauses (and ctrl+F the references to the clause you’re amending) is something you can do straight away.
This is also a good time to update and check that the automatic cross-referencing (and table of contents) still work properly.
6) Can you explain what you added?
After all of that, the last check is whether you can explain the effect of your new drafting (and whether it aligns with the intention of the clause). Not only does this help with your personal skills development – it’s also handy (and probably necessary) for negotiations and keeping your client informed.
How to delete things from the contract
1) Think about the give-and-take
In an ideal world, we could just delete whatever we didn’t like in a contract. But we need to think about the counterparty and what would make it acceptable to them. Maybe you’re deleting a risk that’s beyond your client’s control and would be priced at a premium (and could be better managed by your counterparty). Or maybe there’s a requirement to comply with a law that isn’t applicable to this type of project.
2) Preserve formatting
If you’re deleting a discrete section of a contract (e.g. clause 3.4(b)), replace deletions with the words ‘not used’ instead of just deleting all the text – this will help preserve numbering and formatting in the document. The exception to this would be for bespoke documents prepared for first-time use, in which case deleting the wording and making sure that the numbering and formatting still work properly would be best.
3) Check cross-referencing and definitions
See if other clauses refer to it (e.g. if you’re deleting clause 4.5, run a ctrl+F for ‘clause 4.5’ and ‘clause 4’ in the document) – there might be other changes you need to make following the deletion. Also if you’re deleting any defined terms, you can run a similar check because you might find that the defined term isn’t used anywhere else and can be deleted from the definitions section.
4) Can you explain the deletion?
As with any amendment, you should try and explain why you made the deletion (in terms of how it changes the contract’s operation as well as the commercial reasoning). Again, this is helpful for your personal skill development, negotiations, and keeping your client informed.
How to create opportunities to improve your drafting skills at work
Now we’ve got an intro into how to approach drafting tasks. But like learning a new language, we’ll get the most out of the theory only when we can put it to practical use at work.
My top tips to create these opportunities are:
1) Generate compares
Using document comparisons will show the differences between your draft and the final version that goes out to the client. It’s the easiest way to show the changes your supervisor has made both in style and in substance. It’s also great for generating specific questions for your supervisor to answer instead of a general “is there anything I could improve”.
After running a compare, and taking a look through the changes, your conversation can go something like – “Hi Jane, I’ve had a read through your amendments and most of them make sense to me but there are some that I don’t quite understand. If you’re free, could I ask you a few questions about them?”
2) Type up amendments
I know we’re basically working in paperless offices now, but there are still quite a few lawyers who prefer to make amendments by hand. One of my main supervisors was like this, and I learned a bunch of my drafting skills by helping him type up his hand-written amendments.
If your supervisor does the same, then I’d recommend asking them if you can be the one to type up their contract amendments for some of their matters – instead of viewing this as a task that personal assistants/secretaries should do.
3) Volunteer to do the first draft
Instead of hoping that contract drafting work is assigned to you – let your colleagues know that you’d like to try and improve your skills. And I don’t mean just mentioning it to them generally (although you definitely should) – I’m talking about asking to take responsibility for these sorts of tasks whenever they present themselves.
For example, if you’ve just had a client meeting (even if you didn’t say a word) – you can say something like “Hey John, I’ve taken notes of the actions from the meeting. Do you mind if I have a first go at [these tasks]? Although I’m not too sure about this particular one so I’m wondering if you could teach me how you’d approach it?”
4) Read a negotiation table
In many projects, negotiations are accompanied by a table setting out the proposed amendments as well as the reasons for requesting them. Ask around for one to read from a previous project and you can start getting an idea of the main commercial issues as well as how your colleagues are amending their contracts.
How to avoid messing up your coworkers’ documents
The last thing to go over is making sure we can apply our new contract drafting skills in a way that works in a modern legal team. The common mistakes that I’ve seen (and done) over the years are:
- overriding previous versions of documents in a way that can’t be recovered;
- making the file confusing to navigate by not naming things clearly; and
- not clearly showing the changes we’ve made to a document.
Each of these mistakes can be avoided when we apply the conventions of ‘version control’, ‘naming convention’, and ‘mark up / red-lining’.
Since every legal team (and individual lawyers in those legal teams) may have a slightly, or very, different way of approaching each of these – I’ll just give you a quick overview so you can ask your colleagues how they’d like you to do these.
1) Version control
This refers to how documents are saved when somebody makes amendments. Some teams like to save different versions of the same document (basically stacking the versions so there’s only one document link). Others like to save each version as a different document link. I personally use a combined approach – where internal revisions are saved to ‘stack’ onto the same document link, and a new document is only created when we send it / receive it back from another party.
If you’re using a file management system like iManage that links to your email – I’d suggest emailing both the document link and a ‘read only’ copy of the document whenever you’re sending it to your supervisor. This serves as a record of the exact version of the document you’ve worked on at that time.
2) Naming convention
This is to make sure that documents are named clearly and consistently in the file. Take a look at how your colleagues have already named the documents in the file before inventing a new system (even if your new system theoretically makes more sense).
For example, I try to name all my contracts something like “2022-02-22 – Project Deed (JF amends)” or “2022-02-22 – D&C Subcontract (received from Other Law Firm)”.
3) Mark up / ‘red-lining’
This is a way to ‘track’ all of the changes made to a document from the previous version. In Microsoft Word, you can switch this on/off by going to the “Review” tab and clicking ‘Track Changes’.
Before you amend a contract, you should ask your supervisor how you should track your changes. This can differ depending on your team’s personal preferences, and what the contract amendments are used for.
The wrap-up
There’s a big learning curve to drafting contracts. It took me years (and many mistakes) before I felt somewhat comfortable with my own skills – which is crazy because that’s what I’m getting paid for! So it’s perfectly normal to feel a bit overwhelmed when you’re starting and hopefully, this guide helps you understand the common mistakes and gives you a bit more confidence when you pick up the pen.