This is not coding.

I still remember one of my first experiences drafting a bespoke agreement from scratch, with no form to work off of. It was an agreement in connection with acquiring units in a local co-op association, and the two shareholders on the matter “threw me to the wind” to see what kind of work product I could come up with. Of course, in my mind, I took this as an opportunity to showcase my budding drafting skills, using definitions and cross references to perfectly assemble a document with no logical errors whatsoever. It made sense, that is, if you had the patience to untangle the whole thing, like a person trying to untangle a necklace piece by piece. The problem was, it was completely unreadable. On the day that I submitted it, the two partners with whom I had a close mentor/mentee relationship, must have chuckled before calling me after work hours. They patiently listened to me explain how all of the pieces fit together, and how I had to draft it a certain way so there were no “gaps” in the logic. But the thing is — documents are meant to be read by people, not machines. On that night, they taught me that your document has to naturally flow in an almost narrative format, and that the order and placement of things matters. We stayed up for several hours on the phone re-writing my agreement, tearing everything down before it could be built back up. In the end, I couldn’t help but feel that the agreement wasn’t really mine anymore and that all of my “clean lines” and “perfect angles,” so to speak, had been somehow transformed into more of an arc, like the arc of a story — with a clear beginning, middle and end. But I did learn something — that the flow of a document matters, and that writing style is just as important as the content.

Every detail matters.

Believe it or not, detail-orientedness does not come naturally for all lawyers. At least it didn’t for me. The first time I was asked to check if a legal description (a written-out description of the metes and bounds of real property) was correct, I quickly glanced at it and said, “Yes.” It was only later in the transaction that a partner discovered that there was an error in the legal description that could of cost our client thousands to fix. Now, granted, at the time, I hadn’t been properly instructed on how to check these things, but the point is that I thought that by “eyeballing it,” I was doing my job. And that’s how a lot of things in your life are before you enter the legal profession — you don’t have to read every single word of a textbook to get the gist, and you don’t have to play every note perfectly in a piano piece to have people singing along. But that’s not the practice of law. Lawyers must dot every “i” and cross every “t”. A stray “not,” or an “and” instead of an “or” can completely change a document. This principle operates almost in opposition to the first principle above about narrative drafting, in that, while the overall flow of a document must make sense to your average reader, every single detail must also fit perfectly into place so that there are no logical inconsistencies or errors to the most scrupulous adversary in court, should the document ever be litigated. The task of achieving this is daunting. So daunting, in fact, that when I began as a young lawyer, I would use a ruler to help guide me while reading documents (even ordinary documents), slowly moving it down the page line by line so I didn’t inadvertently skip over anything. I still do this sometimes when a document is particularly important – like when a deep-pocket parent entity is signing a guaranty or when I’m feeling like my brain is not in the right place to concentrate. This practice helps me make sure I don’t skip words (or lines), like I do in fiction reading when the text gets boring.

Drafting and negotiation

Once you master the first two principles above, it may be frustrating to negotiate with a counterparty who is not particularly careful with their drafting, or who is so disorganized that the same provision appears in different variations in different spots throughout a document. Your counterparty may completely destroy your document or present you with something that is so unworkable that you’re tempted to completely re-write it. But this is where the true skill comes in. Because now, the task is not just making sure the document flows and is logically consistent, but you also want to minimize changes so as to ensure that the negotiation flows smoothly. I can always tell when a document has been negotiated heavily, because it’s always a little sloppy. Not because the lawyers lacked skill, but because a negotiated document is a product of compromise, and two different human beings with two different minds that work differently. Sometimes in documents I’ve negotiated, two provisions conflict slightly, or there may be more than one defined term that refers to the same thing (things that would irk me in a first draft of my own). However, I’ve decided that trying to fix it at a given stage of negotiations would result in an unfavorable outcome — like opening up negotiations on a previously agreed-upon provision or resolving an ambiguity in the other side’s favor. I believe it’s important to have integrity when negotiating, so if I catch a blatant error that’s in the other side’s favor that clearly does not reflect the deal, I will point it out. However, I also believe that lawyers are paid to negotiate the best deal for their clients and to minimize risk — so drafting with that in mind often requires some flexibility and thoughtfulness in approach, rather than holding fast to certain ideals of “perfection” in drafting.

Further reading…

1. Working with Contracts: What Law School Doesn’t Teach You: https://amzn.to/3uiVAIH

2. Getting to Yes: Negotiating Agreement Without Giving In: https://www.amazon.com/Getting-Yes-Negotiating-Agreement-Without/dp/0140157352/ref=sr_1_2?crid=35RES68CHVAUC&keywords=getting+to+yes&qid=1647963933&sprefix=getting+to+yes%2Caps%2C78&sr=8-2

3. When: The Scientific Secrets of Perfect Timing: https://amzn.to/3JqSbOp (helpful for knowing when to send contract drafts out)