Contract Drafting Tips – Part 2
In Part I of this series , we offered three tips for helping to create contracts that better achieve a client’s fundamental business goals. With the value and misgivings of work precedent previously addressed, today we share two more tips that have also yielded positive results.
4. Don’t Be Obnoxious – Sometimes Mutual Is Better.
If you’re leading the drafting, don’t be “that lawyer.” You know, the lawyer who was out sick the day they talked about “unconscionability” back in 1L Contracts. The lawyer who insists on drafting every single provision in a completely one-sided fashion, regardless of the relationship between the parties, and without reference to the relative importance of the underlying issue being addressed.
Once and awhile when you’re Goliath, and David is desperate, you can get away with the one-way “take-it-or-leave-it” routine. Most of the time though, taking that kind of an approach just slows everything down and sends the wrong message.
I used to hear this a lot: “I’ll draft it one-sided, and then we’ve got a few easy built-in giveaways to negotiate with.” That rarely works. What does work well is when a lawyer gets a draft and can see that the drafter made a conscious effort to draft a fair and accurate document. It sets up the right vibe, and it’s often appreciated by all involved. From a drafting perspective it’s usually not all that difficult to figure out what requires digging one’s heals in, and what doesn’t.
5. Presentation Counts.
One thing I learned when I started working on contracts in a corporate environment: style matters. In the corporate world, everyone wants a “short” contract. (Sometimes it’s expressed as “simple”, “straightforward”, “easy”, “direct” – but it’s all the same.) The trick is, of course, the shorter the document the greater the chance for an error of omission, a lack of clarity, or some other oversight. Everyone wants that elusive “one-pager” while simultaneously enjoying the protections normally contained in a document twenty times the length.
I once watched a TED video where the presenter marveled at the brilliance of our US Constitution, dramatically yearning for a time when all legal documents could be so wonderfully clear and concise. While I share his admiration for our Constitution, it felt just a teensy bit disingenuous to praise its brevity without mentioning the few hundred years worth of legislation and interpretive Supreme Court rulings that accompany it.
To be sure, if you can make a document shorter, do it. Editing is an art in and of itself. However, when editing helps get down from 15 pages to 12 pages – but not much further – consider the magic of formatting.
As unbelievable or illogical as it may initially seem, a few tweaks to the graphics, the font size, and the columns (such as taking advantage of 2-column formatting), can make a huge difference in perception. An attractively presented contract – preferably with a nice corporate logo, a little color, and some creative formatting can turn your otherwise “long, complicated” contract into one that appears much shorter and friendlier – without changing a word.
Remember, as Steve Jobs once (allegedly) said: “Maybe fun is just fragments of existence with better packaging.” Packaging and presentation matter, even with legal documents.
Again, if you have any contract tips you find helpful, we’d appreciate you sharing them with us!