The lawyer’s role as scribe

sketchIn olden times, long before document-scanning software was invented, a scribe was someone who was employed to make manuscript copies of documents, including legal and religious texts.

In a modern legal setting, IP Draughts uses the term to refer to the contract drafter’s job of converting conversations between commercial negotiators into clear, legally-accurate contract language.

The importance of this role varies between market sectors and types of agreement. Some financial transactions rely on industry-standard agreements, as do some agreements dealing with commodities, such as the shipment of grain. The drafter’s job may be simply to record a few ‘variable factors’ such as specification, price and delivery times.

Moving a little down the scale towards freehand drafting, lawyers who advise on business sale agreements typically start with a favoured template. But they make detailed changes to particular clauses, eg converting an absolute warranty into a knowledge-based one, or carving out exceptions and qualifications to the template terms.

In the field of R&D agreements, commercial parties often agree tailored deal terms that cannot readily be found in any single template. For example, R&D collaborations frequently include ‘what if’ clauses that deal with a range of possible outcomes to a collaborative research project. An obvious example of this is the Lambert research agreements, which now have 7 or 8 variants. The variations deal mostly with one issue – intellectual property. If further standard agreements were prepared to deal with variations in other clauses – payment terms, say, or dispute resolution – the number of templates needed would quickly multiply.

In this world, the commercial parties tend to focus on negotiating the headline issue. Once this has been agreed, there may be numerous points of detail and logic surrounding that issue that the drafter needs to address, if the agreement is not to be full of holes. Sometimes, it may even be necessary to tell one’s commercial colleagues that their solution may work for the scenario that they discussed, but is unworkable in other possible situations, and therefore should be rethought.

Identifying these issues, prioritising them, anticipating what the client is likely to want, and then drafting suitable wording, all take skill and effort. Often this work is done under time pressure.

One of the skills required for this work is the ability to draft clear, accurate contract wording. This skill is not learnt overnight, and some lawyers are concerned that insufficient training in freehand drafting is given in large law firms, where the priority may be to ‘get the deal done’ and where many deals are of the commoditised type referred to at the start of this article.

monkey-pastePractising this skill can sometimes seem a lonely occupation, particularly when one is surrounded by lawyers who have not been sufficiently trained in it, commercial parties who just want to get the deal done, finance directors who are focussed more on the numbers than the words, and procurement managers who see their task as avoiding changes to their companies’ templates. It requires some strength of mind to insist that the drafting is important.

Our recent panel discussion at UCL on Dysfunction in Contract Drafting reminded us that there is a community of professionals who think drafting is important, even if people disagree about some of the details. If you would like to see the recording of that discussion, it is available on YouTube here. Over 400 people have already viewed it, in addition to the 150 or so people who attended the live event. Persuade your colleagues to view it too, and let’s get the viewing numbers up to well over …1,000?

 

2 Comments

Filed under Contract drafting

2 responses to “The lawyer’s role as scribe

  1. I agree with all you say, but would like to highlight the idea of ‘role’. In one case, the drafter is given all the points agreed and must put them into words. That’s ‘pure’ draftsmanship, a single role, call it ‘scribe’.

    But if the principals negotiate less than the entire deal (eg just the headline issues) and leave some of the deal to be worked out by drafters, the drafter has two roles: scribe and sub-negotiator.

    If specifications, price, delivery terms, dispute resolution, and other ‘non-headline’ issues are open points left to the drafter, the drafter as sub-negotiator must decide — amongst other decisions — whether to slant the provisions toward the drafter’s party, toward the counterparty, or neither way.

    In many cases, it may seem best to draft down the middle of the road, but exceptions like ‘We made huge concessions on price, so draft all the non-price provisions in our favour’ demonstrate that ‘draft neutrally’ is not a pure drafting choice.

    I suppose the bottom line is that drafters need training in not just pure drafting but also sub-negotiation, and they need to know the difference.

    If the drafter asks her principal, ‘Do you want mandatory arbitration?’ and the principal says, ‘Just write whatever you think protects us best’, training for sub-negotiators may include the ‘draft neutrally’ principle, but the drafter may want to be sure to explain to her principal that the provisions don’t favour the principal to the maximum possible, and why, and get an informed blessing before giving the draft to the other side.

    • I agree that there are numerous tasks or roles in practice, including that of prizing clear instructions out of a vague client and achieving appropriate terms in sub-negotiation. The danger is that insisting on clear drafting gets lost in the noise of all these other priorities.

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