I don’t like being nannied, but so goes the world…

This forces the other side to justify everything else.

Also, re Art’s comment on track changes, I’m aware that many firms discourage its use for the reasons you mention. My opinion is that lawyers are responsible for understanding their documents, and that includes the use of metadata. Track changes is an incredibly powerful tool. To disallow it because there is a chance someone might not be bright enough to use it properly is wrong-headed. Baby/bathwater, etc.

At our law firm we are told not to use them for exactly this reason. An example is cited of a firm (I don’t know which) sending a draft document to a client which, when track changes were revealed, showed the precedent used – i.e. another client’s document.

This also happened (in a political context) to ex-UK Home Secretary Charles Clarke, who once sent his internal comments on a terrorism document to the opposition party in error.

I use Workshare to show changes, and either write comments in the text in bold (and highlighted, depending on the client), or put them in the accompanying email.

I’d be afraid of that happening on the other side, too, if I put my remarks in comments. With footnotes, they are highly visible. It avoids the risk that the other side, in a big deal, took positions not realizing that we had issues in comments. The only way they can save face in that situation is for us to give on some of the issues in our comments. And, as we seasoned negotiators know, saving face is sadly huge for a lot of people.

I can, of course, solve that problem by spending more time on each deal, making sure that the relevant business people (on both sides!) have read the comments, and so on. But my business is the mass-production of deals. I don’t want to spend the extra 10 minutes on each turn of each deal to make sure that everyone has read everything. That would have too high a cost in foregone business.

I’m not sure whether you are saying that deleting footnotes was to hard or too easy, but I find deleting the footnotes is easy (either one at a time or all at once). To delete all at once in Word 2003, select any footnote; from the menu bar, select Format, then Styles and Formatting; at the top of the Styles and Formatting pane to the right, click on the Select All button below the Footnote Reference drop-down box; then hit the delete key. Poof! All the footnotes are gone.

If your business is mainly corporate, I can see how using comments would work. You have the chance to introduce yourself to the opposing counsel before the first turn of the draft and can discuss the logistics. In the commercial deals that I do daily, there is usually no counsel assigned on the other side until they receive my first re-draft of their form. Persuasive footnotes, highly visible to the business people, may even induce them to decide they don’t need legal counsel if they feel that our position is fair. That’s a good thing.

Chris

I’ve found it helpful, though, to use Word comments instead of footnotes. The former are (normally) tagged with the author’s initials and a serial number. That allows them to remain in the draft without confusing people. They can be deleted all at once with a single comment. (I used to use footnotes instead of comments because comments couldn’t be deleted en masse like that.)

I’ve also found it helpful to put in a comment for every non-trivial change I make — that way, when the lawyers do get on the phone to discuss the markup, we can just proceed seriatim through the (numbered) comments and their associated changes.

(1) I am less likely to make changes that are stylistic, unless I identify specific reasons to do so (like ambiguity). For example, I won’t change:

This Services Agreement (this “Agreement”)

(2) I had way fewer changes come back to me than I usually encounter. I think this is partly because I am self-editing and partly because it is easier for the other side to consider our viewpoint outside of the confines of a telephone negotiating session.

(3) The logistics of the back-and-forth drafts worked better, especially when I included something like this as my first footnote:

This is [my company] draft dated [date]. We have used footnotes throughout to state the reasons for our changes. For the next draft, we would appreciate it if, using Microsoft Word’s “Track Changes” features, you would reject all of our footnotes (so they don’t show up in the next draft), then accept all our other changes and make your own changes with “Track Changes” turned on (so that only your changes show up in the next draft). We’ve included a clean draft that does that, for your convenience.

(4) I’ve found that words of authority are the biggest stylistic change I make consistently. So, I use something like this footnote the first time I do that:

For words of authority (such as shall, must, may, will, and should), we have used the American Rule consistently, as detailed in Kenneth A. Adams’ A Manual of Style of Contract Drafting (ABA 2008).

Interestingly, on the last such deal, the very bright lawyer on the other side noted that he had the first edition on his desk and reads this blog. (Hi, Chris!) I think that was a very easy deal to close partly because we shared a perspective.

Chris

“Dear X,

Thank you for your comments, all of which prove your unimpeachable genius as a deal lawyer (or words to that effect). I have incoporated all the substantive comments into the current draft, though in the interests of time I have not included all the cosmetic changes.”

In this way you can demonstrate that you are focussed on time and cost, while maintaining the good drafting. If they insist on their comments, you can be sterner, and still invoke time/costs as perfectly valid reasons for ignoring their points.

Of course, there may come a point where you should give in – some people are beyond help.

Art

More to the point, I’d love it if you were to try these positions out and report back.

Ken