I’m in the habit of dividing the task of contract drafting into determining what to say and how to say it. But that’s not to suggest that they represents separate tasks. Instead, they’re two ends of a spectrum, as how you say something can affect what you say in unexpected ways. And you work on both aspects concurrently.
But I’d now like to highlight a third component. In chapter 4 of MSCD I rather bloodlessly describe it as “arranging the text of they body of the contract” and say that it consists of the following:
- division, or the process of creating sections, subsections, and, if applicable, articles
- classification, or the process of determining the section into which a given provision should be placed
- sequence, or the ordering of sections and, if applicable, articles
The bigger the project, the more important this part becomes. Because I’m in the middle of a template project for a client, it’s on my mind, and at an in-house seminar yesterday I found myself referring not to “arranging” but to “storytelling.” Since that sounds a little master-of-fine-arts-ish, I’ve decided to tone it down to “narration.”
The idea is that when I’m redoing a big and complicated template, my initial aim is to say more clearly what the original template says. That by itself involves a lot of detailed cutting and revising. But then I have to figure out how to tell the story of the deal. It’s routine for me to end up pulling sections apart and moving pieces around so the reader has an easier time following the thread.
It’s relatively straightforward to transmit the what-to-say and how-to-say-it parts of what I do. For example, the what-to-say aspect of NDAs is covered in my NDA template (here) and my now-free NDA webcast (here). Regarding the how-to-say-it part, if you know MSCD, you pretty much know what I know.
But when it comes to handling the narrative, I immerse myself and rely on my sense of structure. What’s required depends on the template. I’m not sure that I can get any more specific.
Ken:
I usually use some version of:
1. The core obligation of each party. E.g., sell something and pay for it.
2. Collateral obligations that ought to be met in the ordinary course. E.g., warranties and payment terms.
3. Termination.
4. What happens when stuff goes wrong. E.g., disclaimers of warranties, limits of liability, indemnity, and dispute resolution provisions.
5. Rules of interpretation, since people only read those after things go wrong.
Chris
Sure, but when you’re dealing with a 120-page template, things tend to get complicated.
I completely agree that a contract should be well-arranged and flow nicely and be as easy to read as the content permits, but ‘narration’ and ‘storytelling’ don’t strike me as the words to catch this aspect of drafting. They beg to be confused with the function of recitals. Other words that might be better are arrangement, flow, logic, and structure.
Chris Lemens’s excellent outline could be rightly called by any of those words, and bless him for saying ‘rules of interpretation’ and not ‘drafting conventions’.