Do Clients Edit Contracts Drafted by Outside Counsel?

Last week I saw the following tweet:

Here’s my tweet in response:

I’ll now answer my own question.

In that ACC article, the author describes having a role in editing litigation briefs. That would be harder to accomplish with contracts. In fact, I wouldn’t even use the word “editing” in connection with a client’s review of contracts.

Each litigation brief is to some extent unique, with different parties and different facts. And a brief tells a story, in regular narrative prose, and seeks to persuade. So there’s scope for a client to offer a broad range of comments, on issues ranging from litigation strategy to prose style.

By contrast, the prose of contracts isn’t conducive to tinkering. I’ve found that because it’s limited and stylized, once you start tweaking it, things can get complicated, and you can find yourself having to make a bunch of conforming changes. Love it or hate it, a client is generally stuck with the draft they’re given, unless they want to raise holy heck and ask for a rewrite. So I suspect that client comments tend to be limited to deal points.

Has that been your experience?

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

6 thoughts on “Do Clients Edit Contracts Drafted by Outside Counsel?”

  1. I’d expand your final sentence to read “client comments tend to be limited to deal points [ADD:] and, sometimes, suggesting language to address particular specific circumstances that can arise in the client’s business.”

  2. ‘[A] brief tells a story’: the fact section tells a story, but a brief as a whole is an argument. It tries to persuade.

  3. It would likely introduce “bugs” into the code unless the other lawyer (in-house or otherwise) is prepared to fully understand the intertwined logic of the code in the contract. Better to feed substantive thoughts back to the drafter and let that person make the changes. (That said, it’s pretty rare outside of very major transactions that I’m hiring outside counsel to draft agreements in the first place. So this is somewhat of a trick question.)

  4. I do edit contracts drafted for me by outside counsel where I’m using outside counsel to provide additional capacity as opposed to relying on outside counsel for their expertise. For example, as a technology attorney who has to live with the contracts I “own”, no matter who drafted them, I routinely edit the contracts drafted by outside counsel as I know at least as much about the transaction as they do (often more). On the other hand, I would not edit a 150 page credit agreement drafted by outside counsel. If I had to provide even cosmetic edits to such a contract I’d question whether I hired the right outside counsel.


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