I recently received the following message from a longtime reader:
When you eventually revise MCSD to its third edition, could you consider adding an appendix that talks about redlining protocol? Here’s what routinely happens to me: I send the other side a draft marked using Microsoft Word’s “track changes” feature. Using that feature, they accept some of my changes, reject others, and make changes of their own that are tracked using the “track changes” feature. What they send me doesn’t show those of my changes that they rejected, so their markup is misleading. I have rules of redlining to which I adhere, and I think they are commonly shared—outside of procurement departments.
I don’t do deals, so I don’t have occasion to engage in high-stakes document comparison (or redlining, or blacklining, or whatever you might call it). If you have any recommendations or cautionary tales, by all means post them in a comment.
I thought the redlining process was so important, and so misunderstood, that I covered it in my software licensing class. http://www.ericgoldman.org/Courses/contracts/cont…
I agree with your longtime reader–the responsive redline should show changes as compared with the previous version. When rejecting a change, I do it by accepting it and then, for example, re-deleting the text so it again appears as a change in the redline.
Interesting thoughts. I live and breathe redlines but do not agree that this is (or should be) standard protocol. The original comment above picks up the action on the first turn or later. You need to go back one step to the unrevised input draft for the relevant comparison. Your changes (i.e., additions and deletions to the input draft) are merely proposals at this point. There's nothing misleading about rejecting your proposed language without highlighting the rejections. You have full knowledge of your changes. In any case, Word 2007 has a powerful comparison feature that enables you to compare both redlines yourself in seconds. It accepts all changes in the underlying drafts and highlights the changes (in our example changes from the input draft to your revised draft) in track form – allowing you to view, accept and/or reject any changes made at any stage.
What would be unacceptable and misleading is changing "clean" language (i.e., original form or previously agreed upon language) without reflecting the changes. But I do not expect (nor do I provide) a roadmap to every single ask.
Word's comparison feature is no excuse for sending a misleading redline. Often Word's comparison will tell me that an entire paragraph has been deleted and replaced, when only a word or two has been changed. If you want an accurate comparison, you need to use a third party product such as the DeltaView (now called Worksite) Comparison, or the old Comparite product. The product is not only more accurate, but it also shows when text has been moved to or from another part of the document, instead of merely being deleted or inserted.
The lawyer who receives a draft is always responsible for verifying what changes were and were not made. Redlining makes that task easier, but a third party program is the only way to verify that the redline is honest. I don't much care if the redline is based on the draft I sent the other attorney or on the last draft the other attorney sent me, so long as it clearly indicates which draft it is based on.
Word 2010's redlining is very sophisticated. It still cannot track letter-for-letter changes (e.g., if you capitalize a word, Word will show the original word as deleted and the newly capitalized version as a new word, but those sorts of things are easy to spot.) The easiest way I have found is to create a new document, then do a comparison to the original. It's easy to do (cut and paste the text; Word preserves formatting), and shows all changes, including your rejection of their insertions.
I also agree with the your longtime reader, and I think Kurt describes the best way to do it. No matter the standard, the most important feature is in adequately describing to the other side the types of changes made to the document. If a party removes text without showing it as a redlined deletion (or similarly, a party turns formerly redlined text into normal text), these actions do not provide the other party with adequate information — unless the transmittal e-mail/letter provides detailed information on the actions. In the end, everyone should be using comparison tools and the adequate description simply aids in reducing the transaction costs.
I too agree with Kurt's approach, although I think failure to follow that best practice is probably not something one could complain too much about. I think best practice is to accept all changes, then make changes to the clean draft. If there is some good reason to go back to your previous draft, fine, but often this just comes across as "controlling" behaviour, a bit like sending out drafts in pdf format to discourage requests for changes.
I am much more concerned about the practice of sending out a redline version that shows some but not all substantive changes (eg if several people have made changes to a draft and not all have used redlining). If I am managing the drafting, I would usually make all changes myself, so that I know exactly what I am sending out, rather than forward a document that my client has made changes to.
As for the document comparison function, in my experience large law firms use Deltaview or some other comparison program, rather than relying on the Word comparison function. Admittedly I haven't used the Word version for several years, but it used to be unreliable. Can anyone confirm that the Word version is now 100% reliable?
On the functional point, I think the issue is less whether Word's "track changes" feature is reliable than whether it is misleading and potentially dangerous. Not everybody uses Word (so not everybody can use "track changes") and those that do use Word may or may not see the markings of the changes, depending on their own display settings. I have had clients who have merrily sent out marked documents as final without knowing it because of their Word settings.
On the etiquette point – to me the issue is clarity. If you receive a document and make changes to it and send back a marked-up version (in any format), you need to make very clear that the mark-up does not show changes to the version you received if that is the case (and why). If you simply respond with a mark-up, I think the recipient is entitled to assume that the mark-up reflects changes to the original and nothing else.
I agree with the first Guest above. To me, all this talk of accepting and then redeleting so that every last change from the original version shows on each and every draft along the way is (1) a waste of time (2) redundant and (3) confusing at best. If you've proposed a change to the language and I agree, what is wrong with my just accepting your proposed change and moving on to the next point? If you need to see what you changed that I accepted so badly, then pull up your last email forwarding the document to me and check it out. Comparing documents is a couple of clicks, really!
You proposed language and I accept it. That makes it an issue upon which we now agree. Do we really need to rehash it in every subsequent draft? If you weren't sure about what you proposed, you should have taken more time to consider the revision before forwarding it to me.
Kim:
That's not the issue. Everyone agrees that, if the party receiving a change agrees to it, the next redline should show it as plain text, not changed text.
One of the issues is what to do if you don't agree with a change you received. The question is whether it is appropriate to use Word's Reject Change feature to reject it. If you do, then the language vanishes from the next redline. It does not show up as deleted text. Those who oppose that idea say that the right way to go about it is to accept the language and delete it, so that you clearly tell the other side what your position is.
Chris
I avoid 'track changes' for this very reason; it does not do a catalog of additions and deletions to justify the potential problems (i.e. display settings). I produce clean drafts and compare with the word processor or third party software and let my document management tools record clean versions only.
I am curious to see how new software, such as Google Docs and Word 2010 with their respective collaboration features will handle the ongoing change log of revisions and whether that becomes a better standard for showing revisions.
And Ken, I would think that as an author, version control would still be an important element of work product. it might be useful to see a redline of what changes between MCSD2 and MCSD3!
Wow.
OK. First, if you propose language and I accept it, done deal. I shouldn't have to show that at all.
But second, if you propose language and I don't like it, I don't accept it OR reject it. I leave it in redline (since MS-Word can even change the colors of text based on the author). It's now a discussion point… the real crux of my job, in fact… to negotiate the difference and yield a mutually-agreeable solution.
Please, please, please, don't accept my change and then delete it. That's just silly… and takes up too much time. And, for the record, on hundred-page documents, makes it really hard to tell where the original change came from (or whether it was from the template agreement).
I agree both with Chris Lemens and Jeff G. The operating principle should be, let the current redline you ship back draw attention to, and only to, the language still at issue. Chris Lemens's way does this by stripping markings from language that is agreed upon, and Jeff G's way does this, too; only difference between them, I think, is whether the history and metadata of a change, from a cycle or two back and yet at issue, should be wiped from the history of the draft and marked afresh as at issue. I think this is a matter of personal preference among those working the doc (I happen to prefer Chris Lemens's way, but will cooperate with those like Jeff G. that prefer for whatever reason to know the history).
I also agree with Rachel Wasserman and "the Other Side" in their comments below: you still have to run your own DeltaView or other industrial strength comparison as a double check and quality control. If trust is built with another party over time, this may be less important, but it doesn't hurt both to follow a practice, turn by turn, designed to draw attention to changes, and to check with DeltaView, at critical junctures, maybe not at every turn but certainly before finalizing, that no one has inadvertently missed marking a change.
More about DeltaView: Another plus — less metadata in your clean document if you have not tracked changes. Minuses -the third party programs often do not flag changes in font format and sometimes misss changes in capitalization. And you have to send a clean copy along with it, as the redlining is permanent and cannot be removed by accepting the changes. There are few things more frustrating than receiving a markup from the other side that was made from your DeltaView document instead of your clean copy.
Jack: I send Deltaview comparisons in pdf format to avoid that.
Working on innumerable transactions I have found that document comparison software such as Workshare (previously Deltaview) and/or Change-Pro are far more reliable and definitely worth the cost. In addition, I can send a document (and/or comparison) in Word or PDF (with meta-data removed) to the other party or my client while retaining full control – saving different versions or new (dated) documents when I receive or make edits. This software also saves me time when I receive internal documents that clients (as I am in-house) have changed from a standard template, or when I want to compare language in completely different documents that appear to have a similar outline.
I will never use or rely on track-changes – you are much better to do a word-for-word comparison (hold your paper to the light) if you use that tool.
Plus, I like the colour coding.
In my view, it is not the opposing lawyer's job to ensure that I can accurately see what changes he or she has made to a document. That's my job.
When I receive a redlined draft, I always "accept all changes" if the redline was in Word, or request a clean "un-redlined" draft if the redline was produced with a third party program. I then run my own redline against the last draft that I sent out. This takes me all of two minutes. Now, I am 100% certain that what I am looking at is my latest draft as the base document, with redlined changes made by the other side.
I really don't see any other viable way to review changes proposed by the other side. I can't imagine telling a client after a document is signed that I missed a change that the other side made because "their lawyer didn't follow proper redlining etiquette."
I am a believer that "good" drafting etiquette is to show the other side the changes I have made in redlined form and/or by commenting in the document. That said, I do not rely on the opposing attorney to engage in such good etiquette and always run my own compare to be sure that I've seen all the document changes. An opposing party in a transaction I once negotiated included an interesting provision to ensure that changes to an agreement are flagged. It's oriented toward the execution draft but could be adapted to any draft. I haven't adopted this in my own agreements, but think it is a good way to force the issue if you think it's necessary:
By signing and delivering this Agreement or any Schedule, Exhibit, Statement of Work, Appendix, amendment, addendum, or any legally binding document thereto, each Party will be deemed to represent to the other that the signing Party has not made any changes to such document from the final draft provided to the other Party for signature unless the signing Party has expressly called such changes to the other Party’s attention in writing (e.g., by “redlining” the document or by a comment memo or email).
In one sense I think the question boils down to expectation. If you don’t expect all changes to be included, it does not matter if they aren’t. But I also think that doing proper compares is a more efficient way to conduct a transaction provided you feel you can trust the other side, and I am lucky enough that I (almost) invariably can in my field.
In my experience, larger law firms do not use track changes any more in any case (due to the security issues) and so a full compare against the previous draft using WorkShare or similar is the easiest thing to do. In fact, I cannot remember ever receiving a compare that showed some changes and not others, and if I did I would be tempted to think the worst.
1. Accept all changes from the other party.
2. (Run the clean version against the draft you sent the party. Workshare rocks). I ALWAYS do this step before I present the document to be signed.
3. Edit the draft from 1, using redlining.
I don't understand how this can be difficult, annoying, or confusing. To me, it is simplicity and clear, and as a bonus, shows good faith because you are being transparent.
In any case, I ALWAYS tell the other side what I did to edit the document. "Dear Sir, Thank you for your marked-up draft of our proposal. I have accepted all your changes in your document, and then redlined my changes using that clean document as a base. Hugs, The Other Side".
I am a fan of track changes but too often find the document becomes messy and confusing, particularly if the document goes through mutiple rounds or if several people get into the act. Given the many opinions expressed in response to the original comment, I think we are all begging for a unifying protocol.
I view track changes as a collaborative drafting tool. I seek agreement on a protocol before diving into accepting and rejecting proposed revisions and I really don't like having to perform document comparisons, except as a final check.
Instead of simply accepting or rejecting changes, I make liberal use of the Comments feature of Word. This gives me the opportunity to explain my concern and invites a thoughtful response. If I reject a change, I highlight the text and explain my concern in a comment. I also make liberal use of the telephone and will agree with the other person on the removal of comments and redlines. This approach fosters the kind of rapport needed to work through the challenges of a long term relationship. In my view, a protocol would help to make the process more efficient but should also promote good manners.
@ Mr. Utley, I love the comments feature, too, but I have been burned before where a party was using a Mac, and the settings on the Mac did not make my comments visible. It was an awkward moment….I guess just letting them know that you have used that feature should be sufficient, although I have one party who absolutely hates it.
Ha, and I use a Mac now with "Pages" which I personally love better than Word for Mac. That really makes it tricky. I think the idea is to be honest and clearly communicate the desired changes and not try to sneak anything in the "clean language" as the above Guest mentioned. I do use Word for Mac still when I receive redlines by someone using the Word redlining features.
Well, what an interesting discussion! I hadn't appreciated that there were so many different views. It is really helpful to see these views outside the heat of an individual negotiation.
Ken (and your longtime reader), thank you for raising this question.
To encourage the other side to do as suggested above for track changes in Word, I attach the redline version and a version where all changes were saved. That way, they can see my changes and redline the clean version so it is clear what changes have been accepted or rejected.
As a transactional lawyer, I am definitely in the DeltaView camp. Over the years I have found DeltaView much more reliable than the track changes feature in MS Word, especially when a document undergoes several rounds of revisions. DeltaView also provides greater flexibility in how a comparison is made and how revisions appear.
One recurring issue with Word is that a move of wording from one part of a document to another shows the moved wording as new inserted text. I agree with prior commentators that most large law firms use DeltaView. Unfortunately, in-house legal departments seem less willing to pay for DeltaView licenses.
Wow! One of my favorite topics, and I (like Eric G) spend one lecture on this subject and metadata (another recent Ken posting) in my Business Contracts Drafting class.
Pardon me if someone has already mentioned it, but even more annoying than a drafter who cannot properly use "track changes" and randomly accepts, rejects and adds/deletes (creating a Frankestein-doc) is the guy who sends a "locked document" wherein one can make changes but not accept them. This practice is non-collegial at best, and I will not accept documents that are locked or restricted in any fashion.
As to the "comments" feature of Word, it is a nightmare… too often the embedded comments are missed, leading to some measure of emabarrassment on one side or the other. I will frequently ask my opposite number not to use it, and to make comments in-line and in bold/bracket (as I do).
In the end, as "The Other Side" pointed out, we each have the resposibility to review each doc fully, no matter which device we use – software or eyeball.
John:
There is an easy fix to the Locked Document in Word. Save the document you received to your hard drive. Open a new document. Then use the Insert File (Insert, Object, Text from File in Word 2007) to insert the document you received. The newly created file is unlocked and has all of the text of the old file.
Tou will need to import all of the styles of the old document and adjust the margins. But that is pretty simple. More importantly, it lets you threaten that you know how to unlock the document, so they might as well send you the unlocked version. And if they don't, you can always unlock it, make your changes, send if back locked, and see if they know how to unlock it!
Chris
I second the comment about locked or protected documents … what an annoyance and an absolute waste of time and energy.
Used to use DeltaView, but now use Word's compare. The three-way split-screen (showing original, revised and compare) is very helpful for complex documents with many changes.
Agree with many here that it's the receiving atty's duty to ensure they're picking up all changes; whatever they need to do to accomplish that.
Paul:
Here’s an easy way to break the protection. Save the file. Open a new file in Word. Select Insert, Object, Text from File. Fix formatting to match the original as best you can. You now have a perfectly good, unprotected document.
Chris
I use the full document comparison method rather than using "track changes" on the go or dealing with the annoying accept/reject change feature in Word. In the more recent versions of Word, I find the "Compare" feature works well but loses traction when (i) the revised document structure is significantly different from the original, or (ii) certain automatic numbering styles are used.
I agree with those who suggest it is good etiquette always to send the opposing party both a redline and a clean editable version of the revised document.
When sending redlined documents to people who are not familiar with the display settings in Word – balloons, special colours for moves, sidelines etc – I prefer to send the redlined document in pdf format so I can control the metadata and can be reasonably sure the recipient sees what I see.
Comparite was a good (and cost-effective) alternative to the early Word versions of its redliner but I am not sure that Deltaview is sufficiently better than the current Word alternative to justify the cost for smaller firms. I'd be interested in learning from your readers what other alternatives are available.
When I redline a document, I accept those redlined changes proposed by the other party, and delete – in redline – those that I don't. I normally password protect the documents but allow for changes, so that I'm somewhat comfortable knowing that all the changes will show up. Then, once the document is back with me, I can always do a compare as an added safety measure.
Track changes is bad, bad, bad, for many reasons (including those described in the comments above). The metadata issue is also problematic. It also bears mentioning that many law firms use document management systems that require a document to be imported and profiled on the firm's system before changes to the document can be made– and this process can screw up track changes.
I typically provide a redline (through Deltaview or a comparable product) against the prior version of the document that _I_ distributed (not against the last version that was sent to me from the other side). Most practicioners that I know do the same.
I don't expect counterparties to redline changes, and I don't trust the redlines when I receive them.
It's not that I distrust the counterparties themselves, nor believe they are duplicitous or unethical – but the redlining process is rife with technical issues. Knowing the limited technical proficiency of many lawyers, I don't trust they properly manage the automated redlining process.
Even when used correctly, Word does an inadequate job of redlining, whether in track changes mode or document comparison mode. It does not correctly show text moves or changes within tables. It also does not handle formatting changes well. It is most useful for showing relatively minor text edits only. When you receive a document showing native Word redlining, it is not possible to determine if the sender used "track changes" mode (which can be deliberately or inadvertantly turned on and off during the editing process) or if the sender ran a comparison of the fully-edited Word document against an earlier version. The output is, therefore, unreliable for a legal review, IMHO.
Workshare Compare (f/k/a DeltaView) does a far superior job in showing document changes. It indicates when text is relocated, rather than simply marking it as deleted and reinserted. It shows minor changes in tables, rather than deleting and reinserting whole rows when merely one character in one cell was changed. It does not mark text as deleted and reinserted merely because a different Word format style was applied.
When I am not controlling the drafting, it is easier for me to receive a clean draft that I can compare using Workshare to the previous version that I reviewed. That way, I have no concerns that the document was inadvertantly redlined against an intermediate draft and does not fully show the changes to the last version that I reviewed.
When I am doing the drafting, I will send a clean Word version and a Workshare comparison to the last version that I distributed. On occasion, particularly when multiple counterparties may be commenting on different versions of the draft document, I will provide a Workshare comparison to an even earlier draft that a particular counterparty last reviewed.
When I was at a law firm, I used DeltaView to compare documents at all times. I would send opposing counsel a clean copy and a redline against our last draft (and if I found opposing counsel to be nice to deal with, I would also send them a copy marked against their last clean draft as well). No matter how much I trusted or liked opposing counsel, however, I always did my own redline of their incoming draft. Occasionally I would get a less-then-pleasant counsel who would send a redline only and refuse to send a clean draft.
Now I am in-house, and in a small law department we don't have the funds for a DeltaView type program so we use Word's compare documents function. It works ok for most documents of reasonable length, assuming changes are not extensive. Basically, I will make changes in a document, then run the Word comparison (as if I was running DeltaView) so as to eliminate the time stamp difference on changes as well eliminate the ability to see which author made which change. This works for 99% of my work; for the other 1% where huge documents are used or changes are heavy, I'll ask outside counsel to have their secretary run a deltaview for me.
Pet peeves include: (i) anyone who password protects their document or locks it from my making changes (it's discourteous), (ii) anyone who sends me a pdf first draft (trust me — that only encourages me to make changes), (iii) anyone who accepts and rejects changes in Word without having the courtesy of showing me the changes (i.e., without running a comparison/deltaview between their draft and either my last draft or their prior draft), (iv) people who layer changes into changes instead of running a fresh comparison, (v) people who don't both to clean up their own changes.
This is about respecting your counterparty. You give them clear redlines, they give you clear redlines. No hiding the ball, playing locked document, or anything like that, which I interpret as rudeness.
What a great post. I'm just glad to know I'm not the only one out there who thinks about this stuff. Here are my thoughts:
(1) Yes, some people send you comments in track changes and expect that what they send you will suddenly become the current working version. This is a bad idea, if for no other reason than because your respective metadata cleaners and word processors almost certainly will have messed up the original styles, numbering, etc. If later on you find yourself in a time crunch to make last-minute revisions, you could have problems.
(2) As one of the comments above said, when someone sends you comments to your document in track changes, those are merely requested revisions. It's not any different than if they send you a pdf of your document marked by hand.
(3) Redlining for the other side is a courtesy, but at the end of the day you are responsible for knowing exactly what is in the document your client is paying you to negotiate. With very few exceptions, the only version that matters is the one that gets signed. Personally I am skeptical about any redline that someone else sends me, unless I'm familiar with and trust that person's style. I also make sure that no matter what the other person sends me back, I am able to quickly and easily produce the redline that I need to see.
(4) About a year ago, I started sending all my redrafts as clean, unmarked Word documents with all metadata removed, accompanied by pdf redlines. This has made life much easier all the way around.
(5) What would really be great is if we stop messing around with the redlines and track changes altogether and start embracing real-time collaboration. Put the document up on both lawyers' screens and let them work through the changes together. The technology is readily available, and it would make the whole experience of being a transactional attorney less isolated and more personal. It would bring back the art of negotiation and increase efficiency.
I didn't see this point in the comments but there is a good argument that a party that red lines most but not some crucial part of a return draft is committing or attempting to commit fraud. You will have to show intent, but it is absolutely a misrepresentation of a material fact (the contents of the changes).
I wish I could rely on the compare merge function of word, but the reality is that a very tech savvy user can make sure the compare merge function will miss a change. It is very noble of those to say that ultimately they are responsible for the document they sign (I agree to a point) but that does not obviate the other party's responsibility in negotiations.
If a deal is coming to a close and we have been exchanging track changes the whole time but on the last draft the opposing party omits marking a change then there is a high likelihood of all of you missing the change (especially if it is minor/not noticeable). Attorneys do have responsibility for their work product, but there is, and absolutely should be, some expectation regarding merge/compare compatibility and track changes accuracy (if used). To say otherwise is simply dishonest.
Re:Jay
1-2 the comment function should be used for explanations or questions and if someone uses it they should explicitly notify the other party to make sure it is not missed. I change the draft to my proposal instead of relying on a comment to mark an issue that is under discussion. It is simply safer that way.
3) Unless you know the technology intimately, you can't quickly and easily produce the redline you want to see and be sure it is 100% accurate. You are relying on the other party.
4) I have no idea how this is easier unless you work on smaller drafts. I assume the other party just compare/merges the draft you sent them.
5) Real-time collaboration. Some provisions need thought and you have to re-read the draft for conflicts. Real-time collaboration can be a good way to move some things forward, but at the end of the day, each lawyer should review the changes alone then make any additional comments.
Great post and comments. Question: What third-party comparison tools (and metadata redaction/deletion tools, for that matter) exist for the Mac? Workshare (f/k/a DeltaView) and Change-Pro, the two tools mentioned in the comments so far, are exclusive to Windows. Thanks!
I don't know how they do things in the UK, but the British attorneys on the other side of a transaction I'm working on keep sending me these redlines where some changes are marked in track changes and others appear as unchanged text except for the fact that they are highlighted in yellow. They have explained their rationale, but it's pretty unsatisfactory. I just received another one and couldn't think of a better place to kvetch about it since most of my colleagues seem to be on a weather delay this morning.
Yet another reason to always just run your own redlines.
The sheer number of comments to this article indicate how necessary a lesson is on the topic.
If I send you a clean document and you make changes, you need to mark those changes by redlining them. Anything else is rude and lazy (but mostly rude). The notion that I have a “doc compare” feature available to me is immaterial. Why should I have to engage in an unnecessary administrative process with every draft merely because you couldn’t be bothered to mark your changes? Short of hiding something from that you hope I won’t find, what did you gain?
The exact same principle applies to your response to my changes (which, of course, I would always show as redlines) to your document. If you accept my changes, then clean them up; no argument there. However, if you are going to reject one or more of my changes, the honest and decent thing to do is to strike my language with a redline, clearly showing me that you have rejected my language.
Again, the idea that I “know what changes I asked for” is immaterial. Perhaps those people who review very few or very short documents might consider this to be less of a burden, but if I am working on multiple deals of varying length and complexity, to require me to go back and compare my last draft (which you may be tardy in responding to, so who knows how old it is…) to what you are now sending back without redlines is rude.
This is remedial stuff, folks. The idea is simple: if your responsive document differs from what I sent to you IN ANY WAY, you show those differences with a redline. Failure to do so leads me to suspect that you are ethically-challenged, and will sour our relationship from the outset, and who (other than a litigator…) wants that?
I am predominately transactional in my business. My preference is a phone call to discuss issues. The runner-up is for acceptable redlines to be commented “accepted” and for unacceptable redlines to be altered or commented upon.
But I don’t know that the MCSD is the appropriate place to create a software user’s guide.
Hey whats new in this?
Regards
Arcengine Technologies LLC