Learning how to review a contract is the same as learning how to draft a contract: you have to know what to say and how to say it clearly and concisely.
Of course, when you’re drafting, you’re in control, and you have a copy-and-paste starting point that you got from somewhere, so you can appear that you know what you’re doing. By contrast, when you review, someone else is in control, and you have to be prepared for whatever comes your way. But any illusion of control that comes from copy-and-pasting a first draft falls away once negotiations start. Whether you’re drafting or reviewing, you have to know your stuff.
Nevertheless, in my course Drafting Clearer Contracts: Masterclass, I’ve elected, for two reasons, to dedicate session 7 (out of 8) to reviewing contracts. First, I want participants to get a sense of how you have to adjust your expectations regarding clear contract language. You’re not trying to turn the other side’s draft into a thing of beauty, so you focus on that which can cause confusion, and you ignore everything else. Learning what that means in practice comes with experience.
And second, observing how someone reviews the other side’s draft gives you a good opportunity to learn that you shouldn’t fall into the novice’s trap of treating the draft you’re reviewing as a closed universe. What isn’t in the draft might be more important than what’s in it.
So for session 7, I’ve asked participants to read my ACC Docket article (with Michael Fleming) on reviewing contracts (here). I also ask them to look at my annotated PDF of the Salesforce master subscription agreement, with comments from the perspective of a potential Salesforce customer (here). For purposes of reviewing contracts, I’ve not seen an analysis like it.
And this week I added to the mix, just for Masterclass, a form confidentiality agreement from a vendor (of course it was terrible). After the session, I made available the version with my comments regarding deal points and drafting. I’ve noodled with confidentiality agreements over the years, so I was able to flag a fair number of deal issues, including some of those discussed in these blog posts.
Ultimately, as with everything in Masterclass, it’s not my job to force-feed knowledge to participants. Instead, I do my best to act as a facilitator and curator, leaving them to do the work. The idea is that in session 7, we talk about some of the issues I identified in the Salesforce contract and the confidentiality agreement. To encourage participants to speak more, I contemplate for the next session 7 asking everyone to note before session 7 five things about the confidentiality agreement that they think are problematic or that they have questions about.
Session 7 just aims to get people thinking along the right lines. Where do you go from there? Well, the how-to-say-it part is straightforward: stick with MSCD and tune out everything else. By contrast, the what-to-say part requires that you piece together deal knowledge, magpie like, from wherever you find it. That’s inefficient and annoying, and you have to be wary of people recycling dysfunctional conventional wisdom. Maybe someday we’ll do it better.
For more about Drafting Clearer Contracts: Masterclass, go here. The next series starts on Wednesday, 3 August 2022.