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.