Here’s what it takes to be a great contract drafter:
Know the deal mechanics. As a drafter, it’s your job to express the transaction in a way that advances your client’s interests most effectively. You can’t do that unless you’re aware of the full range of options for structuring the deal. I don’t mean to suggest that you yourself have to possess that information—it’s enough if you’re able to pick the brains of people with that information.
Know the law. With some transactions, there’s no need for the law to rear its head in the contract. In other transactions, it would be appropriate, or necessary, for the law to feature in the contract. I discuss that in this 2013 post. As drafter, it’s your job to figure out what role, if any, the law plays in your transaction. Again, it’s enough if you can get that information from others.
Follow a comprehensive style guide. You don’t follow a comprehensive set of guidelines for the building blocks of contract language? Sorry, you’re not a great drafter. You’re not even a good drafter. Instead, you’re parroting whatever contract language you copy, which is likely dysfunctional. You’re following conventional wisdom, which more often than not is bogus. Don’t throw at me your education, your reputation, your long list of publications, your compensation, your track record as a dealmaker. They’re all beside the point. Of course, the only set of guidelines out there is A Manual of Style for Contract Drafting, but don’t hold that against me. I’m not stopping anyone else from producing their own comprehensive set of guidelines. And following my guidelines isn’t rocket science.
Be adept at handling structure. If you’re building a new contract of any complexity, you have to know how to put the different elements together in a way that makes it as easy as possible for the parties, and readers generally, to figure out what’s going on. It’s as if the floor of your garage were littered with parts; you have decide how they fit together, adjusting the parts as you go. There’s no blueprint to follow—you have to create the blueprint. This part of the process calls on writerly talent, and it’s what distinguishes stars from workmanlike drafters.
Know your limitations. Perfection in contract drafting is an illusion—you have to make too many judgment calls for perfection to be possible. And you can’t be both writer and editor and be effective at both tasks. Readers and seminar participants routinely point out my shortcomings. Heck, sometimes I even fail to follow my own guidelines. So be prepared to make mistakes, and accept that with more time, and input from others, any draft you produce could doubtless be improved.
Here are a couple of late additions:
Use appropriate technology. (Added at the suggestion of @DiligenceEngine.) For one thing, don’t be a Word duffer. Use automated cross-references. And learn the rudiments of Word styles. (Anyone who hits “Enter” to create spaces between blocks of text and “Tab” to create a first-line indent is unlikely to be a wizard at everything else about contract drafting.) If you have access to an enumeration software tool, use it. (I use the Numbering Assistant, with the MSCD scheme built in.) If your contracts are long and complicated, use software to police your defined terms. (See this post.) Use whatever collaboration technology would make it easier to pick people’s brains.
Be a discerning copier. Even when devising new contract language, it’s rare that copying doesn’t play a part in drafting. But treat everything you copy as if it were potentially toxic—it might have been created for a transaction significantly different from yours. Screen it thoroughly and revise it as appropriate. But remember that contract language is protected by copyright. (See my article about that, here.)
Did I miss anything?
6 thoughts on “What It Takes to Be a Great Contract Drafter”
Acknowledge Practicalities. Know when drafting rules or guidelines need to be bent or broken for purposes of pragmatism and in light of practicalities. For example, if you are drafting a contract of a form that has been used many times in the past by your client, you might do well to sacrifice on strict adherence to drafting rules in order to hew more closely to that form (at least without changing the ultimate substance of the contract or provision at issue). You might wince at the manner of expressing a concept, but that might be better than a wholesale re-write of a provision.
Of course, this relates more to your reaction to a given draft or form, rather than if you draft a contract anew. But tempering your drafting in light of practicalities nonetheless goes to the issue of being a good/great contract drafter. And this point is slightly different than knowing your limitations (which, as I understand it, is about accepting that you will from time to time make mistakes).
Hmm. As you describe it, ‘acknowledging practicalities’ sounds less like an ingredient in great drafting than like knowing when not to draft properly. -Wright
Agreed. But there might be a distinction between great drafting and being a great contract drafter…
Be consistent in your drafting choices throughout the document; be meticulous in your proof-reading; edit your work (and get others to review it, as mentioned by Ken); spend time getting it right, even if you can’t always charge for that time.