Suits you, sir: The art of bespoke drafting

Almost a month ago I wrote a blog entitled "Transactional Law: a bit like being a London cabbie".  Recently I have been involved in a transaction where I felt like a cabbie with a passenger constantly changing its mind as to where he wanted to get to.  This was an unusal transaction requiring some pretty bespoke drafting which in turn got me thinking about how one should approach drafting for bespoke transactions.  Here's what I came up with:
1.  Be clear on your purpose
Drafting anything, even if it is just one clause in an agreement, is no different to preparing a piece of coursework.  If you simply start drafting you will land up in a mess.  You need to set out what the clause is intended to achieve and also consider any interrelationships with other clauses.
2.  Use decision trees
When trying to draft a more complicated arrangement that requires notices, approvals and inter-connected decisions it is often beneficial to create a decision tree which maps out the process clearly.  This serves two purposes.  First, you can show this to your client before drafting anything to ensure that you and they are on the same page.  Secondly, your drafting will be a lot simpler.
3.  Keep it simple
By this I do not necessarily mean keep it short.  Sometimes draftsmen try to be to clever and express in one sentence too much.  Rather do it in steps.  Think like a mathematician in a logical manner.  Each sentence of drafting should contain only one concept, obligation, effect, etc.
4.  Do not draft for every possible outcome
This is the road to madness and also more likely to result in something being missed.  Lawyers are not omnipotent (despite what some might claim) and cannot predict the future.  Sometimes more general language is safer than being specific as the use of the specific can lead to the exclusion of the general.
5.  The importance of the "cold towel".
Probably the most important aspect is when you have finished the document put it away for 24 hours.  Then re-read it but with the following thought in mind - if I know nothing about this deal can I understand the agreement, the obligations on the parties, the processes involved, etc.  This is not about trying to spot another area for further expansion or loophole to be closed nor about spotting errors (although this is pretty important too)!  Rather it is about whether or not the document is an accurate map of the journey the parties intend on taking.  Remember, the parties will only look at the map when they are lost and cannot agree what direction to go.  If the map is unclear what use is it.

No doubt some will argue with my views whilst others will suggest I have missed something else fundamental.  Their comments and views are more than welcome.

Transactional law: A bit like being a London cabbie

This blog was encouraged/requested by LegalEagleMHM and is being co-hosted on her fantastic blog : Diary of a Diploma in Legal Practice student which contains many thought-provoking and inciteful blogs and the latest of which on "What makes a 'great' lawyer and do clients want 'greatness' or savings?" clearly shows someone thinking about the actual facts of the job.

Every six months we have a new intake of trainees.  These trainees were generally signed up at least 2 years' previously either in the September of their final year in University or immediately prior to their embarking on the CPE (commonly known as the Law Conversion).  Every six months I find myself asking the same question:

"What do I expect from the new intake?"

You might think I am pretty daft constantly considering the same question but in reality I believe it actually reflects the constantly changing nature of the role lawyers perform.  The graph shows two important attributes that are required from lawyers today - legal knowledge and commercial acumen.  Most law students probably believe (and I admit I am guessing to a certain extent) that legal knowledge is fundamental and that commercial acumen is a distant second.  However, this is very wrong and here is why.

I am a transactional real estate lawyer.  My clients do not care about the law they merely care not to fall foul of it, or if they do, to reduce the negative effects.  My clients come to me with a vision, a transaction they wish to transact, and I am a facilitator seeking to turn their vision into reality.  What matters to my client is getting the deal done.  In order to be able to service them I must understand their commercial drivers, what it is they are trying to achieve.  Without that understanding I cannot possibly enable them to achieve their vision.  With that understanding I am more than merely a facilitator, I am someone who can help develop the vision and improve on it.

So does that mean that legal knowledge is not important?  Absolutely not.  I must know the potential pitfalls that could destroy my client's vision but not so that I can then tell him all the issues but rather so that I can manage the transaction so that the vision is realised whilst avoiding the issues.  Like the London cabbie - I tell him the destination and expect him to get me there in the swiftest, safest and cheapest way.  Sometimes I might ask why he went a certain way but I do not want to hear from him a running commentary on why he did not go a different way.

Back to my fresh intake of trainees joining next week; which is more important - commerciality vs. legal knowledge.  Well, when I started as a trainee in the 20th century(!) my first seat was with a senior property partner at Berwin Leighton called David Rhodes.  On my first day David turned to me and said:

"Barry, you undoubtedly know more law than I do, but I know how to use it better"

This thought has remained with me throughout my career.  Obviously David did know more law than me but that was not relevant.  It is not knowing the law that is important but rather knowing how to use it. 

I expect trainees to know the law in detail and, more importantly, how to be able to research and find out the law.  I do not expect trainees to know instantly when the specific legal point can be disregarded as it does not affect the client's vision.  In fact, I would be very concerned if trainees and junior associates were not considering the full legal picture before telling me what they propose to advise the client.  But that is where the commercial acumen comes in.  I do expect my trainees to show they understand what the client's vision is and how it is our role to deliver that vision whilst negotiating the legal minefield.  They show this by telling me what advice they would give the client after going through the issues.  Clients do not want academic papers; they want actionable advice.  Only commercial awareness allows you to give actionable advice.

So which is more important.  Both and a lawyer missing one or the other will eventually fail.  A lawyer with a lack in the legal knowledge department will lose clients due to negligence.  A lawyer with a lack in the commercial awareness department will lose clients due to failure to deliver the client's vision swiftly, efficiently and safely; a bit like a bad cabbie.