Showing posts with label agreements. Show all posts
Showing posts with label agreements. Show all posts

Friday, 25 March 2011

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.