Who Wrote Your Lease, Loan Agreement, Or Other Document?

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“A committee is a cul-de-sac into which ideas are lured and then quietly strangled” — Sir Barnett Cocks. Much the same can be said about the documents we read and, sadly, write. Sir Cocks didn’t necessarily mean only that ideas were strangled to death. We want to think he also was thinking about damaged survivors, the ones that survived, but with a life-long injury.

Think about the process we follow to create a written agreement, whether that is a lease, an easement, a loan agreement or any of the others we, Ruminators, can list. In most cases, we start with a form written by predecessors. The words in those forms aren’t “ours.” The “voice” isn’t “ours.” In some cases, we cut and paste from a selection of related forms, each with its own voice. Then, we modify this “base” document, adapting it to the deal in front of us. In simple cases, we fill in some blanks, delete some provisions, and add a few. In others, we make significant changes, some to the very core or philosophy of what the form’s original authors had in mind. Our additions might have been written solely from our own thoughts; they are never tabula rasa (def.: an absence of preconceived ideas or predetermined goals); they never are. In fact, our additions often are snippets from something else we or others have written. [Note that we’ve written “authors,” not just author. That’s because our selected foundational document or document very likely was put together in the same way we are describing.]

At this point, our working document, while facially one designed for our own deal, is an adaptation of what had been written for many earlier deals, and often not ones in which we, the “draftsperson,” had any involvement. But, if we’ve done a workerlike job, this draft “hangs together.”

Now, we send it to the principal (e.g., a client) for review, and much of the time we get a comment or two or many. Some of the comments are very useful. That’s why we sent it for review. Unfortunately, some of the comments or suggested changes aren’t improvements, but we are pretty adept at working them into the draft in a way by which the change we make doesn’t do obvious damage. [That’s not to say that we are always successful or that some in this business even recognize the challenge (or loss) some received-comments present.] At this stage, however, another “voice” has joined the document drafting committee or choir.

Now, the document goes out to the “other side” for review, comments, and suggested changes — the process repeats. The order of review may vary, but at the end of the day, comments are offered by both the draftsperson’s counterpart and the party on the other side. Now, we have two more “voices” in our choir or on our committee. Deals necessitate compromise, and these further voices are accommodated – they work their way into the working draft. Very often the comments come in the form of requested text, and that text has been clipped from yet other unrelated documents, ones not first written by the person offering them for inclusion. Sometimes, third parties – friends, colleagues, associates, and family – are the source of suggested “changes.”

At the end of the day, far too often, coherence is lost. What may have started out as the most fabulously written lease form, the product of the author who meticulously “tuned” that form, is almost always perverted. The perversion may not be obvious and is often never discovered because no “issue” ever arises during the life of the agreement. Then again, sometimes the damage is discovered.

A month ago, we wrote a blog posting: Go Ahead, Just Slap On Some Extra Words! [Click HERE to see it (again?).] That posting was excruciatingly long. So, we won’t reprise it except to suggest that the disputed clauses were defective because they went through the very process we’ve just tried to describe. It is a good object lesson.

It is extremely rare to be negotiating with “Thomas Hobson (1544–1631), a livery stable owner in Cambridge, England, who offered customers the choice of either taking the horse in his stall nearest to the door or taking none at all.” [Though, from time to time, we’ve come to see some lenders acting as did Mr. Hobson.] Even though many real estate deals are more akin to (friendly) adoptions and are not like (unfriendly) divorces, they still are a blend of disparate interests. So, our documents always need to address the concerns of all parties, as they should. But, they don’t need to reflect the parties’ different writing styles. They need to sing with a single voice.

Is this possible? We think so. After all, great choirs present with a single voice and beautiful music is made. There is more than one great choir. They each adapt a composer’s work differently. And, they don’t merely emphasize one part and deemphasize another. They modify the composer’s score. And, how is that done? Who does it? It is the choirmaster. It is a single person, informed by all of those who previously took on the same composition. Working with the resources in front of her or him – the individual singers, they craft a coherent musical piece with a single voice.

Think about it. A choirmaster or a conductor chooses a score, say one written by Pyotr Ilyich Tchaikovsky. He or she transforms that score WITHOUT distorting it. It is spoken by the choirmaster or conductor and a chorus or an orchestra, but it is still Tchaikovsky. It has been adapted for today’s instruments, for the audience, and for the venue. But, it is still Tchaikovsky.

That’s our challenge as master draftspersons: how do we blend all of the voices involved in the process and turn out a coherent piece of work? It takes talent, and it takes time. That means that those not holding the pencil (and only one person can hold the same pencil), need to have patience and have to be willing to pay for the time it takes. If you have confidence in the person tasked with creating a document that will live for a very long time, then express that confidence by allowing your choice to do her or his job. And, be prepared to pay a little more upfront in place of the risk of paying a lot more later to get out of a cul-de-sac of our own making.

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