This isn’t the kind of posting that will be of interest to a lot of readers. It’s kind of a “head” piece.
We got to thinking about “what is the role of the person who drafts a document” aside and apart from the negotiation component. First, the tentative conclusion – “he or she converts concepts into rules.” Deals are made up of ideas, i.e., concepts. The people who make those deals, and that includes the document draftsperson as well, reach agreements that they think they understand. That works at a particular instant in time if each side has the same understanding and if each side is honest enough to be bound by what their original understanding might be. But, it doesn’t work, even at the instant of conception, if the parties don’t share the same understanding of their agreement. Of course, that’s an oxymoron, but you get the idea.
There are other problems even if, at the instant of agreement, each side is (so to speak) on the same page. Down the road (in time), the original parties to the agreement won’t necessarily remember what they “meant” and won’t necessarily agree on how what they originally meant applies in practice. Even more importantly, the agreements, whether they be leases, mortgages, SNDA’s or other contracts, will be used and interpreted by people who weren’t there when the deal was made, who don’t have an institutional memory of what was intended. Even if they act in good faith, just knowing the “concepts” won’t resolve questions as they arise.
So, the task of the draftsperson is to convert the concepts or ideas into formulas. Yes, make the document into a decision tree – if “A” happens, then the consequences are “B.” If the rent isn’t fully paid in 10 days, then the landlord can send a notice (following the rules for effective notices). If the rent remains unpaid for 10 days after the landlord sends (or, the tenant receives) a properly given notice, then the landlord may do such and such. We may not all have recognized it, but that’s a formula. It’s a set of rules. It takes the concept of “tenant must pay the rent or lose the space” and makes it into something workable. It goes beyond “we’ll each be fair.”
That’s a pretty simple example. You can make your own. The concept may be that there will be a co-tenancy provision and it will be based on the presence of two particular tenants. If you’ve been in this business a while, you know a lot has been left unsaid in the way that part of the “deal” has been expressed. And, yes, part of the task is to expand the concept during the negotiation process. But, at the end of the day, the underappreciated task is to expand the entire concept into a set of rules.
It may be obvious that you’ve got to write down the “deal” so that people down the road, say ten years hence, will have a record of what was agreed-upon. If may not be obvious that the process begins immediately. Good solid drafting can clearly explain to the negotiating parties exactly what they mean. Yes, you’ve got to tell the dealmakers “what they mean” when they agree on something. That gives the dealmakers the opportunity to say “yes, that’s it” or importantly, “that’s what we said, but it’s not what we really meant.” Document draftspersons help make the deal by “explaining back” what the dealmakers have said. Then, they preserve and protect the deal by creating the formulas and the rules that will both make it clear what agreements were reached and how they will play out in the years to come.
Is there a bottom line to this? Of course there is. Scriveners don’t add value to the deal making process whereas draftspersons do. To be a skilled draftsperson you need to be able to negotiate a deal because otherwise you won’t know what the concepts mean and what other concepts are available for solving any particular problem or addressing any particular issue. Then, on top of that, you’ve got to be a master of your craft. Not every clause can recreate the invention of the wheel. You’ve got to know the standard solutions that work (and those that look like they work, but don’t). You’ve got to have the skill and ability to “walk” through the deal in your mind – how will it work, what could happen in the future, what should happen in the future?
Don’t knock the drafting process. It isn’t secretarial work. It takes vision and skill. Long after the “really neat ideas” have been forgotten, real people will face real issues, and they will need to read the document and “know what to do.” Yes, the document may be boring, but it will work. Concepts are great, but we need rules. The “conversion” from concepts to rules is done by the document drafters.
Apropos of last week’s posting about eminent domain awards (and as a reward to those of you who made it to the bottom of this week’s posting, here is a real nugget. Thanks to one of its authors, Glenn Block, here is a link to a terrific article – Condemnation Clauses in Real Estate Agreements.