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Sometimes it felt as though half my professional life in private practice was spent with a cold towel over my head trying to understand what another lawyer had written.
I used to think that it was me. It was my fault that I couldn't understand it. I was an imposter posing as a lawyer and I knew nothing. I was a fraud. I was always minutes away from being found out.
And then it slowly dawned on me as I gained experience: it wasn't me.
All too often, an unintelligible clause was down to awful drafting, not me failing to understand it. On other occasions, the lawyer on the other side quite simply didn't understand what was going on themselves. The result? Drafting that resembled treacle.
Unfortunately, there will always be occasions when lawyers, regardless as to how much experience they have, need to understand the incomprehensible.
So, here are five quick tips to help you wade through the legal treacle of opaque drafting:
Really. Reread it.
Still no joy? Then do it again.
My rough rule of thumb is that, if after three attempts at reading a chunk of text it makes no sense, then it is probably a load of old cobblers.
Perhaps run it past a colleague—there is nothing to lose from being humble from time to time. If they struggle as much as you, then you are probably on to something: the drafting doesn't work.
A paragraph that is 25 sentences long, like some convoluted Victorian statute, is not a good way to start the day for many lawyers.
The modern human brain—which, by my calculation, has an attention span of about 0.27 microseconds—struggles to digest information when it is presented in impossibly large, un-paragraphed chunks. (No wonder the Victorians wore top hats, it helped to stop their heads exploding trying to work out what the hell was going on in their contracts.)
The solution? Well, it is easier than you think. Simply cut and paste the relevant text into an e-mail and play with it. Break it down into smaller chunks. Throw in some bullet points. If possible, and where it does not change the meaning, rearrange it a bit.
You may not have a 'eureka' moment but you may get a damn sight closer to understanding what the clause is about.
If you are still struggling after applying the first two tips, then remember that we don't live in communist Cuba. Businesses don't enter into agreements for fun, despite what trendy hipster start-ups may have us believe. Pretty much every clause in an agreement boils down to money ... eventually.
If you can't understand a clause, think of how it might save or cost your client money. Even the seemingly dullest of boilerplate clauses relates to money in the end.
Now this is not an easy one nowadays. In an impossibly competitive legal environment, lawyers often think that they are pleasing their client by responding within 10 minutes of any e-mail or by turning a contract around within hours of receiving it. If you take this approach you may be on a hiding to nothing. You have created that proverbial rod for your own back where there is absolutely no slack in the system to consider difficult matters, like tricky drafting conundrums.
In the long-term, learn to distinguish urgent from non-urgent matters. Be brave. Sometimes it is fine to tell a client that the contract is complicated and/ or poorly drafted and that you need to look at it and then—not literally, mind—sleep on it.
It is amazing how the answer can often come to you whilst having a shower in the morning or on the way to work; in other words, when you aren't juggling 1,001 things. Take time out to think, if you can.
The deal that I am working on is so big that somebody must 'get' this clause. Somebody must have picked it up. Why is nobody dealing with this?
Sometimes 'group think' can get in the way. The natural desire for harmony or conformity in a group (such as team of lawyers) can often result in nobody being brave enough to flag up their concerns with a proposed agreement. Somebody else must 'get' it?
This is particularly the case between junior and senior lawyers where the former may defer to the latter to such a degree that the junior lawyer thinks a senior lawyer can't ever do any wrong. 'Grey hair/ no hair' trumps everything else.
Well, no, not always. Lawyers should always know how to (subtly) challenge each other across any hierarchies. If you don't understand it, it may be that your colleagues don't either, no matter how experienced. Make sure that everybody 'gets' it and if not, perhaps it is time to put your heads together?
So there you go. Five jolly helpful tips.
In the end, it is always worth bearing in mind that, unless your instructions are to obfuscate, clarity shouldn't be something to be scared of. After all, your client may need to read the contract themselves in due course—without the help of a top QC. Indeed, there is nothing more embarrassing than a client turning around and asking what a clause means a year after signing the contract (which you helped to draft) and all you can do is offer a selection of 'ums' and 'ers'.
So what do you think? Hope do you cope? Feel free to let us know using the comment box below.
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