A crib sheet on drafting schedules: 7 top tips

The whiteness of the blank page blinds your eyes: this is where the schedule is supposed to go.

At the moment it is a void of information—unlike the front end of the agreement which is Japanese knot-weed in legal form: an overgrown thicket of legalese nestled within an impenetrable forest of paragraphs.

(Obviously not a Lexis®PSL Commercial document.)

Now it's your turn. You have to draft a schedule for a 100 page contract. The contrast between the detailed front end and the blank piece of paper in front of you is stark.

Where do you start?

Well, instead of slipping into an existential malaise—or indeed slipping off to the nearest pub—why not have a look at our handy cheat sheet below? Our top seven tips on what to do to help you on your way.

Tip 1: Be a journalist

No, you don't have to don a pork pie hat and start collecting grubby anoraks. Just get down to basics and ask yourself some fundamental questions:

  • What is the schedule trying to achieve? (Bearing in mind that, in the end, not all of these may be relevant):
    • Who is involved?
    • What is happening?
    • When will it take place?
    • Where will it take place?
    • How will it take place? and
    • Why is it taking place? (This is useful to know in particular when drafting recitals or background/ explanatory provisions).

Tip 2: Be Machiavellian (a bit)

Now it's time to start reading books about Machiavelli. Where does the power in the commercial relationship lie?

  • What are the negotiating strengths of the parties? Is the priority to start building a fair commercial relationship from the start or can one party take a robust (and even unreasonable) negotiating stance?
  • What are the likely consequences of taking your chosen negotiating position? Is this likely to add to the time it takes to negotiate the schedule? Does this matter?

Tip 3: Be a lawyer

In fairness, this is probably your job. Schedules are attached to contracts so this is not a time to start ignoring the law or even 'soft' law such as statutory guidance:

  • Have you identified all relevant laws, standards, codes of practice (etc) that apply or may apply?
  • Is there any mandatory or recommended wording that applies?
  • Have you identified any industry best practice (eg by trade associations) and the business'  internal policies and procedures. Will these impact upon the drafting?
  • If any International Standards have been implemented by the business (eg any ISO standards) how will these impact upon the drafting?

Tip 4: Be an all-rounder

Do you have a solid understanding of the front end of the agreement and the underlying transaction? At the very least you should have an understanding of the sections that are relevant to you:

  • Do the two parts of the agreement work well together? The schedule typically spells out the detail that you do not want to clutter the front end of the agreement with, eg formulae, detailed procedures to follow etc.
  • Has the schedule just been regarded as a last-minute 'bolt on'? If so, take care. Schedules can contain some of the most important commercial aspects of the agreement: just because they are at the back-end of the agreement doesn't mean that they should be regarded as an afterthought

Tip 5: Be humble

You can't do it all. Drafting schedules should be a team effort:

  • Do you have the support from the relevant member of your client's team?
  • Is there enough seniority or authority from them? Bear in mind that staff in your client's business may have different concerns: senior staff typically have concerns of a more strategic nature (eg value for money) whereas junior staff many be more concerned about day-to-day issues.
  • Would setting up a focus group help?

Tip 6: Be a delegator

Some lawyers hate delegating. You shouldn't be one of them. Your client may very well have a better idea as to what should go into the schedule and how it should be done:

  • Who is going to draft the schedule? Ideally one individual at the client should be responsible for it. Schedules that are written by committee can often turn into a bit of a dog's dinner if they are not done well.
  • Should a lawyer draft it? In many cases, the schedule should not be drafted by a solicitor, rather the technical details and/ or specifications should be substantively written by the relevant individual who is responsible for the subject matter of the schedule. The role of the lawyer in such circumstances is to guide this individual; tidy up the document; and make tweaks to it at the end

Tip 7: Be a mediator

Everyone is human. Sometimes, your client may be miffed about something which is not connected to the schedule but it has affected his or her view of it:

  • Are there any current grievances or long-standing issues at the front of their mind? These may not be relevant to the schedule but you may find them having an impact on it.
  • Are there any issues that need to be addressed before any substantive drafting of the schedule?

 

Schedules can be time-consuming to draft and typically left to the last moment.

How do you manage? Do you have any handy tips? Do let us know below.

PS For those who subscribe to Lexis®PSL Commercial, we will be uploaded checklists soon on this subject. Keep your eyes peeled!

Area of Interest