Reflections of a Contracts Lawyer: Part 3

Reflection Number 3: Define your own terms

Image is a snapshot courtesy of Wikipedia.com

Back in the world of a corporate trainee, I sit in the partner's office. Alas, the office is devoid of cacti, and the building has no lake outside of it to speak of, but the odour of OCD does permeate the air. I've produced a mighty fine piece of written advice. The partner has other ideas and sees fit to draw lots of  red patterns on it.  An hour long lesson in "consistent style" is endured: the basics on use of defined terms are drummed in to me, the benefits of tables and schedules are shared and more peculiar preferences are revealed such as line-up your paperclips symmetrically, and methodology for the production of Bible spine labels....

Later that week, same firm different partner, I produce a mighty fine contract (demonstrating the previous lesson in consistency). The partner has other ideas and sees fit to draw lots of red patterns on it. An hour long lesson in "this way" is endured: put your defined terms in a schedule this way, separate out the term and termination clause this way, do it "this way".....

Out of traineeship, and as a fully-fledged solicitor I'm asked to review a supply contract for a senior associate with a rep for pickiness. This solicitor was not for quitting. Or being picked on. And certainly wasn't enduring any more red patterns or hour long lessons.  An all-nighter resulted in a  philosophy of a review and a mighty fine resulting letter to client. Picky senior associate looked.....impressed. That day has been recorded in my memory as a VC day (victory in contracts), no contract or piece of written advice has ever flummuxed me since.  

But looking back on these lessons: yes, I'm hot at defining terms but the rebel in me never lines up my paperclips symmetrically; my contracts hang together just fine but I never put my (hotly) defined terms in a schedule and my terms and termination clauses can usually be found in the same place; and although my contracts contain a lot of clever quirky drafting, I've never needed to provide, or be provided with such a granular piece of written advice as I did on VC day. 

I've developed some deft drafting tricks of my own over the years but I also own the right to "take a view" when what is really needed with a contract is to get the deal done. Yes, I've learned from some great teachers (and I make sure that the lessons I've learned have been passed on to those I've trained too), but my contracts are my style: I live with them, advise on them and chew over them, I need to know them inside out, and I can only do that if they've been created my way. 

You see, contracts aren't just a reflection of the deal which has been struck, they're also a reflection of the lawyer who creates them.

For more of my reflections check out Reflections of a Contracts Lawyer: Part 1 and Reflections of a Contract Lawyer: Part 2.

Reflections of a Contracts Lawyer: Part 1

My number one rule is when it comes to dealing with contracts is that they must reflect the deal which has been agreed. Pretty simple really, but its a guiding principle which has seen me well over the years of drafting and reviewing, what must now be well over a thousand, contracts.

To start the year, I present to you a mini-series of blog posts of my reflections on being a contracts lawyer.

Reflection Number 1. They're not as prickly as they look

The year: 1996. Location: a cacti-filled office in an electronic and manufacturing engineering establishment in Leicester.

A colleague hands an intrepid trainee her first contract for review. For the avoidance of doubt, and in case he's reading, said colleague is not her boss of the time, nor the owner of the cacti office for that matter.

Said colleague is a non-lawyer lawyer. A non-lawyer lawyer is not to be confused with a wannabe lawyer.

A non-lawyer lawyer is an individual who has no legal training but is involved in legal activities usually because their original function in the company somehow creates an opportunity for said non-lawyer to get familiar with some legal concepts and become relatively proficient in them. Thus they are accepted into the lawyering fraternity as they talk our language.  Non-lawyer lawyers often have, but are not limited to having,  insurance, contract manager, or accounting style backgrounds.

A wannabe lawyer however usually has some tenuous connection with the law, for example a friend of a friend of theirs studied law at university, they walk past a law firm on their way to work, they're in the process of selling their house and therefore dealing with a solicitor presently. Nothing wrong with all of that of course, except when that link is regarded as a legal qualification. Similar to the same legal qualification which took 3 years of University study, a further year LPC, a couple of additional years of traineeship. Oh yes, and all the PQE too.  For the avoidance of doubt, that link is not a legal qualification. I digress. Much, much more on wannabe lawyers another day.

But for now said non-lawyer lawyer colleague, provides said trainee with a set of MF1 Rev. x standard terms and conditions with the cryptic message, "see what ya' make of them then". I'm sure there was a haughty laugh afterwards, but I could be embellishing for the sake of a dramatic post.

Anyway, MF1. Lets just say that its not so much a contract but a way of life, nay, a philosophy within the engineering world.

It really was a novel of a contract. As I sat in my B&B that evening (I recall it has western-style saloon doors to the en suite, but did a mean scrambled eggs for breakfast), tears actually rolled down my face as I pondered the document which lay before me. None of it made any sense whatsoever. And looking back, no wonder. A contract document on its own, without a scenario to which it must be applied, without a deal which it must reflect, and regardless of the complexity of the drafting it contains, does indeed make no sense. I was right.

After a tortuous weekend of tearing out my hair at this anonymous document (which I felt I had to have a view on as I'd just come out of law school and it was "expected"), my boss (the owner of the cacti, not the one who gave me MF1) kindly introduced me to the company's "Standard Responses to Standard MF1 Contracts".

Epiphany.

No matter how prickly their first impressions, there's rarely anything in a contract which someone hasn't come up against before and a suitable response is always waiting in the wings.

SAD Story

Yesterday on Twitter I was amused to read this exchange:

The discussion was with reference to the latest blog post by Magic Circle Minx.

It conjured up imagery of tribes of albino trainees working underground digging for gold.  Personally, I'd opt to take a day or two holiday rather than rely on my standard-issue SAD lamp, but needs must in the magic circle it seems.

It also reminded me that when I was a trainee, all I was issued with for working late was the code to set the alarm and free access to the kitchen goodie drawer.