Commercial drafting – the three C’s to success

Having spent two months in the Commercial department in Sandy, I have already been tasked with a considerable amount of document drafting. Whether it be ancillary documents for share purchase agreements, an assignment of goodwill or a bespoke set of terms and conditions, I have realised that the key to successful drafting is to follow the three C’s:

Concise, Clear & Consistent

Concise

  • Try to avoid the urge of using long sentences or being wordy and longwinded just for the sake of it. Sometimes long sentences are necessary and if you have the grammatical prowess to do it, then great! However, long sentences without the correct punctuation can be extremely difficult to read and understand.
  • Start with the essential elements of what you are trying to draft and build from there. Who does what? When? How
  • Using paragraphs, sub-paragraphs and numbered bullet points is an excellent method of keeping each point neat, tidy and clear.
  • Ask yourself at the end of every stage of drafting: “does this document/clause/paragraph do what I want it to?” If not, why not? Have you included something that doesn’t need to be there? Has the intended meaning become clouded and unclear? Does the clause start well but become confused as it goes on? 
  • Try to think about your work critically before giving it to your supervisor to check.

Clear

  • The following proposition is not rocket science - if you do not understand what you have been asked to draft then you are unlikely to succeed in drafting it clearly.
  • Make sure you know what you are trying to achieve and how you are going to achieve it.
  • Check your instructions if you are unsure and ask as many questions as needed to clarify. It is far better to resolve any uncertainty early rather than carrying on regardless.
  • Think about what responsibilities, obligations and liabilities are on the parties.
  • Think about the mechanics of what you are drafting and the processes involved – is there a particular sequence of events that needs to be followed?
  • Rather than diving head first into the drafting, it may save time to create a plan or checklist of what you need to do. (Remember, Practical Law has a vast array of precedents and checklists which should help).
  • Again, step back and ask yourself whether what you have drafted makes sense and works.

Consistent

  • Creating a list of definitions is an invaluable aide for clarity and consistency. If you have defined a term, make sure that you use it!
  • Following on from this, make sure that you are consistent with that use. Calling a document the “Contract” and then referring to it as the “Agreement” later on is only going to confuse the reader.
  • Proof-read and then read again to identify any inconsistencies. Using the ‘search’ or ‘find’ function on your computer can also be extremely helpful to find any final stragglers that you may have missed.
  • Ensure that all your cross-references are accurate and that they take the reader to the intended clause or paragraph.

As I learned early in my legal career, an argument does not get better with repetition. However, I will stress again that one of the most helpful tools in your drafting arsenal is to check what you have drafted with a critical eye. Ask yourself one vital question: “does my document meet the client’s instructions?”

As with all tasks that you will experience on your training contract, nothing can substitute practice and experience. Hopefully the above guidance will help you on your way if faced with a tricky drafting question but if all else fails, give it your best shot! Try to demonstrate that you have thought about what you have drafted and why you have or haven’t included a particular element. If you are wrong then you will have learned something. If you are right, then brownie points for you!

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