This morning, I happened on a good article on Law Insider which I’m happily passing along, including for the benefit of anyone customarily doing contract review, modification and negotiations. The article at issue is entitled The 10 Rules of Contract Redlining, a text penned by Nada Alajafi (from Contract Nerds -something I can definitely relate to). You can download it free from Law Insider.

After reading this article, I agree that the idea of contract redlining etiquette (or CRE) seems like something we should collectively have come-up with long ago, including to teach it in law school. There’s the technical aspect (learn how to use Word and track-change, etc.), and then there’s how to go about passing along your changes in a way that will result in a better deal, in the most efficient manner possible. That last one is where this particular problem lies. Our process to modify those draft agreements isn’t exactly optimal, including buy taking more time and energy to actually reach a point where a deal gets made.

Indeed, sadly, how to go about making comments and suggesting changes to draft contracts is definitely NOT something being taught in law school, nor something everyone agrees how to go about doing. As the author mentions in her article, we basically all learn to do this redlining business (meaning making suggested changes and communicating them) as we go, without anyone ever bothering to really explain HOW this should be done. Well, for once, someone has bothered to provide us with the skinny on this topic, including by reducing her advice to 10 rules contract reviewers should generally strive to follow.

Without wanting to steal her thunder, her rules includes advice like:

• Be transparent and, yes, do flag for the other party ALL your changes to draft contracts (surprising how often we find stuff that was not shown in track-change);
• Do use track-change adequately, supplementing most of those changes with a comment explaining why this change is required;
• Do refrain from commenting any insignificant changes, or  more material ones that may benefit from a strategic omission of any explanation;
• Refrain from adopting a method of negotiations whereby the parties basically send one-another successive versions of the draft document, without ever talking or meeting (if only with a video-conference) to hash it out -limit the number of such rounds of emails to keep things flowing smoothly;
• Do use color codes in your comments whenever required, either to distinguish certain things or comments meant for your client vs. those addressed to the other party;
• Be ready to draft any substantial changes you are requesting, as opposed to lazily letting the other party do the actual work after you raise an issue;
• Be mindful of the fact that the client or the other party or attorney may or may not be as sophisticated as you are with the contracting process, technology or the law -adapt your comments and methods accordingly;
• At the end of the process, upon preparing the final version of the contract document, do make a point of checking and re-checking that all agreed-upon changes are properly reflected by that final version.

All in all, lot’s of those may seem obvious for those of us who’ve been doing this for a while, but I think a lot of people involved in contract work may certainly benefit from reading and internalizing these rules. Thank you Nada!