Plain English - Organise

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No-one needs to be told the business imperatives for clear, attractive drafting anymore. So, here’s a practical guide to how to do it. Think of this as catharsis: like weeding; like pruning; like throwing out all your old rubbish and sprucing up your house because some clients are coming to stay.

It is easier to start with something genuinely awful, like a Linklaters MTN Programme or something like that. But it would probably work as well if you are starting with a fresh piece of paper.

Organise

Order

Client-centric: Structure your document to be as persuasive as possible. Persuasive to who? The client. You do not need to persuade your own risk department to sign your own document. You do need to persuade the customer to sign it. Therefore:

• Fun stuff first: Put terms that are most important to the client first. What are you going to do for the customer? What are the customer’s key benefits? What are its objectives? Get this in first. Make the customer’s first reaction, when it sees the draft, “YES!” Tick! Make its second reaction also a TICK! Have the customer thinking happy thoughts about you and this document.
• Nasty stuff last: Put the terms you care most about — your fees, default events, indemnities, what could happen if the customer blows up, etc. — last (or at least, last before the boring boilerplate). Legally, the sequence of the clauses doesn’t matter. Psychologically, it matters a lot. Put the fun stuff first. Have the customer in a maximum, dopamine-flooded haze of benign fondness towards you by the time it gets to the events of default. It won’t last, but the more good will you have, the better you will fare.
• Make the customer feel wanted.
  • Be enthusiastic: Little things: write, “Welcome!” in big, friendly letters at the start. Have a recital recording how thrilled your firm is to be doing business with it. Why not?
  • Be inclusive: Why write in the stiff, formal third person singular, when you can write in engagingly in the first and second person: “we” and “you”, not “Lender” and “Client”.
  • Don’t be confrontational: Avoid writing in a needlessly hostile, legalistic way. Yes, it may fill you with a sort of stentorian delight to say, “Lender shall at any time, without notice and without regard, thought or advertence of any type, kind or variety to the adverse economic consequences of such action on Client, however severe, be entitled to... ”, but it does not convey anything more searching than, “we may...”. Entitled! Why on earth would you say you were entitled if you didn’t have to? Similarly:
    • Instead of, “the Client shall be obligated immediately and without delay...”, say, “you must promptly ...”
    • Instead of, “in the event that Client fails to ...,” say, “if you do not ...”.
    • Instead of, “the client shall forthwith upon written demand indemnify Lender” say, “you must promptly reimburse us if ...”.

Boilerplate: Organise the boilerplate the same way.

• General principles: Where there are general principles that clients might like (“commercial reasonableness” standard of prudent conduct, general application of laws and so on) put these first.
• Interpretation: Always put definitions last, in a clearly marked out section starting on a new page. But be sparing with definitions: see below.
• Go easy on the boilerplate: Unless you could incur massive financial or criminal liability under the contract (i.e., it is a primary financing, lending or derivative contract) dispense with boilerplate. Avoid finance contract envy. Do you need all those reps? Entire agreement? Counterparts clause? No assignment? Severability? Rights cumulative? Third Party Rights Limitations? Do you really need all that? For an NDA?

Formatting

Microsoft Word: Learn how to use paragraph-formatting, character-formatting, multilevel lists, auto-numbering and style formatting in MS Word. It is hard, somewhat counter-intuitive, but if you learn it, it makes formatting and organising paragraphs so much easier.

• Multilevel lists are the key to your document. Every paragraph - even un-numbered ones - should be part of a single unified multilevel list. You can control indents, numbering, and number formatting from the "Define Multilevel List" function.
• Styles are very powerful.
  • Paragraph styles: A paragraph style can be associated with an multilevel list level, and can control page-breaks, paragraph spacing before and after, and following paragraph styles.
  • Character styles: A character style can specify not just formatting, but language and proofing etc. Useful if you have lots of German words in your document (eg in a German law insolvency provision)
• Outline view: If you set up nested multilevel styles, learn to organise in outline view - you can quickly move around whole sections of documents by dragging and dropping.

Typography: Think about margins, line spacing, font and font size. Making the document easy to read, and to follow its logic not only helps the reader but enforces a logical structure on you as the writer.

• White space: White space is good. Unbroken tracts of unpunctuated text are bad. Unless you are using columns, ensure the margins are generous.
• Font: choose an easy-to-read font. There are interesting arguments about whether serif or sans-serif are easier to read: it depends whether you are reading on screen or on a page. For our money Baskerville, Garamond and Georgia are lovely serif fonts, and Helvetica, Frutiger Light and Arial Narrow and lovely sans-serif fonts.
• Headings: Consider having a different font, and a larger size, for headings: often a sans-serif bold font font looks good and breaks up sans-serif text.
• Paragraphs: Format your paragraphs to have extra space at the end. 6pt is usually enough.
• Columns: Consider putting longer standard terms documents into columns. Yes, that requires being a ninja at MS Word, but shorter lines of text are easier to read. It also forces you to keep paragraphs shorter.

Deconstruct

Break it down into manageable pieces

Break into sub-paragraphs. Breaking a long paragraph into a shorter one exposes its logic to a skim-reader. It becomes easier to navigate. It also will expose any flaws in that logic, and any tortured logic that is not needed. For example:

Consider:

Following an enforcement of the Security, the Noteholders rights to be paid amounts due under the Notes will be subordinated to (i) the Issuer’s share of all taxes owing by the Issuer, (ii) the Trustee’s fees, costs, charges, expenses and liabilities; (iii) certain amounts owing to the Agents and the Corporate Service Provider; (iv) fees of the Disposal Agent, Calculation Agent and/or Collateral Manager, any amounts owing to the Hedge Counterparty under the Hedging Agreement and any amounts owing to the Vendor under the Collateral Sale Agreement and (v) any other claims as specified in the Conditions as may be amended by the Issue Deed relating to the relevant Series of Notes, that rank in priority to the Notes. Such subordination could significantly reduce the amount of available proceeds receivable by the Noteholders following the liquidation of the Collateral or on an enforcement of the Security.

Compared with:

Following an enforcement of the Security, the Noteholders rights to be paid amounts due under the Notes will be subordinated to: The Issuer’s share of all taxes owing by the Issuer; The Trustee’s fees, costs, charges, expenses and liabilities; Certain amounts owing to the Agents and the Corporate Service Provider; Fees of the Disposal Agent, Calculation Agent and/or Collateral Manager, Any amounts owing to the Hedge Counterparty under the Hedging Agreement Any amounts owing to the Vendor under the Collateral Sale Agreement and Any other claims as specified in the Conditions as may be amended by the Issue Deed relating to the relevant Series of Notes, that rank in priority to the Notes. Such subordination could significantly reduce the amount of available proceeds receivable by the Noteholders following the liquidation of the Collateral or on an enforcement of the Security.

Now few would claim this is elegant, but at least you can see its shape. Notice, too, that you start to see its flaws: the punctuation is inconsistent. They forgot to peg out Hedge Counterparty amounts and Vendor amounts. And notice, too how, as a legal eagle, you are drawn into it, like a moth to a lamp, parsing the elements, at the back of your mind wondering “how can I fiddle with this to somehow make it better?”

So, consider this:

Before you are paid your Redemption Amount, the Issuer must first settle any liabilities that rank ahead of its obligations under the Notes, such as the Trustee’s and Agents’ fees and its tax liabilities. This may reduce your Redemption Amount.

Note that the reduction reveals that no logic was needed. You didn’t need to break out seven categories of thing, or even mention them. The principle is simple: you don’t get paid until all the contractors have been paid. The order, and the itemisation, doesn’t matter.

Create a logical structure

For longer documents, break your document into sections and subsections (not just clauses) and set them out clearly, on separate pages. Make it as easy as possible to navigate. The discipline of putting a superstructure over your agreement will help you uncover redundancies and contradictions.

Separate the boilerplate from the negotiated terms

Don’t mix up the dull stuff that you have to have because — well, everyone knows you have to have it — from the vital economic stuff that makes the contract tick, and over which prolonged jousting is inevitable. Why? Because if you don’t you can be guaranteed some dreary fusspot on the other side will launch into a broadside on your standard form custody terms to no obvious end other than his own parochial victory. Don’t invite him in to do that.

For frequently-negotiated standard forms, consider putting your standard terms in an entirely different document from the frequently-negotiated economic and legal terms, and having the customer agreement as a termsheet style “Elections” document. This has a number of practical advantages once the document is in live:

• It is simple to see a given customer’s deviations from the standard, because they are listed in the Elections document. There is no ploughing through a 60 page scanned .pdf from 2002 wondering what the standard was, and what bits of it were amended.
• It discourages deviations from the standard form, since it is a hassle to transcribe them, whereas it is easy and (de rigueur amongst a certain breed of lawyer) to make minor and formalistic comments inline in an integrated long-form agreement. We call this “throat-clearing”.
• It enables systemic/automated monitoring of bespoke terms because they are set out in a “database” format in a separate document. Where data suggests the same amendment is being made regularly, this enables periodic updates to the underlying standard form to incorporate the amendment, thus again standardising the document and further discouraging deviations.

Note that it is KEY to the success of this strategy that you vigorously — and regularly — simplify, mark-to-market the standard terms. If they are not reasonable, and not very close to your walkaway points, you are asking for a lot of pointless negotiation that will pollute the quality of your client document portfolio. It is like going to the gym: YOU HAVE TO WORK AT IT.

OK — we haven’t even started changing the text yet.  That comes next.

See also

• Purpose — why a legal contract does different things and different times for different constituencies.