contract drafting

How do you keep improving your contract drafting skills, while you’re working?

As a working professional, I had stumbled upon an industry, I knew next to nothing about. So that meant that the training for the job was tough from day one. I remember starting my first week by reading upon copyright laws, case laws, bare acts, legal opinions from experts and more!

By the end of the first week I had only read a lot about everything about my company, its workings, history, legal disputes, etc. I started to wonder if my training period would be all about learning the basics of law. To be honest, I felt a little dejected knowing that I had no relevant skill sets when it came to my new job. I was a little off the mark, but close enough.

I had some skill sets and rest I had to figure out as I went to do the job at hand.

Thankfully, by the end of the week, my boss called me to assign my first litigation on behalf of the company. Mind you, it was way beyond my head – all the nitty-gritties. I was to file a lawsuit against a party involving YouTube. That meant reading about Google policies and pouring over agreements and case laws. So basically a lot of reading, yet again.

As I prepared the groundwork, I had to interact with other departments, my colleagues, managers to get the lay of the land. I was under the impression that companies were clients of the firms, who did the legwork, so I won’t have to do much. I was wrong.

A company who has interest in a lawsuit and has all the information, wants specific things, done in a particular manner. Turns out YouTube being a newer platform, most of its policies were something our law firm was not aware of. They new the copyright laws, procedural laws and everything else. But unless they were briefed properly about the policies of the intermediary platform, we would not get the desired results.

Everything from the jurisdiction was an issue, considering our party was situated in a different country. Then came the disputed content, the rights pertaining to that, the exceptions to the usage of content, etc. came into play. This meant a lot of learning while working for me. There were agreements involved. But I had little to no experience at that point. So I sought help from my boss and managers, as to how to best interpret them, apply them and more.

The point is even to do a task as simple as reviewing a contract, you need to know what to look for. You must know the laws involved, the intent of the parties, the potential risks, the solutions of the same, etc. One must be able to comprehend the importance of each provision and clause in an agreement. To be able to do so, you must know the basics of contract drafting. Not just the theoretical aspects, but the practical applications as well. Once you join the big leagues, you have to deliver the best outcome. That means more training, usually in your own time.

Here’s how to learn contract drafting while you work or intern:

# Read and review

My job required a lot of contract review. I would be reviewing contracts by hundreds in a week. It is frustrating to just read and review, at times. But there is no better way to learn the structure or template of an agreement, than to go over various types of contracts, again and again.

I had read a short story as a kid where the gentle water from a river lashing upon the rocks and boulders, could make its mark and shape them. In a similar manner, the countless reviews of contract made a mark on my mind. Soon, I knew each provision in the different agreements, their significance, alternate interpretations in case laws, etc. I even practiced recreating them by memory.  The results were surprisingly good.

Once I had learnt how to incorporate the boilerplate terms and then client specific terms, I upped the ante. I started reviewing and reading the Google agreements and other service agreements, when I signed on to an application or a website. These were significantly difficult, for I did not understand most of the terminology.  This is when I decided to do a technology contract course.

It was difficult at first, for me to manage my time. But then I realised that if I have to improve my skill sets, I have to learn contract drafting. At that point I was unaware of the existence of a more detailed and extensive contract drafting course with practical applications. Had I done that, I would have saved a lot of time, trying to  achieve the same result – master contract drafting. I would have been able to learn about all sorts of contracts under one roof, instead of just technology contracts. But I took the longer route, while I tried figuring out things for myself.

The reading and review of contracts helped me immensely, to advice on company matters. It also helped me take the knowledge gained, and apply it in different variations, like giving advice on contract related matters.

# Learn the application

I had clients coming in from all directions looking for a sound contract. I did not know that a good contract is so hard to draft, until I tried it for myself. I initially took on some drafting work for a friend, which was much better than I expected, but it was not perfect. So I decided to keep doing the contract review. This time I sought reference agreements from online, the course I was undertaking, some of the seniors who were good at contract drafting.

My plan was simple, once I learnt the basic agreements, I have to learn the specifics. The reason was that, each kind of agreement, commercial agreement, employment agreement, user end agreement, non-disclosure agreement, etc., had different requirements.

For instance, in an employment agreement one must include the job description, working hours, reporting office, compensation, benefits, confidentiality, etc. These clauses are particular to such an agreement. Similarly, in an NDA, the clauses identifying the parties, defining confidentiality, scope of obligations by the receiving party, exclusions from confidential treatment, term of agreement,etc. are crucial. Then you have to negotiate the terms with the other side. You must be able to anticipate what’s most important for your client, to ensure that it is attained. You must also be willing to give something up, which the client needs the least. Try to get the client what they came to you for during negotiations.

The best way to learn the application is to understand the client’s requirements, legal provisions related to them, and incorporating them into an agreement. You must know the laws involved in order to give a wholesome protection to the interests of your client. You must also be able to ascertain the potential risks involved and provide for them. For this you need to keep practising contract drafting.

# Keep drafting

There are no shortcuts to success. It is all about the hard work you put in and the dedication to achieve the goal. My goal was to learn contract drafting and since I took the longer route, rather than doing a comprehensive contract drafting course, it was quite difficult to get there.

I had to practise while at work, sometimes advice pro-bono or help out my lawyer friends. Family and friends helped me reach out to more people who needed a contract.  There was a client who wanted to protect their choreography rights. It was quite interesting to advise as well as help them apply for copyright for the same. Then there was a client who was given an employment agreement after 35 years of service! It was unique in the biased nature of the drafting. The potential risks were so many, that I had to advise him not sign unless significant changes were made.

So my experience with a variety of contracts grew with practice. Am I an expert in contract drafting? Not even close. I need more experience to attain the level of skill that I am aiming for. I am self-taught, so I need to get the correct feedback and inputs from more experienced people. There various ways to do that, like take up contract drafting course, get a job in contract drafting profile, etc. The idea is to learn under the experts, in order to refine whatever I have learnt so far.

The best part about learning while I worked, was the fact that I could do that. People often complain about time-constraints, job responsibilities, familial responsibilities, etc. that deter or slow their learning process. These factors surely affects the learning, but the point is to make time for self-improvement.  

So try and work in contract review, drafting, etc. Don’t let yourself feel burned out or give up on learning. Learning new skill sets, not only adds to your resume, it keeps your mind fresh and updated. So keep turning those wheels, and learn more relevant skills for the legal profession.

 

Keep learning!

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3 COMMENTS

  1. That article was a delight to read. Very well articulated.
    If I may can ask a favour,
    Can you please broadly if not in detail chalk down your transformation from novice to advance drafter!
    What books did you read? How did you approach to the expert, whether it was before or after learning the basics of drafting, And anything which you believe to be important to us.
    It would mean alot if you can guide us considering I have read and understood only the Indian Contract Act 1872! What to do after that!? What is the approach to be the expert.
    Thanks alot from your time and consideration.

    Mayank Gupta
    [email protected]

  2. Ma’am , firstly Thank you for the insightful post. I’m a final year student and I had this query. If I could just learn and reach a level of acceptable proficiency in just 5 types of contracts, not the broad category , just 5 specific contracts, which ones would you recommend based. The 5 most useful ones which can help early in the career if one knows them well.

    • Hi! It all depends on the area of law you are interested in. There are general contracts, corporate contracts, commercial agreements, IP agreements, Technology Contracts, E-commerce contracts, etc. As I mentioned in the article, self-learning can only go so far. After a point you will need experts’ feedback to improve.

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