Speaker 1: Okay everybody, hi and welcome back to my lovely legal channel called Law Hero and I've nearly been at this a year at this stage and it's not getting any easier to make these videos I'll tell you that I really have to push at them all the time. So this video is especially for people who are pre trainees, trainees, interns, paralegals or people who are junior and just to get a good understanding of how to draft and how to interpret legal documents. It's just a very kind of broad overview. It's the kind of stuff I wish someone had done for me before I started training so that's why I put this video together. Just to let you know that this is not a comprehensive list, this is just kind of what I've documented down through the years as important when drafting a document. So you will be asked to draft documents as a solicitor, that's like literally your bread and butter, it's all you do really. I spend most of my time just reading documents, interpreting them, drafting them, amending them, negotiating them, it's our end product is the document we draft and we need it to be all-encompassing, we need it to do what the client says, that's our job and so we're selling legal services. Alright so the first thing I've written down here is to ask yourself what is the purpose of the document? What is it trying to achieve? Is it a share purchase agreement? agreement? Are you purchasing property? Are you selling a service? Is it a services agreement? Is it a contract? Do the rules of contract law apply? In what industry does your client operate? Are they in the aviation field? Are they in the oil and gas? Are they a bank? kind of institution are they and because that will dictate what kind of regulatory consents will come down the line and there might be you know if it's if it's a share purchase agreement as part of an M&A deal there might be competition authority and consents required and things like that if it if it's a wind farm you might need you might need you might need some buy-in from local property owners, you might need a power purchase agreement to sell the power, you might need the ESB to, you know, be in charge of the substation for the wind farm. There's so many different stakeholders at issue and you need to understand what the purpose of every single document is and what it's trying to fulfill and what stakeholders are party to that document. The second question then people normally ask themselves is, is there a precedent? So precedents are just documents which people have saved down from different deals and they use them. For example, like I have a whole Google Drive with all my precedents. For example, today I was looking for a change of control clause, which basically means if If 50% or more of the direct or indirect shareholding and voting rights of the target or whichever company you're referencing in the agreement changes during the course of the agreement, that will trigger a termination of the agreement because the parties to the agreement have changed and there needs to be some kind of mechanism to stop proceedings if the owners of the entities have changed. So that's really important that you have a precedent bank. And normally what people do is they share documents, colleague to colleague. Some people can be very precious about their documents. Some people are very afraid to share their documents, but of course that is really unwise because everybody knows the skill of a lawyer is in how they manipulate words, not how they copy stuff. So I think if you're hiding stuff from people, you're doing it in vain because you're missing the whole point of actually skillfully drafting based on somebody's needs. But that's another here as well. The third big thing, which is very important, especially as a trainee, and it's one of the skills your superiors are looking for, is how well you can manage contracts. So for example, you will have a document management system at your law firm and that will require upgrading of versions depending on which reiteration of the document it is at, depending on what stage of negotiations it's at, if there's been amendments, you will be expected as a trainee to take ownership of these documents and know where it's at. And then at the very, very end, the nice bit when it's been signed, you know, there could be 10 or 12 people who have to sign up to it, especially if it's an SPA, and you need to keep track of where the document is at, and that's called contract management. It's also very important, contract management, if it's a live document, if it's a service that's been provided ongoing, and there's lots of different annexes to it, which vary the terms of the service from time to time, so that means you don't have to amend the front end of the document, the annexes are actually providing the detailed description of the services. You'll see this a lot in like construction or banking or things that are very technical, a very technical service won't be at the front end of the document, it'll be at the back end of the document in the annex. And there, that's what normally gets amended from time to time. From time to time is a very lawyer thing to say, but it's like like real general. Okay so um the following I've actually taken from Mr. Peter Osborne of McCann Fitzgerald because I attended one of his uh talks and he gave a really good like um three-step plan to drafting so he said there's the plan the write and revise so like the planning is when you get all the instructions from the client you try and figure out all of the details as much as possible and then you like do a rough draft of the bones of it so you have like the deal specific provisions and then you have the boilerplate provisions and like always people are wondering where does this term boilerplate come from so I actually went to the bottom of looking it up so what it means is that like back in the day if you wanted to get some uh printing press done and if you wanted to get something that was like a pro like a copy of something they would use a boilerplate to press it down, so basically means like a copy and paste, so that's what boilerplate language is, it's language that's used time and time again in contracts. You'll see like the typical boilerplate terms are entire agreement, the contract is the entire agreement, nothing outside it is relevant, only what's inside the four corners of the the document is relevant. You have a jurisdiction clause, you might have severability, you can cut out, we'll say the whole contract won't fail just because one clause is illegal. If that happens, it just means you can sever out that illegal bit and keep going with your contract and it doesn't ruin the entire process. You'd also have, I said yeah, jurisdiction, sorry I totally forgot, like choice of law. I haven't written these down in here, I probably should have written them down. Choice of law, so you'll also see like counterparts, that the document doesn't have to be signed simultaneously, it can be signed in counterparts, that means like you're going to have one page of one person's signature and the other page of another person's signature because it was an expedient for both of them to sign on one page. Assignability clause, you want to be able to assign it with consent not being unreasonably withheld. Variation, you need to have a right to vary the contract. Yeah, that's a few boilerplate clauses. Okay and then sometimes then at the start at the start of a document they'll be recitals they're called and you'll see them they'll be like A, B, C and D and that's basically where you tell the story of the document it's not legally binding it's just to give whoever's reading the document some context as to how it came into existence. Also remember there are some there are some clauses which have different legal effects and obviously if you've bought my contract law book you know the difference between a condition warranty and an anonymous term and I actually go through these in my contract law video. Okay so that's step one plan. Step two write is actually you draft it and then you get your colleagues to check it. Always get someone else to read it just like a sense check there's nothing wrong with that I always send it to my senior colleagues I'm like here what you think of this please can I get some feedback because sometimes you can be so engrossed in writing something and you'll know this from college that you just don't Oh, my pen fell on the ground. You just don't see the wood from the trees anymore and it's really good to get somebody else's insight. So that's why you should always give it to somebody else. And I like that you can check your consistency in drafting. Like, have you capitalized consistently? Have you numerized consistently? Have you used the right font? Have you used, you know, is it consistent? And then over time, like, you'll be able to do it this quicker, but it's always good to get feedback. Try not to use legalese. like always try and be very, very clear. Like, especially with commercial contracts, you want to imagine that in 10 years time, a new lawyer picks it up or worst case scenario, a judge picks it up and they don't have a clue about the commercial background behind it. You want it to be as clear as day what was actually agreed between the two of you. The third phase is called revision. And that's when you literally get to like the final versions of the document. you've narrowed it down to just the net points. You make sure that there's any blanks are filled in, that any dates are correct, that the notice provisions addresses are correct, which is very important for termination. You make sure you think ahead and you say to yourself, okay, like for termination and the term, if we want to cancel this contract, what is the process? Or if there was a problem, if there was a dispute, what's the process? Or if we want to change the services, Is there a change control procedure? That kind of thing. And then I have written down here as well, watch your words, because you have to be very, very careful about what meaning is attributed to what nouns. So for example, the words within, before, not later than, not earlier than, that's all time mechanisms that have to be adhered to under the contract. So if you say not earlier than two days, that's, that has its own implications or before the first day of the calendar month, that means part of your contract management is going, okay, this contract terminates on the 31st of December, we need to be well in advance of that date, organizing a variation or an extension of the term, because otherwise we're going to have a gap and service, which could be a massive fallout for your organisation. So that's really important. And then when it comes to services, so there's primary and secondary responsibility when it comes to services. So normally when you provide a service, you do so like as your primary obligation. Then sometimes you'll see for secondary obligations, terminology like reasonable endeavours, all reasonable endeavours or best endeavours. And people get really confused over these, but the only thing you have to remember with those is with best endeavors, it just means leave no stone unturned. And then with reasonable endeavors, it's basically like you're having an honest stab at something. And then all reasonable endeavors is a halfway house between best endeavors and reasonable endeavors. So just think about best endeavors is the best standard ever. It's no stone unturned. But the primary services or the primary obligations in a contract will never be best endeavors because you are obliged to provide that. The secondary obligations will have this kind of language around it and that took me a while to get. Okay, so that was just a quick video on how to draft contracts. The next video will be on how to interpret contracts which are already in being, which is actually just as much as a minefield and I have just as many notes. So yeah, thanks for watching. Make sure you subscribe, make sure you like, make sure you tell me what you want. people did suggest this video and I'm very happy to make whatever you suggest.