What to Expect When Hiring a Lawyer to Draft a Contract
Do You Even Need a Contract in the First Place?
When instructing a lawyer to draft a contract for you, it is more useful to instead explain what objective you are trying to achieve, or what kind of outcome(s) you are trying to avoid, by having a contract.
This will allow the lawyer to advise you on whether signing a contract will be the right solution for you. Sometimes, a contract is just one of a larger suite of legal protections you may wish to put in place to achieve a particular outcome.
If a lawyer first understands your overarching goal, and if part of the path to securing that goal involves having a contract, he can then draft you a contract with your particular concerns and circumstances in mind.
The Contract-Drafting Process
The process of producing a contract is a collaborative one requiring the input of both a lawyer and a responsive client. It should first begin with a conversation where the client explains why he thinks he needs a contract, and any specific concerns he may have. The lawyer then asks questions to solicit further information that will allow the foundations of a contract customised to the client’s needs to emerge.
Ordinarily, after that initial discussion, the lawyer will provide a skeleton contract with lots of blank spaces and decision points for the client’s attention. A decision point is a place where the client will need to select, from one of several available options, which one is most relevant to his particular circumstances.
The client will need to give some thought to issues flagged up in that skeletal draft and that he may not have considered before, before deciding which option he would like to have in the contract. For example, he may need to decide whether he would like any disputes arising from the contract to be resolved in court or by arbitration.
Depending on the kind of contract being drafted, other provisions requiring the client’s input may include provisions covering exclusion/limitation of liability, indemnities, governing law, notifications, force majeure, intellectual property rights, confidential information, data protection and severability.
The client should provide responses to each decision point in the draft and speak directly to the lawyer if he is unsure of any of these aspects. This will allow the lawyer to provide further explanation as required.
After obtaining the client’s inputs on the skeletal draft, the lawyer is usually fully equipped to produce a complete draft of a contract that is tailored to the client’s specific needs. The lawyer will then proceed to draft the contract.
The client will usually have the opportunity to review the draft contract when the lawyer is done. Typically, lawyers will request that clients provide consolidated comments on drafts, i.e. providing all comments together, rather than a few one day and a few the next.
More often than not, only one or two rounds of client comments would be taken and implemented before the lawyer provides the final draft of the contract. This is unless otherwise agreed in the client’s engagement letter with his lawyer.
Scope of Work and Timeline
When a lawyer is engaged to draft a contract, there are often certain activities associated with that work that the lawyer may reasonably wish to exclude if he is being engaged on a fixed-price basis. Such activities include:
- The drafting of any project-specific schedules to the contract. The filling in of such schedules is usually an administrative exercise that does not require any legal expertise. The client is therefore usually more than able to fill the schedules in himself.
- Negotiation of the contract’s terms with the other party to the contract.
If you need your lawyer’s assistance with any activity not included in the lawyer’s stated scope of work, you should make this clear at the beginning of the engagement and expect to receive a higher quote that reflects this.
The drafting process for a simple contract ordinarily should not exceed a week or two, assuming that:
- It is an area which the lawyer is reasonably familiar with;
- The lawyer doesn’t have a particularly heavy workload during that period; and
- The client is prompt in providing any information or clarifications required.
Of course, this process can often be rushed through more quickly if necessary. However, if there is an urgency to concluding the contract, expect a rush premium to be applied to the fee arrangement.
There’s More to Contract Drafting than Just “Contract Recycling”
Finally, understand that properly drafting a contract that actually meets your objectives is not simply a fill-in-the-blanks exercise where a lawyer can just pull out an old contract and change the names of the contracting parties.
While there is, and should be, a fair amount of recycling done in drafting any contract, lawyers have to apply their minds to the circumstances surrounding your transaction and make sure that each provision in your contract is specifically designed to address those circumstances.
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