Have you ever heard of the $5 million comma?
Oakhurst Dairy, Portland is one of the best arguments to need a bulletproof editing framework for contracts and legal documents. Their misstep began with an overtime pay dispute with 120 drivers who believed they were owed wages. Oakhurst held that this was not the case and that it was explicitly explained in their contracts:
Overtime was not owed to employees involved in “the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: 1) agricultural produce; 2) meat and fish products; and 3) perishable foods”.
However, the US Court of Appeals found that because there was no comma following the shipment and before, ‘or distribution’ those roles couldn’t be held to this term of the contract and awarded the overtime.
Careful editing matters so here’s how to get it right.
Start with Substantive Edits
Whether you’re unfamiliar with the contract or not, the best way to start is by having a quick brainstorm. What are the fundamental elements you expect to see? The ‘who, what, when, where and how’ should be in this document. Gather a quick list as this can provide an intuitive guide for substantive editing.
Substantive editing is concerned with the right provisions being included in your document. Are all parties correctly identified? Do the terms clearly articulate what was discussed? Effectively speaking, does the contract have what is necessary to be legally binding?
The bare minimum is not sufficient for legal protection so go a step deeper. Have termination, dispute resolutions and renewal terms been laid out? Are the appropriate risks and liabilities addressed?Is there anything missing? Oversights and omissions can be the rock you perish on so be diligent and thorough. Is the contract substantively complete?
Developmental and Mechanical Editing
Writers enlist editors to ensure that their book flows well, is ordered correctly, formatted consistently, and if things make sense. Legal contracts should be no different.
Formatting and consistency are essential to all parties understanding the terms. Many lawyers will use contract review software because accuracy and efficiency are crucial. A study found AI software beats attorneys’ inaccuracy by picking up 94% of NDA errors in comparison to the 85% found by humans.
Mechanical editing ensures all headings, subheadings, italics, and bolded sections are consistent. Are the font sizes and colors correct and appropriate? Is the text justified the same way throughout your document?
Content Editing and Proofreading
Step 3 is where you start to examine the specific words on the page. Content editing is concerned with dotting Is and crossing Ts at varying levels of depth.
Look for grammatical errors, misspellings and contextual mistakes to begin with. These will typically jump off the page for experienced editors and represents the first layer.
Going deeper, you need to analyze the terminology. Is it appropriate for this contract? Do your action items and terms start with “Shall”? It is important for the terms used for nouns to remain consistent. For example, ensure that the verbiage doesn’t flip between ‘builder, contractor, construction company, etc.’
The next level is your punctuation. Oakhurst Dairy is a cautionary tale but they are, by no means, alone. Screen every use of punctuation. Law typically comes back to intent but more and more, courts are looking at semantic details.
The final level of content editing is dissecting the figures. How many zeroes were discussed? Are all periods in the right places? Is everything exactly as it should be? This is your due diligence and your opportunity to correct and revise the necessary errors.
Editing for Ambiguity
Consistency and terminology standards are aimed at delivering clear, unambiguous documents.
Unless you are looking at an affidavit or a transcript, there shouldn’t be any unnecessary stories. Keep your sentences short and to the point. Cut out the fluff and stay away from jargon or buzzwords. Sounding intelligent and being intelligent are not the same thing.
The most important thing to ask yourself when reading each term, “Is there any other way to interpret this?”. Your terms and sentences should be irrefutable. Is the language you use applied universally by everyone?
Take Breaks and Get Support
Contract and document editing can be tedious especially if they are stuffed with additional pages. Unfortunately, this can put your brain on autopilot. Mistakes happen on autopilot so take plenty of breaks.
If you have completed the first draft, perhaps you can enlist the help of a colleague. The second pair of eyes is a huge help to editing. If not, finding the best contract review software can save you huge amounts of time, oversights, and inaccuracies.
Editing and proofreading contracts and legal documents can be incredibly boring which comes with its own set of problems. Thankfully, the ABA is approving more technology and AI innovations every day. These innovations are rapidly augmenting and accelerating the abilities of lawyers.
If drafting and reviewing contracts is a part of your everyday task list, things are about to change and new software will be a huge value-add for your firm.