“The minute you read something that you can’t understand, you can almost be sure that it was drawn up by a lawyer”

-Will Rogers

Drafting is one’s ability to make someone understand about his/her thoughts by writing. It is well written in a book of a Lawyer that “every case or a transaction is like a new canvas for a lawyer and he/she is supposed to paint his/her client’s case on the canvas.” Not only lawyers but everyone who is in this world of the profession needs to have these drafting skills as a mandatory one. And, when we know that these skills are really imperative, let’s work on them.

NEGOTIATION SKILL

The very first essential of drafting is listening well to the person for whom a draft is to be made. If a draftsman doesn’t listen, he would lose the negotiation part. Negotiation is a mandatory skill required to become a successful practicing professional. As we know that whether it is Chartered Accountant’s profession or Company Secretary along with lawyers needs negotiation skills as very essential. A person with this skill of negotiation can turn around a loss into a beneficial compromise. The significance of negotiation skills can not be exaggerated. Having said that, a draftsman should approach negotiation not as an impedance, but as conciliation in which everyone leaves the table feeling happy, respected, and satisfied. It needs clarity of thought and presence of mind, at all times while it is almost impossible to enumerate all the skills needed to be a good negotiator, the Harvard Negotiation project lists seven major elements of negotiation which are as follows:

1. Interests

2. Legitimacy

3. Relationships

4. Identifying negotiable and non-negotiable demands.

5. Commitments

6. Communication

7. Best alternative to a negotiated agreement must be known.

For eg:- In employment agreements there are many clauses of negotiation. These are reduced to writing and are as follows:

• Remuneration
• Service conditions
• Perks
• Cessation
• Confidentiality

DON’T FAVOR YOUR CLIENT UNECESSARILY

Your client is your priority but does remember the ethics and professional code too. Before one enters into an agreement, the parties to a proposed transaction must decide who will draft the agreement. Usually, parties avoid this discussion. It is assumed that the party having a bigger stake or upper hand or simply, the bigger party (older and more established) will issue the first draft and the other will provide their inputs or suggestions if any. Professional who is drafting such an agreement must not irrationally favor the client forgetting one’s code of conduct.

An agreement does not affect only your client, but the other party as well as the third party beneficiaries in some cases. You must therefore, be cognizant of their concerns as well.

BEFORE STARTING TO DRAFT

Before starting to draft, all the essentials of a contract are fulfilled that has to be made sure. It is good to visualize yourself in other parties’ shoes. You will be able to draft much better with this approach and avoid the inclusion of terms that will clearly not be acceptable to other stakeholders. Nowadays, there is a growing trend to add a cover page to the agreement.

This must have the following:

• title of the agreement
• date of the agreement
• full official names of the parties

The purpose of brevity and neatness may be lost if the title page has a definition or address of parties. Keep in mind that the cover page should be one page only. Some professionals put their name or firm’s name and logo on the cover page as well. Suit yourself and adopt your firm style.

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