The Case for Empathetic Drafting
| Author | Katie Lane |
| Position | Katie Lane is an attorney and negotiation coach in Portland, Oregon, helping artists, freelancers, and creative small businesses protect their rights and get paid fairly for the work they do. You can read her blog at WorkMadeForHire.net, follow her on Twitter @_katie_lane, or email her at katie@workmadeforhire.net. |
| Pages | 28-66 |
26 LANDSLIDE n March/April 2018
Published in Landslide® magazine, Volume 10, Number 4 , a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2018 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
The
Case for
Empathetic
Drafting
By Katie Lane
Image: iStockphoto
March/April 2018 n LANDSLIDE 27
Published in Landslide® magazine, Volume 10, Number 4, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2018 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Katie Lane is an attorney and negotiation coach in Portland,
Oregon, helping artists, freelancers, and creative small businesses
protect their rights and get paid fairly for the work they do. You
can read her blog at WorkMadeForHire.net, follow her on Twitter
@_katie_lane, or email her at katie@workmadeforhire.net.
A
s attorneys, our job is to represent our clients’ interests and
advocate for them as best we can. This is something we all
knew even as we studied for the LSAT. And it was drilled
into us as we developed our careers.
As a young transactional attorney, I also learned that representing
my client meant ensuring that all of the terms my client might need for
the transaction were included in the agreement, and that they were tai-
lored to mitigate my client’s exposure to risk. But I have since learned,
as many of us have, that if that’s all I focus on when drafting, my repre-
sentation may be professionally adequate,1 but it won’t be “good.”
It won’t be “good” because I would not have taken into account
how my client will use the document. Who will need to enforce it
on a day-to-day basis? What are the situations in which the need
to enforce it will likely arise? I will not have considered the rela-
tionship the document represents, or how that relationship impacts
my client’s business, nor will I have been privy to how the parties
talked about their venture before the agreement was introduced, the
language they used, and the trust established with those words. I
may have put myself in the client’s shoes to draft
provisions that will help them navigate disputes so
I can ensure the proper tools will be available, but
it’s likely that I will not have considered how the
client would feel to be facing that navigation alone.
Published in Landslide® magazine, Volume 10, Number 4 , a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2018 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
In short: my representation will lack empathy. And
because of that lack of empathy, my representation will also
lack creativity, exibility, responsiveness, and relevance. The
representation will be robotic, making it harder for a client
to see the difference between me and a “ll-in-the-blank”
template agreement. While my work may readily fulll the
client’s demand to provide them something that “just works,”
if they can’t see themselves in what I provide, they may not
realize that I have done what they asked. I have found that if
I ask myself certain questions while drafting or reviewing a
document, I am better able to represent my client.
Does This Document Support the Image the Client
Projects of Itself?
“I don’t know. I really liked the publisher when I talked to
him on the phone, but this contract is bananas.”2
My client was considering a publishing agreement with a
respected imprint of a major publishing house. The imprint
was based locally and known for being selective about the
authors it published. She liked her potential editor and had
had several productive conversations with the publisher. She
had heard only good things about the imprint from her peers:
it was fair, it was transparent, and it was supportive.
We had just nished going over my review of the agree-
ment that they had offered. The numbers were right, but the
rights were not. For one thing, although this was a knitting
book, the publisher was obtaining lm and television rights
pursuant to the agreement. The language about delivery and
acceptance was harsh, which my client found a bit insulting
because the imprint had approached her with the idea for the
book. A handful of things that she had been assured in con-
versation that she would have a say in were, according to the
agreement, emphatically the sole purview of the publisher.
The contract did not reect the image the imprint portrayed
of itself—so much so that my client was ready to walk.
I told her all of the things I tell clients who get spooked by
beefy template agreements: the imprint has to use the parent
publisher’s standard terms, which are written to cover a lot of
different types of books; it’s in a company’s best interest to
write a template agreement so they get the greatest number of
rights and are protected against any potential risk; this is part
of the negotiation process, and they know we’ll come back
with lots of changes.
My client nodded at my explanations and repeated some
of what I said as if she were trying it on for size. But she still
hesitated and asked me not to spend any more time on the
project until she decided what she wanted to do.
This contract, like many of the contracts I review, was well
drafted from a legal perspective. But from a usability per-
spective, it missed the mark. The terms didn’t t the imprint’s
reputation, or even what it said about its own business prac-
tices. The publisher had spent a lot of time and effort to give
my client a clear idea of what she could expect if she signed
with them, and most of that work had been undone by a
10-page contract.
Whether we like it or not, the legal documents we draft
for our clients are, in part, marketing materials. They tell
the reader what he or she can expect from our client when
doing business. A good legal document protects the client’s
interests, and supports how the client is marketing itself to
potential customers. An “okay” legal document protects the
client’s interests and doesn’t contradict its marketing. A legal
document that protects the client’s interests but contradicts
the image the client projects for its customers is a disservice.
Such a document wastes the client’s money, squanders its
efforts to promote its business, and makes it more difcult for
the client to gain the condence of its customers and partners.
Documents that don’t “look like” the client are also harder
for clients to use, both at the negotiating table and when
enforcement is necessary. If your client, through its market-
ing, is literally telling its customers and partners to expect
something different than what is represented in the deal
memo or sales agreement, it is a red ag. And once one red
ag is spotted in a negotiation, more will be anticipated. A
simple negotiation can spin out as the other party anxiously
protects itself against a perceived duality between how your
client presents itself and how it behaves.
If staff don’t recognize their company in the document
that you have drafted, they won’t enforce it as you intended.
In this case the publisher at the imprint acknowledged some
of the disconnects we had found in the publishing contract
and waved them away with “I don’t know why it’s there, it
has nothing to do with us. I’ve never done that with any of
our authors.” That was comforting news for my client, but not
great for the parent company.
I am not suggesting that an attorney “dumb down” legal
documents to mirror the marketing whim of the month. Let-
ting marketing dictate what’s in a contract or demand letter is
foolish. The point is, though, that letting a contract or demand
letter dictate your client’s image is equally foolish. Marketing
and legal efforts should be aligned, each helping enhance the
effectiveness of the other.
Drafting a document that supports the image your client proj-
ects of itself doesn’t mean drafting a weaker document, a more
colloquial document, or even a “friendlier” document. It means
that the document ts your client. The document’s demands and
promises match what the client’s been telling others to expect
from them.3 Where appropriate, it uses words that your client
uses when describing its goods or services for potential custom-
ers, and not the leverage-y, world-class, disruptive ones. It puts
the reason the parties are doing business front and center, not
buried on page eight after 14 paragraphs about rights and con-
dentiality obligations. And it describes that reason with the same
concern and appreciation that the parties have for it.
Does This Document Accurately Express How the
Client Values This Relationship?
“Yeah, but won’t that make us look like jerks?”
I was talking with a client, a small entertainment company,
who needed an option agreement. The client was in a rush.
They had been talking for some time with a writer whose
story they wanted to option, and they were anxious to nalize
the contract quickly. They had a pitch meeting coming up and
wanted to be able to feature the story in the pitch. I had made
some quick modications to their standard agreement and
sent it over for review.
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