Because I couldn't find a picture of a marked up contract...
Well, this isn’t what I was planning to write about, but as the man on the right said, “Events, dear boy, events.” Seeing the same breach of lawyer etiquette twice in one week is something that just can’t be ignored, blogwise.
Earlier this week one of my colleagues received an amended version of a draft contract from the other side’s lawyer. It had several changes marked up, which following discussion it was agreed that she would make further changes to.
But when making those changes she noticed that the contract contained a number of other clauses that she hadn’t seen before. Worried that she’d made an epic miss, she looked back through the previous drafts, and was relieve to find that the clauses were inserted in the draft provided by the other lawyer.
Relieved, and outraged. It’s an unwritten rule of contract lawyering that one all of the changes that have been made to a draft are clearly shown, either by mark up (that is, the changes are shown in coloured text) or by providing a commentary. This is a matter of courtesy, if nothing else, although it also ensures that one cannot be accused of trying to slip in changes unnoticed.
The second ‘event’ was worse. I sent a draft contract to a supplier a week or so ago, and one Monday they handed over, in person, two signed copies. On inspection, the signed copies differed from the draft that I had sent.
This goes beyond courtesy. By handing back signed copies, they were saying “this contract is agreed”, but if there are changes that we haven’t approved then that isn’t true.
Now, I am sure that the first of these was a mistake. The mostly likely explanation is that, because the other lawyer was using DeltaView (a program that compares one draft of a document against another), he had simply chosen the wrong version of the document as a baseline for comparison, so that amends made as part of a back and forth with his client were not shown as changes.
Now, we could have picked up the changes by running our own compare. One might argue that we should do this as a matter of course, although our creaking IT infrastructure means that this would be a huge pain in the ass.
In the second case, that wasn’t possible anyway – the only way to find out what exactly has been changed in that scenario is to go through the document line by line. Fortunately the contract was short, and the changes limited.
It’s also somewhat harder to find a charitable explanation for the second one. Maybe we can say that they are a relatively small business, and not clued up on the ‘proper’ way of doing things.
So maybe mistakes will always be made? Well, no – this won’t do, not for lawyers. We have professional standards to live up to.
It’s my aim as a lawyer to avoid mistakes wherever possible, and to own up to the ones that get through. It’s even more my aim not to look as if I am trying to put one over on the people I’m negotiating with.
Our opposing lawyer in the first case, on the other hand, did not even offer an apology. It seems to me that this is not consistent with the image that his firm (which is very large indeed) would wish to present.
And anyway, surely some good old-fashioned courtesy wouldn’t go amiss? If nothing esle, it’s easier to get the other side to play nicely if you observe the niceties.
Or maybe, as my boss keeps telling me, my expectations of other people are just too high? Oh well…