When fobbing off the job of drafting the Declaration of Independence to the then 33-year-old Thomas Jefferson, Benjamin Franklin told him “I have made a rule, whenever in my power, to avoid becoming the [drafter] of papers to be reviewed by a public body.”
But if drafting a document to be reviewed by a public body is unpleasant—as Jefferson later found out—its converse is worse. I’m talking about legal writing by committee. Here’s how to excel at this important legal-writing skill.
Legal Writing by Committee is a Collective-Action Problem
No class of lawyers is spared from legal writing by committee.
In multi-district litigation with co-lead plaintiffs’ counsel, one firm might not have the resources to draft a long, complex brief. So several plaintiffs’ firms will usually divide the drafting work, with each firm writing a discrete section. Defense counsel must also learn how to draft by committee because they sometimes enter into joint-defense arrangements to defend litigation against multiple defendants.
In the business world, in-house counsel might have to draft a transactional document—e.g., a purchase agreement or board-of-directors memorandum—with input from several business units and outside counsel. And in criminal law, criminal-defense firms have formed coalitions to spearhead appellate litigation that can benefit all criminal defendants facing the same legal issue.
In each case, the drafters’ goal is to take information from several sources and synthesize that information in a cohesive document. But although a drafting-by-committee project benefits from the resources of several firms or business units, it raises classic collective-action problems.
The Executive Chef and the Cooks
The collective-action problems that arise during a drafting-by-committee project result from the fact that each contributor to the project has a different perspective, sense of urgency, writing style, and view of what passes as good research and written work product. Because of these vagaries, the first thing the project leader should do is appoint one person to be the project manager.
The project manager is like an Executive Chef—he or she manages the cooks, e.g., the contributors to the project. The Executive Chef should have significant writing experience, excellent organizational abilities and team-management skills, a strong personality, and a tireless work ethic. He need not be a Gordon Ramsay, but he shouldn’t be an inexperienced lawyer, either. Because the Executive Chef won’t be a mere scrivener, a senior associate or junior partner or experienced corporate counsel fits this bill.
Managing the Cooks
The Executive Chef plays several roles in a drafting-by-committee project, including:
- Assigning writing and compiling and screening the information. When the cooks send their work product to the Executive Chef, she should first screen the information to ensure that it doesn’t duplicate other content. She should then organize the work product, making sure that each section fits and flows within the master document. If additional content or clarification is needed, the Executive Chef should ask the cooks to expound on or clarify previously submitted information.
- Setting and enforcing drafting deadlines. Setting achievable drafting deadlines is crucial to the success of a drafting-by-committee project. Each cook must submit her work product on time, in acceptable first-draft form. Granted, it’s difficult for the Executive Chef to set and enforce hard interim deadlines because it requires her to twist arms when the content is late or poor. But arm-twisting is sometimes necessary, and the Executive Chef should not shy from it.
- Keeping the project leader apprised of the project’s status. If the project isn’t going as planned, the Executive Chef can ask the project leader to prod the cooks to keep the project moving, or to submit better work product. In extraordinary cases, the Executive Chef can ask the project leader to remove or reassign a cook from or within the project, especially when the cook is free riding on other work product or is otherwise not doing his job.
- Synthesizing the work product. Each cook will have different writing ability and style. So the Executive Chef must clean up any poor work product and give the document one uniform writing style. In synthesizing the content, the Executive Chef should write the document in active voice like a newspaper article, and eliminate the jargon, legalese, and corporatese, especially if non-lawyers will review the final product.
- Circulating drafts and finalizing the document. When the Executive Chef is ready to circulate a first draft, he should send it to the project leader and the cooks for their first full review. He should also set hard deadlines for revising the first draft because several more drafts might follow. After incorporating all the revisions, the Executive Chef will finalize the document, ensuring that there are no typographical or other drafting errors.
A Executive Chef Uses The Best Tools
In 1776, the Continental Congress didn’t have the benefit of modern technology when its members edited Jefferson’s draft of the Declaration of Independence. But today, technology makes it easier to draft a document by committee.
But Avoid Track Changes, Lest the Cooks Spoil the Broth
As Deborah Savadra notes in Using Microsoft Word to Edit by Committee, there’s nothing worse than death by redlining. So let me emphasize this because it’s important: An Executive Chef should never allow the cooks to use Track Changes make individual redline edits in the master document.
The Executive Chef is the custodian—the owner—of the master document, and must maintain tight control over and approve all proposed changes to it. In addition to ensuring quality control, permitting the cooks to use Track Changes in the master document—or allowing them to cut-and-paste content from other documents or the Internet into the master document—can easily corrupt the document, wasting precious time.
It is acceptable to allow the cooks to use Track Changes to make redline edits to a copy of the master document. But when the cooks submit their edits the Executive Chef must review and approve them before making them part of the master document. After all, the Executive Chef knows what’s in the document and what’s been changed since the last draft, whereas an individual cook might not.
Use Microsoft Word’s Improved Compare Feature
The Executive Chef can make the work of the cooks easier if he circulates drafts in both clean and redline form. Microsoft Word 2010 boasts an improved Compare feature that makes it easier to create redlines. I’ve also used Workshare—a third-party application—to create redlines. But there are other third-party applications that have similar features.
Creating Fine Legal-Writing Cuisine
It’s an arduous task to draft a document by committee. So it’s no wonder most lawyers prefer to avoid these projects. But learning how to draft a document by committee is essential to producing good, timely work product for complex legal-writing projects. The tips above are but suggestions; however, by following these guidelines I’ve been able to avoid the common pitfalls that so often befall these endeavors.