"Drafting contracts requires humility, lucidity, and flexibility" — How I Contract Interview with Sarah Temple-Boyer

We have had the great pleasure to interview Sarah Temple-Boyer, a French attorney who has specialized in drafting and negotiating industrial and commercial contracts for 20 years. Sarah has also developed a Contract Manager practice focused on monitoring complex contracts for clients willing to outsource such tasks. She is also a certified mediator in France and accredited by the Centre of Effective Dispute Resolution (CEDR) in London to conduct commercial mediation in English.

This interview is part of the How I Contract interview series designed to offer various perspectives from experienced lawyers and contract professionals on what works in contracts in the real world.

Dive in! 

What was your biggest challenge when you started working with contracts? If you could go back in time, but keep all the knowledge and experience you have now, how would you deal with it?

First of all, many thanks to you, Laura Frederick and Jane Kuhuk, for giving me the opportunity of this interview. It has been a very interesting exercise involving in-depth introspection and leading me to get a better knowledge of my practice as a Contract professional.  [From How to Contract: "Our greatest pleasure!]

When I was first entrusted with drafting contracts "from scratch", I believed that contracts were purely legal tools, meant to contain sophisticated provisions and only aimed at securing clients’ interests to the maximum possible extent. Time being the essence in law firms, the greatest challenge was undoubtedly to cope with the pressure of deadlines and the imperative of drafting, in a record time, a contract aligned with all client’s expectations, while having no time or being authorized to inquire about business and operational background.

Over the years, I've come to realize that a contract is only useful and valuable if strictly connected to the operational and business goals pursued. 

Knowing this now and if I had to go back in time, I would allow myself to ask the client directly, beforehand and without restraint, any useful question to closely understand the client’s context and expectations. This space-time booked for a Q&A game with the client, ahead of any contract drafting, is a crucial step in the process of efficient drafting and negotiation of a contract. 

How have your contract drafting techniques changed over the years? What did you stop doing? What did you start doing?

I would say that nowadays, I spend more time trying to get the “big picture” and understanding precisely client’s expectations and issues than dealing with provisions’ formal technicality. 

This priority shift is mainly motivated by the desire to insert only those provisions that are essential and avoid unnecessary and stylistic clauses that we are particularly fond of in our younger years.  

Instead of starting from on-shelf templates, I have gradually developed a step-by-step drafting process that I try to follow invariably regardless of the type of client (given that, as an outside lawyer, I draft contracts for very different clients).

• Even prior to any drafting, I set aside a time slot (of 1 or 2 hours depending on the case) to meet/discuss with a client based on a checklist of questions specifically designed to fully understand the client’s stakes and expectations with respect to the contract (e.g. operational context, business goals pursued, technical constraints, sensitivity of the project, history of the relationship with the contemplated partner and possible room for negotiation, etc....).
• Once I have identified the main expectations and objectives, I draft and structure the contract around the main “core” provisions. Those provisions are tailor-made and written as straightforwardly and clearly as possible. Then, I share them with the client to check our alignment with priorities.  
• Next, I refer to my "clausier" (or library of clauses), which I have built up and improved over the years, to complete the contract with any other necessary and useful provisions. 
• Once the first draft is drawn up, I check again with the client which, among all provisions, are "must have" or "nice to have" provisions. This final checking before sending the draft to the other party is very useful for defining, at a very early stage, negotiation tactics and drawing up a rationale in support of crucial clauses.  

If you could write a short e-mail to your younger self when you were just starting to work with contracts, what would you write? 

Such a fun question indeed! This is probably what I would write to myself:  

“Dear Younger Me, 

I know that you're going through a lot right now, and that you sometimes feel that you are not living up to what you think is expected of you. I want you to know that these moments of doubt are perfectly natural and that many Contract professionals have experienced the same, due to the drastic gap between Contract academic teaching and Contract practice "in the real world". 

When you feel lost or overwhelmed, first and foremost, try to focus on your core skills to stay on course. You'll need to remain clear-headed and in full possession of your intellectual capabilities to think quickly and well. 

To this effect, and even if it seems superfluous at the moment, mastering your feelings is key, and you will have no choice but to work on yourself to prevent your emotions from driving your thoughts and decisions.

Once this is secured, make sure to: 

• Ask yourself as many relevant questions as necessary: Don’t forget that your client may not know exactly what he wants and what is right for him. Your role as a Counsel is also to challenge him, for purposes of drafting the contract that is best suited to his real interests and needs.  
• Define a clear hierarchy between crucial, necessary and ancillary provisions, according to the expectations expressed by your client.
• Use a language as plain and clear as possible: Make it simple whenever you can. Don't forget that, depending on the applicable law, you do not need extensive contracts. If the contract doesn't provide for everything, the applicable law often does.
• Anticipate exchanges with the other party and, with this in mind, prepare an effective rationale that will lay the foundations for discussions and exchanges with the contracting party
• Appeal to your client's responsibility in the event of any deadlock: at the end of the day, your role is to inform him of the risks and available options, but it's up to him/her to make the decision.

Trust yourself, do your very best, but don't impose on yourself an unattainable goal: Remember that the perfect contract doesn't exist, because it reflects the temporary and not always thought-out aspirations and expectations of parties who often have as mutually shared interests as profound antagonisms. 

I'm here to tell you that you will get there, and that even beyond the challenges you are experiencing now, you will develop a real passion for contracts! 

Hold on tight and look forward to everything you will learn!

With love, 

Old(er) Sarah 😉"

What’s your biggest lesson learned in contracts?

I would say that drafting contracts requires humility, lucidity, and flexibility. 

There is no such thing as a perfect contract. It is part of a given context and timeframe, and as such, it is bound to be incomplete, which will inevitably lead to misunderstandings with the other party. 

With this in mind, it is less important to draw up highly sophisticated and technical provisions than to anticipate and provide options, through practical and flexible clauses, to be able to react wisely and in good understanding with the other party, when it is time to face issues.

Drafting and negotiating contracts imply having confidence and positive energy all along, while remaining clear-sighted about the issues that may arise and that will need to be resolved for the sake of the partnership, through contractual adjustment and cooperation mechanisms. 

That is what my practice as a contract lawyer, contract manager, and mediator has taught me.

If you could share just one practical, real-life contract tip, what would that be?

In reference to my answer to the second question above, I would simply say that you need to make every effort to understand the purpose of the contract as precisely as possible beforehand. This is the only way to draft a contract that is useful, clear, and efficient at the end of the day. 

As a French poet and writer from the 18th century (Nicolas Boileau) once said: «Ce que l’on conçoit bien s’énonce clairement. Et les mots pour le dire arrivent aisément» which could be translated as: "What is well designed is clearly expressed. And the words to say it come easily."  

What mistakes should contract lawyers and professionals avoid when working with contracts? How would you avoid them?  

I would say that, whether you are in-house or outside lawyers, the main pitfall is undoubtedly to design/review a contract solely focused on your own (or client’s) interests without being aware of your bias.

When negotiating, the main pitfall is to keep insisting on your wording to prevail at all costs, sometimes out of sheer pride or excessive vanity as an author.  

When drafting, you should always strive to appear as "fair" and objectively founded as possible with respect to the right or obligation conveyed by each clause. When do you so, you are fully legitimate to expect the same from the contracting party.

To facilitate discussion and conclusion of the contract that both parties are hoping for, the provisions should be structured around a balanced recognition of rights and reciprocal obligations that should remain justified and proportionate.

This rationality and proportionality control (behind each right or obligation) should always be kept in mind while drafting. 

What’s one of the easiest ways to screw up a contract?

In connection with the above, I believe that never putting yourself in the other's shoes and staying focused on your own exclusive interest, whether in drafting or negotiating, is the best way to screw-up a contract.

Making the satisfaction of one's own personal interest the sole end of a contract inevitably leads to its failure, since it contradicts the core purpose of a contract, which is precisely to achieve a common goal desired by the parties.

Are there any simple hacks our readers can use right away to improve their contract drafting and negotiation skills?

For the purposes of drafting clear, straightforward, hard-hitting clauses, I believe it is useful to: 

• Imagine that the provision is intended for a layman or legal neophyte; 
• Build the provision around the rationale behind it: this also means being clear about the intended purpose. 

As far as negotiation skills are concerned, I would say it is important not to let the other party impose the negotiation pace, and to always be alert and ready to seize the "momentum", i.e. the opportune moment to score points in the negotiation.

If you could give a shoutout to one (or more) person who has influenced your life in contracts (or is your mentor), who would that be?

My first thought goes to the late Professor Jean-Marc Mousseron, the writer of “Technique contractuelle”, the first French Faculty professor who really considered the importance of contracting.

Apart from him, the names that come to my mind are those of Contract fellows mostly located overseas from whom I became aware of an existing rich legal community worldwide.

Thanks to LinkedIn, I was lucky enough to discover energetic and inspiring people who give life to a rather unique and shining community of contract enthusiasts.

Foremost among them are Laura Frederick (CEO of the How to Contract training platform), Nada Alnajafi (Founder of Contract Nerds and author of Contract Redlining Etiquette), Shaun Sethna, Chad Aboud, and many others.

My warmest thanks to them for making me discover an invaluable community of Contract Professionals.

What interview question would you like to be asked and how would you answer it? 

This is another fun question, well done!

I'm thinking of the following question: Imagine that Contract professionals were superheroes with superpowers. What superpower would you like to have to help you in your Contract practice? 

As an answer, I would like to be endowed with intercultural skills, giving me the ability, to immediately overcome cultural bias and misunderstandings between contracting parties, and thus to prevent or resolve many communication issues during the negotiation and implementation of contracts. 

This would undoubtedly be a very powerful tool in the service of contracts, perhaps even enabling us to achieve the Holy Grail of a universal, trans-cultural, and relational contract. 

Who should we interview next? Why?

If you haven't already done so, I think Professor and lawyer Mark Anderson would be a perfect candidate for this interview. I'm thinking of him for several reasons.

On the one hand, when I get interested in contracts governed by common-law, he was the first author whose insightful works I bought and read (in particular, “A-Z Guide Boilerplate and Commercial Clauses”, “Drafting and Negotiating Commercial Contracts”). On the other hand, several years ago — and I don't know if he will remember this — he has been very helpful when I was researching particular types of contracts in the pharmaceutical sector. Since his book on the subject was out of print and as I did not know where else to turn, he spontaneously gave me the information I was looking for.

I'm still deeply grateful to him for his kindness.

Thank you very much, Sarah!

Want to learn more about how other experienced lawyers and professionals excel at contracts in the real world? Check out these interviews.