Interview with Rachelle Hare: "Contract drafting is a creative process"

how i contract interview Jun 29, 2023

We have had the great pleasure to interview Rachelle Hare, Director at Blaze Business & Legal. Rachelle is a specialist Contracts Lawyer and Construction Lawyer with 23+ years of experience in top-tier Law Firms, Government, and large private sector firms.

This interview is part of the How I Contract interview series with experienced contract lawyers and professionals which aims to become a source of inspiration, support, and advice for new lawyers and professionals.

Dive in!

Rachelle, thank you for doing this interview! Let’s start by getting to know you a little bit more. Can you tell us a story about what brought you to this specific career path? How long have you been working with contracts?

Thanks so much for having me on How to Contract!

I’ve been working with contracts for over 23 years now, and loving every minute.

I started working casual paralegal roles while still studying for my degrees at University, and just haven’t stopped.

I always knew I wanted to practice Commercial Law (and that I wasn’t a litigator). But I didn’t discover how much I loved contracting until I got out in the real world and began creating.

Right from the start, I particularly loved how you can change the operation of a contract (and its risk allocation) just with a few words. That definitely speaks to my creative side!

Let’s move to the topic we all love — contracts. What should you do on day one of working with contracts? What shouldn’t you do?

One of the most important things anyone working with contracts needs to do is understand the purpose of the contract they are drafting or reviewing: why are they drafting the contract and what is it for?

They need to specifically understand that purpose in relation to their client (including their organization if they are an in-house lawyer). You can only make a contract serve the needs of your client if you understand those needs and why you are drafting the contract.

Is it to protect your client? Achieve a certain risk allocation? Capture agreed terms? Place particular obligations on the other party? Usually, it’s all of these combined.

As for what you shouldn’t do…

Don’t just pull a template or precedent contract off the shelf and use it without having read and understood the contract and answered these questions.

What is the best way to learn the business you represent? Could you please share specific steps?

Discover what industry the business is situated within. This gives you a broad understanding of industry norms that you can apply to your understanding of the business. If it’s a mining company, for example, there will be certain clauses and issues that your client will need to focus on in every contract.
Ask questions. Clients love to discuss their business and how it operates. And the more you know, the easier it is to draft a contract that will work for them.
Don’t make assumptions. You know what they say…

How can you add value as a new contract lawyer or professional working in-house?

I pride myself on being commercial and helping get the deal or the project done.

Most of your clients, whether in-house or external, have certain deadlines and things they need to do for their deal or project. If they see you as a roadblock, someone who will just say “no”, the relationship will suffer.

Learn how to say “yes, we can do this” and follow it up with “let’s just make a few tweaks to better protect you while you get the deal/project done.”

What is the best strategy to build a successful career in contracts?

The more you learn about the industries within which your clients work, the better (and easier) you will find it to practice as a contracts lawyer.

For example, I specialize in construction law and major projects. I make it a priority to understand the construction industry, plus all related industries (eg civil, infrastructure, mining, water and wastewater, and government), keep on top of media articles and really understand the problems my clients face on a daily basis.

It’s also important to keep up with topical issues that hit the media.

For example, conflicts of interest are a major issue in Australia at the moment and have the potential to affect any client who is a government entity or who does business with the government. So I’ve written a series of articles about conflicts of interest on my website to help anyone needing to learn more about this topic.

What are the top five skills you need to work on to become great at contract drafting and negotiation?

These skills apply to both contract drafting and contract negotiation:

Analysis
Planning
Organization
Listening
Problem-solving

What mistakes should new contract lawyers and professionals avoid when working with contracts? If you have a story to share, please do :)

When I was a junior lawyer, I thought that all contract lawyers needed to draft the strongest contract possible — in terms of risk allocation — to protect their clients. Even when this made the contract unworkable or the other party would refuse to sign. I still shake my head when I think about some of the ridiculously onerous provisions I would insert into my draft contracts, thinking this was the right thing to do.

Now, I know better and always start the drafting process with a much fairer and more reasonable contract for both parties.

It’s not about scoring points. It’s about setting up the parties to succeed (while protecting your client at the same time).

What should you do after you made a mistake in a contract? Could you give an example of a specific wording you would use to inform others about that mistake?

It’s always best to deal with any mistakes as soon as possible. If you’re still in the drafting process, just tell your client you need to fix a couple of the clauses and will send them a revised draft.

If you’re in the negotiation process, you would advise your client first then tell the other side — along the lines of, “I have discovered that clause xyz inadvertently does not have the effect that was agreed between the parties. I have revised the clause and attached a new version of the contract for your review.”

If the contract has already been signed, that is trickier. It’s best just to be honest but also provide a solution. For example, “I have realized that clause xyz in the executed contract does not actually have the intended impact. This is because [reason]. While this is an extra step, I have drafted a Deed of Variation that can be used to vary the contract and correct the meaning of clause xyz to its intended meaning. Please sign and return to me asap.”

What is your #1 contract management tip? Why?

Read the contract to understand the key obligations and key dates.

Make sure you record these.

What are the steps you can take to speed up working with contracts without sacrificing quality?

Develop first-class internal precedents that you can use to work with new matters on an exception basis.

If you understand exactly what is in a precedent, you can start to discuss with your client the things that are not in the precedent (but need to go in). Or the risk allocations in the precedent that need to be changed.

But — and this is critical — before you use any precedent you need to understand it backwards and forwards.

What are the top three things contract lawyers and professionals need to pay attention to when working in a team?

Understand where everyone is at in terms of their experience (for example, have they worked with contracts as a contract professional for 20 years, or is this their first-ever role dealing with contracts).
Contract professionals will help the contracts lawyer with contract planning, contract drafting, contract review, contract negotiation etc. The more insights the contracts lawyer shares, the easier it is to work as a team.
By working together on different contracts and projects, you start to build a joint understanding of the common provisions that you encounter. This helps you, over time, to work on contracts on an exceptions basis. For example, the last project we worked on had clauses on x, y and z, and this project is similar (except that it has a, b, and c).

What is the one burning question you had when you started working with contracts and how would you answer it now?

How do I know whether a clause is appropriate for my client or not?

By learning all about risk allocation and the particular industry your clients work in, you can start to understand what provisions to insert in a clause and whether they will work for your client. Over time, this helps you answer this question. (You can also just ask your client!).

If you could give just one contract tip, what would that be?

There is no right answer when it comes to drafting a contract. Instead, view contract drafting as a creative process where you are crafting the best possible outcome and solution for your client’s needs. Sometimes, the best possible outcome is an extremely simple one!

Thank you, Rachelle!