None of us know how to draft every type of contract language. If we’re lucky, we have colleagues and mentors who explain things to us. But even then, they have duties beyond just training us. So we are left having to figure out a lot of drafting things on our own.
I faced this situation and had to figure out how to train myself. Over time, I turned the random approaches into a more systematic learning strategy that I still use.
Here are the seven steps I use to learn to draft a particular provision:
Pick one narrow provision. I choose a narrow subject I feel unsure about. My brain doesn’t absorb a lot at once, so I break it down into the smallest unit I can. For example, I might pick the product warranty in an equipment supply contract. I wouldn’t get pulled into other warranty issues like disclaimers, remedies, and non-infringement. I typically limit myself to one or two sentences max.
Read everything I can find. I read blogs, books, cases and law review articles on this very narrow topic. I look for practical guidance I will use in my work. I skip the fluff. I also skip material on those related topics. I come back to them when I train myself on those concepts.
Collect five versions. Then I gather five real-world versions of the specific language I want to learn. I look for provisions that are essentially apples to apples. I pull them from contracts I've received, from EDGAR, or from other public sources. Law Insider is a great source, but I'm careful to pick commercial contracts. These clauses read differently in employment and corporate contracts.
Line them up side by side. The next step is to create a chart (sample below). I give each contract its own column. Then I break the target provision into its parts and give each part a row. For a product warranty, the rows might cover the warranting party, the verb, the beneficiary, the core promise, the standard or metric, the product and the warranty period.
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Compare row by row. I read across each row. I note where the versions agree, where they split, and what one version covers that the others leave out. The splits and gaps show me where the real drafting decisions are.
Product Warranty | Example 1 | Example 2 | Example 3 | Example 4 | Example 5 |
|---|---|---|---|---|---|
Warranting party | |||||
Verb | |||||
Beneficiary | |||||
Core promise | |||||
Standard or metric | |||||
Reference document | |||||
Product | |||||
Covered versions and updates | |||||
Warranty period | |||||
Start of the warranty period | |||||
Knowledge or efforts qualifier | |||||
Conditions of use |
Focus my analysis and research on the differences. Then I start getting nitpicky. I compare each of the five to each other. Where are they the same? What wording is different? Do all five take the same approach, or do they have nothing in common? Then I do more research on that very specific question. Why is this different and what impact does that have on the parties? I learn everything I can to answer that question. What I can't find online, I ask someone (if that’s an option) or I save it for when I can.
Record it in my personal playbook. I add the chart and my notes to my personal contract playbook. This is a personal Word doc in which I collect practical insights, sample provisions, and useful explanations. Mine goes back to 1998. I am not always diligent about updating it, but I try to add what I will want to refer to later.
My learning approach works for me because it has a narrow and interactive focus. If I tried to learn about all warranty language, I’d end up wandering around different resources trying to take it all in, and then remember very little.
One word about using AI. My advice is not to use it for this exercise, at least to start. Go old school and do your own digging and type the provision out yourself. By taking this narrow focus and writing out each cell’s contents yourself, you are more likely to remember it. Creating it also gives you more confidence about where the information came from and what you can use.
Your professional skills are the most valuable asset you have. This technique gives anyone a way to uplevel their skills and become better at contracts.
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