Biglaw, In-House Counsel

Inside Straight: When You Do Not Ask For A Better Draft

I occasionally take advantage of my little megaphone here at Above the Law to vent about poor quality drafts. When I do, “commenters” or correspondents routinely suggest that I’m tilting at windmills: “If you receive a poor quality draft, send it back to the person who wrote it, and tell that person to make it better. There’s no reason why you, Mark, should be saddled with improving the thing.”

Wrong, wrong, and wrong again!

I’m absolutely saddled with improving the thing. It often makes no sense at all to return a bad draft to the author and ask for a better draft. In fact, I submit that there are only two situations in which it does make sense to ask the original author to improve a draft . . .

I’ll ask the original author to improve a draft only if (1) the author is a young lawyer, still being trained, and creating a new draft will be a worthwhile training opportunity, or (2) there’s a reasonable chance that the next draft (or some later iteration) will be respectable. Otherwise, either I’m saddled with finalizing the thing or I must find someone (other than me, but not the original author) to help.

Why?

The first situation is obvious: If we’re training people, we’re training people. The new lawyer writes a bad draft; we give general suggestions about how to improve it. The new lawyer writes a slightly better, but still bad, draft; we give more detailed suggestions. Then, either: (1) the new lawyer writes something that’s close to final, and we finalize it, or (2) the new lawyer writes a third bad draft, and we give up, burn the thing, and start writing from scratch. (Training is one thing; pursuing lost causes is another.)

The second situation — returning a draft because there’s some chance that the original author can make it respectable — is trickier: How do you know whether there’s a chance that the person who wrote the first, bad draft is capable of producing a later, acceptable product?

The answer to that is not always obvious. When you receive, for example, a mediocre draft from a mid-level associate, you can’t be sure whether that person has the capacity to make things right. I’m inclined to err on the side of giving people a second chance and, if time permitted, I’d ask that original author to improve the draft.

But there are other situations that you simply know are hopeless. You’ll develop a nose for this over time, but certain situations recur. If, for example, local counsel is an experienced practitioner, 20 or 25 years into practice, and sends a bad draft, then that situation is hopeless. This person is fully trained; he thinks he’s competent; you could return the brief to him 100 times, and he still wouldn’t produce a finished product. That person doesn’t know the meaning of “good,” so he’ll never reach that goal, and you won’t be able to help by making gentle suggestions for the author to consider.

Similarly, if you receive a bad draft from one of your senior colleagues (at a firm or in-house), it’s probably the same deal. (I say “probably” because there’s always a chance that time pressure, or some other unusual situation, hurt the quality of your colleague’s work.) A senior person is likely to be beyond the training stage, and that person simply never learned. If you return the draft to that person for revisions, you’ll insult your colleague and receive back only another unusable draft.

The name of the game is not to have raw sewage bounce back and forth from your desk to the other guy’s, never creating a finished product. The idea is to create a finished product and deploy it. There is simply no reason (other than training) to return a crappy draft to a person who will not be able to make the thing substantially better in the next iteration. That wastes time and money, and it doesn’t advance the ball.

What’s the solution? There is none. If you work in a place with ample resources, perhaps you’ll identify a colleague who can spin straw into gold. Give your junior partner, or assistant general counsel, the bad draft, and ask that person to work her magic. Presto! You’ve unloaded the chore of editing onto some other sad sack.

But in a place with fewer resources, or if you can’t find the necessary talented colleague, or if a matter won’t bear the freight of involving an extra person, then you’re stuck. When you receive a bad draft, there’s no place to turn for help, and it’s up to you to make things right.

And that’s why it’s fair for me occasionally to vent about that subject in this space.


Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law (affiliate link). You can reach him by email at inhouse@abovethelaw.com.

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