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All content by Kyle E. Mitchell, who is not your lawyer.

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December 9, 2019

Paste Your Terms Into Your E-Mailswhy don’t we do the obvious thing?

Instead of attaching contract drafts in one or many annoying office formats, we should paste our legal terms into our e-mails.

To: joe.lawyer@opposing.com

From: kyle@kemitchell.com

CC: jane.businesswoman@myclient.com,
    anne.businesswoman@opposing.com

Subject: Re: Master Services Agreement

Joe,

As promised, here's our turn of the master services
agreement.  You'll see we've addressed all your points
and proposals from the last round.

I believe that's all open items accounted for.  MyClient is
ready to sign as proposed.

---

Master Services Agreement

Opposing, Inc. ("Opposing") and MyClient, LLC ("MyClient")
agree as follows:

[...]

Everyone with an e-mail address can read e-mail. They don’t need another app, account, subscription, or service to read text. They don’t need any separate document management, sharing, or control system to store copies, either. E-mails are documents. We have secure, confidential systems for storing and sharing them—mailboxes. If your mailbox gets compromised, the security of the filing cabinet where you copied a bunch of things from your e-mail is moot.

But how will we send redlines? We won’t. And we shouldn’t. Let the other side make their redlines, however they want. They can paste terms into Word and run Track Changes. Or use any number of free, online services that don’t share or store content, like Mergely. It will be easy enough to find the old and new proposals. Look a few messages up the e-mail chain, copy, and paste.

Attaching redlines comes down from ye olden days of word processing, when preparing redlines cost a fair wage, took a long time, or both. These days, I create my own redlines with software, at zero marginal cost, in seconds, even when opposing attaches their own. That’s not paranoia. It’s experience. I’ve handled contracts long enough to see and make mistakes. In the end, it is my responsibility to review and respond to the other side’s proposal.

Moreover, clients can and maybe even will glance terms pasted into e-mails, especially the important parts. A great number cannot and do not open legal looking attachments, even if they spend more time typing at computers than their lawyers do.

Splitting every message in two—e-mail text we expect clients to read and attachments we expect them to overlook—reinforces separation of client and legal attention. Clients rarely fail to understand what they want. Lawyers rarely fail to do a competent job. The common problems start when lawyers fail to understand what their clients want, or when clients fail to notice a good lawyer heading off in the wrong direction.

If the goal is staying on the same page, there should be one page. We should be doing everything possible to lower client barriers to participation and confirmation. Assuredly, trust is important. Good attorney-client doesn’t look like good toddler-parent. But the more engagement our clients can justify in the process—their process—the more engagement we’ll get, and the less risk we’ll run of costly misfire.

Having lawyered to the right result, we can take the terms the parties want to sign out of e-mail wherever we want—DocuSign, printer, local monastic illuminator—on its way to signature. But again, it’s just a document. There’s rarely any legal or practical magic in how DocuSign or a fancy fountain pen makes evidence of assent. E-mails confirming agreement to the same terms, backed by the security of our e-mail systems, can do the job fine, and often better.

It’s just documents.

Your thoughts and feedback are always welcome by e-mail.

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