Last week, we talked about turning the mark-ups of others and taking advantage of the related development opportunity. But mark-ups will also be a big part of your life because you’ll be creating them. Constantly. So it’s important to learn how to do it right.
For the junior associate crowd, my first word of advice on creating mark-ups is this: whenever possible, don’t. At least, be judicious about when you decide to mark a document up by hand, as opposed to editing it directly on your computer. Why?
Whenever Possible, Don’t
In my experience, juniors love to begin marking up documents by hand as early as they can. I understand that. When I first started at the firm, I remember watching seniors pick up documents—wielding pencils like surgeons wield scalpels—and brilliantly transform documents before my eyes. I couldn’t wait to be like them, to have that skill. Add to that the fact that marking up documents (something I’d never done before) was one of this things that truly made me feel like a real lawyer, like part of the club, and I therefore wanted to create hand mark-ups at every possible opportunity. But as a junior associate, creating hand mark-ups can be a big time-waster, and it can actually be an obstacle to you doing your job well.
As we touched on in last week’s post, your job as a junior associate is different. Whereas reviewing seniors are primarily focused on big-picture points and conducting a thorough, but targeted sweep through key concepts, arguments, and mechanics, your job is to also sweat the small stuff. To get all the details right down in the weeds. That’s tough—possibly impossible—when you’re not up to your elbows in iterative rounds of changes directly in the document itself, ctrl-f’ing for relevant terms, amending outdated cross-references, shuffling around parenthetical definitions, cleaning up formatting, etc. Yes—a hand mark-up can be the first step in that process. But when you account for the time that it takes to create the mark-up, have it turned, and then thoroughly check the comment incorporation (as discussed last week), in almost every case, it’s going to take you much, much longer to complete your edits. And in in the fast-paced world of Biglaw, that’ll often mean you won’t have enough time to get through those last few rounds of detailed scrubbing that your job requires. Of course every situation is different; but be mindful that, when you’re at the bottom of the seniority ladder, you’ll often be best served by making your own changes directly.
7 Mark-up Tips
When the time comes to create mark-ups, however, here are a few tips to help you generate the best possible results.
(1) Learn your proofreading marks on day one. Hand mark-ups only work if you’re communicating in a clear, common language with the comment-turner. Make sure you’re fluent in that language as soon as possible.
(2) Mark with precision and clarity. Trust me, there’ll be plenty of times, for various reasons (e.g., you’re rushed, haven’t fully formed your view on a particular revision), that you’ll be tempted to give vague or conceptual comments in a mark-up. Wherever possible, don’t. Always try to make exact revisions, in long form, reflecting your precise view of the final product, complete with the desired punctuation. Write legibly. (It’s not only helpful for your comment-turner, it’ll save YOU headaches because your changes will be made more accurately.) Account for the knock-on effects that we talked about last week (adding/deleting definitions, changed section numbering, etc.) in your original mark-up. Don’t just assume that the comment-turner will take care of it for you or tell yourself that you’ll remember to clean it up later. In short, take nothing for granted. (Pro tip: If you need to add a large block of text, consider sending it along in rider form. For example, instead of hand writing a new paragraph in the margin, type out the new language verbatim in an email, label it as “Rider 1”, and put “Insert Rider 1 (from email)” in the mark-up. This will allow the comment-turner to copy and paste the new text, avoiding confusion and transcription mistakes.)
Finally—and this is critical—if there is anything in the document that you believe isn’t in final form for any reason, bracket it. Drafting—contracts, briefs, anything—isn’t a science, it’s an art. It’s fluid. There’s uncertainty. There’ll be points you’ll want to/need to come back to later, or language on which someone senior to you needs to explicitly sign-off. Whatever the case may be, if something needs a second look—by you or someone else—drop the explicit, universal marker of a bracket so that you won’t forget to come back to it, and you can always put your finger on the open points immediately by searching the document for brackets. (Pro tip: Drop brackets as precisely as possible. For example, if you’re including alternative drafting formulations for senior review or proposing some language be deleted, set it up so that the deletion of language within a set of brackets will leave the document—punctuation and all—exactly as it should be, without requiring further conforming changes. This’ll save you time and avoid clerical errors when the changes ultimately get made.)
(3) That’s not to say that there aren’t shortcuts you can use. For example, if a change needs to be repeated every time the original language arises, mark the change carefully in the first instance and note that the change should be “GLOBAL”. (Anytime you use a “GLOBAL” note, however, be EXTRA careful in your review of the post-revision blackline. Your assistant/WP will usually use the “find and replace all” function, and you’ll be amazed how often this will result in crazy, unintended changes because the same combination of text arises in a different context or missed changes because there was a typo/cosmetic divergence in some of the underlying text.)
(4) There’ll be times when you need to flag language or open questions for a particular reviewer/audience. Different partners and seniors can have very different preferences on how best to do this, but I’m a believer in imbedding the question/flag directly into the document at the place of the relevant language (either inline or using footnotes) so that it can’t possibly be missed/ignored. For example, if the other side’s proposed language in a contract raises a question for your client to consider, insert a bolded, bracketed, and highlighted note immediately after the relevant language teeing up the question, for example: [Note to [Client’s Name]: Is [x] the right milestone to use for the first earn-out payment?]
(Pro Tip: If you use this approach to communicate internally at your firm/with your client, it is IMPERATIVE that you carefully check that all such notes/questions have been removed before the revised document is circulated externally. That’s why you ALWAYS use brackets for these sorts of notes, so that a bracket search—which should be the very last thing you do before circulating a document—will turn up any overlooked internal notes.)
(5) To help ensure mid-line changes don’t get missed—particularly those minor changes that might be easily overlooked (e.g., inserted commas)—flag each change in the margin so that the comment-turner knows it’s there at a glance. (E.g., if you’ve inserted a comma after a clause using a caret, also drop a circled comma in the margin next to the relevant line.)
(6) Sign and date your mark-ups (initials and date in the top corner is fine), so that everyone—including the future you—knows the provenance and timing of a set of changes. And just like the mark-ups from others that you’ve turned, I strongly recommend saving your own mark-ups for a time. You’ll often want to reference them later.
(7) Finally, when instructing the turner of your mark-up (your assistant, Word Processing, a paralegal, etc.), tell them to highlight (or otherwise flag in a very conspicuous way directly in the mark-up itself) every single change they didn’t understand/had questions about/haven’t confidently reflected in revised document. That way you can quickly flip mark-up pages with them immediately after they finish and clear up any confusion before, for example, they leave for night.
These are just a few of a million little tips and tricks for how to create effective mark-ups. Take a second to share one of your own tips with the community in the comments or this post’s topic in TIL.