There’s a tendency on the part of some juniors—and a temptation for us all—to view certain Biglaw tasks as busywork—either because it’s something we think could just as easily be done by someone at the paralegal or assistant level or because it’s something the work-giver could have more easily done themselves in real time, as opposed to passing it down the food chain. Often, however, the tasks you’re tempted to characterize as busywork are some of the most important you’ll do—not just for the team, but also for your own development. Turning mark-ups is a perfect example.
As a junior associate, few things are more central to your daily life than the mark-up turn. It’s something you’ve done, or will be asked to do, dozens, if not hundreds, of times. Particularly when you have other, pressing business at hand, it’s tempting to simply hand mark-ups off to your assistant or the Word Processing department (WP) so that you can focus on other things. (And there are certainly times when you’ll need to make use of those support resources in order to meet all of your relevant deadlines.) But, whenever possible, I’d highly recommend that your turn mark-ups yourself using the process described below.
Every time you pick up a set of changes, you’re looking through a window into the mind of a more senior lawyer, gaining access to their expertise and experience. Don’t pass up the opportunity to learn as much as you can from that exposure.
When tackling a mark-up, don’t just flip from one change to the next, making the edit and moving on. If you do, yes—you’ll fly through it. But you’ll also fly right past the opportunities to learn from the comment-giver’s experience. (The same is true if you’re just checking the changes processed by your assistant or WP.) If you instead work through a document carefully and truly engage with proposed revisions, you’ll be amazed how much you can pick up from your senior’s changes. Challenge yourself to read the proposed changes in their full context—understanding their impact of on the operation of the document and identifying the reason each change is being proposed. Ask yourself whether you agree with the revision and whether you would have proposed the same one in your own mark-up. In essence, every time you encounter a proposed change, run a version of the process we discussed in step three of our post on “The Best Training You Will Ever Receive”. If you adopt this mindset for even a few weeks, you’ll be amazed at how quickly it will jumpstart your understanding of the documents you’re reviewing and the role you’ll need to play as a more senior associate in the coming years.
Beyond that general approach, here are a few specific, additional tips on how to turn mark-ups successfully.
Step 1: Catch Every Change Made
Turning a mark-up seems like the easiest thing in the world, but it’s actually a surprisingly difficult thing to get completely right. The first step in doing a great job is ensuring that you’ve made each and every change actually marked.
Imagine how frustrating it is for a senior associate to review a document, take the time to make a change in a mark-up, and then discover later (potentially after the document has been circulated to the client or other side) that a mistake fixed in the senior’s mark-up is still in the revised document. After just one or two experiences of this kind, a senior is likely to lose confidence in a junior’s ability to completely handle tasks, and the senior will begin having to take additional time to double-check even the most basic tasks (such as checking a revised draft against an original mark-up), which can add to that senior’s workload significantly. You can imagine how easily that sort of exercise colors the overall impression of how helpful and effective a particular junior associate is and what level of responsibility they can handle.
Come up with a process that will help you ensure you never miss a change. For example, I used to simply trace my finger down every page of a document to check for marks, and, when I encountered a heavily marked section, I would trace my pencil point slowly down every single line to ensure that I didn’t miss a change. Additionally, at the end of each page, I’d go back and quickly tick through each and every mark to ensure the change had been made. I knew others—and have had assistants—who put small check-marks next to each and every comment after it had been reflected. Find the process that works for you, and implement it religiously. (Pro tips: Learn your proofreading marks on day one. Also, if you ever encounter a change that you can’t read/decipher because of poor handwriting (spoiler: it happens a lot), ask the comment-giver’s assistant. He or she will likely know the senior’s handwriting best.)
Step 2: Catch The Changes NOT Made
Turning a mark-up successfully doesn’t end with simply reflecting the changes marked on the page. Seniors aren’t perfect. They’re not machines that will catch every mistake or every time the same mistake may be repeated in a document. Additionally, there may be good reasons why a senior has limited his or her review of a document to the most mission-critical points. (The more senior you get, the more you’ll understand that your clients—who are paying a very large amount of money per hour for your time—are not always best served by you poring obsessively over every single detail in every single case. There are times when you calibrate the level of detail of your review to reflect a client-interest-driven cost/benefit analysis.) In short, you should never assume that the only changes that need to be made in a document will be reflected in a mark-up. In fact, you should expect just the opposite.
Whether because your senior missed something or because they simply (and rationally) didn’t reach a particular set of problems, there will always be opportunities for you to add value. Keep a close eye out for, and take ownership of, additional changes that need to be made. For example, a mistake fixed in one part of the document may recur elsewhere, and the senior may have only marked the first instance. A deletion may contain the definition of term used elsewhere in the document (so the definition needs to be reinserted at the next (now first) usage), or an addition may include a term only later defined (so the definition should be moved forward into the newly added text). Such changes may also lead to changes in a document’s table of contents or definitions table (if there is one), as well as changes to cross-references, section numbers, exhibit numbers, etc. As a junior associate, take responsibility for ensuring that all of these knock-on effects are accounted for and any and all conforming changes across the document get made.
Step 3: Review a Physical Copy
Whether you’ve turned a mark-up yourself (as recommended) or had it done by someone else, you should always, always, always run a blackline of the changes, print out a physical copy, and read through it carefully—both to verify that all the changes have, in fact, been accurately reflected and to verify that the revised document reads correctly (e.g., that additions didn’t result in confusing drafting, wonky syntax, etc.). Trust me, errors can be hard to pick up on the face of the mark-up or an on-screen blackline. And there will be errors that need correcting. In my years of practice, I don’t believe I ever encountered a mark-up that was turned perfectly on the first try.
Step 4: Set Your Seniors Up for a Quick, Effective Review
Finally, once your work is complete, deliver it to your supervising lawyer in a thoughtful way that allows them to quickly review what you’ve done and act on it/pass it along. For example, always send an email with a clean version of the revised file and a PDF VERSION of a blackline showing the changes you’ve made. (In the era of mobile devices, unless instructed otherwise, always send PDF, not Word, blacklines.) If the changes are few and far between in a long document, consider also sending a changed-pages-only blackline so your senior doesn’t have to hunt for the changes. If the revised document reflects multiple rounds of changes, consider sending a cumulative blackline so that the senior can see all the changes made to the document since the last turn. (That’s particularly helpful if there’s a chance the document is ready for distribution (to a working group, client, the other side, etc.). If you don’t send a cumulative blackline, your senior will have to run it themselves in order to make the distribution.) Once you’ve sent along the electronic package, print out a copy of the incremental blackline and deliver it, along with the original mark-up, to the senior. (Not every senior will want these, but when in doubt, do whatever you think will most streamline their process/make their life easiest.)
I’d also highly recommend keeping a copy of the mark-ups you turn (or the original, if your senior doesn’t want it) for a while. There are any number of reasons why you might want to flip back through it in the future (and, if you throw it away, you can be sure you’ll need to).
(Two final pro tips: One, when sending or saving comparisons (again, in PDF), ensure that the numbers of the versions being compared are in the filename. Most comparison software does this by default (and I never thought it was worth the time to rename blackline files). But if you’re creating a bespoke filename, ensure it includes the relevant version details. Two, if you need to rely on support resources to turn comments (WP assistance to turn a 300-page offering document, for example), be strategic about when you do it so that you can avoid bottlenecks. For example, if comments are coming in late at night, it’s worth staying (or waking) up to send the comments through to WP that evening so they can be processed overnight, as opposed to waiting until the morning. Similarly, if you’re occupied on something else at the moment, it’s worth pausing for 5 minutes to get someone started on the mark-up so it can be processed in parallel to what you’re already doing. Otherwise, you may find yourself waiting to get a document back when you’re already under extreme time pressure.)