Beyond the Basics: Advanced Techniques in Contract Review for Law Students and Trainees

Jan 09, 2024

Written By Nandini Jadeja

With the legal landscape becoming more competitive than ever before, there is an increasingly high demand for skills that can set law students and trainees apart in their careers. One of these skills is advanced contract review, which this article aims to unpack. By taking you through the steps, you can explore and practise these advanced techniques and be one step ahead in your legal career.

The foundation of contract review

During the contract review process, the document will be examined to confirm that it contains all the elements the parties want it to contain, and that everything is stated clearly and accurately without discrepancies and errors.

Some of the basics of contract review are:

- Confidentiality, indemnification, termination and dispute resolution. These clauses will usually require careful analysis, so you should pay particularly close attention to them.

- Ambiguous language should be limited as much as possible; you want your contract to be clear. This minimises the potential for conflicts once the document is signed.

- Review default terms that explain the consequences of one party failing to fulfil their obligations.

- Be mindful of language that renews a contract at a certain date/upon certain conditions, and ensure you clarify these for any hidden ambiguities before including them.

- Ensure that all dates and deadlines match any verbal agreements that have been made.

- Ensure risks have been accounted for fully.

- Understand breach of contract clauses and reference documents.

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Advanced techniques in contract interpretation

The strongest contracts are those that consider the broader context in which the contract is created, considering things such as industry standards and commercial practices. In order to keep on top of the developments in the industry, for example, it’s important to continue to be as ‘commercially aware’ as possible. Law firms often have resources to help with this, but doing your own research can help you stay ahead of the game.

Implied terms

Implied terms are defined as terms that have not been expressly agreed by the parties but have been implied into the contract by common law, statute, custom, practice or fact. Not all legal terms are interpreted explicitly, and it would be impossible to make it so. Implied terms are therefore crucial; however, they occupy a grey space and thus need to be carefully managed during contract review. One example of where implied terms are necessary is in an employment context. For example, an employment contract may have implied terms that employees have a duty of fidelity or confidentiality.

Contra proferentem rule

Contra Proferentem means ‘against the offeror.’ It’s a doctrine within contract interpretation which provides that where there is ambiguity in a contract, the preferred meaning should be that which works against the interests of the party who provided the wording. During contract review, this is something that should be considered in order to think ahead and ensure that you are constantly thinking about what is best for your clients.

Advanced skills in drafting and negotiation

Some of the basics to drafting include understanding the context of the document, considering the jurisdiction and applicable laws, regulations and conventions and using this to accurately reflect the goals of your client. The next step in drafting is organising your thoughts in a clear, concise manner and seeking feedback throughout the drafting process. You should also ensure you stay up to date with case law, legal developments and advice from regulatory authorities such as the Solicitors Regulation Authority (SRA).

Negotiation strategies

Negotiation is a crucial skill to have as a lawyer as it forces you to think on your feet and solve problems quickly as they arise. There are many strategies to problem solving, including things like identifying leverage points and crafting agreements that benefit all parties involved. For example, negotiation leverage is the advantage that you can gain in a negotiation by using the information, resources and relationships you have to your advantage. Identifying relevant information early on in the negotiation process allows you to navigate an outcome that is best for all parties involved.

Technology and contract review

Technology is also playing an important role in contract review, and it is crucial to understand how to combine your expertise with the value that using technology can bring. AI and contract management tools can help you review contracts faster and remind you of industry specific nuances that you need to bear in mind.

However, there are also potential pitfalls associated with the use of technology in contract review, including ethical challenges from AI technologies and accuracy. To navigate these challenges, you should keep an eye on publications by the SRA on the use of technology in law, and also look at firm-specific policies to ensure that you are maintaining an industry and firm standard.

Real-world applications

Law is often said to be an art, not a science. However, when it comes to contract review you’ll need to employ a bit of both. A degree of creativity is required to recognise and understand how contracts across different sectors differ, and how there are unique challenges and nuances that you need to consider. During your training contract, you will need to be aware of this as you move from seat to seat. Two key skills which will enable you to continuously review contracts successfully are adaptability and attention to detail. Although these skills are important, remember that you’re just starting out in your career, so don’t be afraid of making mistakes and ask for help.

In summary, contract review is a skill that you will continuously need to refine and practice throughout your legal career, whether this is through reading, online courses or consulting with senior legal professionals. As the legal sector evolves, solicitors must stay informed about legal trends and technologies in contract review, using these to come up with new and innovative ways to draft and review contracts.

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