The Top 10 ways lawyers use redlines (or whatever you call them)

I spend a good portion of my time acting as a “translator” between lawyers and everybody else. One of the most difficult things to explain is the “redline”. Not least because it is known by several other names: a comparison, blackline, ChangePro, DeltaView, compare, diff, tracks etc.

The easy bit is to explain what a redline does: it shows the changes between one document and another document. It generally does so by striking out in red the things that have been deleted, and underlining in blue the things that have been added. Like this:

Many people feel like that is sufficient information about redlines. But the important question is not what they do, but how they are used and why they are used. The answers to these questions are very revealing when it comes to understanding the behaviours, mindsets and drivers for lawyers.

Legal projects are becoming more complex. More and more documents are flying around. And while some new technologies are struggling to get uptake by many lawyers, the redline is more popular than ever. Let’s start our journey into the world of redlines…

#1 — the “standard form” redline

A standard junior lawyer job is to produce the first draft of a document. This is usually done using a template / standard form. This is a word document full of square brackets (to fill in missing information) and footnotes (to provide guidance on how to use the standard form).

(Some firms may use contract automation software to complete a first draft. However, this practice is not nearly as widespread as you might expect. For most firms, this process is completely manual.)

When the junior lawyer completes the first draft, they will usually hand it to somebody else for their review. That person will usually wish to see how the first draft differs from the standard form. This helps to ensure best practice is being adopted and that the standard form has been adapted to the present circumstances appropriately.

#2 — the “show me the changes”

The most common way for legal teams to collaborate on a document is for one person to take charge of a master version. That person is said to be “holding the pen”. They act as the gatekeeper of the document, responsible for receiving comments from various people and making sure these are reflected in a single version of the document (or not…).

Some firms have implemented “co-authoring” solutions, which essentially allow more than one person to edit a document in realtime. Used properly, this technology cuts out the need for a person “holding the pen”, because everybody is collaborating on the same master version. It also means that version control is less rigid, as changes blend into each other rather than being consecutive.

The demand for such solutions is not as high as you might think. This is because lawyers value control of a document above everything else. Many legal teams see the “holding the pen” role as an essential quality assurance function that is missed if everybody is allowed to make changes in realtime.

My take on this is that co-authoring is more widely accepted in certain types of documents (e.g. very long due diligence reports or prospectuses) where the burden of collating different versions and “holding the pen” is particularly high.

If the team is not using co-authoring (as is the most common practice), the person “holding the pen” will need to produce the “show me the changes” redline once all comments are received and incorporated. The purpose of this is to show the effect of all the changes everybody suggested, as against the version they were asked to provide comments upon.

This helps to ensure that everybody is happy that their comments have been incorporated accurately, and that they do not conflict with comments somebody else made.

#3 — the “proof-read” redline

The “proof-read” redline is the final redline a junior lawyer will carry out before sending a document out (usually externally — to a client, or the other side).

It is deployed after the document has been checked for definitions, cross-references etc. That is because while doing those checks, there is a risk that accidental mistakes slip into the document. For example:

  • Trying to find a keyword using CTRL+F, but not pressing CTRL+F hard enough, and accidentally typing the keyword search terms into the body of the document.
  • Thinking you are typing an email to somebody, when in fact your Microsoft Word window was active and not your email window (meaning your email appears in the body of the document)
  • Removing a clause that is subject to a cross-reference, resulting in the wonderfully helpful Error! Reference source not found message when you save the document.

These are potentially embarrassing mistakes to make as a junior lawyer. And that’s why so many use the proof-read redline to make sure they spot them. If this redline does identify any errors, it may be necessary to run the redline again in case any errors crept in while you were doing the most recent corrections.

#4 — the “I don’t trust them” redline

In a transactional context, it’s nearly always necessary to work with the set of lawyers acting for the “other side” in order to agree and negotiate a document.

When these lawyers send you their comments on a document, they will usually include:

  • a “clean” version (i.e. without any changes marked), and
  • a redline to show the changes they made.

The next job is to look through all the changes they made, and to send out a revised version that includes those changes you accept.

Some lawyers (including me) immediately discard the clean version. I work from the version I sent them, and look only at the redline they sent. I go through this, and decide which changes should be carried across into the next version I sent out. If you’re doing this, you don’t need the “I don’t trust them” redline, because you have complete control over the next version: there is no risk of things slipping in that you don’t know about.

But there is another way to do this process. This is to use the clean version sent by the other side as the basis for the next draft. Then look at the redline, and determine whether the changes are acceptable. If they are not acceptable, delete the relevant wording in the clean version.

But if you use this method, you are relying on the redline sent by the other lawyers being accurate. A redline might be inaccurate simply because the other lawyers compared the wrong document. Or maybe you have some particularly malicious lawyers acting on the other side who are trying to hide changes from you.

The risk is that if there are changes not shown in the redline and you don’t spot these in the clean version, these would be retained in the version you next sent across. At worst, you might be deemed to have accepted those changes — merely because the redline was inaccurate.

Enter: the “I don’t trust them” redline. If you’re not sure of the reliability of the redline you received, do it yourself using the clean version you sent, and the clean version you received. That way, you have complete certainty over the changes they made.

#5 — the “cumulative” redline

As noted above, when a law firm is collaborating on a document, the most common method is to appoint somebody as “holding the pen”. Their job is to consolidate the rest of the team’s comments into a single version.

If things are running smoothly, you will only have one round of comments. But in particularly complicated documents, you might need to request and collate comments multiple times. Each time this happens, the person “holding the pen” will need to run a “show me the changes” redline to track how the document has progressed since everybody last saw it.

But usually people will ask for a more holistic view as well as seeing the most recent changes: “what is the cumulative effect of our changes, e.g. in relation to the most recent draft we received from the other side’s lawyers?”. This is the “cumulative redline”. It is required because people need to “step back” and look at the response as a whole, and make sure they didn’t miss anything the first time they looked at the document.

#6 — the “are their comments reflected” redline

As the person “holding the pen” on a document, it can get very stressful if you have to collaborate with, say, 10 sets of lawyers representing 10 different jurisdictions. It’s key that their input is reflected in the document, and if you are not using co-authoring, there is yet another manual process around making sure everybody’s input is reflected.

A problem occurs if people are making competing changes. For example, your Swiss local counsel notes a key change to Clause 4. But your Chinese local counsel insists that Clause 4 is deleted. It was late at night, and you processed the Chinese firm’s comments after the Estonian firm’s comments. You ended up deleting Clause 4 even though it is key to include it under Swiss law. It’s a challenge because nobody is working from one single version; they are all providing their comments separately.

If there is a risk of overlapping comments, many consider the “are their comments reflected” redline. It compares a newer version of a document against the comments somebody provided on it. Usually, it is run in respect of every person who provided comments on a document. The reason people use this redline is to ensure that the resulting document, which incorporates comments from multiple people, accurately reflects the input of each individual contributor.

This process should not be conducted lightly, as it is one of the most time-consuming redlines to run. A better practice is to review comments holistically, rather than investing the time in this festival of redlines. This is a key area where the legal industry needs to think about a more collaborative approach to document drafting.

#7 — the “spinout” redline

“Spinning out” documents occurs when you agree a “template” document that is to be replicated multiple times, but with different information in the document each time. It is used, for example, where you need to implement the same transaction for multiple members of a corporate group.

Many law firms are still doing this process entirely manually: settling on a “square bracketed” version of a document, making a new Word document for each time it needs producing, and then typing in the relevant information to each copy.

Given the existence of mail merge, as well as more sophisticated contract automation tools, I do not believe this kind of process has a place in the practice of law anymore (except perhaps where the number of iterations is very small).

Whichever way the resulting “set” of documents is produced, lawyers will often wish to check whether the documents align properly with the template. Common errors here are:

  • If using a manual process, simple typing errors.
  • If using something like mail merge, poor field coding (e.g. “the Company shall purchase 1 units…”)

Again, this can be a very time consuming process as it requires a redline to be run multiple times in relation to a given document (e.g. 8 companies = 8 documents = 8 redlines). That is exacerbated where you are working with “sets” of documents rather than a single document that needs “spinning out” multiple times (e.g. where 5 documents need executing per company: 8 companies = 40 documents = 40 redlines 😭).

#8 — the “I really, really don’t trust them”

When a document is finally ready for signing, it is standard practice for the law firm organising signing to send out an “execution version”. This is the final version of the document that will be signed.

Sometimes, signatories request a PDF of this document to make it easier for them to print and sign. If the parties agree to use an e-signature service, the law firm organising signing will upload the execution version to the e-signature platform, where it is usually converted to PDF.

I’ve heard of instances of law firms not trusting that the PDF, or the document uploaded to the e-signature platform, is the correct version.

In this situation, the distrusting law firm will need to download the PDF, and find a way of comparing it to what they think is the correct version (usually by converting it to Word first). They will do this with the “I really, really don’t trust them” redline, the aim being to verify that signatories will be signing the correct version. My only comment on this redline: it’s a shame it exists.

#9 — the “progress update”

When a legal project passes a certain point of complexity or size, everybody involved will need some way of making sure they know what they are doing, and that all work streams are proceeding according to plan. Across the majority of law firms, the project management tool of choice is Microsoft Word — specifically, a long table in Microsoft Word (or, in some cases, a spreadsheet in Microsoft Excel).

These documents are called various things — signing checklists; work stream trackers; CP checklists; closing agendas etc. They are basically the same thing: a list of things that need to be progressing to make the project proceed.

An example of a table in Microsoft Word to track progress on legal projects

As with a legal document, somebody is usually appointed to “hold the pen” on this document. That person is responsible for chasing every person involved in the project, and to consolidate updates into this table.

Even though this table is of no legal effect, it is treated in almost exactly the same way. For example, it is very common for this document to include defined terms for obvious definitions (e.g. Skadden means Skadden, Arps, Slate, Meagher & Flom LLP) and to contain huge amounts of complicated legal jargon.

This table is a static document, and people are updated every time it is circulated by email (usually once or twice a week). Each time that happens, the person holding the pen will prepare a redline to show what has changed since last time. This is the “progress update” redline.

A “progress update” redline applied to a Microsoft Word table

#10 — the “do it yourself” redline

Believe it or not, Microsoft Word is not the only tool lawyers use. Most will rely upon emails to communicate, and the more adventurous lawyers will have skills in Microsoft Powerpoint to generate things like steps plans and structure charts.

These kinds of work product also have a collaboration element to them that requires many of the above redlines — in particular, the “show me the changes” redline. The problem is that many firms do not have any document comparison software that you can use within your inbox, or that you can use to compare file formats other than Microsoft Word.

Enter, the “do it yourself” redline. This is where you are unable to produce a redline, so you manually format the text to show the changes. Anything you want to delete? Mark it in red and strike it out. Anything you want to add? Mark it in blue and double underline it. Job done.

Take it from me, this process is not as easy as it sounds. You spend ages switching between different formatting, and it wastes a huge amount of time.

What does all of this tell us?

This article describes all the different ways I have seen redlines used by lawyers from multiple firms of different sizes. I will let you draw your own conclusions. But here are the main things I think this shows:

  • The way lawyers, clients and advisors work on documents is ripe for improvement. But changing this requires a pivot on behaviour — away from strict versioning and segregation, and towards a more collaborative approach where people are working together. This is not a technological question, it’s a behaviour question. Google Docs has been around since 2006 (with co-authoring functionality). Track changes has been in existence since 1986. Lawyers are, for the most part, not really using these tools to their advantage.
  • Lawyers adopt a very risk-averse approach to drafting, and junior lawyers in particular can be scared to make mistakes (even if they are not material to the legal effect of a document). It’s not necessarily their fault when mistakes do creep in — it’s the result of a manual process that involves too many steps. A more collaborative approach to document drafting will not only bring efficiency gains, but it will improve the culture in law and make teams take collective responsibility for documents.
  • There’s a lot of talk in the industry about new technologies such as AI and blockchain that are changing the legal world. For all the talk about these things, people still spend huge amounts of time on manual processes such as redlining.

Bonus: #11 — the “what did I do wrong?” redline

After writing this article, it was pointed out to me that there was an eleventh redline that is used. This is where a junior lawyer has worked on a document, and emailed it to somebody more senior, who will in turn send it out to the client without telling the junior lawyer about any changes she or he has made.

I always find these kinds of occurrences unfortunate, because it is not apparent to me why the senior lawyer has to take credit for a document that may have been predominantly the work product of a more junior lawyer (or, perhaps more importantly, the team as a whole).

If the senior lawyer does make changes before sending the document out to the client, it is important for the junior lawyer to understand what changes were made, not only for their own career development but to ensure everybody is on the same page.

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