The microaggression of document redlining

Daniel T. Janis, BridgeTower Media Newswires

As a group, lawyers are probably less disturbed by microaggressions than the population at large. We spend most of our days dealing with macroaggressions. We can’t waste too much time sweating the small stuff.
That being said, there’s one legal microaggression that’s become endemic. Maybe this public service announcement will highlight the issue, cause its perpetrators to become slightly more self-aware, and possibly move the needle just slightly toward eliminating the offending practice. It has to do with document redlining. Are you guilty?

Here’s the fact pattern. Firm A takes the first pass at an agreement — version 1. Firm A will own the document and manage it throughout negotiations. Firm B sends back its proposed revisions — version 2. It includes a redline, version 2 against version 1.

Firm A accepts some changes, rejects others, and makes some new conforming edits — version 3. Firm A is ready to circulate its response. And now, the moment of truth. Which redline to run? There are two possibilities:

Version 3 vs. version 2 (highlighting Firm A’s response to Firm B’s comments); or

Version 3 vs. version 1 (highlighting Firm A’s accepted changes against its original draft).

The distinction may seem inconsequential. But far from it. The choice of redlines is actually an embodiment of a much larger philosophy and sheds a light on the most deeply rooted corners of the redline preparer’s psyche.

Choice No. 1 above is the conciliatory redline. It is based on the premise that: a) whatever compromises have been made are settled and done; b) what needs to be highlighted are the remaining points on which consensus has not yet been reached; and c) as a courtesy to the recipient, a redline showing those points is being offered up.

Choice No. 2 above is the microaggression redline. It is based on the premise that: a) what is most important is for the recipient to see what concessions have been made; b) in no event shall the version proposed by the recipient defile the digital files of the keeper of the agreement; and c) if the recipient wants to see what points remain open, they can run their own redline and figure it out for themselves.

In some cases, maybe even most cases, the preparer of a No. 2 type redline might be wholly unaware that his redline constitutes an act of aggression. Some attorneys are trained that way and don’t even know there’s another option.

But sometimes it’s a conscious, purposeful decision meant to get into the head of the recipient and communicate, however subtly, that his version of the document is not even worthy of being used to create a redline.

It may not seem significant. But after years upon years of practice, and receipt of thousands upon thousands of aggressive, uncompromising redlines, an attorney could be driven to the brink of despair and insanity!
So please, attorneys, corporate and litigation practitioners alike, be aware! You can send the accommodating redline. Or, if you really need credit for your concessions, you can send both redlines. But when you run the microaggression redline and attach it to the email and are about to hit “send,” think about the effect you’re about to have on opposing counsel. Ask yourself, is this the kind of attorney, the kind of human being, you want to be?

Be mindful of the consequences of your redlining etiquette, and act accordingly. The legal community will be better for it. And you’ll sleep better at night knowing that your redlining is promoting peace, not hostility.

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Daniel T. Janis practices in the business law area at Davis, Malm & D’Agostine in Boston. His practice focuses on mergers and acquisitions and representation of public and private companies in a range of general and transactional matters.