Should you write the first draft, and what goes in it?

Offer to write the first draft when you can, because the other side then starts from your wording instead of you from theirs. Let a larger client draft if it insists on its own paper, and start from a published standard form when neither side has one. Whoever drafts, the document has to name the parties correctly, set out the work, dates, price and payment, and say what happens when things change, go wrong or end.

Should you offer to write it?

Drafting first is usually worth the effort. To see where it sits in a whole deal, read how a contract deal runs.

What drafting gets you:

• A starting point in your terms. Your payment days, revision rounds, structure and the point where ownership passes become the baseline. Ask the client to return tracked changes, then compare the returned file with the version you sent.
• Control of timing. You decide when the first draft goes out, though the client may still need procurement or legal approval.

What it costs: time, especially for work you rarely do, and the job of being clear. If a term can be read two ways, you wrote it, and you may be the one explaining it.

Let the client draft when it signs only its own paper, or when you have no template for the work. If you're not sure, ask first:

Who drafts first, and from what?

The right starting point depends on the client, and on how often you do this kind of work.

For work covered by New York City's freelance law, the city's model contract marks three terms as required: the parties, the scope of work and payment. It advises leaving out any term both sides don't understand.

What does a first draft have to cover?

A first draft has to answer four questions, whatever you start from. For nine clauses in detail, see what a freelance service agreement has to spell out.

1. Who is bound? Each side's full legal name, entity type and address, and the person who signs.
2. What is the deal? The work, the dates for both sides, the fee or rate, and when and how it's paid.
3. What happens when things change or go wrong? Revision rounds, priced changes, ownership, confidentiality, ending early, liability and which law applies.
4. Which state and local freelance laws apply? Freelance laws can set terms a contract must include, as New York City's does. Check the rules where you work and where the client is based.

Ownership needs its own wording. US copyright law offers two routes:

• An assignment transfers copyright someone already owns. Put it in writing and have the owner sign it. If a subcontractor made part of the work, they may own that part until they assign it to you.
• Work made for hire, where it qualifies, makes the client the first owner. For a commissioned work, the US Copyright Office lists four conditions: it fits one of nine categories, such as part of a film; there's a written agreement; it says expressly that the work is made for hire; and all parties sign it.

If ownership should pass only on payment, check that no work-for-hire clause hands it over earlier.

What can you borrow from a standard form?

Published standard forms split a contract into a short cover page and standard terms. Common Paper's Professional Services Agreement puts changes to its online standard terms on the cover page, as an addendum. Bonterms also puts changes on its cover page, which controls over its standard agreement. A Bonterms SOW overrides other terms only by naming the provisions it supersedes. Both forms are free to use under CC BY 4.0, so check its conditions before you copy their wording. Borrowing only the structure copies none of their text.

Your own template can split the same way:

• Front page: what changes with every deal. Parties, signer, scope, dates, fees, payment schedule, and any change to your standard terms.
• Standard terms: what stays the same. Revisions, change orders, ownership, confidentiality, ending early, liability and governing law.

A new client then needs a new front page, though the whole agreement still needs checking.

Which drafting problem are you facing?

Here are seven drafting situations, each with a mistake to watch for.

What should you check before the first draft goes out?

Check the draft as closely as the client will read it.

1. No trace of the last client. Search for their name, old amounts and old dates, including headers, footers and the file name.
2. A clean copy. Accept or reject every inherited tracked change rather than hiding it from view, and delete old comments. Name the file under a version rule.
3. No hidden leftovers. In Word for Windows, File > Info > Check for Issues > Inspect Document finds comments, tracked changes, hidden-formatted text and properties such as the author. Run it on a copy; removed data can't always be restored. It checks hidden formatting, so look for white or tiny text yourself. On a Mac, check the file's properties by hand.
4. The numbers agree. For a fixed fee, installments add up to the agreed amount. For hourly or retainer work, the rate, billing period and any cap are stated.
5. The client's dates are there. Feedback, materials and approval each have a date or a set number of days.
6. Terms and references hold up. Each capitalized term is defined once and used the same way, and every "Section 7" or "Schedule A" exists.
7. Ownership works as intended. An owner-signed assignment or a qualifying work-for-hire clause, and nothing that passes ownership before payment if you want payment first.
8. One document governs. Any quote, proposal or SOW is named by title and date, and the contract says which wins in a conflict.
9. The signature block is right. Each side's legal name, plus each signer's name and title.
10. The cover email lists what's open. Every [bracket], and every term you've proposed but never discussed.

When should a lawyer draft it, or check your draft?

You can usually draft routine work yourself from a template that fits. Get a lawyer to draft it, or to read your draft first, when:

• The deal is large for your business, such as several months of revenue.
• The client wants to own something you'll reuse, or asks for exclusivity or a non-compete.
• A letter of intent would commit either side to exclusivity, a deposit or a start date.
• The client is abroad, or wants a law you don't know.
• The work looks like employment: full-time, on their schedule, for months.

When does drafting from a template by hand stop working?

Drafting by hand from a template can be manageable when the template fits the work and each deal looks like the last. It starts to slip when you keep several templates, when each client needs a different mix of terms, or when old details keep turning up in new drafts. Past that point, it's worth handing the first draft to a tool, so your time goes on checking it rather than assembling it.

DealMate is an AI contract assistant that takes a deal from first draft to final: describe the deal in a sentence and get a draft built from your templates and clauses; when they send their template, review it from your side and see what's risky; when their redlines come back, compare the versions and see every change and the risk it carries.