The tracks of my tears…

It is a truth universally acknowledged that in every case someone or other will get wiggy about the use of track changing. Or, failing that, someone will get wiggy about the failure of someone else to use it.

Me, I’m in the track changes camp. I am saddened to learn from twitter that I am on the wrong side of a wide river, and judging from recent twitter discussions on the topic it is a river that flows with irritation and disgust.

So I thought that the best thing to do was to stir the pot a little by telling you all why my way is the best and the rest of you are all wrong. Frankly, I feel I’ve little to lose since twitter is suggesting that I am the WORST kind of opponent and you all hate me anyway.

So, here is my approach to amending draft orders. It’s been nice knowing you… Don’t @ me.

  1. My name is Lucy and I am a track-change-aholic. Yes, the track change function in word is imperfect, and can create a sea of red marks if you aren’t careful – but it is the only reliable way of making changes that are visible to those who need to see them – and it is a standard way of doing things that is transparent to all. The red marks might be annoying but there is nothing more annoying or discourteous than a covert amendment to an order. Occasionally, if I know I am on a case with someone who can’t or won’t cope with track changing I might be persuaded to manually mark all edits in a colour or a highlight, but that is both time consuming and you risk inadvertently forgetting to mark something, introducing unseen changes that someone later gets a cob on over. Although, on a more grouchy day I might instead strongly suggest that you ditch pages on your ipad and use word like the rest of us, because that is the sole reason why you ‘can’t see track changes’. Those people who respond to your email attaching a nicely track changed email asking you to spell out AGAIN what those changes are because their device is not set up correctly (or because of PEBCAK) are BAD. BAD. PEOPLE.
  2. The only time I might not use track changing is if I am accessing your draft from my phone or in a setting where I can’t edit directly, and then I might just list the edits I need in a list in an email – but only if the changes are simple. I’m not going to give you a list of fifty edits and make you add them in yourself of course – that would be mucho annoying. I also might avoid track changing if there are different versions floating around or if others are pinging around lists of edits and there is a risk of it all getting more confused…So I’m not a track change fanatic, but it is generally kinder and more courteous to make the changes you want in a reversible and visible way.
  3. Yes, I will edit your draft order – if you have a typo, if your sentence doesn’t make sense, if it doesn’t correctly record my position, or some other event or fact, if it leaves out something that should have been in or if it adds in something we hadn’t agreed. Those who get offended at this can eat my shorts. That’s the job. We all have that responsibility to ensure the order is accurate and protects our client’s interests. To the people who think that as applicant it’s ‘their order’ and they are responsible – well no, it’s not. There is a collective responsibility and if an order goes in that is word salad or inaccurate it reflects badly on us all. If there is a bit that is not agreed it’s your responsibility to alert the judge. And seriously, there is no shame in it – we are all under huge pressure to draft at speed. We all get things a bit wonky. So what? That’s the beauty of collective responsibility. I’m not going to let you send in a disaster zone of a draft and you wouldn’t let me submit one either, would you…Would you?
  4. No, I won’t be intentionally messing with your formatting – unless the numbering has gone awry (or I’m trying to correct a stupid formatting glitch that happens spontaneously whenever you breath near a document derived from a judicial issue template, or maybe if a cross reference doesn’t make sense. When tracking is on word will show a load of format changes that are just artefacts of any new paragraph or return action, rather than some deliberate passive aggressive tidying. Don’t get your wig on because of these – they aren’t a subliminal insult about your font choice or your competence. It’s just word being word. Just accept the changes and move on with your life.
  5. And when I’m drafting? Well firstly, I won’t be going all primadonna on you if you correct my mistakes or add in things I missed out. I’m not precious. Thanks for sharing the collective responsibility to get it right. 🙂 Frankly, I don’t even care if you change my calibri back to TNR, or fix the sodding wrong numbering introduced by the stupid glitchy templates – crack on if it helps your OCD. But don’t mess with my CORRECT AND INTRICATELY STRUCTURED nested sub paragraphs in the child arrangements order bit. Those are a work of art alright?
  6. Also, no, I won’t be waiting for an indeterminate period before e-filing. I will tell you when I plan to e-file (hopefully a reasonable balance between needing to get it done asap and real life) and if I haven’t heard back by the deadline, tough. If it’s a crazy deadline just say so. Also, that includes the ridiculous approach some people take to agreeing every line of every iteration of a draft case management order with the lay client after the hearing – just don’t be that person. The order is the order, you should have your client’s instructions on this and they don’t need to ‘approve’ your drafting or checking if the order reflects the judge’s intention. Don’t make me rely on rule 29.11(3)!!! If we’re stuck I’ll list what we’re stuck on and invite the judge to sort it. I’ll let people know that is the plan before I do so, so that their comments can be incorporated in an even handed way.
  7. However, I will be silently seething if you haven’t bothered to reply or read the draft and then 20 seconds after the judge has approved the order and sent it to the court office you email to say something is wrong with it. But I’m not gonna have a pop at you about it about it because in truth, we’ve all been there.
  8. Finally, PLEASE don’t slip in things that weren’t raised in the hearing or discussed at all at the drafting stage when the client and judge have gone. If I have instructions I will happily agree a minor addition as long as its flagged with the judge – but don’t just slip in something you know hasn’t been raised and I haven’t asked my client about. As frustrating as it may be I can’t just agree something on the basis that my client would probably agree it if I had asked them.
  9. Oh and finally, finally please don’t be correcting my grammar. Providing its not street slang and it is coherent we’re good to go.
  10. And finally finally, regardless of who is drafting, I won’t be getting in a massive long tortured squabble / wrangle with you about the precise wording of the order, by means of interminable email ping pong, if I can avoid it. If we don’t agree, let’s just agree to disagree, highlight or list the things we’re stuck on and ask the judge to sort it. Life is too short. The fact that one person has the unenviable task of preparing a draft, coordinating edits and e-filing it doesn’t mean that person gets to unilaterally dictate what goes in it. It also doesn’t mean you can try and bully your oppo into agreeing something they don’t or can’t agree by just insisting on your version. If it isn’t agreed it just isn’t. That’s what the judge is for – ultimately it’s their order.

Happy drafting campers. See y’all in September. Remember, drafting is not a competition or an exercise in trying to annoy or take offence. It’s just a bit of a pain in the behind that we all have to endure, and we should all try and make it as smooth and painless as possible so we can wrap things up and move on. Virtual hugs, colleagues. Promise I’ll write about something serious next time…

8 thoughts on “The tracks of my tears…

  1. I once had a litigant in person who insisted on inserting his contributions in Comic Sans. I fixed him by inserting mine in Fraktur. He compromised on the whole thing being in Arial.

    • ew. couldn’t you get a CRO or something?

    • I would and do send locked Orders – they can indicate where they want to amend on a note – however this method, albeit passive aggressive is effective in discouraging liberties being taken with my craft! Ha

  2. An FRO. Font Restriction Order!

  3. “PLEASE don’t slip in things that weren’t raised in the hearing or discussed at all at the drafting stage when the client and judge have gone. If I have instructions I will happily agree a minor addition as long as its flagged with the judge – but don’t just slip in something you know hasn’t been raised and I haven’t asked my client about.”
    So counsel shouldn’t send this type of email to a judge:
    “The only point that I would bring to your attention is that of costs. You will note from the position statement that I prepared on my client’s behalf that they seek their costs. They were not pursued today because the hearing ended before the issue of costs could be raised and the court has in any event listed this matter for further hearing. For that reason, I have stated the costs position as ‘costs reserved’.”

    • No I’d say that is entirely appropriate – it was raised both in the document before the hearing and specifically flagged to the judge so that if s/he didn’t think it was appropriate that could be removed. The proper thing to do where there isn’t time to deal with a costs issue is to reserve it so it’s dealt with later. That email is a model of courtesy.

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