Proofreading is Crucial to Avoid Critical Errors, Tarnished Reputations

Carpenters have the saying, "Measure twice, cut once." Attorneys can follow this example by carefully proofreading their documents. It is an attorney's job to accurately memorialize a transaction in an agreement or other document and advocate a client's position in a pleading or other court filing. An attorney's reputation can be enhanced or tarnished based on written work product. To be an effective advocate, an attorney must use precise, well-written words that convey the writer's thoughts in a manner that achieves the desired purpose and intended meaning. Unfortunately, typographical and grammatical errors can ruin even the most artful drafting. While proofreading is not glamorous and requires a great deal of time and effort, it is essential in providing quality legal representation.

The law of unintended consequences has not been repealed. In a recent 9th Circuit case, counsel for a debtor in a bankruptcy case listed an incorrect social security number on debtor's bankruptcy petition and the notice to the California Franchise Tax Board. The court ruled that the notice to the tax board was not proper because of the typographical error and the taxes owed by the debtor were not discharged in the bankruptcy. Ellett v. Stanislaus, 506 F.3d 774 (9th Cir.2007).

The consequences for failing to proofread are limitless; however, the following addresses a few common mistakes and suggests methods to avoid or limit mistakes that can have significant adverse consequences to a client. When you omit a word or phrase in a document such as "no" or "not," the clause has the opposite effect as intended.

For example, in a transaction where it was intended that the seller of assets was to receive future payments based on future sales of products by a buyer, certain sales were not supposed to be included for purposes of calculating the additional payment. Instead of stating that intercompany sales by buyer to its affiliated entities were not to be included, the contract affirmatively stated that those sales were to be included, significantly increasing the buyer's payment obligation to the seller. The consequence is clear and severe. Luckily, the omission in this case was caught early in the drafting and negotiating stage of the transaction because of careful and repeated proofreading.

Another common mistake is the misuse of commas and semicolons. For example: "There has been no material adverse effect in the business, assets, liabilities, condition, prospects or operations, which has occurred within the last six months" versus "There has been no material adverse effect in the business, assets, liabilities, condition, prospects or operations; in each case which has occurred within the last six months." In the first instance, the clause "which has occurred within the last six months" can be read as only modifying "operations." It is not clear for what time period a material adverse effect cannot have occurred in "the business, assets, liabilities, condition (or) prospects." In the second instance, the clause "which has occurred within the last six months" modifies the entire sentence and the six-month time period clearly applies to the entire list. This kind of ambiguity can be used by opposing counsel to alter the intended terms of a transaction.

A third common mistake is an incorrect section reference. A document usually requires a number of drafts. As the document changes often, so do the section references. Failure to catch these section reference changes can cause significant problems in the meaning of a document. One important example is the section references in "survival" provisions of an agreement. In some agreements, certain provisions continue to have effect even after the termination or expiration of the agreement. A survival provision explains this and provides references to the provisions that continue to survive after the termination or expiration of an agreement. A survival provision that fails to include the parties' desire to maintain confidentiality of a particular technology or to not disclose the existence of an agreement after the agreement terminates can have disastrous economic and legal consequences.

Proofreading is not an innate talent. It is a learned skill that requires commitment, time and effort. Errors are most often committed because of the way people are trained to read and think. When reading, we do not typically read each word in its entirety. We read the beginning and end of words and phrases and unconsciously fill in the gaps. This may be acceptable when reading for content but not when proofreading. In addition, when we read our own work, it is easy to read what we intended to write rather than the words actually written. Although learning to proofread takes time and practice, the following are some tools that can almost immediately improve your proofreading.

    Reread everything three or more times. The more you read a document, the more mistakes you will catch. Slow down. By slowing down, you are more likely to read each word.

    Read aloud. Hearing the words adds an extra sense, helping to catch mistakes and making it more likely you will read each word and catch a mistake.

Take a break. After reading the document two or three times, put it down, take a break and come back and read it again. This prevents you from reading what you expect to see rather than what is actually there. Stay focused. If you feel yourself drifting, stop and come back to it. Reading without focus is useless. Proofread in a quiet place. Turn off your e-mail notification and forward your phone. Interruptions make it easy to skip sections and miss words.

Have another person read your work. It is much easier to catch another person's mistakes because you are not anticipating the words he or she has written.

Practice by proofreading everything, even the most mundane e-mails. The more you practice, the easier it gets. Remember: Proofreading is a learned skill and it takes time. It is essential to a successful practitioner, and it is your job to ensure a correct document.

Joe M. Davidson is office operating partner of the San Diego and Del Mar Heights offices of Allen Matkins. He can be reached at jdavidson@allenmatkins.com. Nick Unkovic is an attorney in Allen Matkins' Del Mar Heights office, where he practices in the firm's corporate and securities practice group. He can be reached at nunkovic@allenmatkins.com.