Some Fine Points of Legal Drafting
Ten Things Legal Drafters Should Know, Part One
Wayne Schiess
It is difficult to convince the profession in general that drafting is a special skill that requires intense application.
—Robert C. Dick, Legal Drafting 4 (2d ed., Carswell Co., Ltd 1985).
[E]very lawyer occasionally gets involved in legal drafting of some sort—even if it’s only a settlement agreement—and every lawyer should become familiar with these principles.
—Bryan A. Garner, Legal Writing in Plain English:
A Text with Exercises 89 (U. Chicago Press 2000).
Summary
This article takes the approach that legal drafting is an important intellectual pursuit. The article presents ten things that every lawyer should know to be expert at the skill of legal drafting.
Introduction
Do you draft? Let me clarify that I am using the term drafting in a narrow and specific way to refer to the writing of instruments, agreements, and rules. I do not use the term drafting to refer to the writing of letters, memos, briefs, or court documents. Drafting is a specialized type of legal writing—a field in itself.
But many lawyers might say “I don’t draft. I’m not a transactional lawyer.” But do you write settlement agreements in litigation? Do you prepare text for employee-benefit manuals? Have you ever written a website disclaimer? Then you draft.
If you draft then you can benefit from the ten points here.
1. Drafting education—original and continuing
Many law schools do not offer training in legal drafting. Those that do offer it usually do so as a small part of the first-year course in legal research and writing. That course focuses on analytical and persuasive writing, as it should, so legal drafting often receives very little coverage. Only a few law schools offer a required course in legal drafting, and only a few more offer an optional course. Legal-writing expert Joseph Kimble labels the situation a “sickening failure.”
Why would this be so? One reason is that gaining expertise in legal drafting and teaching it are tedious activities. The subject is a little dry. For most writing professors, if you have a choice to teach an advanced course on persuasive writing or an advanced course on legal drafting, you’ll choose to teach persuasive writing. It’s more interesting; it allows for more literary-style creativity. Drafting, on the other hand, is dull.
Besides, isn’t legal drafting “just forms”? That’s what one of my students said when I asked why students did not insist on legal-drafting courses. That perception is strong. Too many believe that legal drafting in practice means finding a form and changing the names and dates. But it’s not always that easy.
Legal drafting is a legal academic subject like any other: torts, trial practice, mediation. It is a subject worthy of independent study and practice. It has a history, it has a scholarly literature, it has experts, and it has a future: yes, legal drafting evolves and changes. And it’s evolving and changing rapidly today.
Those who draft legal documents daily in their practice ought to make legal drafting a pursuit. They ought to stay current. They ought to know the best sources in the field and the names of the experts. They ought to commit to learning all they can about legal drafting. Those who draft only occasionally—and that’s nearly all lawyers—should learn about the field as well, though they might be excused from the same level of commitment.
To succeed in the pursuit of legal-drafting expertise, you will need to include legal drafting in your continuing legal education, promote better legal drafting at your office, and incorporate legal drafting books and articles into your professional reading.
Names in the field
Once you make the commitment to study up on legal drafting, you’ll begin to recognize the names of the experts in the field. I’m taking a bold stance here, but I say that anyone who drafts legal documents for a living ought to at least know who these people are. The first three are dead, but their influence survives:
REED DICKERSON
I consider him the “father of American legal drafting” because he was the first prominent law professor to devote focused study on legal drafting. He also published at least six texts on the subject:
Cases and Materials on Legislation, The Fundamentals of Legal Drafting, Legislative Drafting, Materials on Legal Drafting, The Interpretation and Application of Statutes, and
Professionalizing Legislative Drafting: The Federal Experience.
DAVID MELLINKOFF
The author of The Language of the Law devoted much of his career to the history of legal words and provided great insights for legal drafters. If you run across a troubling legal word, Mellinkoff probably has a history of it in his book. His views on forms and litigation-tested legal language were ahead of their time and are still not widely acknowledged.
RUDOLF FLESCH
The guru of readability had a lot to say to lawyers who must draft for nonlawyers, and most of it is not kind. If you draft legal documents that nonlawyers must read and understand, whether website disclaimers, hospital regulations, or insurance policies, Flesch will help. Get his book
How to Write Plain English.
These next three legal-drafting experts are working today:
THOMAS HAGGARD
This law professor is the author of five books on legal writing, three of them devoted to legal drafting.
His Legal Drafting in a Nutshell is an excellent book that, despite the simple-sounding title, will benefit any legal drafter, no matter how experienced.
JOSEPH KIMBLE
Professor Kimble is the leading expert on plain English in the United States. He has published a dozen articles on the subject and is the Editor-in-Chief of the
Scribes Journal of Legal Writing. He has also served as the drafting consultant on several projects, most notably the redraft of the Federal Rules of Criminal Procedure. Professor Kimble always backs up what he says with research and reliable authorities, so any one of his articles is like a primer on good legal drafting. For starters, I recommend these:
Answering the Critics of Plain Language, 5 Scribes J. Leg. Writing 51 (1994–1995).
Plain English: A Charter for Clear Writing, 9 Cooley L. Rev. 1 (1992).
The Great Myth that Plain Language is not Precise, 7 Scribes J. Leg. Writing 109 (1998–2000).
Writing for Dollars, Writing to Please, 6 Scribes J. Leg. Writing 1 (1996–1997).
BRYAN GARNER
A leading expert on legal writing, legal drafting, legal usage, and English usage, Garner’s name is one to know in legal-writing circles. His
Dictionary of Modern Legal Usage contains more good legal-drafting advice than many books devoted entirely to legal drafting.
Sources to know
Besides the leading experts, you should know and study the best sources. There are not a lot of great books on legal drafting, but here are a handful I recommend:
Barbara Child, Drafting Legal Documents: Principles and Practices (2d ed., West 1992).
Bryan A. Garner, Guidelines for Drafting & Editing Court Rules, 169 F.R.D. 176 (1996).
Howard Darmstadter, Hereof, Thereof, and Everywhereof: A Contrarian Guide to Legal Drafting (ABA 2002).
Kenneth A. Adams, Legal Usage in Drafting Corporate Agreements (Quorum Books 2001).
Thomas R. Haggard, Legal Drafting in a Nutshell (2d ed., West 2002).
Negotiating and Drafting Contract Boilerplate (Tina L. Stark, ed., ALM Pblg. 2003).
I urge you to treat legal drafting as a difficult but crucial professional skill.
2. Forms: consistency, accretion, and style
Should legal drafters even use forms?
Yes. They’re a necessity. No legal drafter can get by in a typical practice today without using forms. The time and expense that would result from drafting everything from scratch would be enormous. That’s why better legal drafters know that it’s not whether you use forms, but how. Forms have at least four drawbacks.
First, forms foster haste and laziness because they can be used so easily. David Mellinkoff said that “[t]hey are a quick, cheap substitute for knowledge and independent thinking.” For example, if the current transaction seems the same as a previous transaction, the “form” from the earlier transaction can be converted to a draft for this transaction very quickly. It really is just a matter of changing the names and the dates. But just because it can be done quickly does not mean it should be. The belief that any form can be adapted to a new transaction quickly isn’t wrong, but it produces a sense of ease—often a false one. That sense of ease is one of the biggest drawbacks of forms.
Second, forms often contain outdated language and formats. A cardinal rule: you might trust the form to be right on the law or the necessary terms, but you shouldn’t trust the form to be well drafted. According to Thomas Haggard, “[t]he best thing about [form] books is often not the language they suggest for specific provisions (which is usually atrocious), but rather the factual checklists they contain.” In truth, forms are notorious for wordy, archaic usage and for excessive formality.
Third, forms often contain language and provisions created by several different drafters. The result is a patchwork of legal-drafting styles. That may not seem such a terrible thing in a genre of writing that Kimble says is supposed to be “devoid of any writer’s voice.” But the problems run deeper than voice: “[V]erbatim inclusion of a clause lifted from someone else’s document can and will create anomalies of style that not only offend the artistic sensibilities . . . but frequently lead to confusion and ambiguity.” The original drafter of a term or provision in your form may have been representing a completely different type of client or may have been working under now-unknown constraints. A form might contain language from different stages of a transaction or different stages of several transactions.
Fourth, forms often contain unnecessary terms, irrelevant language, and problems of accretion. In other words, as Howard Darmstadter says, lawyers never seem to cut language from a form; they only add: “Forms tend to grow by accretion, with many persons adding paragraphs and clauses without much understanding of what has gone before. The result is frequently a form whose numerous intricacies and subtleties are invisible to all sides.” Besides, it gets longer and longer and looks worse and worse. Consider this example from
Working with Contracts by Charles M. Fox; he calls it “accretive drafting”:
2a. Issuer shall not pay any dividends or make any distributions in respect of Capital Stock, or repurchase, redeem or otherwise acquire for value any Capital Stock.
First a parenthetical is added (accretions are italicized):
2b. Issuer shall not pay any dividends or make any distributions in respect of Capital Stock
(except for dividends paid in additional Capital Stock), or repurchase, redeem or otherwise acquire for value any Capital Stock.
Now a proviso is used to tack on more language:
2c. Issuer shall not pay any dividends or make any distributions in respect of Capital Stock (except for dividends paid in additional Capital Stock), or repurchase, redeem or otherwise acquire for value any Capital Stock,
provided, however, that Issuer may repurchase Capital Stock from members of management in an amount not to exceed $1 million in any
year.
And a second proviso is added. The paragraph is now much more difficult to digest:
2d. Issuer shall not pay any dividends or make any distributions in respect of Capital Stock (except for dividends paid in additional Capital Stock), or repurchase, redeem or otherwise acquire for value any Capital Stock, provided, however, that Issuer may repurchase Capital Stock from members of management in an amount not to exceed $1 million in any year,
and provided further, that such repurchases shall not be permitted at any time an Event of Default has occurred and is
continuing.
Despite the risks, drafters will continue to use forms and use them a lot. So whether you are using a commercial formbook or a previous transaction document from a colleague, here are four recommendations for using forms.
Never include language you don’t understand.
It may seem like common sense, but it’s common sense many young lawyers ignore. Certainly, the drafter thinks, this language is in there for a reason—a good reason. So find the reason, whether it means researching the law, researching the drafting guides, or asking your supervisor. As Bryan Garner advises, if you don’t understand what certain language in the form means or why it is there, you’d better gain the understanding or leave it out.
Edit and revise thoroughly.
Naturally, you will edit and revise the forms you use. But my point is that you edit and revise not just to adapt the form to the current transaction, but also to adapt the form to your own drafting approach. Make the document your own. Master it. Eliminate the inconsistencies and the irrelevant provisions. Integrate the accretions into the draft coherently.
Preserve a “starting place” form.
What form should you use to begin the negotiations for a transaction? Too often, lawyers use as a starting place a document from a previous transaction, in its final, negotiated form. That may not be the best document to start with. A document that was actually used to close a transaction is the product of negotiation, of give and take, and—most likely—of a power struggle. It may not be useful as a starting place.
So experts recommend that you use a “starting place” form. Kenneth Adams suggests using “whenever possible, the first draft of an agreement.” He suggests that the best document to work with might be the first version that was sent to the other side in a previous transaction. By starting with that form, you might be spared reading, comprehending, and editing the myriad changes that certainly occurred during the last transaction’s negotiations.
Learn to draft from scratch when you must.
Take advantage of you chances to draft without a form. Contrary to conventional wisdom, there is not a form for everything. When you don’t have a form, apply the knowledge you have gained from studying legal drafting to create modern, professional-level drafts.
Even when you’re using a form, question it. If you see form language that seems outdated, poor, or wrong, fix it. A great to way to improve your drafting is to identify the problems in forms and fix them. Apply the drafting knowledge you are gaining by improving every form you use.
3. Legal-drafting myths: precision and nonambiguity
Legal drafting has its own mythology, and two myths more than any others have contributed to the style of legal drafting. These are the myths that legalese is more precise than other types of writing and that legalese eliminates ambiguity. Depending on how you look at it, these myths either (1) support the precise and unambiguous legal drafting we often see today or (2) prevent legal drafting from becoming clear and functional. I’m behind number 2.
No language, let alone legal language, can ever be perfectly precise or perfectly unambiguous. Numerous authorities have suggested this truth for years. I address both myths below.
Ambiguity
Consider these quotations from the experts:
Ambiguity, despite what many lawyers seem to believe, inheres in all writing.
Elaboration in drafting does not result in reduced ambiguity. Each elaboration introduced to meet one problem of interpretation imports with it new problems of interpretation.
Unfortunately, every text, no matter how carefully constructed, is inherently ambiguous. We always depend upon a reasonable reader to make a reasonable interpretation, supplementing from context and common sense where necessary.
Ambiguity means that a single word, phrase, or provision is capable of two different meanings. Ambiguity is different from vagueness, which means a lack of specificity. Ambiguity is highly undesirable in legal drafting and should never be intentionally included. Vagueness, on the other hand, may be desirable or necessary. For example:
3a. Ambiguity: The buyer must pay the contract price by 12:00. (Noon or midnight?)
3b. Vagueness: The buyer must pay all reasonable shipping costs. (What is reasonable?)
Given that ambiguity is likely to arise despite the efforts of the legal drafter, what should we do about it? Two things:
First, keep trying to be as clear as possible. Read and reread your draft to find ambiguities. Where possible, eliminate them. Avoid excessive elaboration, which invites ambiguity.
Second, be aware of some common types of ambiguities. Two common types involving modifying words and phrases are discussed in section 7 of this chapter. For a thorough discussion of ambiguities, see Haggard’s
Legal Drafting in a Nutshell. Of particular note are these:
and/or
Often criticized by judges, this phrase has caused many headaches. Experts recommend saying what you
mean—and or or—or using “A or B or both.”
not . . . because
A negative construction followed by because can be ambiguous. For example: “Buyer cannot reject goods because of prior contractual obligations.” This could mean either (1) Buyer is unable to reject the goods, and the reason Buyer is unable is prior contractual obligations, or (2) Buyer cannot use prior contractual obligations as a reasons to reject the goods. Choose one.
provided that; provided, however that
Experts have criticized provisos because it is not clear whether they create an exception, an addition, or a condition. Be precise about which you mean.
until
In a provision that “buyer has until January 15, 2004, to reject the goods,” may the buyer reject on January 15? Courts are not uniform in their responses. Better to say “before January 16” or “on or before January 15.”
Precision
Here the myth is that legalese is more precise than everyday English. Often, this myth rests on the idea that many legal words are terms of art. That’s not true; terms of art are fairly rare, according to Mellinkoff. Sometimes the myth rests on the idea that legal words have been construed by a court and given clear meanings. Mellinkoff debunks that myth effectively in
The Language of the Law, and refers to Words and Phrases, where judicial definitions of words are collected, as an “impressive demonstration of lack of precision in the language of the law.”
So get it out of your head that legalese is more precise than everyday English. Usually, it’s not. And question the archaic legalisms in your documents. Here’s what the experts say:
Modern, plain English is as capable of precision as traditional legal English.
The truth is that many people, lawyers included, buy into the fallacy that there must be a great deal of precision in legalese.
Legal drafters tend to use portentous language that smacks of spurious accuracy. Most of this language could easily be replaced with more familiar words. It gives a document the appearance of a special or technical meaning that it does not, in fact, have. Even among lawyers themselves, ponderous language may create an illusion of precision.
4. Sentence length and density
Legal drafters create too-long and too-dense sentences for two reasons.
First, some legal drafters believe the ancient myth that all the qualifiers to a single idea must be in the same sentence as that idea. You don’t have to take my word for the falsity of this notion; the experts know better:
When a general statement is subject to an exception or two, why do drafters feel that the exceptions must be packed into the same sentence as the general statement?
They think that in order to achieve clear understandings, they must stuff every related idea into a single sentence between an initial capital letter and a final period. They are, of course, wrong.
Often, overlong sentences are the result of the drafter attempting to address, in one fell swoop, all facets of a given provision by stringing together clauses that could constitute sentences in their own right and piling on exceptions, qualifications, and conditions. Breaking such sentences down into their constituent components often makes them easier to read and does not affect meaning.
Second, many lawyers are simply in the habit of drafting long sentences. They are used to seeing them in other agreements and in judicial opinions. They are used to reading sentences packed with too much information. And they are used to writing long sentences—perhaps because they are using “accretive drafting” in forms.
The best way to fix long sentences is to break them up. Decide on a sentence-length goal—25 to 30 words per sentence is great for legal drafting—and then use your word processor to calculate the average sentence length of your draft. If it comes in at 35 or 40, get to work breaking up the longest sentences.
Another way to fix both sentence length and sentence density is to keep ideas parallel or to number or tabulate them. That way, even if the grammatical sentence is long, the reader still has a chance of following it. For example:
4a. If gas produced from the leased premises is processed in a hydrocarbon recovery plant for the recovery of liquid hydrocarbons, and if such plant is not owned in whole or in part by lessee or by any subsidiary or affiliate of lessee, and if lessee receives plant products or revenue attributable thereto or other benefits therefrom, then lessor shall receive the applicable royalty percentage of the market value of all such plant products, revenue and other benefits received by lessee or any subsidiary or affiliate of lessee attributable to gas produced from the leased premises, and, in addition thereto, the applicable royalty percentage of the market value of all residue gas at the point of sale.
This provision has 116 words per sentence. That is, it is a single sentence of 116 words. Look what happens when we break it up (and re-order it):
4b. 1. If gas produced from the lease premises is processed in a hydrocarbon-recovery plant for the recovery of liquid hydrocarbons, then—
(a) the lessee must pay the applicable royalty percentage of the market value of all plant products, revenue, and other benefits received by lessee—or any subsidiary or affiliate of lessee—attributable to gas produced from the leased premises, and
(b) the lessee must also pay the applicable royalty percentage of the market value of all residue gas at the point of sale.
2. But lessee must pay the amounts in 1(a) and 1(b) only if—
(a) the lessee receives plant products or revenue attributable to the hydrocarbon-recovery plant or other benefits from the hydrocarbon-recovery plant, and
(b) the hydrocarbon-recovery plant is not owned in whole or in part by lessee or by any subsidiary or affiliate of lessee.
(c) the lessee receives plant products or revenue attributable to the hydrocarbon-recovery plant or other benefits from the hydrocarbon-recovery plant.
This provision now has 23 words per sentence. As you can see, if you reduce sentence length and density, you’ll get three benefits:
First, you and the other lawyers working on the document will be better able to read and understand it.
Second, the nonlawyers who must operate under the document or carry it out will be better able to read and understand it.
Third, by breaking up sentences, you’ll naturally eliminate some ambiguity and confusion, and you’ll probably notice and be able to cut some inconsistencies and irrelevancies. Besides, as writing expert Steven Stark says, “The more complicated your information is, the shorter your sentences should be.”
Mr. Schiess is the director of the legal-writing program at the University of Texas School of Law in Austin and teaches legal writing, legal drafting, and plain English. He is also a frequent and favorite seminar speaker on those subjects. He has published more than a dozen articles on practical legal-writing skills, plus the book Writing for the Legal Audience. He is also an associate editor for the Scribes Journal of Legal Writing. He graduated from Cornell Law School, practiced law for three years at the Texas firm of Baker Botts, and in 1992 joined the faculty at the University of Texas School of Law.
This article is reprinted from Schiess's latest book, Better Legal Writing: 15 Topics for Advanced Legal Writers (2005), by permission of the publisher, William S. Hein & Co.
|
