Some Fine Points of Legal Drafting
Ten Things Legal Drafters Should Know, Part Two
Wayne Schiess
5. Words of obligation
When drafters want to impose obligations on a party, they have
many options. That’s one of the main problems with words of obligation: too
many options. Because there are so many options, adequate legal drafters create
inconsistency and confusion in words of obligation.
For example, all of the following words and
phrases were used to impose contractual obligations on the parties in a contract
I recently reviewed.
5a.
Party agrees . . .
Party shall . . .
Party promises . . .
Party will . . .
Party shall be paid . . .
It is expressly agreed that . . .
It is understood and agreed by the
Parties that . . .
This inconsistency is surprising once it’s pointed out. It
invites questions:
Why use a different term for the same
action—imposing an obligation on a party?
What is the difference between “agreeing”
and “expressly agreeing”?
What is the difference between saying that a
party “will” and a party “shall”?
Is there an argument that the different terms imply different
types of obligations—some stronger than others?
Yet despite these obvious questions,
inconsistencies like this are present in many drafted documents. To avoid
inconsistencies like these, better drafters select a single word or phrase to
use when imposing obligations. You then have two options.
(1)
Search the document for every place that an obligation is imposed and
replace inconsistent language with your preferred term.
(2)
Reorganize the document so that all the obligations of one party are in
one place and lead-in to those obligations with your preferred term. It might
look like this.
5c.
1. Buyer’s obligations . . . buyer agrees to—
(a) Pay the purchase price . . .
2. Seller’s obligations . . . seller agrees to—
(a) Deliver the goods . . .
Most agreements are organized by topic or by
subject matter and not by party obligations. Organization by topic makes sense
for the drafter, who must make sure that all the topics are covered. But it may
not make sense for the users, who are probably most interested in what their
obligations are.
The other problem that arises because
drafters have so many choices for words of obligation is that some drafters
choose to use shall. But most of them
use it incorrectly. Did you know that shall
is the most misused word in all of legal language? It is. In the current
edition of Words and Phrases, shall
itself is followed by 109 pages of case squibs, and shall
phrases cover 45 more pages.# Yet
its misuse is one of the most heavily repeated errors in all of law.
When shall
is used to describe a status, to describe future actions, or to seemingly
impose an obligation on an inanimate object, it’s being used incorrectly. For
example:
5d.
Status: “Full capacity” shall have the meaning . . .
5e.
Future action: If . . . then the contract price shall be increased .
. .
5f.
Faulty imposing of obligation: The remaining oil shall be sold by
lessee . . .
To correctly use shall,
confine it to the meaning “has a duty to” and use it to impose a duty on a
capable actor.# Examples 5g and 5h
show how:
5g.
Lessee shall sell the remaining oil . . .
In other words—
5h.
Lessee [an actor capable of carrying out an obligation] shall [has a duty
to] sell the remaining oil . . .
Meticulous use of shall
correctly may not seem worth it. After all, we know what 5f actually means,
right? It imposes an obligation on the lessee to sell the remaining oil. But
consider this provision, which was raised as an issue in a child-support case:
5i.
The Respondent shall pay 26% of his monthly net income to the Petitioner
as child support. Beginning in the year 2000, Petitioner shall receive 26% of
all bonus checks.
Does the Respondent have an obligation to pay
26% of the bonus checks to the Petitioner? The language, taken literally, does
not impose that obligation. Instead, it strangely imposes an obligation on the
Petitioner to receive the money.
Naturally, the court ruled that the Respondent had to pay 26% of the bonus
checks.
But note two things. To reach that ruling,
the court had to disregard the literal language of the provision—much to the
relief of the drafter. And the Petitioner had to spend time and money litigating
the issue—much to the chagrin of the drafter.
6. Poor sentence
structure, including nominalizations and passive voice
Two common sentence weaknesses merit special attention here.
First is the passive-voice construction. Its
main drawback in other writing appears in drafting, too: it can obscure the
actor in a sentence. When a drafted document seeks to impose obligations,
obscuring the actor is unwise. In the following examples, we may be able to
figure out who bears the obligations, but we shouldn’t have to.
6a.
The oil and gas royalties shall be
paid to lessor in accordance with the requirements of section 2.3(a) . . .
[paid by whom?]
6b.
Before any work is commenced, permits shall be
secured for all swimming pools and for the safety barriers . . . [who must
secure them?]
I consider this shoddy drafting.
Sometimes, when naming the actor or actors
would be superfluous or would require a long list, the passive voice might be
acceptable.
6c.
All speech and assembly activities must be
conducted in accordance with the provisions of this Chapter . . .
This is acceptable because revising to name the actor
could be difficult:
6d.
Students, faculty, staff, and any other person subject to these
regulations must conduct all speech and assembly activities in accordance with
the provisions of this Chapter . . .
But try this:
6e.
This Chapter governs all speech and assembly activities . . .
The second sentence problem that infects
legal drafting is the nominalization. By using a long noun instead of a shorter
verb form of the same word, drafters create not only longer sentences and drier
prose, but they also sometimes obscure the actor.#
Again, obscuring the actor is rarely desirable in legal drafting.
6f. Nominalized:
Upon release of the Confidential Information . . .
6g. Better:
If Recipient releases the Confidential Information . . .
6h. Nominalized
and passive: If payment of the Deferred Amount is requested . . .
6i. Better:
If First Bank requests that Borrower pay the Deferred Amount . . .
7. Misplaced
modifiers and the doctrine of the last antecedent
Ambiguously-placed modifying words and phrases cause much
litigation of drafted documents. Avoiding two modifying errors will save your
drafts from the most common problems.
The first problem is listing two or more
items and then adding a modifying phrase after the list, like this:
7a. Poor:
Officers and directors who are minority shareholders must . . .
Does the phrase “who are minority shareholders”
modify both directors and officers?
In other words, must the officers also be minority shareholders?
7b. Poor:
Corporations and partnerships with offices in Texas may . . .
Does the phrase “with offices in Texas” modify both partnerships
and corporations? In other words,
must the corporations also have offices in Texas?
My informal surveys of lawyers tell me that
most of us instinctively think the modifying phrase applies to both antecedents.
But the law has a canon of construction called the doctrine of the last
antecedent; it holds that the modifying phrase relates only to the last or
immediately preceding item. Under that doctrine, 7a and 7b would be construed
this way:
7c. Better:
Officers must . . . [and] Directors who are minority shareholders must . . .
7d. Better:
Corporations may . . . and Partnerships with offices in Texas
may . . .
The better practice is to clarify what you mean. Separate the
phrases as in 7c and 7d if the modifier applies only to the last antecedent.
Repeat or tabulate if the modifier applies to all the items listed.
7e. Repeat:
Officers who are minority shareholders and directors who are minority
shareholders must . . .
7f.
Repeat: Corporations with offices in Texas and partnerships with
offices in Texas may . . .
7g. Tabulate:
Any of the following who are also minority shareholders must . . .
(a) officers, and
(b) directors.
7h. Tabulate:
Any of the following with offices in Texas may . . .
(a) corporations, and
(b) partnerships.
Better drafters should not rely on the
doctrine of the last antecedent to resolve their poorly placed modifiers. In
fact, legal drafters should not rely on the canons of construction much at all.
The truth is that the canons of construction are not binding law; they are
merely suggestions or guidelines. Judges may employ them or not, depending on
the result they want to reach. Besides, for every canon of construction, there
is a countervailing canon. For example:
If language is unambiguous, its plain meaning should
be applied unless doing so would be unjust.
Better legal drafters create clear and careful documents
without paying great heed to the canons.
The second problem that arises from modifiers
is the opposite: the placement of a modifier before a list of items.
7i.
The trustee may distribute funds to nonprofit corporations and
associations.
Must the associations also be nonprofit? Or may the
trustee distribute funds to any association?
As with the other modifying problem, this one
can be fixed easily. Decide what you mean and then repeat or tabulate.
7j. Repeat:
The trustee may distribute funds to nonprofit corporations and nonprofit
associations.
7k. Tabulate:
The trustee may distribute funds to nonprofit—
(a) corporations, and
(b) associations.
7l. Tabulate:
The trustee may distribute funds to—
(a) nonprofit corporations, and
(b) associations.
8. Synonym
strings
In many drafted documents you’ll find synonym strings,
either in pairs or in longer groups. Most of them are unnecessary. They not only
impair reading but also invite problems of construction: if you used four
different words, you must have meant four different things. And experts agree
that including synonym strings without a good reason—just in case—is lazy
drafting.
The better approach is to look at the string
and ask yourself if the words are redundant (consult a dictionary if you must).
If they are redundant, cut all but the one you want. If they are not redundant,
ask yourself if you need them all. If not, cut. But if you do need them, ask
yourself one more question: is there a single word that would cover all the
meaning you need? If so, use it.
Common redundant synonym strings
Instead of this—above
and foregoing
Use this—above, or
name the specific location
Instead of this—any
and all
Use this—pick one
Instead of this—by
and between
Use this—between
Instead of this—ordered,
adjudged, and decreed
Use this—ordered
Instead
of this—true and correct Use
this—accurate
Instead of this—understood
and agreed
Use this—If you
mean that the party both understands and agrees, fine. Usually you just mean agrees.
Instead of this—will
and testament
Use this—will
Four more from drafting-expert Kenneth Adams#
Instead of this—interpreted,
governed by, construed
Try this—governed
by
Instead of this—power
and authority
Try this—power
Instead of this—right,
title, and interest Try this—interest
Instead of this—sell,
convey, assign, and transfer
Try this—sell
9. Archaisms
Elizabethan English (that’s the 1500s) survives in today’s
drafted documents. Usually it has been carried along in a form through
generations of drafters either afraid to remove it or believing that it serves a
vital legal purpose. Generally, archaisms impair understanding and create
problems of ambiguity or vagueness. Here are my comments on the worst.
aforesaid,
aforementioned, foregoing
Old and imprecise. If you are referring to something that has
gone before, name it specifically or describe exactly where to find it.
herein, hereby, therein,
thereby and the like
Old and vague. For example, herein
has 22 case squibs in Words and Phrases,
and they bear out the opinions of the experts, Garner and Mellinkoff, that herein is vague.# Herein
has been held to refer to a whole will, a provision in a will, a covenant in
a deed, two granting clauses in a deed, a whole statutory act, a chapter of an
act, an article of an act, and particular paragraphs of an act.#
know all men by these
presents
Should not be used in professional legal drafting.
to wit
Usually, you can replace this archaism with a colon.
whereas in recitals
All the experts are against whereas
recitals. Just state what you have to state and call it background,
or even recitals. Do not string
together a series of paragraphs beginning with whereas.
wherefore premises
considered
Unnecessary. Better drafters have eliminated this from their
drafts for decades.
witnesseth
It is “archaic and inane”#
according to Kenneth Adams.
10. Document design,
including
numbering
Here are a few document design and format suggestions
specifically for legal drafting.
Doubling numerals and text.
Many drafters duplicate numbers by using both numerals and
text, like this:
10a. The board has a quorum if five (5) members are at the meeting.
This sentence came from a letter, not a binding document. The
doubling is pointless. How does it help the document?
10b. Applicants must file the request within sixty (60) days.
This sentence came from a government regulation. The doubling
seems more appropriate here, though I can’t say why. Still, I wouldn’t do
it.
10c. The purchase price is three hundred ten and
76/100s dollars ($310.76).
This sentence came from a contract. In contracts, doubling
probably arose from a desire to prevent forgery. Forgery is unlikely in a
printed document, though, so the experts recommend against doubling.
Don’t double the numbers in an effort to
force yourself to double-check all the numbers. Do the double-checking anyway,
but don’t double: you’re giving yourself twice as many chances to make a
mistake.
Numbering
I prefer to use strictly Arabic numbers and to avoid Roman
numerals (XIX) and romanettes (viii).
Decimal-point numbering systems are a common
and excellent approach. Here is one possible system:
1 Section; this should also contain a title or section
name.
1.1
Subsection; may also contain a heading.
(a) Paragraph; may also contain a heading.
(1) Subparagraph.
(A) Clause.
Finally, better drafters avoid leaving unnumbered text, often
called “dangling” or “flush-left” text. Consider this example of
unnumbered text.
10.d 1.1 Royalties.
(a) The Publisher will pay the Author a royalty on all
net sales of the book or any revision done by the Author. The royalties are
(1) payable
semi-annually based on the date of this contract;
(2) paid at 10%
for 1–500 copies sold, 15% for 501–1000 copies sold, and 20% for 1001+
copies sold.
The Publisher may deduct from royalties the cost of
any Author’s alterations or corrections in the galleys and page proofs that
exceed 10% of the cost of setting the type.
To refer to the last paragraph, you must say “the paragraph
after 1.1(a)(2).” That’s awkward, so don’t leave unnumbered text dangling
in this way.
10.e 1.1 Royalties.
(a)
The Publisher will pay the Author a royalty on all net sales of the book
or any revision done by the Author. The royalties are
(1) payable
semi-annually based on the date of this contract;
(2) paid at 10%
for 1–500 copies sold, 15% for 501–1000 copies sold, and 20% for 1001+
copies sold.
(b) The Publisher may deduct from royalties the cost
of any Author’s alterations or corrections in the galleys and page proofs that
exceed 10% of the cost of setting the type.
Conclusion
Keep these ten ideas in mind on every drafting project, and
you’ll distinguish yourself among legal drafters.
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.
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