Legal Drafting in a Nutshell
Authors:
Kuney, George W. / Looper, Donna C.
Edition:
4th
Copyright Date:
2016
26 chapters
have results for Legal Writing in a Nutshell
Chapter 13. Drafting Style and Usage 178 results (showing 5 best matches)
- The slash should not be used in legal writing because of the ambiguity involved. The slash could indicate “and” (conjunctive) or “or” (disjunctive), thus creating unnecessary ambiguity. The only acceptable use for a slash in legal writing is for dates (03/13/10) and fractions (½).
- There is no place in legal drafting for the English composition and literature practice of “elegant variation,” a term coined by Henry Watson Fowler in his (1st ed., 1926). The practice consists of the unnecessary and often misleading use of synonyms or close synonyms to describe the same thing in different passages of a writing in order to avoid repetition. While potentially useful in lyrics and poetry, so that the verses hit the correct measure and rhythm, it has no place in legal drafting.
- (which can be replaced with “proportionately”) should all be written without hyphens. Even if omitting a hyphen results in a double letter, a hyphen should generally not be used to attach a prefix to a word. However, if the result would cause confusion or mispronunciation (such as in the case of co-op or re-lease), a hyphen is justified. When in doubt as to the use of a hyphen, write the word as one unit. To be accurate, consult the most current unabridged or legal dictionary available to ascertain the preferred modern usage for your requirements.
- The statements made in this section are general ones, and you must evaluate in each instance whether the general advice should be followed. In drafting agreements, concentrate especially on whether your chosen word has the correct level of specificity. Underlying these rules is the belief that overdressing one’s writing makes it harder to read and does not demonstrate education or sophistication. Rather, education and sophistication are shown by drafting that makes its meaning clear with little effort on the reader’s part. Still, reasonable minds can differ on matters of word choice. Use the following suggestions as a guide, but, as with most legal drafting, it is best for you to make up your own mind as to what is appropriate under the particular circumstances.
- A lay person might erroneously think that the chains of words discussed above are necessary, and thus admire their lawyer’s attention to detail. Still, most lay persons know that the “wherein’s,” “aforesaid’s,” and “hereinafter’s” are unnecessary. Indeed, nothing has contributed more to the bad reputation of legal writing than these archaic terms. Do not use them, or, if you must, use them sparingly. A partial list of legalese:
- Open Chapter
Chapter 1. A Philosophy of Drafting 85 results (showing 5 best matches)
- True concision is an essential element of good drafting. Lawyers, judges, clients, and other readers of legal writing are generally very busy people. They are not reading for pleasure. They have neither the time nor the patience to plod through page after page of excess in a brief or a contract. Nor do they need to be given information that is irrelevant to the purpose for which they are reading the document. As is true of all writing, legal writing must be done with the needs of the intended audience well in mind.
- In either event, the literary form of legal discourse is that of an analysis or argument, consisting of premises from which a certain conclusion is drawn. In addition to being logically structured, this form of legal writing must also be easily readable and possess some degree of eloquence. Word choice, sentence structure, diction, cadence, and the smooth flow of ideas are all of critical importance.
- The goal of the drafting process is to produce documents that can be easily understood by the legal and lay audience involved in the matter. Legal drafting is different from other forms of writing. It is purposeful writing meant to inform, persuade, and memorialize events, agreements, and legal analysis.
- Good legal drafting has a direct, professional tone. The opposing evils in legal drafting are folksiness and pompousness. The object is to steer a course between the two. Legal documents are about serious matters. They should not read like social media—with contractions, colloquialisms, sentence fragments, or editorial comments. Nor should lawyers ignore the conventions about what is offensive to the community, such as the use of gender-specific language. On the other hand, a legal document should not be written in stuffy, pretentious language.
- Though all good legal writing possesses the attributes of plain English, accuracy, clarity, concision, simplicity, and a proper tone, differences exist between the various forms of legal writing.
- Open Chapter
Appendix 33 results (showing 5 best matches)
Copyright Page 4 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- © West, a Thomson business, 2003 © 2016 LEG, Inc. d/b/a West Academic
- Printed in the United States of America
- Open Chapter
Chapter 6. Legal Drafting Overview 68 results (showing 5 best matches)
- Some think of legal drafting principally in terms of writing the document. Although this is an important part of drafting, it is merely an intermediate part of a larger, more complex endeavor.
- The drafter’s rules of style and usage are designed not only to avoid ambiguity, but also to promote consistency, brevity, clarity, simplicity, and professional tone. Although all legal writing shares those objectives, they are the essentials of good drafting. These rules are discussed in Chapter 13.
- First, in moving toward the realization of the client’s objectives, the drafter must choose from potentially competing legal concepts. Will the client’s purposes be better served if the other contracting party is conceptualized as an independent contractor or an employee? Should the conduct that legislation is going to prohibit be conceptualized as a crime or merely a civil wrong? Those legal concepts have different legal consequences.
- Drafted documents create rights, duties, privileges, immunities, conditions, authority to act, and other legal relationships. Different words are used to create each of these legal relationships. They include “shall,” “shall not,” “will,” “may,” “must,” “is entitled to,” “is,” “represent,” “warrants,” and others. The difficulty is not in matching the right word with the intended consequence. Rather, the difficulty is in deciding which legal consequence to create. Would it be better to make something a “right” or a “privilege”? The two are significantly different. Or should something be made a mere condition rather than a duty? Again, each has very different legal consequences. These terms are discussed in Chapter 15.
- In some areas of the law, a document must use a specific term of art to accomplish the intended result. This is true, for example, with respect to will drafting and conveyances of real property. Also, particular language is, or should be, used for creating definitions and specific legal consequences. Apart from that, however, there are very few magic words that must always be used in drafted documents.
- Open Chapter
Chapter 14. Definitions 113 results (showing 5 best matches)
- This is the most common form of definition and is used in all forms of legal writing. A “vest pocket definition” provides the defined term that the document will subsequently use to refer to a party or concept. For example:
- The drafter should take care to test a document’s definitions. First, the drafter should go through the document and highlight every use of the defined term. This may reveal several things. The drafter may discover, for example, that the term is not used at all in the document or that it is used only once. More importantly, the drafter may discover that the term is occasionally used in its conventional, rather than its defined sense. Finally, the drafter may discover that when the full definition replaces the defined term in the text, the result is linguistic and logical incoherence. Assume that a definition provides, “ ‘Representative’ means being party to a written agency agreement with the Company.” The substantive provision of the contract then provides, “Representatives shall report all sales monthly.” If the term is replaced with its definition, we have this monstrosity: “Being party to a written agency agreement with the Company shall report all sales monthly.” Representative...
- Although two unrelated words should never be given the same full definition, this is not true of a word and its derivative forms. For example, a document may use both “writing” and “written.” If the drafter intends for them to mean the same thing, then this form of definition would be appropriate:
- Before defining a term, check an unabridged dictionary and a legal dictionary or book on legal usage. The drafter can determine from these sources whether it is necessary to create a new definition.
- “Writing” means the recording of words on paper, and “written” has a corresponding meaning.
- Open Chapter
Chapter 5. Drafting Ethics 83 results (showing 5 best matches)
- • A lawyer cannot enter into a business transaction with a client unless the terms are fair, the client has the opportunity to retain other counsel, and the client consents in writing. A lawyer’s business contract with a client is subject to intense scrutiny for overreaching. As an aside, it is not at all unusual for clients to suggest entering into a mutual business transaction with a lawyer, perhaps in exchange for a discount or in lieu of paying legal fees for associated work. This proposal may seem like a good idea at the outset but will almost certainly result in an ethics complaint and litigation if the client later becomes dissatisfied with the relationship, which happens all too often.
- Lawyers are frequently asked to draft a contract for both parties, who say that they have agreed in principle and just want the lawyer to write it up in legal form. The representation of each may be representation against the other. This is because the parties’ interests are almost always hostile to some extent, although they may not truly appreciate that fact. The question usually is whether the representation of one party will be materially limited by the lawyer’s responsibility to the other party.
- First, local bar associations frequently sponsor legal clinics where community members can get legal advice on various matters. In addition, these clinics often provide simple contract and will drafting services. Second, churches and charities frequently urge their members and contributors to include a bequest to the institution in wills or to establish a trust on behalf of the institution. In both instances, the skilled drafter can provide an invaluable service, by drafting the necessary documents without cost.
- A legal drafter is likely to become involved in the unauthorized practice of law in two situations. Do-it-yourself books and, computer programs that purport to enable lay persons to create their own legal documents generally do not constitute unauthorized practice, and entrepreneur lawyer-drafters may participate in the preparation of these materials. The courts, however, generally draw the line at giving advice that is personalized or directed at the specific problem of a designated or readily identifiable person. The inclusion of a telephone number or e-mail address that the consumer could contact for another lay person’s assistance in completing the forms would thus be a form of unauthorized practice and a lawyer could not be involved in such an enterprise.
- The duty of confidentiality also manifests itself in the form of an evidentiary privilege. In essence, a person who seeks legal advice or assistance from a lawyer may invoke an unqualified privilege not to testify about the contents of confidential communications with the lawyer. If asked to testify, the lawyer must also invoke the privilege on behalf of the client. Privileged documents may also be withheld from discovery.
- Open Chapter
Chapter 7. Getting Started 55 results (showing 5 best matches)
- Basic contract law aside, the broader legal context will vary appreciably from contract to contract. One drafting a contract in the heavily regulated securities industry must keep in mind that, while a particular document may be perfectly legal and effective when viewed in isolation, when it is put in the context of other legal requirements and constraints on the conduct of the parties, it simply will not accomplish the desired objective. Contracts involving performance in a foreign jurisdiction often fail their purpose simply because the drafter did not fully understand the broader legal context in which the document was to operate.
- Drafted documents do not exist in a legal vacuum. The drafter cannot simply research only the law that impacts directly on the drafted document or obtain from the client only the specific facts that will be incorporated into the terms of the document. The drafter must fully appreciate the broader legal and factual environment in which the document is going to function.
- Contracts—good contracts—are not solely the product of legal knowledge and skill. They are also the product of business and practical knowledge— This business and practical knowledge will be used to interpret the contracts, especially in jurisdictions where a weak form of the parol evidence rule is in force. As a result, this knowledge is needed in order to initially draft a good contract. Hence, it is critical that counsel understand the client’s business, its goals, and the forces that drive the enterprise. This will enable the drafter to produce practical, precise documentation that will properly allocate risk between the parties, provide a legal mechanism for exchange and redress for shortfalls in performance, and stand up to interpretation and enforcement in litigation when everything has broken down.
- Second, the drafter has an obligation to point out the other legal ramifications that achieving a particular objective might have. For example, the client’s immediate objective might be to obtain total operational control over a particular business entity. Even if that particular transaction is not itself illegal, on a cumulative basis it may pose an antitrust problem for the client in the future.
- For example, an employer should not enter into an employment contract with an individual who is subject to a covenant-not-to-compete with their former employer. Doing so may subject the new employer to a suit for inducement of breach of contract. It may never occur to the employer-client to inquire about this, but the drafter should. And if the prospective employee is not forthcoming with the information or seems duplicitous, particularly in an industry where such covenants are standard, then the drafter should inquire of the former employer (with the client’s consent). And if this employer is not cooperative in providing that information, then the drafter should consider including a warranty and indemnity clause in the contract, where the employee warrants no existing legal impediments to the contract and agrees to compensate the employer for any losses as a result of a breach of the warranty.
- Open Chapter
Chapter 15. Terms Creating Legal Consequences 137 results (showing 5 best matches)
- A condition is something that must be satisfied before some other legal consequence attaches. Express conditions are the mechanisms that control how a transaction progresses. Non-satisfaction of a condition means that the legal consequence does not come to pass. A condition thus differs from a duty in that the party charged with satisfying a condition is not liable in damages for a failure to do so.
- Conditions can be either subsequent or precedent. A condition precedent must be satisfied for the legal consequence to arise. The legal consequence is often the creation of a duty, as in the above examples. The party to whom the duty is owned (the right-holder) generally has the burden of proving a condition precedent. A condition subsequent operates to terminate an existing legal consequence, again usually a duty. The party possessing the duty generally has the burden of proving a condition subsequent. Most conditions can be expressed as either precedent or subsequent. But given the difference in the allocation of the burden of proof, the difference can be significant. A provision favoring the buyer could be worded as follows:
- If the existing legal relationship between the parties involves an express or implied duty on the part of one of them, then another drafted document might operate to negate that duty. The legal consequence, in other words, is to eliminate a pre-existing legal consequence. Use “is not required to” to negate the existence of a duty, of either the statutory or contractual variety. For example, if a statute imposes a general reporting duty and the administrative agency is also given authority to waive that requirement, an agency regulation might read as follows:
- Providing the proper legal consequences in a drafted normative document is a three-step procedure. First, the drafter must fully understand the client’s specific desires and broader objectives. Second, the drafter must then match those desires and objectives with the appropriate legal consequences. Third, the drafter must choose the appropriate words to express those consequences.
- Most of the words in a drafted document relate to the substance of the legal consequence—the identity of the boat, the price, delivery, warranties as to fitness, and the like. But how is the reader to know that the contract created a duty and a right, rather than mere discretionary authority to sell and buy? These legal consequences are significantly different. The words that create these different legal consequences are of critical importance.
- Open Chapter
Chapter 9. Determining Substance 83 results (showing 5 best matches)
- Legal consequences in private law documents are usually implicit in the term that was used to create the consequence. If something is intended to create a right, then the legal consequence is that the right-holder may use the coercive power of the state to compel the person with the correlative duty to perform or to pay for the damages caused by non-performance. Sometimes, however, the drafter may want to make a legal consequence express.
- The primary “who’s” to a contract are the parties. Ensure that names and addresses are correct. If one of the parties is a business entity, use the full legal name, “Wateree Properties, A Limited Partnership,” rather than the name the business usually goes by, “Wateree Lake Properties.” In addition, determine the legal status of the parties.
- Statutes frequently require that certain provisions be included in documents relating to a particular regulated transaction. The absence of a necessary provision will often deprive the document of its legal efficacy. For example, a waiver of possible age discrimination claims must inform the employee of the right to consult with an attorney before signing. The waiver is otherwise legally ineffective. State constitutions often require that certain prefatory language be included in all statutes. Without that language, the attempted legislation has no legal status. The purpose of legal checklists (discussed in the prior chapter) is to ensure that all the required provisions are included in the document.
- The substantive gap created by “if … then” logical constructs is one of the major flaws in UCC § 2–207—although the provisions are not literally worded in those terms. For example, paragraph (1) introduces the possibility of an acceptance containing terms “additional to or different from” those contained in the offer. And paragraph (2) tells us what the legal consequence is when an offer contains additional terms. Translating that into an “if … then” sentence, it says: If an acceptance contains additional terms, they are to be construed as a proposal to modify the contract and between merchants become part of the contract unless…. But UCC § 2–207 does not specify the legal consequence flowing from an acceptance that contains different terms. Do they also become mere proposals to modify the contract, requiring express assent by the offeror? Or do the two inconsistent terms cancel each other out (the “knockout” rule), with the missing term now being filled with a UCC gap-filler? There...
- Even the most inexperienced drafter can research the law to determine what terms are mandatory or essential—and reduce this information to a legal checklist, as discussed in the prior chapter. New drafters, however, frequently feel inept at identifying the extremely important provisions or covering the full range of optional provisions.
- Open Chapter
Chapter 8. Drafting Within the Law 46 results (showing 5 best matches)
- Notwithstanding any statute, regulation, or other rule of law …, with respect to any transaction in or affecting interstate or foreign commerce: (1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and (2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.
- Plain English requirements, however, are not limited to consumer contracts. President Carter once issued an ironically obtuse Executive Order requiring that federal regulations be written in understandable form. Department of the Defense regulations also require that equipment manuals written by government contractors satisfy a certain readability formula.
- Bridging the gap between form and substance are the words that the law requires a drafter to use to achieve a particular legal result. Some of these are true terms of art. A word can qualify as a legal term of art in three ways:
- Unlike the factual checklist that draws information primarily from the client, a legal checklist draws from the drafter’s knowledge of the law. Often, the legal checklist and the factual checklist will be consolidated, for the drafter’s benefit, into a single document. The legal aspect of the checklist, however, should cover all the categories of substantive law discussed above. The drafter should create this checklist during the research step of the drafting process. If the drafter anticipates doing this type of document on a recurring basis, then the checklist should be retained in an active file and kept current as the statutory and case law changes.
- Third, some words are terms of art in the sense that the legal meaning is materially different from the conventional meaning. For example, “insane” has a legal meaning that is considerably narrower than its colloquial meaning.
- Open Chapter
Outline 82 results (showing 5 best matches)
Title Page 2 results
Chapter 10. Choosing the Right Concept 46 results (showing 5 best matches)
- Private law documents may similarly require the use of old legal concepts in new ways or the creation of new legal concepts. A condominium developer, for example, may want to structure the relationship between the various owners in a way that is unconventional. The drafter will thus carefully define that relationship and give it a name.
- To ensure that the word matches the concept, the drafter should consult two sources: an unabridged English dictionary and a legal dictionary. However, in addition to the lexical and legal meaning of words, the drafter must also consider their conventional meanings. The Supreme Court once determined what it means to “use” a firearm in connection with a drug offense by relying on a linguistic study of how people actually use the word.
- Serving the client’s objectives may sometimes require the drafter to consolidate several existing legal concepts into a new one. Thus, a legislative drafter addressing the phenomenon known as “stalking” may decide to define it in terms of a combination of the existing legal concepts of “threat,” “invasion of privacy,” and “assault.” The resulting amalgam will eventually take on a conceptual identity of its own. But in the meantime, because it draws upon three well fleshed-out and understood doctrines, it should avoid constitutional vagueness problems.
- Some new legal concepts are defined with a fair degree of precision—either by the legislature or, as is increasingly the case, by the administrative agency charged with enforcing the statute. Other times a legislature may choose to characterize a new legal concept in deliberately vague or open-ended terms, leaving it to the courts to work out the details. The Sherman Antitrust Act of 1890, for example, simply prohibits “unreasonable restraints on trade,” and the courts have spent over 125 years giving meaning to the concept.
- Sometimes, however, the operative legal concept has no prior name or definition and one cannot be cobbled together out of existing concepts. For example, federal disability law defines a “handicapped individual” as a person who “has a physical or mental impairment .” That represented the creation of an entirely new legal concept, the meaning of which is still evolving.
- Open Chapter
Chapter 17. Reviewing and Revising 59 results (showing 5 best matches)
- In addition, the solo drafter should always use the style and grammar check programs that come with most word processing systems. They will identify many writing deficiencies and make valuable suggestions for improvement. The drafter, however, should only consider these suggestions and not follow them if good reasons exist for not doing so. The drafter, for example, may have consciously decided to split an infinitive, use the passive voice, or enumerate a series of items in a sentence that is longer than the computer thinks appropriate. The program may also suggest simplified substitutes for words that are terms of art or have special legal meaning. One should not, for example, follow the advice to replace “affirmative action” with “yes action.”
- Fourth, if the logical analysis of a provision, as reflected in the flowchart, suggests that it should start at one point and the document, as written, starts somewhere else, then this will suggest a sequence problem that needs to be corrected.
- It is best that the drafter of the document not perform this function. We all become blind to our own writing weaknesses and deficiencies, and this task is best performed by another competent drafter. Take this person’s criticisms and suggestions to heart. In particular, if a reasonable reader thinks a provision is unclear, then that provision is, by definition, unclear. Do not argue. Revise it. If, however, another person is not available, then the drafter must make a conscious mental effort to change from a drafting persona to an editing persona.
- If the leased premises, or the building of which they form a part, are partially damaged by fire or other casualty, not occurring through fault of
- The final step in the drafting process is to do a comprehensive review of the document and, on the basis of that review, to do one final revision. This review process also occurs when a drafter is asked to review and revise documents prepared by others, not only to bring these documents into compliance with the more modern conventions of good drafting style, but also to satisfy legal requirements, fill substantive gaps, and cure ambiguities. For example, a law firm may have used essentially the same retainer agreement with its clients for the last 50 years. The document is filled with legalese, wordy constructs, lengthy sentences, and overloaded paragraphs; it also lacks some provisions required or highly recommended as a matter of legal ethics. The firm asks one of its better drafters to prepare a revision. Similarly, specific substantive changes usually provide the impetus for statutory revisions because of the difficulty and complexity of the amendment process. However, it is not...
- Open Chapter
Chapter 4. The Rules of Interpretation 106 results (showing 5 best matches)
- This is the cardinal rule of interpretation. Intent controls, whether it is the intent of the legislature in passing a statute, the intent of the testator in writing a will, or the intent of the parties in making a contract. But intent is really a conclusion, not a fact. The question is: How should a court determine intent? The courts follow two radically different approaches in answering that question.
- First, the plain meaning rule imposes an obligation on the drafter to use language that does in fact have a plain meaning. This effect in itself is a highly desirable one. Speaking to Justice Sandra Day O’Connor about an interpretation the Supreme Court had given a certain federal statute, Senator Warren Rudman said, “Congress gets very upset sometimes when you interpret statutes exactly as we have written them.”
- Courts generally give considerable deference to the interpretation of a statute adopted by the agency charged with administering or enforcing that statute. For example, the of the Equal Employment Opportunity Commission have sometimes been treated almost as if they were formal regulations with independent legal effect. Those cynical about the rules of interpretation will note that the courts freely treat these in an almost cavalier fashion when they adopt an approach the court disagrees with.
- The drafter can avoid the implication of this rule by simply presenting all dollar numbers in the Arabic form, and making sure that all the zeros and commas are correct. Numbers that do not reflect dollar amounts should be in either the written or Arabic form—but not both.
- Under this rule, if a contract provides that the price is “two thousand, five hundred and fifty-six dollars and eighty-nine cents ($20,556.89),” the lower written price might prevail. Yet, if this would be grossly unfair or clearly inconsistent with the intent of the parties, modern courts would probably ignore the rule. But if the difference was limited to the “… fifty-six” versus “$… 57” portion of the price, the rule would probably be strictly followed. This is a bit ironic, because studies have shown that, when confronted with both the written and the Arabic version of an amount, most people read only the Arabic version. The numerals, therefore, more likely reflect the mutual understanding of the parties.
- Open Chapter
Chapter 11. Organization 31 results (showing 5 best matches)
- The drafter has determined the client’s objectives, identified the full audience, mastered the legal and factual context in which the document will operate, decided with the client what to include in the document, and chosen or created the appropriate legal and factual concepts. The drafter now has a mass of data and insights that must be assembled into some kind of order. Organization consists of division, classification, and sequence.
- The headings of a chronologically-divided document should indicate what is happening in this order. Readers can better understand a complex document if it is organized by reference to the sequential actions of the various parties rather than to abstract legal classifications. Thus, rather than referring to “Revocation Rights,” which is a legal
- A correct description is important for two reasons. First, a reader looking for a particular provision in the contract will be able to scan the bolded headings and find the relevant provision quickly. If it is buried under a non-descriptive heading, finding it will be difficult and time consuming. Second, the wording of the heading may have legal significance. A court may refuse to enforce a disclaimer of warranties that is contained in a section entitled “SELLER’S WARRANTIES.” And if a category is headed “Employee’s Duties,” this may make it difficult for the employer to later claim that the document created an independent contractor relationship rather than one of employer/employee.
- Some state statutes that dictate the form and content of legislation contain a provision stating that “headings are not part of the statute.” This is designed to prevent the wording of a heading from having any legal significance regarding the interpretation of the statute. The legislative drafter, however, should still not be indifferent to the wording of headings, since the average citizen may rely on them in trying to determine what the statute means, whether the courts do or not. Unfortunately, disclaimers of this kind also sometimes appear in private law documents. This should be regarded as an open admission that the drafter is either too lazy to find the proper words to describe a collection of provisions or lacks the linguistic competence to do so.
- The classification decision is more difficult if the drafter has fudged a bit in complying with the rules of division, especially the one requiring the sub-classes to be mutually exclusive. Indeed, no division can be completely airtight, and some items can usually fit into more than one category. For example, a prohibition against smoking at the worksite could go in an employment policy’s Safety section or in its Employee Rules of Conduct section, depending perhaps on the purpose of the rule. In making classification decisions, the drafter must always keep the user in mind. If a user wanted to find a provision dealing with a specific topic, where would that person look first? That is where the provision should go.
- Open Chapter
Chapter 2. Contract Drafting 111 results (showing 5 best matches)
- Most written contracts require that any changes, amendments, or modifications also be in writing. Although UCC § 2–209(2) recognizes the efficacy of these no-oral-modification (NOM) provisions, courts in both sales and non-sales contract contexts are often quite liberal in finding a waiver of the provision. This notwithstanding, NOM clauses may serve a useful prophylactic effect.
- In the absence of a later agreement between the parties, the missing terms must be supplied by a court. Extrinsic evidence may show that the parties had a contemporaneous understanding about this term that simply did not make it into the written contract. This presents a parol evidence problem. The UCC gap-fillers (found in article 2, part 3 of the UCC) are available to supply some missing terms in commercial contracts. Beyond that, there are course of performance, course of dealing, and usage of the trade provisions that provide possible terms. And, there are some common law rules about what a court should imply if a contract is silent on a particular term, generally revolving around the notion of reasonableness.
- With limited exceptions, in order for a contract to be enforceable, it must be supported by mutual consideration. There must be a bargained-for benefit conferred or a detriment suffered by each party to the contract. Consideration takes a number of forms, including cash, promissory notes, letters of credit, transfers of property, services, transfers or surrender of rights, assumption of another’s duty or liability, or mutual promises. Generally, lack of consideration is not an issue in real life, especially as the modern conception of consideration focuses on the “bargain test” rather than on notions of sufficiency or adequacy, yet it bears remembering. In some jurisdictions there are presumptions of consideration that arise when a written contract recites that consideration has been “had and received” or similar formulations.
- The recitals section provides the premises on which the contract is based. Some courts have stated that recitals are not part of the contract. This is not correct. Recitals are as much a part of the contract as everything else in the document. The difference is that recitals are not promissory in form; they are statements of fact or belief. However, they serve other important functions and should be drafted with care. Each recital should be written in plain English and should be preceded by a capital letter, numbering, or ordinal system (just like this section of this text). In the recitals, include facts that will help a later reader grasp the nature, purpose, and basis for the agreement.
- For example, one definition of the word “claim” might be: “Any right to payment, whether or not such right is reduced to judgment, or is liquidated, fixed, contingent, matured, disputed, legal, equitable, or secured, or a right to an equitable remedy for breach of performance whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, disputed, or secured.” If this definition is provided for separately in the document, the single word “Claim” can be used when needed in the contract’s substantive provisions and its broad meaning is included without need for the litany.
- Open Chapter
Preface 13 results (showing 5 best matches)
- Legal drafting has enjoyed something of a renaissance in the last twenty years. Legal drafting courses are increasingly commonplace, covering transactional documents and instruments.
- This book reflects the drafting insights we have gained from our collective experience of practice and teaching legal drafting, both as a stand-alone course and as integrated into substantive courses like contracts, property, bankruptcy, and workouts and reorganizations. But in a greater sense, it also attempts to carry forward to a new generation the collective wisdom of the legal drafting community. Over the years, we have taught from or consulted many texts and articles, and those that have contributed the most to our courses and our books include those listed in the acknowledgments at the end of this book, before the index.
- The practicing bar has awakened as well, realizing that the drafting habits and style of yesterday are inadequate in the new millennium. Clients appreciate (and even demand) documents that are clearly and simply written, that are captioned and organized with the user in mind, and that are free of hoary and obscure legalese.
- Legislatures and regulators have also stepped in, passing laws that require certain kinds of documents to be written in plain English or satisfy some readability formula.
- This fourth edition of the book builds on the tremendous framework and text created by Professor Emeritus Thomas R. Haggard, University of South Carolina College of Law, in the first two editions of the book, and the third edition of the book by Haggard and Kuney. For this fourth edition, each chapter has been extensively updated to incorporate the current and developing perspectives regarding subjects like plain English, legal typography, and document preparation in the 21st century. This is especially the case in the sections of the text dealing with contracts and instruments, although it is true throughout the text. We thank the many students, practitioners, and teachers we have worked with over the years and whose comments and suggestions contributed enormously to this book, including, notably, Professor Paula Schaefer, University of Tennessee College of Law, for her insights into the legal ethics of drafting and ways of approaching those issues.
- Open Chapter
Chapter 12. Avoiding Ambiguities 168 results (showing 5 best matches)
- Drafters use a variety of expressions in reference to specific dates. Some are clear. But some have been construed in different ways. Others have a legal meaning that is inconsistent with the conventional meaning.
- Courts hold that the option may not be exercised on either date. Many, however, find it counter-intuitive to specify in a document a date that is not included in the allowed time period. To accommodate both legal and conventional understandings, many drafters use “on or after” and “on or before” terminology.
- (a) The employee requests the leave in writing at least 7 days in advance;
- Although a semi-colon can be used as either a strong comma (separating phrases in a series that are either very long or already contain internal commas) or a weak period (joining independent clauses), in either case in drafted documents each semi-colon unit is expected to have its own independent legal consequence or effect. But when that rule of construction is at odds with the sense of the sentence, an ambiguity results. Suppose that a statute prohibits the sale or use of Class III fireworks, but further provides:
- The first proviso imposes a condition precedent. The second proviso states an exception. And the third proviso deals with an altogether new substantive provision. These should be dealt with directly, using the terms that create each of these legal consequences, as follows:
- Open Chapter
Chapter 3. Legislative Drafting 97 results (showing 5 best matches)
- For the legislative drafter the principal limits are those imposed by the hierarchy of legal authority and the scope of delegated powers. Federal and state constitutions are the highest legal authority. In addition to establishing the structure of government, their principal function is to limit legislative and executive authority. The most important limits are those contained in the Bill of Rights. No conscientious drafter should draft legislation that patently infringes upon an individual’s freedom of speech. Other constitutional provisions are more technical in nature. State constitutions, for example, often prohibit statutes dealing with more than one subject. Although the concept of a subject virtually defies definition, the legislative drafter should be cautious before including in an ordinance on the location of mobile homes a provision also dealing with the tax consequences of certain municipal bonds. The more important constitutional limits are the substantive ones.... ...an...
- One familiar with statutory law does not have to look far to find amendatory statutes that were enacted by legislatures without a sufficient amount of the understanding referred to above. Inevitably, this results in enormous legal confusion and years of clarifying litigation.
- Distinct from “making it all fit together” is ensuring that the newly drafted document is within the limits imposed by superior law. The private-law document drafter is bounded by numerous legal constraints with respect to substance. A waiver of rights under the Age Discrimination in Employment Act must contain certain things to be effective. The inclusion of some provisions in a consumer loan agreement may render it void.
- Bargaining history is sometimes used in contract litigation to determine the intent of the parties. So, too, with legislation. The person who drafted the legislation will frequently write the committee report or a summary explaining the bill. If the drafter is a part of a legislator’s staff, the drafter may also prepare the remarks the sponsor will make when introducing the legislation. These reports, comments, and speeches can put a gloss on the legislation that may not be apparent from the words themselves. Because of the fictional nature of legislative intent and its capacity for abuse, many courts take a decidedly jaundiced view toward this manufactured evidence of intent. Nevertheless, it remains an important part of the legislative drafting function.
- All drafted documents serve essentially the same function. They establish the rights, duties, privileges, immunities, and other legal relations of and between the parties that are subject to the jurisdiction of the document. This is as true of a criminal code as it is of a construction contract. Moreover, the investigatory and thinking process of creating drafted documents is basically the same, as are the rules of organization, style, and precision that are used in contract drafting.
- Open Chapter
Chapter 16. Document Typography and Layout 58 results (showing 5 best matches)
- Similarly, choose a font style that is easy and comfortable to read in standard format, as well as when presented in and ALL CAPS. This book is written in Century Schoolbook. This is a clear, easy to read font that is included as standard in most word processors. The objective is to ensure that the drafted document is accessible to the widest possible audience. Thus, avoid—
- Drafters also often use a device called tabbing to avoid ambiguities of modification. Consider the following provision written in conventional paragraph form:
- Line length involves how long, in distance, a line of text is on the page, as well the number of characters in each line. Most legal documents are formatted for a standard 8 1/2 by 11 inch piece of paper, with one inch margins. This generally equates to a line length of 6 inches, although many people find a line length of 4–5 inches preferable. Text designers are not of one mind about the optimal amount of characters per line. Some suggest that the most easily read line length is from 39 to 52 characters, while others opt for the 50 to 70 character range. Of course the type size and font style also affect the number of characters in a line. A line of 14-point Times New Roman text contains approximately 67 characters, while a 12-point line of the same font contains 78 characters.
- The objectives of transactional and legislative drafting are: (1) to establish legal relationships, and (2) to state those relationships in ways readily understandable by all users of the document. Everything discussed in the previous chapters contributes to those objectives—determining client desires, careful legal and factual investigation, precise conceptualization, impeccable organization, and clear and concise expression. This chapter focuses on making documents readily accessible in appearance and format.
- parties, the identity of the property or goods, the price, and other terms and conditions. Unfortunately, the blank spaces are often not large enough, in either length or height, for the information that must be handwritten in. Indecipherability and resorting to writing vertically in the narrow margins often result. The length problem can be easily dealt with. Just make sure you provide enough. However, a 12-point, single-spaced document still does not allow enough height for the handwriting of most people. And the 8-point or smaller type that is used in many commercially printed documents is simply impossible. The solution is to either use 14 point type or increased spacing between the lines, or both.
- Open Chapter
Index 60 results (showing 5 best matches)
Also by the Authors 10 results (showing 5 best matches)
- Publication Date: October 6th, 2016
- ISBN: 9781634603195
- Subject: Legal Writing
- Series: Nutshells
- Type: Overviews
- Description: Legal Drafting in a Nutshell, 4th Edition, provides guidance on producing transactional documents, contracts, instruments, legislation, and regulations that solve existing problems and prevent future problems. The book provides both a large scale, macro overview of the drafting process as well as small scale, micro focused discussion of the mechanics of legal documents at the sentence, word, and punctuation level. For this fourth edition, each chapter has been extensively updated to incorporate the current and developing perspectives regarding subjects like plain English, legal typography, and document preparation in the 21st century. This is especially the case in the sections of the text dealing with contracts and instruments, although it is true throughout the text. Legal drafting is as much a thought process as a writing process; clear thinking leads to clear drafting. This book is a guide for clear, structured thinking about drafting in order to provide readers with a structured process to follow when assembling useful legal documents.