Legal Drafting in a Nutshell
Authors:
Kuney, George W. / Looper, Donna C.
Edition:
4th
Copyright Date:
2016
27 chapters
have results for Legal Drafting in a nutshell
Appendix 40 results (showing 5 best matches)
Chapter 7. Getting Started 55 results (showing 5 best matches)
- 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.
- 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.
- 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.
- Similarly, if the case law evidences a growing hostility toward a particular type of governmental action—regulatory takings, for example, under the Fifth and Fourteenth Amendments—and the legislative drafter does not appreciate this legal environment, then the legislation may ultimately fail, even though at the time of its enactment it apparently met all the controlling tests. A drafter more sensitive to the trend might have drafted the legislation, accomplishing essentially the same objective, in a slightly different manner.
- The client is the primary user of the drafted document. But drafted documents are nearly always read and used by a wide variety of people, often for different purposes. This is the audience of a document. The drafter should identify each member of this audience and draft with their varying uses in mind.
- Open Chapter
Chapter 1. A Philosophy of Drafting 85 results (showing 5 best matches)
- Before we begin, you should know that every rule stated in this book is subject to exceptions. Legal drafting, like so many things, is subject to trends and fashion. Reasonable minds may differ on many of these matters. As with all legal writing and drafting, the purpose is communication. Remember, it is easier to tailor the form of your message to your audience than to try to force your audience to enjoy the form of your message. Use the rules, principles, and methods in this book as a default guide to legal drafting, but modify them to fit your audience and surroundings. It is best to remain flexible at all times.
- 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.
- The goal of all legal writing is to communicate clearly and concisely. Too often, however, briefs, office memoranda, client letters, and especially contracts and instruments are drafted in ponderous, repetitive, and pretentious language that undermines this goal. The objective of this book is to provide you with comprehensive processes and techniques to identify common problems in legal drafting and to produce documents that clearly and concisely communicate substance to their audiences. In short, we believe that there is no reason that legal drafting cannot be elegant, utilitarian, and efficient in achieving its purposes.
- In sum, the drafter must know how to use legal rules to meet the needs of the client. Although Chapter 8 more fully discusses how the drafter uses law in the drafting process, the basic principle is to harness the law by drafting clearly into or around existing legal rules and precedents.
- 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.
- 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.
- Discard both misconceptions. Drafting contracts, instruments, or legislation is neither a secret order into which one must be initiated by long and painful steps nor a skill acquired by osmosis from the label “attorney-at-law” on your stationery. It is certainly not a matter of mindless imitation of the past. Drafting is, perhaps, critical lawyering skill, at least when combined with legal analysis. Like other lawyering skills, drafting can be done well or poorly. Doing it well is something that can be taught, learned, and ingrained into one’s habits.
- Legal Drafting: Process, Techniques, and
- This book deals with the process, techniques, and forms of expression used in drafted documents. It focuses on how one drafts private-law documents and legislation, rather than on the details of the substantive law that the drafter must deal with. Exactly what should be contained in a will, lease, partnership agreement, construction contract, contract for the sale of residential property, landlord-tenant statute, or any other type of drafted document is determined by substantive law of the jurisdiction, the subject-area expertise of the drafter, and the desires of the client. Texts that focus on substance rather than form exist for drafting these specialized documents.
- Open Chapter
Chapter 6. Legal Drafting Overview 68 results (showing 5 best matches)
- 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.
- 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.
- 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.
- Legal context is also important to the legislative drafter. The drafter of a new criminal provision must understand how the prohibition fits into the broader scheme of criminal law and procedure within both that jurisdiction and similar jurisdictions. Statutory drafters must also know the existing law on the subject being legislated and draft within that context. If legislation on the same subject already exists, the drafter must determine if it needs to be repealed, amended, or reconciled with the legislation being drafted. Consider the example of a state legislator, who, upon receiving many complaints about the number of defamation suits brought against employers as a result of unfavorable employment references, drafted legislation creating a limited immunity for this. The immunity was broader in some respects and narrower in others than the immunity already available at common law. The legislation, however, did not indicate whether it supplanted or merely supplemented the common...
- Eventually, the drafter’s focus must shift from the general legal landscape to the law that is going to bear directly on the document being drafted. Private documents like employment contracts, corporate charters, and wills are heavily impacted by substantive law. A particular provision may be required, prohibited, or merely authorized. Or, the law may require that a particular provision appear in a particular format. The law also determines the meaning of the words that are used and the legal consequences of the substantive provisions. The drafter must know all of this and draft accordingly. Technique and style count for nothing if the content is substantively deficient.
- Open Chapter
Chapter 13. Drafting Style and Usage 178 results (showing 5 best matches)
- 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.
- As discussed in Chapter 8, a word or phrase may qualify as a term of art because the law requires that it be used to achieve a particular result; because it is a defined term expression for a complex legal concept; or because its legal meaning is different from its conventional meaning. Terms of art may facilitate communication among lawyers, but they are a total mystery to lay readers of drafted documents. Thus, terms of art defeat a primary objective of drafting, to be clear to everyone within the intended audience.
- 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.
- The legal drafter, however, should deviate from these conventions when drafting amendments. Periods and commas should be outside the quotation marks unless they are intended to be a part of what is being amended. Colons and semi-colons should be inside the quotation marks if they are intended to be a part of the amended language.
- The appropriate style of legal drafting is dictated by its function, which is to establish legal relationships—unambiguously, concisely, clearly, and simply.
- Open Chapter
Chapter 5. Drafting Ethics 84 results (showing 5 best matches)
- 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.
- The second situation involves the age-old dispute over the role of real estate agents in preparing contracts and other documents involving the sale of land. A jurisdiction may hold that simply filling in the blanks on a form contract constitutes the practice of law. Presumably, lawyers in those jurisdictions cannot draft form documents that would be used in this manner. In the majority of states, however, realtors may fill out purchase contracts and other forms, provided they do not impose a separate charge for the service or give legal advice. In these states, thus, the lawyer could assist in the drafting of a form contract. Indeed, the real estate community would benefit from some competent drafting in that regard.
- Second, lawyers drafting routine documents like deeds, who are acting on the instructions of a client and who are not giving any legal advice in connection with the drafting, have sometimes been referred to as “mere scriveners,” meaning in this context that the privilege does not attach. The scope of this exception is unclear, however, since drafting even routine documents requires some degree of expertise, even if it is nothing more than knowing that a routine document will indeed suffice. The courts recognize the exception most often when the document is now unavailable and the purpose of the testimony is merely to establish that the document existed and what it contained.
- Fourth, the privilege does not apply to otherwise unprivileged client papers, even if they are given to the drafter for use in drafting a document that will cure whatever legal difficulty the papers present.
- For example, when drafting private documents, the drafter often obtains personal information about individual clients and their families and commercially sensitive and trade secret information from business clients. A breach of the duty of confidentiality might be committed by the lawyer directly, for whatever reason, or it could be done by someone else privy to the information. Confidential information about prominent clients may be leaked outside the firm. A separation agreement between two movie stars, for example, might well contain many newsworthy tidbits of information. Confidential business information may also be leaked in this fashion, sometimes to the substantial financial benefit of the person possessing the information, but often for no benefit at all other than to participate in a chain of gossip. The drafter has an affirmative obligation to educate all involved in the matter, even couriers, about the duty of confidentiality. Drafts of documents containing sensitive or...
- Open Chapter
Chapter 15. Terms Creating Legal Consequences 137 results (showing 5 best matches)
- 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.
- In sum, the drafter has ascertained what the client wants, has translated that into a recognized legal consequence, and has used the proper words (“if” and “may”) to create those legal consequences, thus meeting the client’s desires. This is what drafting is all about.
- 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:
- Despite the importance of legal consequences and the significance of the differences between them, the courts and legal drafting authorities are not in complete agreement over exactly what words should be used to create them. In the face of this diversity, the legal drafter should choose terms that are both lexicographically sound and enjoy the widest usage. The following are suggested conventions.
- 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 3. Legislative Drafting 97 results (showing 5 best matches)
- Legislation comes from several classes of drafters, with varying degrees of expertise and competence. Federal and most state legislative bodies have full-time staff attorneys who do nothing but draft and revise proposed legislation on behalf of the elected representatives. The President and most governors have staff members whose sole job is to draft legislation for the administration. Administrative agencies within the executive branch nearly always have a section in the legal department that does nothing but draft agency regulations. Cities and counties usually rely on their appointed or elected attorneys, for whom drafting is only one of a myriad of duties and who sometimes work on a part-time basis. Unfortunately, some legislators and other officials, many of whom are not lawyers, think that because they were elected to enact laws they are also competent to draft them.
- 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.
- 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.
- 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...
- Sometimes, the parties to a private law document will have other existing relationships (also created by private law) that the drafter must take into account and accommodate to ensure consistency in the legal relationship. Similarly, some of the rights and duties that will inure to the transaction may have already been the subject of statutory regulation—a landlord-tenant statute, for example. The private law drafter must take that into account and draft accordingly.
- Open Chapter
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 8. Drafting Within the Law 46 results (showing 5 best matches)
- 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.
- A drafter cannot count on remembering everything that the law prohibits, requires, permits, denies authority for, attaches meaning to, or implies. Thus, the drafter’s knowledge must be systematized. A legal checklist is an indispensable drafting tool.
- 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.
- 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:
- Tracking specific statutory language is sometimes necessary to achieve a desired result. For example, a merger or “integration” clause is designed to trigger the operation of the parol evidence rule, by stating that what is written represents the final and exclusive terms of the agreement between the parties. An effective merger clause can be drafted in a variety of ways. However, in a contract for the sale of goods, a drafter should follow the language of UCC § 2–202, which is a statutory form of the parol evidence rule:
- Open Chapter
Chapter 2. Contract Drafting 112 results (showing 5 best matches)
- Transactional documents are an opportunity to prevent and plan for future litigation. You should think about how to integrate concepts from other sources and experiences into contracts. Transactional lawyers draft to fall within or to avoid the ambit of particular statutory or case law. What contract remedies would be available under the common law if the contract makes no provision for them? How can this common law result be altered in the contract? What is the evidentiary significance of various parts of the contract in later litigation? What can be done to render these portions admissible evidence? How can they be drafted so that they are favorable evidence for either party? Contract drafting provides an opportunity to use and reinforce a full range of substantive legal skills.
- The object of good drafting is to communicate clearly the meaning and legal significance of the provisions of the document, thus reflecting the purposes and intent of the parties. Both ambiguity—when a term is susceptible to more than one meaning—and unintentional vagueness—when a term is imprecise—cloud a document’s ability to achieve this goal. If the parties have honestly agreed in substance but the document does not reflect that agreement because of ambiguous or unintentionally vague terms, these drafting flaws may provide a way out when circumstances change to the disadvantage of one of the parties. In this way, ambiguity and unnecessary vagueness are common causes of contract litigation.
- In the second type, the contract is formed but performance is delayed. These transactions are said to be “delayed and closing” deals. The performance is still of a discrete variety. Once the transaction is complete, the parties generally have no further dealings with one another. In simple, day-to-day transactions, the contract is often oral and the professional drafter is not even involved. Dick agrees to sell Jane his used legal drafting book at the end of the fall semester. But quite apart from the requirements of the Statute of Frauds, contracts calling for the future performance of complicated and expensive obligations, like the sale and purchase of a corporate subsidiary, cannot safely be predicated on an oral agreement and a handshake. The drafter plays a critical role in the formation of this type of contract.
- Boilerplate provisions commonly come into effect when there is a problem or disagreement between the parties, so they must be carefully considered and drafted to ensure that they work correctly when they are needed most. They represent another opportunity for prelitigation planning, something that every lawyer must keep in mind when drafting documents.
- not all, are what is known as boilerplate. In the early days of newspaper syndication, the term “boilerplate” was also used to describe the plates of non-movable type that publishers delivered to local newspapers and which contained the syndicated text and advertising that the local paper would adopt in full, adding its own stories and advertising to supplement the syndicator’s standard material. The term was first used in the legal context in the mid-1950s, as a reference to standard clauses found in most contracts. That is the salient characteristic of good boilerplate—it contains language that allows it to be used in a variety of documents. Unfortunately, many people, lawyers and non-lawyers, similarly believe in the inviolability of the wording of whatever boilerplate they are familiar with, however hoary with age the verbiage might be. This is nonsense. Boilerplate terms can be worded in a variety of ways. There is no reason why these provisions cannot be as well drafted as the...
- Open Chapter
Chapter 12. Avoiding Ambiguities 169 results (showing 5 best matches)
- 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:
- An “unless” clause that relates to a clause that is itself already stated in negative terms can cause enormous confusion. Normally, the negation of a negation creates a positive. “It is not the case that the hose was unconnected” logically means that it was connected. In drafted documents this is not always what is intended.
- Drafted documents generally use the singular even when more than one entity is subject to the legal consequence being created.
- Old-fashioned grammar purists vigorously insist on using “which” only in nonrestrictive clauses and “that” only in restrictive clauses, as in the above examples. While agreeing that “that” cannot be used to introduce a nonrestrictive clause, many modern style manuals allow the use of either “that” or “which” in restrictive clauses. The better drafting practice adheres to the old-fashioned approach. This is not just a matter of grammatical purity and proper style. In some instances the misuse of “which” and “that” creates ambiguity. Consider this sentence in a stipulation to arbitrate disputes under a construction contract.
- provides a number of synonyms for the word “ambiguous” reflecting how this word is often used colloquially. These include “open to debate/arguable,” “abstruse,” “dubious,” and others. In drafting, however, the term is used in its formal, logical sense. That is what this chapter is about.
- Open Chapter
Chapter 17. Reviewing and Revising 61 results (showing 5 best matches)
- 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...
- Drafting by committee can be frustrating. In its initial stages, drafting must be an individual endeavor. Substantively, however, the individual drafter is error prone, particularly if the document is subject to extensive legal requirements. It is too easy to omit a critical substantive term. This sometimes occurs with respect to a term that has not been the focus of the negotiations, such as a piece of critically important boilerplate, that will cause the transaction to flounder if omitted. Another person, well versed in these substantive requirements, should be asked to review the document with a critical eye. Similarly, this reader may be able to suggest alternative ways of dealing with the problem.
- Once the initial writing is over, put the draft away for at least a day, if possible. Although you will have revised and rewritten as you produced the first draft, you did so with the perspective of the writer organizing and putting thoughts down on the page. You need fresh eyes for the revising and rewriting stage of the drafting process, which is where you turn your draft into a quality document.
- An effective technique to minimize your reviewer’s time and effort and to focus attention on the areas that most require review is to use what was called “black lining,” but is now generally known as “track changes” based on the Microsoft Word feature of the same name. In a track changes revisions are indicated by using strikeout text to indicate deletions from a prior draft and underlining to indicate additions. The advantage of track changes is that, when reviewing successive generations of drafts, the reviewer knows exactly what is new and needs to be reviewed, the other material presumably having been approved earlier. Track changes may even be appropriate at the first draft stage if you are basing the document on an exemplar, especially one prepared by your reviewing attorney.
- First, if the drafter is reviewing an earlier contract or regulation, a flowchart will enable the drafter to master the substance of the document. Many of the documents needing revision are exceedingly dense. That is, the substance is hidden in a forest of bad drafting, rendering the document incomprehensible to the ordinary reader. The drafter, however, must determine what the substance is before attempting to present that substance in a more palatable form. Doing a flowchart will accomplish that.
- Open Chapter
Chapter 14. Definitions 115 results (showing 5 best matches)
- Be careful—if you define a term, it must be used in the defined sense in the document. If not, ambiguity crops up. This is closely related to the practice of elegant variation from English composition classes. Those courses often encourage the use of different words for the same concept to avoid repetitive prose. The rule is different in legal drafting.
- Legislative drafters sometimes borrow definitions from other statutes and incorporate them by reference into a new statute. This is bad practice. First, the borrowed definition may have been drafted with a particular problem in mind. The new statute may involve an entirely unrelated set of legislative circumstances, for which the former definition ultimately proves inadequate. For example, one might define a “healthcare facility” one way in a statute dealing with certification and another way in a statute creating tax exemptions.
- Under this definition, a horse-drawn carriage would not be included. This might be a significant omission if the drafter were drafting an ordinance dealing with traffic congestion around Central Park in New York City or the French Quarter of New Orleans.
- Fourth, when the text of a definition is buried in another statute, it is apt to be forgotten. The drafter may then draft something elsewhere in the document that is inconsistent with that definition. Similarly, persons affected by the new statute may ignore it altogether, to their disadvantage.
- Third, during the post-drafting review of the document, the drafter may discover that a concept is fully stated several times in the document. The drafter would then decide to define the concept and use the defined term instead of its full explication whenever the concept appears in the document.
- Open Chapter
Chapter 16. Document Typography and Layout 58 results (showing 5 best matches)
- 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.
- The most important consideration in choosing type size in drafted documents is that the printed words should be of being seen by all or most readers. Some people are capable of and prefer reading small print. Others, however, cannot read small print without resorting to a magnifying glass or special glasses. Thus, generally, text in drafted documents should be no smaller than 12-point type.
- For example, increasingly, one will see a drafted document—usually of the printed, fill-in-the-blank variety—done in newspaper-type columns.
- The text of a drafted document can be made more comprehensible in a number of ways.
- 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—
- Open Chapter
Chapter 9. Determining Substance 83 results (showing 5 best matches)
- Drafted documents, whether of the private or public law variety, can be conceptualized as a collection of rules. An effective rule has five critical elements that can be used to ensure that the drafted documents cover everything that it should, at least in a broad sense. The five elements of a rule are: (1) the person; (2) the conduct; (3) the object of the action; (4) the circumstances; and (5) the consequences.
- Formbooks frequently contain annotated drafting checklists that not only identify possible substantive provisions, they also discuss the legal and practical significance of these provisions. With respect to each possible provision, a good checklist will also indicate the specific facts the drafter should elicit from the client. These checklists are often the most valuable aspect of these books. The model forms themselves are often poorly drafted—at least by contemporary standards.
- Beyond what is required, essential, or strongly recommended, the substantive content of the document is mostly up to the client. The drafter’s function is to make the client aware of all the possibilities. An employer desiring to have an employment contract drafted may have never considered whether, in addition to the usual terms, the contract should contain a prohibition against releasing confidential information to competitors. The legislative drafter should likewise review similar legislation in other states for ideas about what might be included in a statute of the type being drafted.
- 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.
- One technique for discovering substantive gaps is through the creation of a flow chart of the document once it is in the initial draft stage. Creating a flow chart is discussed in Chapter 17.
- Open Chapter
Chapter 10. Choosing the Right Concept 46 results (showing 5 best matches)
- Instead of drafting in terms of the appropriate generality, some drafters instead try to draft in terms of all the specifics that encompass the generality. This is bad drafting for two reasons.
- Second, the legal drafter has a responsibility to protect and advance the interests of the client, whether that client is a single individual who desires a contract or legislator acting on behalf of the public. This responsibility carries with it the concomitant power to control the content and meaning of the document. This is not a responsibility and power that should be casually regarded. Whatever affirmative justification the drafter has for drafting with vague terms, this comes at the cost of surrendering the responsibility and power to determine document content and meaning.
- Sometimes the specific referents the client has in mind have no previously recognized conceptual label such as dogs, cats, and rabbits in the prior example. Here, the drafter is required to create a new factual concept and give it a name. This is usually accomplished with a definition, a drafting technique discussed in Chapter 14.
- Vagueness, however, does have shortcomings as a drafting technique. Most of the disadvantages are simply the down side of the advantages. First, there is greater possibility for disagreement over the meaning of vague terms than precise terms. Despite the professed flexibility and good faith of the parties, sometimes these disagreements cannot be resolved short of litigation. Similarly, a legislature would be ill-advised to use vague terms when drafting legislation which is likely to be vigorously resisted by a significant segment of the population. Labor legislation, for example, is frequently drafted in vague terms. But the question of what is or is not within the scope of the legislation can have a profound financial impact on a business enterprise, which provides a great incentive to litigation. Consequently, for the last 50 years, state and federal courts have been clogged with an enormous amount of employment-related litigation, most of it relating to the fundamental meaning of...
- 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.
- Open Chapter
Title Page 2 results
Chapter 4. The Rules of Interpretation 105 results (showing 5 best matches)
- A legislative drafter in a jurisdiction with such a statute must draft with these rules and definitions in mind. Sometimes, a statute itself will expressly dictate how it is to be construed.
- Although that view may possess some validity, the drafter cannot totally ignore these various rules of interpretation. They are, however, something to be drafted around rather than tools for achieving a particular result. Put differently, if a document is properly drafted, then a court will probably not need to rely on these rules when construing the document.
- In any event, if a statute will be enforced or administered by an administrative agency, the drafter should take the agency’s general viewpoint into account when drafting the statute or amendments to an existing statute. If, in the past, an agency has been casual in the application of certain procedural requirements and the legislature wants to give it jurisdiction over another matter, but also wants the procedural requirements to be strictly construed, then the drafter should take that into account. The procedural requirements should be stated in positive, mandatory, and perhaps even jurisdictional terms.
- There is probably no sure way to draft around this judicial proclivity. Rather, the drafter must simply attempt to anticipate what some court is later going to decide is consistent with public policy and draft with that possibility in mind.
- in pari materia
- Open Chapter
Outline 90 results (showing 5 best matches)
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
Index 72 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.
