Legal Drafting in a Nutshell
Authors:
Kuney, George W. / Looper, Donna C.
Edition:
4th
Copyright Date:
2016
10 chapters
have results for transactional
Chapter 2. Contract Drafting 18 results (showing 5 best matches)
- This is not to say that an attorney cannot serve as a transactional lawyer and a litigator. Rather, the attorney should be conscious of which role is being played, and adjust his or her mode of thinking accordingly. Too often, especially with new attorneys, there is a tendency to look at transactional law and deal documents with the eyes of a litigator rather than a transactional planner. The transactional focus is on constantly improving the structure and utility of the documents.
- A transaction generally follows a standard timeline or chain of events: (1) negotiations, (2) due diligence (detailed factual and legal investigation), (3) preparation of interim transactional documents, (4) definitive transactional documents are finalized and signed, (5) further due diligence and other pre-closing activities, and (6) the closing.
- The overall organization of a transactional document or group of transactional documents follows a group of rules:
- Never take boilerplate for granted or simply incorporate standard provisions without thought and analysis. When reviewing contracts drafted by others, do not just skim the boilerplate: Much mischief can be hidden there. Students and lawyers that do not have a transactional practice sometimes claim that this advice is hypertechnical and exaggerated. But transactional lawyers confirm the import and potential mischief of boilerplate. Just as beginning litigators are advised never to agree to the “standard stipulations” in a deposition without knowing what those stipulations are, transactional attorneys are cautioned against taking the other side’s boilerplate for granted.
- Transactional practice is different. It involves understanding the parties’ deal and then translating the business terms into a transactional structure that uses contract, commercial, and other business law principles to govern the parties’ relationship. It also involves making an appropriate record along the way as negotiations and documentation continue so that, should the deal break down and litigation ensue, litigation attorneys can present the case in the light most favorable to the client. Transactional documents ...least very little, is a “given.” There are notions of what is customary or what is the “market” approach or rate, and regulatory systems may affect what is possible to achieve with a given transactional structure. But the attorney is creating the structure and the provisions along the way in a manner that creates the most benefit for the client by harnessing applicable law and allocating risk and reward. This means determining what facts or states of nature...
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Chapter 13. Drafting Style and Usage 1 result
- Apart from being used to separate items in a list that are themselves long or compound, this punctuation mark has limited relevance to contracts and transactional documents. If you find that you are using semi-colons in transactional documents other than as part of a list, examine your use carefully.
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Chapter 1. A Philosophy of Drafting 4 results
- Where possible, always make your subject a person or entity rather than a concept. Generally, avoid the passive voice as it obscures the action and sounds weak and uncertain. The exception is made when one is seeking to conceal an actor’s identity or it is unknown, which is fairly rare in transactional documents. If you use the passive voice, make it a conscious decision.
- Sentences in legal writing should be as clear, direct, and concise as possible. Always looks for ways to use fewer words and to eliminate unnecessary words. In a brief or office memorandum, a dangling participle may merely mark the writer as a poor wordsmith. But in a drafted transactional document this may produce an ambiguity or vagueness that cannot be resolved short of expensive litigation. The drafter must have a thorough knowledge of grammar, syntax, and punctuation. These are the nails that hold the individual words together and allow them to function as a sentence.
- the mere promise of future payment by the owner. Likewise, an owner would never pay the price of the home’s construction in the mere expectation that the house would eventually be built. Commerce and enterprise could not exist. The legal drafter produces the documents that are the necessary conditions of a viable economy. It is said that our economic system depends on investors to provide the capital, workers to perform the labor, and managers to coordinate this combination of capital and labor. None of this would be possible without the drafter’s assistance. The drafting skill and diligence that is required of the transactional lawyer is enormous, perhaps more than what is required of the legislative drafter.
- While the litigator is a backward-looking problem-resolver, the transactional drafter faces perhaps a more difficult task, that of the forward thinking problem-preventer. Although the peaceful
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- The optimal type size and font is often debated. Indeed, each reader has individual preferences—which is why e-book readers such as Kindle and Nook devices have many choices among type size and font styles. The objectives in transactional and legislative drafting are to make type size and font style accessible to the widest possible audience.
- 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.
- Line spacing refers to the vertical space between lines on the page. In the typewriter age, the unit of measurement was limited to a single line—hence single space, double space, triple space, etc. Thus traditionally most transactional and legislative documents were single-spaced, while courts required briefs and other court filed documents to be double spaced. Generally, though, the most easily readable line spacing is 1.2 or 1.3 spacing between lines. This usually translates to line spacing that is about 120% to 130% of font size—which can be specifically set in most word processing programs.
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Chapter 12. Avoiding Ambiguities 1 result
- Implementing this suggested usage is an uphill battle, as the introduction of baskets and materiality thresholds in contracts with “provided, however, that” and “provided further, however, that” is widespread and accepted practice in, among other places, the majority of large transactional law firms.
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Chapter 9. Determining Substance 1 result
Preface 3 results
- Legal drafting has enjoyed something of a renaissance in the last twenty years. Legal drafting courses are increasingly commonplace, covering transactional documents and instruments.
- The skill is also increasingly taught across the curriculum in conjunction with contracts, property, trusts and estates, business associations, real estate, legislation, administrative law, and other courses involving transactional documents and instruments.
- (4th Ed. West 2014), Readers may find a benefit in these separate titles, which contain additional materials for training in contract drafting, transactional practice, and legislation, but they should be aware of the overlaps.
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Chapter 5. Drafting Ethics 2 results
- Bottom line: Illegal fraud is an issue the transactional attorney must make a judgment about—and it is not that complicated. Ask yourself, “Am I helping the client misrepresent information in an effort to take someone’s money or property?” If so, the attorney and her client face liability, and a competent lawyer is doing a client a disservice if she is not explaining the prospect of liability.
- The work-product privilege would also arise only in the unlikely circumstance of the document being prepared in anticipation of litigation. Many transactional attorneys think everything is ultimately prepared in anticipation of litigation, but the scope of the work-product doctrine is usually construed narrowly to mean relating to particular litigation and not just the general possibility of future litigation.
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- Contracts frequently use representations, warranties, guaranties, and indemnities. Each is a different type of provision, and it is important to select the proper type to generate the proper legal effect. Perhaps more than any other set of provisions, these provisions highlight the litigation or default planning aspects of transactional practice and contract drafting. Each of these provisions gives rise to a particular set of causes of action in the event of breach or error.
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Chapter 17. Reviewing and Revising 1 result
- Assume that the document is executed and the parties become openly hostile, seeking to undermine each other at every opportunity. Will the document provide sufficient guidance to govern the relationship? Will it provide sufficient guidance to a court interpreting the document or imposing remedies if the parties are locked in mortal combat with no thought to the opportunity or litigation costs involved? Although this may be a worst-case scenario, that is the appropriate test for a well-drafted transactional document.
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- 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.
