Legal Drafting Transcript Example

Legal Drafting This Tutorial is broken up into stages, which include learning blocks, case studies, and knowledge checkpoints. We recommend you complete this online session in chronological order. By the end you will be able to:  Explain the fundamental purposes of legal documents  List the objectives of a lawyer in drafting documents for clients  Describe the standard structure of most legal documents  Apply some simple approaches in developing your legal drafting skills Contents Legal Drafting...............................................................................................................1 Stage 1: Introduction.................................................................................................2 Stage 2: Your Aims in Drafting a Document..............................................................2 Stage 3: Getting the Substance Correct...................................................................3 Stage 4: Achieving Clarity.........................................................................................3 Stage 5: Activity.........................................................................................................3 Stage 6: Clarity Continued – Layout.........................................................................3 Stage 7: Clarity Continued – Easy to Read..............................................................4 Stage 8: Summary.....................................................................................................4 Stage 9: Use of Precedents......................................................................................5 Stage 10: Activity.......................................................................................................6 Stage 11: Activity.......................................................................................................6 Stage 12: Activity.......................................................................................................6 Stage 13: Conclusion................................................................................................7 1 Stage 1: Introduction Welcome to legal drafting. This session provides a basic introduction to developing this fundamental lawyer’s skill. There is a vast range of legal documents, which include:  Contracts  Forms  Applications  Statutory returns  Minutes of meetings For the purpose of this session, we are going to concentrate on contractual documentation as this will allow us to consider a wide range of drafting principles. Stage 2: Your Aims in Drafting a Document Imagine a situation where you are about to draft a contract for a client, for example, a partnership agreement. What, in practical, terms are you aiming to achieve? Simply, two things: 1. You are setting out what your client and the other parties to the contract are agreeing should happen in their contractual relationship 2. You are, either explicitly or implicitly, providing for what should happen if things don't happen as the parties agreed Select the tabs below to read more about each of these point in turn. Setting Out What Your Client and Other Parties are Agreeing Taking the first point – the best way of thinking about it is that you are making a formal record of the parties' agreed terms. This has got to be good enough such that the parties can come back to it at any point during their relationship and be clear as to what was agreed. Providing For What Should Happen if Things Don't Happen as Agreed Taking the second point – your drafting has got to be clear enough to be understood and applied not only by the original contracting parties, but also by their advisers and possibly a court. How then can you achieve these goals? You need to get the substance correct and comprehensive and then ensure that what you draft is clear and unambiguous. These are the two basic considerations which will lead to a well-drafted agreement. We’ll look at these now and later we'll look at some ideas as to how you can best achieve them. 2 Stage 3: Getting the Substance Correct First, you have to get the substance correct. Your agreement must reflect your client’s instructions. It must accurately record what your client wants to do, or what your client has negotiated with another party that their ongoing relationship should be, business or otherwise. Your agreement also needs to be legal. That is, it should not provide for anything which doesn’t accord with or is prohibited by regulation or common law. Apart from being bad drafting, it can be particularly embarrassing if picked up by other solicitors. In addition, any legal formalities need to be complied with – for example, proper execution (such as whether the parties’ signatures need to be witnessed), or a requirement that a contract be made in the form of a deed. Stage 4: Achieving Clarity Having got the substance correct, the second consideration is clarity. This can often be difficult to attain, particularly when the subject matter appears complex. How can you achieve clarity? Think about the following three elements: 1. A logical structure 2. Layout 3. Appropriate language that is easy to read First, a logical structure. A reader should be able to read the agreement and understand what it is about: what sort of agreement is it, when was it made, who are the parties to it, and what are they agreeing to do? Stage 5: Activity In this Activity, you have read the short legal document below and see if it provides you with an understanding of what it is about. Select the document to open it. You can then opt to view only or print. When you've read the document, select 'CONTINUE' to move onto the questions for this Activity. Document available online CONTINUE Now, in your own words, type in the information required – what sort of agreement is it, when was it made, who are the parties to it and what are they agreeing to do – into the boxes below. When you're finished, select 'SUBMIT' to view the suggested answers. Activity available online Stage 6: Clarity Continued – Layout A logical structure assists with the next element: a layout that allows the reader to locate topics and then easily read material relating to those topics. 3 Select the tabs below to read about the different features of the layout of legal documents. Index and Headings Larger agreements may include an index to the topic dealt with in each major paragraph. Most agreements will have headings at the commencement of each major paragraph. Terms Related to Specific Elements of the Agreement Terms relating to specific elements of the agreement should be dealt with together: so, for example, anything relating to method of payment will be in one place, anything relating to delivery in another, exclusions of liability somewhere else, and so on. Layout Within Each Paragraph Within each paragraph, the layout should be such that the text is easily read: use should be made of sub-paragraphs and tablature – that is, separately listing provisions on new lines rather than running them together in one long sentence. Numbering of Provisions As you’ve looked at these features of layout, you will have noticed the numbering of provisions. There is no universally agreed way of numbering provisions – you will come across a wide variety of approaches. Look at the following examples that are displayed in the image below. Image available online You will see there is a pervading feature in the examples. That feature is consistency of approach in dealing with major paragraphs, sub-paragraphs, and sub-sub paragraphs. You will also find that some lawyers refer to paragraphs, others to clauses and some to sections, when referring to elements of an agreement. Stage 7: Clarity Continued – Easy to Read The aim of making an agreement easy to read is the final element in achieving the goal of clarity. Plain, simple, unambiguous English should be used. You will not have drafted to the required standard if, on reading an agreement, someone is unclear as to what the parties intended their relationship to be. Stage 8: Summary Below is a summary of what you've learned in this Tutorial so far. To summarise getting the substance correct: 4  Does it carry out the client’s instructions – recording the agreement?  What is the legal effect – is it correct in law? To summarise achieving clarity:  Make sure the Structure is logical  Is the Layout easy to read, easy to locate the topics?  How is the Language – does it use the appropriate tone, clear unambiguous language, and plain English? Stage 9: Use of Precedents The good news is that, for most of the agreements you will have to prepare, some of the work will have been done for you. That is because the majority of agreements are based on precedents. These are agreements which have been prepared and developed by lawyers which deal with common transactions. In theory, these should be well-drafted agreements, having been prepared to be legally compliant and accord with current practice. They are not, however, the finished item. Select the tab below to read about how to use precedents for your particular purpose. Use of Precedents There may be elements left for you to complete or options presented. You may also have to amend existing clauses or draft new clauses, in order that the final agreement accords with client instructions and the matter in hand. It is important, when drafting with precedents, to read every clause to ensure it deals accurately with the particular matter you are dealing with. You should not take it for granted that every clause will reflect the matter in hand or your client’s instructions. Whether derived from a precedent or not, most contracts follow a fairly standard structure. The document below contains an example confidentiality agreement. Take a moment to read through the example agreement to find out about the main elements of a contract. Some of the main elements of the example agreement are highlighted. Select each of the highlighted elements to see a further explanation of them. You can then select the titles of the further explanations to return to the corresponding point of the example agreement. Select the document to open it. You can then opt to view only or print. Document available online 5 Stage 10: Activity The final element of this session is to consider some simple approaches you can take when drafting, to achieve the goal of clarity. The first is connected with layout: keep separate obligations in separate subparagraphs. Do not over-complicate your draft. Compare the following two examples displayed in the image below for clarity: Image available online The second is to have an approach to drafting you can consistently apply. One way is to ask yourself the same questions for each provision you draft:  Are there any conditions to be complied with for the clause to operate? If so, state them.  Who has to fulfil the obligation? State who this is. This will help you in drafting in the active, rather than passive tense  What do they have to do?  To whom/for whom do they have to do this? When? Why? Where? How? See how this approach works in this Activity by answering these questions in turn and drafting appropriate clauses for the scenarios below in the boxes provided. Note that there may not be an answer to every question in each case. However, that should not prevent you from asking each question each time. When you have drafted your clauses, select 'SUBMIT' to review them against suggested versions. Activity available online Stage 11: Activity The third thing is to keep things simple when you initially draft. Do not over-elaborate or try to sound lawyerly. Remember that your task is simply to record what the parties have agreed. So, just draft what is happening. If party A is to deliver goods within 28 days to B’s premises, then that’s all you need to draft. In this Activity, redraft the clauses below in more simple language in the boxes provided. Your objective is to use plain English rather than "legalese". You should find that your re-draft is shorter than the original draft. When you're finished, select 'SUBMIT' to compare them to the suggested drafts. Activity available online Stage 12: Activity The final approach is to edit as you go. There are two aspects to this. Select the tabs below to read about each of these in turn. Consequential Amendments The first is technical and relates to consequential amendments. Remember that as soon as you change one clause or renumber another or add a definition, this is very 6 likely to have a knock-on effect on other elements of the agreement. Your goal is consistency. Keep Number of Words to a Minimum The second element of editing is to keep the number of words to a minimum – another example of keeping things simple. Studies have shown that the more words you use in a sentence, the less the reader is likely to understand. It also increases the likelihood of ambiguity. Try to edit as you go. Ask yourself whether words are necessary – will the meaning of your drafting change if you eliminate certain words? If not, then why are they there? In this Activity, read the clauses below and then re-draft them in the boxes provided. Your objective is to edit the clauses to reduce the word count and make the clauses easier to understand. Select 'SUBMIT' to compare your version to the suggested version. Activity available online Stage 13: Conclusion Having drafted the document, you may feel that your work is finished and that the document is ready for submission to your supervising solicitor, your client or the court. However, there is one final and vital stage that you must undertake. You must ensure that you thoroughly proof-read your document for errors. Select the tab below to learn more about proof-reading. Proof-reading This final stage will make any draft better. Even if you have been editing as you go along, your document will inevitably contain spelling mistakes, grammatical mistakes, errors of layout, etc, that you have not yet spotted. You need to read through your work carefully before you submit it to spot these mistakes. The best time to proof-read is after you have taken a break from working on a document. That way you do not simply read back what you expect to read. Give yourself as much time as possible to do this, so in producing a document you must not just allow the time to produce a draft but also the time to reflect on it and improve it. So, to summarise:  Your goals are to record what parties have agreed want to happen and to provide for what happens should anything go wrong  Your draft should be capable of being understood by third parties, not just the parties to the agreement and the lawyers  You need to ensure that your draft reflects the parties’ intentions and is legal – in short, that it works 7  You need to consider structure, layout and, most of all, clarity  When drafting, use a simple, clear layout, keep things simple, ask yourself whether your draft answers basic questions, check for consequential amendments and edit as you go That brings us to the end of this Tutorial on legal drafting. You should now be able to:  Explain the fundamental purposes of legal documents  List the objectives of a lawyer in drafting documents for clients  Describe the standard structure of most legal documents  Apply some simple approaches in developing your legal drafting skills End of document 8