June 17, 2013
From a bird’s-eye view, the primary objective of all legal writing is clear communication, so techniques that improve the quality of legal writing, generally, serve to improve the quality of drafted documents as well; however, although the terms are often erroneously used interchangeably, important distinctions exist between legal writing and legal drafting. “Legal writing” is the broader concept; it includes any intentional recording of words relating to law. “Legal drafting” is a narrower subset of legal writing; according to Black’s Law Dictionary, “drafting” refers to the “practice, technique, or skill involved in preparing legal documents – such as statutes, rules, regulations, contracts, and wills – that set forth the rights, duties, liabilities, and entitlements of persons and legal entities.” Although you might hear someone say, “I am drafting an appellate brief,” this would be inaccurate because a brief does not set forth rights, duties, liabilities and entitlements. A brief falls under the penumbra of legal writing but not within the subset of legal drafting.
Here are some ways that legal drafting differs from legal writing:
1. Future-oriented vs. historical perspective. Legal drafting seeks to control the future actions of the parties; legal writing describes an event that has already occurred and its known or knowable ramifications. This means that a drafter must be able to anticipate future risks and to craft language that will ensure that the client is not exposed to an unacceptable level of risk.
2. Long shelf life vs. short duration. Because legal drafting seeks to control future actions, some contracts, wills, and statutes must be drafted to last well into the future. For example, a series of interesting cases involving a book publisher illustrated the confusing copyright issues that arose with the advent of e-book technology two decades after the contracts were signed. Similarly, a drafter charged with the responsibility of drafting a long term lease must craft language that will accommodate changes in banking technologies and payment systems. Conversely, briefs and pleadings are quickly forgotten, possibly even before the underlying case is resolved.
3. End-users vs. lawyers. Although complaints and briefs are communications intended for judges and other lawyers, most drafted documents are intended to be used by non-lawyers. For example, a business executive will consult the written contract if and when he or she encounters a warranty problem to find out what remedies are available and how to pursue them.
4. Sporadic reference vs. start-to-finish reading. Although briefs and pleadings are intended to be read from start to finish, the end-user of a contract will consult specific provisions from time to time as issues arise during the term; he or she does not expect to have to read the entire contract from beginning to end to determine, for example, when payment is due. This means that a contract should be organized in a logical manner that enhances the end-user’s ability to find the necessary information. Of course, as lawyers, we avoid giving legal advice without reading the entire contract because we know 1) contracts are not always organized well; and 2) one provision often triggers another.
5. Unspecified format vs. highly specified format. Everything about a brief is specified: the permitted length; the margins; the size of paper that may be used; the type size that may be used; the style that must be used; and so on. Virtually nothing about a contract is specified, which means the drafter is responsible for determining what it should look like, how long it should be, and what provisions should be included to protect the client’s interests and allocate the appropriate level of risk.
6. Minimal citation vs. integral citation. Citation of authority is an integral component of briefs and pleadings, where statutes and case law precedents are quoted, cited, explained, and argued; citations in legal drafting are sparse and few. Many contracts contain no citations at all, but that doesn’t mean that drafters don’t have to know the law; drafters have to take into account not only the requirements of applicable laws, which must be woven into contractual provisions, but also the potential application of gap-filling laws like the Uniform Commercial Code and canons of construction that may creep into the interpretation and enforcement of the contract unless specifically excluded.
7. Collaborative vs. singular focus. A brief-writer is charged solely with the responsibility of persuasively communicating his or her client’s position; the opposing party’s brief will be written by the opposing party’s counsel. Conversely, in drafting for a negotiated transaction, the contract ultimately represents the interests of both parties; hence, the parties must collaborate to produce a single document that is acceptable to each of them. Drafting is collaborative in another sense: a contract is collaborative in the sense that provisions are carried forward from one transaction to the next, meaning that the origin and genealogy of any particular provision are largely unknown. Although we must assume that ALL provisions must have served an important purpose at some point, the task for the drafter is to determine whether each provision in the prior iteration is relevant in the transaction at hand.
8. Crucial mistakes vs. correctible mistakes. Most briefs and pleadings can be amended by simply filing a motion with the court. In legal drafting, mistakes can be very costly and the only method of correcting them once a contract has been signed is by persuading the opposing party to enter into a new contract — because amendments to a contract are new contracts. For example, a $5,000,000 judgment in a Canadian case turned on the presumably faulty placement of a comma.
9. Withstand scrutiny vs. persuade. In writing briefs and pleadings, the objective is to persuade the court to accept your client’s position. Opposing counsel may disagree with your assessments of the evidence or precedent; he or she may even object to your usage of a particular word or characterization, but he or she would not seek to repudiate the meaning of the brief itself. Conversely, contracts must be able to withstand attacks by highly skilled lawyers zealously intent on disaffirming your intended meaning. As Professor David Mellinkoff noted, drafters must always keep in mind that “[s]ome day, someone will read what you have written, trying to find something wrong with it. This is the special burden of legal drafting, and the special incentive to be as precise as you can.”
As you can see, drafters face many unique challenges due to their future-oriented endeavors. Because the objectives of legal drafting differ significantly from the objectives of legal writing, most law students have not been taught properly how to draft in law school; they emerge from the hallowed institutional walls with glaring deficiencies in transactional skills. I will be blogging from time to time at this website on the subject of drafting contracts. My goal with this series of blog articles is to provide information and techniques to enable new lawyers to draft more proficiently.