October 17, 2013
In 2008, Lenné Espenchied shifted away from more than two decades spent in transactional practice and began to focus on educating lawyers about the principles of drafting sound, accurate and useful legal documents.
“As a lawyer, your brand is the quality of your work product,” she said. “As I see it, continuing education improves the quality of your work and therefore your brand and is something beneficial for lawyers at any stage of practice.”
On Oct. 28, Espenchied will help attorneys develop powerful drafting, analytical and interpretation skills with regards to contracts in the Beyond the Bar live webcast “The Essentials of Contract Drafting: What You Don’t Know Could Harm Your Client and Your Reputation.”
If you could tell a firmly established lawyer one thing to change about his or her traditional style of drafting, what would it be?
“There are many things I’d like to tell more firmly established attorneys, but there is one pervasive error that I just find all the time. I’ve found that the misuse and chronic misuse of the word ‘shall’ is just all over the place.”
Espenchied said she once conducted a personal study of legal documents and found that ‘shall’ was used 20 times per page. It was used incorrectly 90 percent of the time.
“With contract drafting, what we really want to do is use (shall) so that imposes a duty, a direct duty on some named party. If ‘shall’ is being used in some other sense somewhere in the contract, it weakens the power and the hold that the first use of ‘shall’ has.”
What is your opinion to the approach law schools are taking with regard to legal writing and legal drafting?
“I have extensive knowledge of two law schools, what they’re doing in terms of drafting, and the rest of my knowledge is secondhand information. My two questions are, ‘Who is teaching, and who is being taught?’ It seems that law schools favor a litigation track over a transactional track, and I think that ignores the fact that only some lawyers will litigate, but all lawyers will end up writing something at some point, and will probably write things very often.”
You’ve written about the importance of choosing the right word when drafting a legal document. In your opinion, is a large vocabulary better for precision, or does it make more sense to stick to commonly used, widely understood terms?
“It’s important, in contract drafting, to pay attention to the words that you use. There are some words that are inherently ambiguous. For instance, in a Wills, Estates and Trusts context, think about ‘children.’ Does that mean biological children only, or would it include adopted children? …A large vocabulary isn’t necessarily important. It’s better to know your audience. If you’re preparing a contract for a Harvard MBA, go ahead and use very sophisticated words. But if you’re drafting a boilerplate contract that is going to be repurposed over and over and you don’t know who your audience is, a large vocabulary isn’t necessarily advantageous there.”
For more on this interview, visit the Legal Solutions — Large Law Firms blog.