Drafter
Drafting tips for writing letters, e-mails, contract clauses, etc.
Writing well in any language is not easy. Writing in a foreign language is, of course, even more difficult. And writing legal texts in a foreign language is perhaps second in difficulty only to writing poetry in a foreign language.
These pages provide free, easy-to-apply tips on various aspects of legal writing.
How to End Things
In Legal English, there are a number of different terms which signify the ending or closing of a contract. Although all of these terms indicate that the previous deal between parties has come to an end, there are subtle differences between the meanings of the terms.
Termination typically refers to the ending of a contract, usually before the natural end of the anticipated term of the contract, which may be by mutual agreement or by exercise of one party of one of his remedies due to the defau [...]
Closing a Contract
Regular readers of this blog are well aware of our penchant for abolishing archaic language and promoting simple, modern turns of phrase, i.e. plain English (Legal English Dictionary). In the past we have discouraged the use of whereas at the beginning of a contract and now we turn our attention to the closing section of a contract.
For hundreds of years contracts have ended like this:
‘‘IN WITNESS WHEREOF .............. _____________ have hereunto set _________ hand and seal this day [...]
In Pursuit of Clarity: The Art of Re-Drafting
Upon receiving an initial draft of a contract, many practitioners are requested to amend certain provisions and make changes to the document. The ultimate goal of any re-drafting attempt should be a clearer, more concise document which leaves little (or ideally, no) room for interpretation. In considering how a clause should be structured, the following tips may be helpful:
Refer to any exceptions first. For example, the section should begin with “Subject to ...” or “Except in the case [...]
Drafting Practitioner
The Drafter regularly provides useful tips and advice with regard to document drafting. Here, in Drafting Practitioner, you have the opportunity to practice your drafting skills. Model answers are provided.
EMPLOYMENT AGREEMENT
Issues to be considered
XX is to be employed for an unlimited period of time as managing director of Acme Co., a small publishing company which is a subsidiary in your country of a British company. Matters to be considered include:
- the term (period) of employm [...]
The cost of bad grammer … er… grammar
When drafting contracts, it is extremely important to pay attention to all grammatical aspects of the document, particular the placement of punctuation marks. Although, at first glance, this would appear to be a minor detail, incorrect usage of punctuation marks can change the entire meaning of a clause or of a contract.
Drafter’s Tip
The most common punctuation mistakes when drafting contracts occur when a numerical figure is provided. The number 20,000,000 could be read as “tw [...]
Style over Substance
Certain types of provisions in a contract may be legally questionable or unenforceable, depending on how they are presented in the context of the contract. In some jurisdictions, for example, non-competition clauses may be unenforceable unless they are supported by certain statutory consideration. Even more important for the drafter, some jurisdictions require some clauses to be clearly evident and accessible to the reader in order to be enforceable.
Drafter’s Tip
In this regard, the ma [...]
The Importance of What-ifs…?
When drafting a contract on behalf of a client, it is vitally important to engage in multiple "what-if" scenarios. A good contract will anticipate as many future “problems” as possible and express the parties’ understanding in the event such situations arise. Speaking with your client about the nature of its business and past and present disputes with competitors is a good place to start; such conversations will generate many issues the drafter may not otherwise consider.
It is often he [...]
Selecting the Best Forum for Your Client
The consent to jurisdiction and forum selection clause in a contract sets forth the location where any disputes relating to the agreement will be resolved. This can be a rather important clause, particularly when parties to a contract reside in or do business in two different countries. A typical formulation of such a clause (dealing with potential litigation, rather than arbitration) is set forth below:
Consent to Jurisdiction and Forum Selection The parties hereto agree that all actions or [...]
Demand Letters
A demand letter, or a letter before action or a pre-action letter as it is called in the UK, is a formal notice demanding that the recipient perform a legal obligation. It is typically used to persuade the recipient to take or cease some action, rectify a problem, pay a sum of money or honor a contract, on specific terms and within a specified time, or to revoke a waiver of rights, or simply to provoke a reaction that the writer can use to his/her client’s advantage.
A demand letter gives t [...]
The Joys and Perils of Sample Forms
When drafting a particular type of contract, it is common to review sample contract forms and use them as a template. Such sample forms can be helpful in assisting the drafter with the proper style, format and language of a contract.
Drafter's Tip
Although each contract is unique, through these sample forms, the drafter may discover provisions that he or she would never have thought to include otherwise. Larger law firms tend to have many such forms located within the company’s knowledge [...]
Where’s the Party at?
When drafting an agreement, it is usually preferable to begin the agreement by fully identifying the parties, followed by a shorthand reference for each party to be used in the remainder of the agreement.
This License Agreement is between ABC Company, a Delaware corporation with a principal place of business at 13 Cuckoo Road, Zanytown, Texas (“Licensor”) and DEF Company, a New York corporation with a principal place of business at 14 Coolguy Street, Laidback, New Jersey (“Licensee”).
[...]
Avoiding “Assignments”
As you are undoubtedly aware, legal English differs from “ordinary” English in numerous respects. Words and phrases which mean one thing in normal English usage can mean something entirely different in a legal context. One such example is the word assignment. In everyday English, the term assignment normally means a “task” or a “job”, i.e. the teacher gave the student an assignment. However, in legal English, the term assignment is most often used to mean a complete transfer of right [...]
Avoiding “Assignments”Re-considering Consideration
Anyone who has studied common law principles in a legal context has heard of the concept of “consideration”. Consideration is a benefit or right for which the parties to a contract must bargain; the contract is founded on an exchange of one form of consideration for another. Whereas many civil law countries require only an offer, an acceptance and an intention to be bound in order for there to be a valid contract, common law jurisdictions have the additional requirement that there be conside [...]
Re-considering ConsiderationBeware the Boilerplate
Boilerplate clauses are standard legal language drawn from the extensive legal experience of big firms or companies. Most contracts contain a series of boilerplate clauses which often appear under the heading “General” or “Miscellaneous”. These are often overlooked when drafting an agreement and, due to their supposed “standard” status, are rarely reviewed with as much scrutiny as other clauses. However, failing to review them in the context of each deal can be dangerous. One of the [...]
Beware the BoilerplatePositives
Clarity in drafting is best obtained through simplicity. Therefore, it is better to use positive phraseology in drafting as negative phraseology may lead to unnecessary complication. Consider the following:
Drafter’s Tip
“The buyer did not fail to pay the purchase price of the goods nor was payment not made in accordance with the contract terms.”
The use of negatives in the sentence may make it sound more complicated than it is and more difficult to understand. If we were to rephr [...]
Use of Capitalization
Proper nouns in English are usually capitalized, i.e. the names of people, places, countries and titles. Simple as the general rule is, problems may arise with nouns that may be used in both the proper or common form. In such a situation, the noun should only be capitalized when used as a proper noun.
Drafter’s Tip
Consider the examples below:
• A company’s board of directors is usually appointed at the annual general meeting.
• The Board of Directors of Acmana Ltd. was appointe [...]
Restraint of Trade Clauses
What are restraint of trade clauses?
They are clauses in contacts used as a means of preventing departing employees or partners from taking clients or information with them or from competing with the original business after the termination of employment.
The courts generally dislike such clauses and are generally reluctant to enforce such clauses taking a restrictive approach to interpretation. The courts are mainly concerned with clarity and reasonability – an unreasonable or uncertain [...]
The Wisdom of Humility
In drafting letters to counter-parties or documents for court, try to avoid excessive exaggeration.
For example, avoid calling your client the “CEO of a successful food emporium” instead of “the owner and manager of a local pizzeria.”
The other party and the courts soon see through such exaggerations which in the final analysis will have the effect of reducing the credibility of your client and his/her claim and may be used against you. [...]
Nuances
Be aware of the nuances of the words that you choose. When deciding whether to use a particular synonym, make sure that you understand the shades of meaning in the word. An effective way to do this is to run the word through an Internet search engine and see how it is used in context.
Drafter’s Tip
For example, consider force, compel, and require. All three indicate that a party must do something.
Require is the most neutral, or least “loaded” form of the word.
“The license [...]
Legalese
The modern trend towards the use of non-technical language - the Plain Language Movement – focuses a great deal on Legal English, which mixes modern English with vocabulary borrowed from numerous other languages and legal traditions. Over the centuries, Legal English has developed a dense style and tradition which is not easily understood by non-lawyers. Understandably – but unfortunately – many lawyers who must use Legal English try to mimic the style of their native English-speaking coun [...]
LegaleseConstruction of Insurance Policies
An elderly English couple came home from vacation to find their home ravaged; curtains ripped, pictures smashed and flower pots broken. They thought a burglar must have been there. This was certainly a shock and the damage seemed to be about £5000, but they had insurance. They were wrong. The intruder turned out to be a squirrel and their insurers refused to pay on the ground that the policy excluded damage by “vermin”, and squirrels were covered under that term. The disgruntled policyholde [...]
Construction of Insurance PoliciesWhereas
Whereas is the archetypal legalism. It has been with us since the dawn of our legal system, and many lawyers think that it is high time that whereas was retired. It usually appears in Gothic print, perhaps because it belongs to that era. One popular writer on modern legal usage warns that “whereas can be trouble, despite its innocuous appearance. The reader as well as the writer needs to be especially careful about whatever follows it.” B. Garner, Modern Legal Usage (1987).
Whereas means [...]
The Myth of “Precision”
Lawyers often sacrifice clarity for the sake of precision. This, coupled with a lawyer's tendency to use legalese and jargon may give rise to awkward sentences filled with superfluous words, exceptions and qualifications. Ironically, instead of precision the lawyer creates ambiguity. Adherents of the plain English movement bristle at such formality of language and advise against the verbosity that is often evident in legal drafting. After all, why use three words when one will suffice?
Drafte [...]
Letter Writing, Stock Phrases
When drafting correspondence, whether a letter or a formal e-mail, it is important to inform the reader of the subject matter of your correspondence at the outset. In addition, one should be sure to conclude the correspondence with a clear articulation of any request for action or for a response.
Drafter’s Tip
Stock opening phrases
This is in reference to your letter of May 31.
We have received and thank you for the information you sent concerning…
We are in receipt of your…
[...]
Use of “less than” and “more than”
When using “less than” and “more than” in a list of periods, quantities, or charges, there is the danger of leaving a hiatus (a break or a gap). For example, where the compensation payable in respect of late completion of work varies according to the length of the delay, the following list is incorrect:
Less than 7 days (0-6) £100
More than 7 days but less than 14 days (8-13) [...]
May
Although the word ‘may’ is generally interpreted as being discretionary (giving the party the freedom to decide), case law shows, at least in Great Britain, that the courts can, in an appropriate context, construe ‘may’ as imposing an obligation rather than a discretion.
Thus, for example, in Entwistle v. Dent (1848), a letter from a London merchant to his agent in China stated that “If tea is not obtainable at our limits you may invest one half of the whole proceeds in silk.” The [...]
Selection of the Forum
The selection of the forum of a contract is of great importance to the value of the contract. Naturally, there are always advantages in litigating in a familiar setting, but there are advantages and disadvantages when choosing any forum. For example, the American civil litigation system, unlike many other countries' systems, permits jury trials. What is more, punitive damages are possible, in the jury’s discretion, as well as statutorily authorized treble damage awards. Thus, a company exposes [...]
Selection of the ForumDemand Letters
Demand letters, or letters before action as they are called in the U.K., are typically used to persuade the recipient to take or cease some action, to revoke a waiver of rights, or simply to provoke a reaction that you can use to your client’s advantage in the future.
Drafter's Tip
Use plain English whenever possible in order to insure that the letter is understood by the recipient, balance succinct style with sufficient detail, and adapt the format and content, including the depth of legal [...]
Clause Construction
When drafting a clause which must incorporate a right or obligation, it is worth remembering the time-honoured principle of clause construction developed by George Coode.
Coode suggested a logical order for clause construction.
Drafter's Tip
Refer to any exceptions first: e.g.“Subject to…” Next, set out the circumstances or conditions upon which the legal right or obligation depends, using the present tense: e.g.“If A does… and B does …”
Third, set out the right or obliga [...]
