Sharpening up: top tips for drafting

New law graduates worry that they are not properly equipped to write in the style that is expected of them as lawyers. More experienced practitioners express surprise that so few of their trainees seem to have grasped ?this essential skill during their time at ?law school.

The problem is exacerbated by the fact that trainees believe that no one will take them seriously unless they adopt what they regard as a ‘lawyerly’ style. Similarly, their supervisors encourage them to write in their style, rather than develop their own.

Express advice

Whatever the root of the problem, lawyers are, first and foremost, communicators. We must be able to express advice to our clients cogently. We must set out our arguments persuasively and draft legal documents in order to discharge our duty to clients effectively.

What follows are my own personal reminders, a list which I try to keep in mind every time I put pen to paper. They are designed to have broad application to all types of legal drafting.

1. Remember your instructions

I am sure that readers of this magazine do not need reminding of one of the basic tenets of legal practice: remember your instructions. However, one need only look at some of the cases, for example, on rectification, to see that “betwixt cup and lip, there is many a slip”.

As it is put in Snell: “What is rectified is not a mistake in the transaction itself, but a mistake in the way in which that transaction has been expressed in writing” (Snell’s Equity, 32nd edition, 2012).

It is all too easy to be lulled into a false sense of security by the ‘cut and paste’ function or your firm’s ‘standard’ precedents. Even if we do not have to reinvent the wheel painstakingly every time we draft a document, we must nonetheless carefully review our drafting and consider at every clause whether what we have produced achieves what our client wishes to achieve.

Remember, the court’s discretionary jurisdiction to rectify is “jealously guarded” (Whiteside v Whiteside [1950] Ch 65, at 71 per Evershed MR) and so will not be exercised without demonstrating by reference to compelling evidence that the document has not been drafted correctly, that is, drafted to reflect accurately the intentions of your client.

2. Remember your audience

In our day-to-day practice, we will draft for many different audiences: the court, other lawyers, people we are trying to impress or persuade, and, of course, our clients, some of whom may not have instructed a lawyer before. Try to not forget who it is you are trying to communicate with and why.

Keep in mind that you should strike an appropriate professional tone, but you should not sacrifice clarity in order to maintain formality or appear in command of your subject.

I often suggest to junior lawyers that they should try to imagine themselves receiving the letter which they have drafted. A conversational tone is not necessarily informal and verbosity tends to alienate your reader.

3. Use a plan

I know that some of us will remember being taught at school how to plan an essay. I was always encouraged to set out under headings a few basic pointers before I started.

For example, I found ‘introduction, facts, argument, conclusion’ was always ?a good place to get me started and, indeed, I often found the introduction the most difficult part to draft because?it was the signpost for the rest of the essay. I had to have wrestled with the facts and formulated at least my ?principal arguments before I could ?begin drafting.

Some teachers liken it to building ?a house. You start with digging the foundations with your introduction; you build the walls with facts; you put in the windows and doors and shed light on your case with your arguments; and, at the end, you put on the roof and close the argument with your conclusion.

I still find planning a substantial ?piece of drafting an important part ?of the process, whether I am drafting ?a witness statement or a trust ?instrument. I jot down the essentials, or, on some occasions, even find myself drawing diagrams if a transaction is particularly complex.

What I jot down as essential pointers often become headings or sub-headings which help as a roadmap through the document and break up large segments of text, making it easier to digest.

4. Get the basics right

A friend, who is a teacher, often uses word games to demonstrate to his classes the importance of good grammar and punctuation. One such example follows.

The challenge is to insert correctly the punctuation required in this sentence: ?“A woman without her man is nothing.”

One use of punctuation would mean that the sentence would read: “A woman, without her man, is nothing.” Another would mean that the sentence would read: “A woman: without her, man is nothing.”

A bit of fun perhaps, but the ?message is a good one. Get the basics right. Punctuation can change the meaning of a sentence; misused, a sentence can be ambiguous or worse ?still, completely meaningless.

A final tip in this section - do not forget the basic rules of grammar.

Your written work is not only a means by which you communicate ?with the recipient, it is your professional work product. It is evidence by which your standards as a practitioner will ?be judged.

Split infinitives, double negatives, the wrong use of apostrophes and random capitalisation irritate some people a great deal and will undermine your credibility with them.

5. Use plain English and avoid jargon

Doubtless every reader of this article will have come across enthusiastic proponents of legalese during their careers, a habit of expression which has the unfortunate tendency to appear on the page hand in hand with an absence of punctuation.

I can put it no better than Martin Cutts in the Oxford Guide to Plain English: “Legalese is one of the few social evils that can be eradicated by careful thought and disciplined use of a pen.

“It is doubly demeaning: first, it demeans its writers, who seem to be either deliberately exploiting its power ?to dominate, or are, at best, careless of ?its effects; and second, it demeans its readers by making them feel powerless and stupid.”

The over-use of legalese can render a document almost impenetrable and can appear deliberately arcane to a lay reader. It can also make errors in drafting more difficult to spot. Use plain English, be concise, keep sentences short and avoid using words like “heretofore”, “hereinafter” and “thereunder”.

6. Read your drafting out loud

Let us look at another example, this ?time courtesy of London Underground. Have you ever noticed a sign at the bottom of the escalator in some Tube stations that says: “Animals must be carried at all times.”

How often have you stepped on ?to the escalator without having brought your pet with you, thereby inadvertently breaking what can be read as an ?absolute rule of escalator use on ?the Underground?

Again, lighthearted, but forming ?the basis of top tip number six: read your drafting back to yourself out loud and then, if you are in any doubt, read it again and, if you are still in doubt, ask a colleague to read it too. It will make your task more time consuming, but I would guarantee it is preferable to your drafting being read out in the Chancery Division on a trustee construction summons.

?7. Edit

Be ruthless. Chop out unnecessary words and redundant sentences. If a paragraph or clause is long, consider sub-paragraphs or sub-clauses. Edit, edit and edit again.

?8. Conclusion

Here are a few of my personal bugbears ?in drafting: the wrong use of its and ?it’s; overuse of however and therefore; ?and the use of ‘I am afraid that’ (unless you are telling your reader that you ?are facing a grizzly bear defending ?its young the chances are you are ?unlikely to be afraid of what comes in ?the rest of that sentence); the use of obscure Latin phrases; and last, but not least, hyperbole.

Morven McMillan is a partner and head of the international trusts and private client team at Mourant Ozannes www.mourantozannes.com

---