Drafting: A Skill

Before starting a serious attempt on drafting lets have a precise definition of the subject.

What is Language- According to Merriam-Webster dictionary “language is the words,

their pronunciation, and the methods of combining them used and understood by a
community”. Language includes both words spoken or written. In other words, language
is a medium to express ideas, feelings, thoughts, emotions etc. According to the
necessity, each country, society, community has developed its own language to
communicate with others.

Language can be divided in several categories, based on its use and requirement
and can be categorized in legal, scientific, technical, commercial and so forth. Every sect
develops its own lexicons which make it different from others. Same applies on legal
language, while creating legal documents a legal professional uses certain legal lexicons,
which can be words or phrases. This makes the draft fixed, distinct and unambiguous,
and nobody can make two meaning out of it. Few are the words used in legal papers like-
“nevertheless”, “provided”, “provided also”, “it shall be and may be lawful”, “is hereby
empowered, authorized and required ”, “Notwithstanding anything contained in any law
for the time being in force”, “except and otherwise directed by”, “nothing in any act or
acts to the contrary notwithstanding” etc.

The difference between common and legal words can be easily understood
through an example, the word “Judgement” and “Judgment”. The first one with an “E”
after the letter ‘G’ is used in common language which purports “is to form an opinion on”
or “according to one’s consideration”. But the latter one is a legal word, which is always
used by the legal professional to means “a decision or a verdict or a pronouncement of
the court”. However, this is not the only word which is exclusively used in any
documents. There are many words, phrases or expressions which are only used by the
legal fraternity.

In common language, general rule about clear and simple writing is to make
the sentence short, which will contain not more than 15 words per sentence. But the
ironical rule of legal drafting of the legislation is that, there are few statutes in which a
sentence exceeds 200 to 300 words without any break. This is done in legal language to
hold the actual idea or thought within it. A legal sentence uses conjunctions or
punctuations to include different clauses like Adjective clause, Adverbial clause etc. in
order to contain the complete idea in that sentence.

A legal sentence, in most of the cases, should be arranged in the following order:
 case;
 condition;
 legal subject; and
 legal action.
Example to explain it-

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“Where there is any question between any districts touching the boundaries of such
districts (the case), if a majority of not less than two-thirds in number and value of the
landowners of districts make applications in writing (the condition), the competent
authorities (the legal subject), may deal with any dispute or question concerning such
boundaries (legal action). ”

Simply can be explained as:

 the case: the boundary dispute;
 the condition: two-third of landowners should make application;
 the legal subject: the concerned authorities;
 the legal action: boundary dispute will be decided in accordance with the
provisions of the law by the competent authorities.
There are some expressions, which are found in the formal parts of deeds, agreements
and other legal documents, appear in block capitals wherever they are used. Few words
are mentioned below:
 THE AGREEMENT OR THE DEED;
 BETWEEN;
 WHEREAS;
 NOW THE WITNESSES;
 IT IS HEREBY AGREED;
 IN WITNESS WHEREOFF; and
 IT WAS RESOLVED THAT.
The abovementioned examples make the distinction between legal
language and common language easier to understand.

PROBLEMS OF LEGAL LANGUAGE DRAFTING:

1. The paramount struggle for a legal professional is to make the language easy,
which can be effortlessly understood by the common people not equipped by the
legal knowledge. One among the major problems of the legal professional is to
use the language in such a manner which correspond the aspiration of the past, the
present and the future. In the sense, it should contain the impact of old tradition,
efficiency to counter the needs of the present and flexibility to carry out the
demands of the future. Law or legal language is not only simple abstraction to
transcendental meditation, but fitment to actual facts to yield jural results as a
synergetic action, not secluded action.

2. Lack of clarity in thoughts of the legal professional is also a problem to get

flawless document. A work of the legal professional is within the orbit of
divergent standards. A legal professional has to take many points under
consideration while drafting, for example, legal effectiveness, procedural
legitimacy, brevity, certainty, comprehensiveness, acceptability, debalibility and
conformity of law. Lack of clarity in thoughts may lead the legal professional for
the disorganized composition and this will end up in confusion and inconsistency
of document.

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 3. Lack of uniformity in thoughts of different persons and ambiguity in the giving
instructions is also a stumbling block in making a good draft.

4. There is one more issue that, legal professional while describing some matters at
different places in the same draft, does not use the similar language or words and
phrases; and due to this inconsistency ambiguity creeps into the draft.

Problems while drafting Definition:

Definition is a common feature of the agreements, contracts or other legal documents. It

is made to define certain words and expressions used in the body of the document and
give those words a accurate or more extensive view than the dictionary or the laymen
would give the particular words or phrases. Drafting of definition is an uphill task and
most problematic. There are four ways of defining a term:

1. Where a legal professional put the idea of certainty, defines the term like
this….means. The word means….invites a restrictive interpretation. Using the
word “means” envisage the firmness or certainty in the definition which must be
observed strictly and nothing can be added;

2. Where a legal professional intends to include certain special meaning, use the
word “includes”. This word has much liberal view than means;

3. Where the legal professional wants to include specific persons with amount of
certainty than the word “means and includes” takes place;

4. Where the legal professional neither wants to include specific persons nor
certainty for this purpose, the word “means appointed in this section” takes place;

5. Despite, the purpose of definition writing is to bring clarity and brevity however,
due to the use of liberal and expansionist words or lack of drafting of mandatory
rules can create problems. Even sometime the words used to define certain term;
themselves need definition and legal professional end up with three or four
definitions modifying the main definition.

6. Few ambiguous words in legal language:

 “Shall” the most powerful word in the legal professional inventory, it is
used to give order and a word of command and obligatory.
 “May” is a word of permission.
 “And”/ “or” are the words which creates the confusion for legal
professional and is often of substantive consequence. The easiest and
straight way to understand the difference between theses two words is the
“And” can be conjunctive and disjunctive whereas “or” is disjunctive. The
problem is where to limit the word “and” as conjunctive and the word “or”
as disjunctive. It is preferable that to remove the confusion between these

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 two terms the legal professional should use exact words to express either
conjunctive or disjunctive sense.

7. Legal documents are meant to give orders whereas, a legal professional lacks in
giving orders to someone. Say for an example, by use of expression “Notice shall
be issued” which does not convey the message what who will be responsible to
issue that notice. Instead of writing “Notice shall be issued” it will appropriate to
write that “Notice shall be issued by ….” To put the clause in action the legal
professional must give orders to or impose sanctions on some human.

8. The ambiguous and equivocal words also create mishap in the drafts. For example
word “Premises”, this word may include a big definition if not clearly specified.

9. Using doublets and triplets to amplify the meaning by the synonym is very
common feature of the legal language. Say for an example the word “null and
void” this word does not make any difference if used as doublet, in fact the
meaning and purpose can be reached if the legal professional use a single word.
Some writers view that the purpose of this mannerism of doublets as “rhetorical
or oratorical rather than etymological”. Few have the view that using doublet and
triplet maximize the understanding of the reader, for example the word “able and
willing”. The use of doublet and triplet entirely depends upon the view of the
legal professional and there is no hard and fast rule for this, but before using such
words a legal professional need to be clear, whether these words are adding
something in the meaning or not.

10. Using of cliché and Gobbledygook in the drafts is actually unnecessary which can
impress a layman reader, but later on anyone can understand the inefficiency of
legal professional. Cliché is writing without thinking but is merely using
predigested thought and language; gobbledygook is using big and complicated
words when a small and easy word can do the same work. The use of long
complicated sentences, difficult and big words, multi syllabic jargons and verbal
distortion can badly affect the draft and can loose the actual meaning and purpose.

SUGESSTION FOR GOOD DRAFTING:

The good draft should be clear, without any ambiguity jargons and should be expressed
in a simple language that anyone can understand it without lawyers help. But the dire
reality is it become so complex, obscure; ambiguous that not the layman, even the lawyer
faces the problem to understand it. The real question is not how it should be interpreted,
but how it should be framed so as to avoid contradiction and doubt.

LANGUAGE TO BE USED IN DRAFTING:

1. Drafting is an art which should maintain the virtue of simplicity, clearness,

brevity and order. Before starting the legal professional should be clear with the

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 concept that, what message should be conveyed or what not to be conveyed
through the document;

2. As technical legal lexicons and language is very indefinite and vague to describe
anything to the layman and does not bring any precision to them. So, the language
should be intelligible to the common people;

3. The most important point of drafting is that the right word should be placed in the
right place, neither exaggerated version nor less than required. Every word should
carry the right, precise and accurate meaning in the document;

4. In a legal document using adjective shows lack of focus and increases

inefficiency. Say for an example “This is urgent” or “This is a matter of
considerable urgency”, the first one is precise and accurate whereas the second
one is just unnecessary use of more word;

5. The word “such” should be avoided because it has a tinge of vagueness;

6. For one document one word should be used in the same context till the end.
Where the legal professional wants to change the meaning of the word, the word
for the same reference should be changed or the change in the meaning should be
clearly mentioned, whenever required.

So, in succinct we can say about what a legal professional should DO and Don’t while
drafting:
DO’s:
1. Clearness and brevity;
2. Command;
3. Proper co-ordination in the clauses;
4. Nobility in expression;
5. Avoid using legal lexicon or technical words as far as possible;
6. If required to use technical word should be defined properly;
7. One idea, one word;
8. Use familiar words;
9. Concrete words to the abstract;
10. Use short and simple sentences;
11. Understand the idea and mindset of the reader
12. Prefer active than passive voice;
13. Add some periods;
14. Avoid unnecessary repetition;
15. Use a simple verb for a group of sentences;
16. Put qualifying ideas in another sentences; and
17. Reduce group of words in single word.

Don’t:
1. Avoid using words with similar phonetics, like employee and employer;

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 2. Avoid using short forms, abbreviations or acronym, like etc., e.g., &.
3. Cumulative negatives in successive phrases must be carefully employed;
4. Avoid words which express uncertainty like ‘more than’, ‘less than’ and ‘lump
sum’;
5. Should avoid typographic or drafting mistakes between the similar words.

FEW WORDS TO DISCUSS ABOUT:

Use of words or numerical digits for numbers:

It is a research that most of the legal professional prefers to use numbers in place of
writing the numeric terms in words. The choice entirely depends upon the mindset of the
legal professional. Say for an example, half of the equity share or I took 1.0 page to write
an essay. Both of the examples are absurd. This shows that neither numeric terms nor
words can be fit in every condition and no common rule apply for using them; in fact
their usage depends upon what they are representing. The only purpose of their usage is
to make draft easy to understand and to remove ambiguity.
In few places it is required to use both, for example to show rent in the
Landlord-Tenant Agreement. To express amount, both of the way of expressions are
required, words to reduce ambiguity and confusion and numeric terms would be a bit
peculiar to flip to words for a single instance, it stick out the better than the words
anyway.

Place for conditional clause:

Conditional clauses have traditionally been placed at the beginning of a sentence, but
legal professional may choose to place a conditional clause elsewhere, if doing so would
make the provision easier to read. The longer the conditional clause, the more likely it is
that the provision would be more readable with the matrix clause rather than the
conditional clause at the front of the sentence.

Confusion between whether Singular Also mean Plural:

A rule passed in Nebraska Supreme Court, tells, if the context does not otherwise clearly
indicates, words used in the singular include the plural and plural includes the singular in
the same way, the neutral gender includes the masculine and feminine gender. So this
rule brings to mind the following two recommendations:
First drafting a provision that gives reference of unnamed person or thing consider that
the provision will apply regardless of the number, only with respect of singular, only
respect of plural. It means the primary meaning is the one, a legal professional wants to
convey; and
Second don’t rely on Rule of Construction. That means, if the parties get into an
argument over singular versus plural, it’s entirely likely that this sort of rule of
construction won’t dissuade one or more parties from filing a lawsuit.

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Numbering or Lettering Schedules and Exhibits: A Proposal
There is always a matter in question how to number or letter exhibits and schedules, if
they are few or more. Exhibits should be numbered (1, 2, 3) or lettered (A, B, C)
consecutively in the of first come first serve in the body of the contract. Schedules can be
lettered or numbered consecutively. But when the number is increased to make the
reference easy it should be preferable to give each schedule the number of the section to
which it relates, with schedule 3.12 containing the factual information or provisions
referred to in section 3.12.A contract is divided into articles and so uses the multiple-
numeration system for section numbers (1.1, 1.2, 1.3), a legal professional should number
each schedule and exhibit with the number of the section that refers to it.

Which Come First, Schedules or Exhibits?

Schedules consist of materials that could be in the main part of the legal document, but
for one or more of various possible reasons are instead moved to the back. However, an
exhibit is a stand-alone document—either a document that’s currently in effect, or the
form of a document that’s to be effective sometime after signing. So, a legal professional
should put the schedule first.

Whether Schedules and exhibits are Part of legal documents:

Schedules and exhibits hereto are vital part of legal document and deemed to incorporate
by reference herein. So, using the language or sentence that “This agreement (including
any exhibits and schedules hereto) constitutes the entire agreement among the parties
thereto” is absolutely redundant. Any exhibit or schedule attached to a legal document
will be certainly referred as a body of it.

What to do if signature date is gone?

This problem can arise in any document if the signatory has send the document thought
Facsimile, e-mail or sometime in old documents. The question how to deal with it?

Then this could be a regular clause that- (for more than two party/two party)

“This agreement will become effective when all the parties/both the parties have signed
it. The date this agreement is signed by the last party/second party to sign it (as indicated
by the date associated with that party’s signature) will be deemed the date of this
agreement. If any party/a party signs but fails to date a signature, the date that the
Company/other party receives the signing party’s signature will be deemed to be the date
that the signing party signed this agreement.”

Dated for Reference:

Date of reference is a legal phrase and always used as an introlocutory clause. This
phrase is used to indicate the reader that the document is being given a date that is other
than the date it was signed. In the same manner, a legal professional can use “as of date”
or state in the introlocutory clause that the contract is effective on a date that happens to
be a date other than the date of document was signs.
The way of writing does not matter in this case, what matters is:

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the document comes in effective when it was signed, whatever substitute truth the parties
choose to mirror in the contract.
if there’s ever a disagreement or dispute, the real timeline (the date of signing)would be
the only fact that would matter.
if the date of giving a contract can have an effect outside the contract, relying on a make-
believe date can create objectionable situations
make-believe dates might puzzle those readers who aren’t in on what actually came to
pass.

Is recital made to tell story?

In every part of the legal document, a legal professional cannot put any simple narrative
prose and the language need to be very limited and stylized as in analogous to writing
software code. The only place free from these conditions is recital. A legal professional
can take the advantage by putting few points for telling the behind story of the
transaction, but that should be in straightforward manner, no exaggerated version.

Effect of the word “True and Correct” in recital

Ideally, recital tells about what’s the story behind the transaction and that should not be
an issue. But, if any party is not clear about the accuracy of facts stated in the recitals,
that party would do well to have the one or more parties with knowledge of those facts
make representations as to those facts—such representations would constitute a stronger
foundation for any claim that those facts were inaccurate. So, it would be better to not to
state that any recitals are true or correct, or even accurate

Defined Terms not to be used in the Recitals

Recital is an introduction of the transaction. This transaction will take place through the
document. If defined term is mentioned in the recital it would force the reader to search
for the definition mentioned later and this will waste the time of the reader and create
confusion as well. So, don’t use defined terms in the recitals that are defined later in the
legal document.