April 4, 2014

ContractDrafting a contract, or, as some would put it, drafting a document that memorializes an agreement, is one of the essential skills of being a lawyer.  It is, however, a skill that is seldom taught in law school as a part of the writing courses required for all students.  The goal of a legal writing class is to teach students to “convey a legal analysis of a problem in a written form that adheres to the conventions of the legal profession.”  The goal of contract drafting is to put an agreement or understanding into a written form for future reference.  Document drafting (as distinct from legal writing) may be taught in an advanced class, or it may be assumed that students will learn the skills they need through experience.

The experience that teaches drafting is usually provided by form books or forms available through commercial software.  Form books will give sample clauses for virtually every type of agreement or contingency that will come up.  As complete and as useful as form books are, there are still practical tips that the drafter should remember.

1.  Make your goal adequacy, not perfection.  Yes, this goes against every professional instinct you have.  We all want to do the best possible job for our clients.  At the same time, we should realize that “perfection” is a goal that is elusive, at best.  In the context of drafting a contract, “adequacy” means that the document meets your client’s needs—no more, and certainly no less.  You don’t want to waste time “over-drafting.”

Here’s an example of over-drafting while in search of perfection.  A few weeks after being admitted to the bar, a young attorney[1] bought an inexpensive used car from someone in his neighborhood.  Before he took possession of the car, he spent several hours drafting up a multi-page bill of sale and sales contract.  The documents included disclaimers of all warranties, a note that neither the buyer nor the seller was a merchant, and a clause that said the agreement would be governed by the laws of the state where both the buyer and seller lived.  The seller signed the agreement, and gave the attorney the keys to the car and a bewildered look.  Was a writing that evidenced the agreement necessary?  Most attorneys probably would agree that reducing the agreement to writing was a good idea, even if not strictly required.  Was such a long agreement necessary?  No—the legal language accomplished nothing to what was a very simple transaction.  In fact, such a complex appearing document could have put off many sellers, leaving the attorney car-less.  Was the document perfect?  It certainly covered a wide range of contingencies.  Was it adequate?  Probably not, because the work that went into it was unnecessary.  At best, over-drafting is a waste of time.

No one can predict the future, and no one can predict what may or may not arise in the future of any agreement.  Keep in mind that clients can come back to you for addenda or revisions if circumstances change so much that a new document is needed.

2.  Keep it simple.  This is a rubric that is repeated in almost every piece of advice about legal writing or drafting, but it is a point that cannot be made too often.  Complex sentences and florid diction are confusing to most modern readers.  They do not help you accomplish your goal of memorializing a transaction, or expressing the intentions of the parties to an agreement.  Simplicity helps everyone understand their rights and duties under a contract.

DraftingOf course, it is not always possible to avoid complicated words or terms of art.  When such a situation comes up, you can make things simpler by defining special terms at the start of the document.  This will simplify the task of drafting the document, and will also make it easier to read and follow the document.  You will also avoid the possibility of inconsistent clauses from failing to repeat terms exactly.  For example, an agreement that grants a party the right to sell a manufacturer’s product in part of the Washington, DC area could refer to the right to sell in the “Territory,” defined in the contract as “Prince George’s, Montgomery, and Anne Arundel Counties, Maryland.”

3.  Be definite.  While you want your language to be as simple as possible, you also want it to be as clear as possible.  After you draft an agreement, try reading it from the viewpoint of someone who is trying to challenge it in court.  How would they do?  Is there a credible claim that a clause is ambiguous?  Are you assuming that the other party will do something they are not explicitly required to do, such as make a monthly payment by the end of the month?  The ideal is a contract that is so clearly drafted that any challenge to its language would result in Rule 11 sanctions for the party bringing the challenge.  The ideal may never be attained, but keep it in mind as a goal.

Form books or forms software are essential.  No attorney should attempt to practice transactional law without access to a good collection of legal forms.  Even the best set of forms requires attention to drafting.  Putting together a useful document for your clients requires more than just an ability to copy and paste.

[1] The name is not important, but yes, it was the author of this post.