Contract drafting is a mixture of art and skill. Effective contract drafting is concise, precise, and unambiguous. Instead of the persuasiveness of a legal brief, contract drafting is a matter-of-fact memorialization of the parties’ understandings.
Whether you are new to contract drafting or looking to brush up on your technique, here are some practical tips to improve your drafting.
#1. Write for your audience.
Identify the end-user of your document and then write for that audience. Remember, most end-users are not lawyers. Therefore avoid the temptation to show off your voluminous legal vocabulary and instead write in a consumer-friendly voice.
The end-user should be able to read the contract and understand the terms without consulting a legal dictionary. This is very important. Once the parties sign the contract, it will not be reviewed by a lawyer unless a problem arises. Consumer-friendly language enables the end-user to more easily comply with the terms of the contract without having to hire a lawyer to interpret it.
#2. Beware the Traps of Cut-and-Paste.
Cut-and-paste: so useful but so dangerous. When used appropriately, cut-and-paste can make your practice more efficient. However, it is dangerous and professional embarrassing when used carelessly.
To avoid cut-and-paste errors and possible professional liability, learn these techniques.
- Review and revise. The first draft is never good enough.
- Use a consistent voice. The contract should not be an obvious compilation from multiple documents and multiple authors.
- Use consistent terminology. Do not refer to the parties as “Landlord” and “Tenant” and then suddenly switch to “Lessor” and “Lessee”.
- Understand the text before you copy it. If you cannot explain to your client what the text means and why it is in the agreement, you have no business using the text.
- Never assume the prior drafter was correct. Chances are, the prior drafter blindly borrowed from another document.
- Know your law. State laws differ. When copying from a document written under another state’s laws, you may accidentally insert language that is inapplicable or erroneous.
#3. Avoid Common Contract Drafting Faux Pas
Poor contract drafting results in ineffective counsel to your client, is professionally embarrassing and increases your risk of a professional liability claim.
Avoid these common contract-drafting faux pas.
- Inconsistent vocabulary.
- Incorrect references to sections or attachments.
- References to the wrong client.
- Dense paragraphs. Use subparagraphs instead.
- Run-on sentences. Shorter sentences are easier to comprehend.
- Everything-but-the-kitchen-sink strings of synonyms. Be precise.
- Defining terms that are nowhere used in the contract.
- Using archaic language such as “heretofore”, “witnesseth”, and notice by “telex” (what is a telex, anyway?)
- Ambiguous terms.
- Cut-and-paste errors.
- Overlooking the ‘boilerplate’ clauses. What you gloss over can come back to haunt you and your client.
- Using “and/or”. Do you mean “and”, “or”, both, or a combination?
- Failing to incorporate by reference any attachments and references to other contracts that need to become part of your contract.
- Generic warranties or indemnification clauses. These are never one-size-fits-all.
- Failing to proofread.
#4. Rely on the Right Resources.
The Law Insider database is incredibly useful for all attorneys, but especially attorneys new to a subject matter. I regularly refer to it when drafting contracts. Though I never cut-and-paste (see above for reasons why), the Law Insider database shows how others have addressed similar situations. From these examples, I can then craft the language appropriate for my client’s situation.
Form books and CLE publications offer practical resources. Drafted by attorneys actively practicing in a particular contract niche, you can learn the essential clauses for your contract, the common variants, and the commonly-encountered traps.
Read books by legal writing and contract drafting experts, such as Kenneth Adams, Lenne Espenschied, Bryan Garner, and others. While writing is an art, it also requires skill. Knowing the fundamentals will help you quickly get up to speed.
Another source is the internet. You can find scores clauses drafted by lawyers. This allows you to quickly identify commonly-used clauses and their variants. Find inspiration but never plagiarize. Many templates available on the internet are proprietary agreements from alternate legal service providers. In addition, never trust a template without using your legal knowledge to determine whether any of it is appropriate for your client. You have a brain. Don’t be afraid to use it.
Finally, sometimes you may utterly lack confidence in your drafting abilities but you believe you can effectively review and negotiate the contract. In that case, encourage the opposing counsel to write the first draft.
In closing, while there is an artistic component to contract drafting, anyone can learn how to effectively write contracts. Writing in a concise, precise, and unambiguous style takes practice but is not impossible. You can do it if you think about what you are writing, and remember the purpose of your contract.