Drafting Matters

In the considerable body of literature devoted to legal writing, it is usually taken as a given that most lawyers write poorly. Since drafting is simply a form of writing used in legal instruments that seek to regulate conduct (principally statutes, regulations, wills and contracts), it should come as no surprise that many commentators think that most lawyers draft poorly.

I, too, have come to the conclusion, based on my experience drafting, reviewing and negotiating contracts as a corporate lawyer in private practice, that many contracts are in fact inexpertly drafted and that almost all show room for improvement. I mean by this that many contracts use language that is less precise and efficient than it might be and are structured in a way that makes them less accessible to the reader. Common drafting inefficiencies include gratuitous archaisms (such as the WITNESSETH that often precedes recitals); unhelpful use of verbs (in particular rampant overuse of shall); redundant synonyms (instead of having Jones sell shares to Smith, the typical drafter might have Jones sell, convey, assign, transfer and deliver them); inefficient typography (for instance, use of Courier typefaces and full justification); and inefficient layout.