By Lenné Eidson Espenschied of Lenné Espenschied, Continuing Legal Education
One of the surest ways to reach your destination is to have a good idea where you are going and what you hope to achieve. So, before we discuss specific drafting techniques, let’s begin by defining the characteristics of “excellence” in legal drafting. Often, we intuitively recognize excellent drafting without necessarily being cognizant of what makes it “excellent.” The following five characteristics are usually present in excellent drafting.
—the text is substantively accurate, meaning the provisions have been drafted so they communicate the terms of the agreement hovering in the minds of the parties. This means that the drafter has selected words and organized sentences that are legally binding and express the specific agreement intended by the parties. We have a tendency to focus on the provisions that are included in the agreement, but there is more to the story than that. Saying what you mean is not always as easy as it seems, as Alice learned the hard way at a mad tea party in Wonderland1
March Hare: You should say what you mean.
Alice: I do say what I mean, at least I mean what I say. That’s the same thing, you know.
Hatter: Not the same thing a bit! Why, you might just as well say that ‘I see what I eat’ is the same thing as ‘I eat what I see.”
March Hare: You might just as well say that ‘I like what I get’ is the same thing as ‘I get what I like.”
Dormouse: You might just as well say that ‘I breathe when I sleep’ is the same thing as ‘I sleep when I breathe’!
This dialog illustrates the point that it’s not enough that the document is legally binding; accuracy means that the drafted document reflects what the parties intended, which is rather a different thing than that the parties mean what the document says. Excellence in drafting means that the document accurately reflects the entire substantive agreement of the parties.
2. Clarity—the provisions of the document are clear to the reader. The provisions are drafted so their meaning is unambiguous—capable of only one plausible interpretation – that being the one both parties intended. Clarity is the opposite of ambiguity, and is achieved by structuring sentences properly, choosing words carefully, and ensuring that the terms are internally consistent and complete.
3. Efficiency—the text is “long enough and not one word longer.”2 Efficiency does not mean that the document is short; rather, it means that each word included in the document serves a clear purpose. Efficiency means that each concept is expressed only once within a document; repetitious words, phrases, and provisions are eliminated. The challenge for new drafters is to identify and eliminate words and phrases that do not add meaning in drafted documents.
4. Simplicity—the text is simple to read and comprehend. Complexity in the text should come from the subjects addressed and not the syntax. Simplicity in legal drafting means the concepts are expressed in simple sentences using the simplest possible words. In drafting, “the simplest word, that is, the word most commonly understood, should in general be preferred.”3
5. Resonance—the text strikes a balance between being too pompous and too casual; it resonates with its intended audience. The proper tone for legal drafting is professional, using proper grammar, but avoiding pompous-sounding words the drafter knows but the audience of the document probably doesn’t.
Lenné Eidson Espenschied is a frequent speaker at continuing legal education seminars and provides private training at law firms and corporate legal departments.
1 LEWIS CARROLL, ALICE’S ADVENTURES IN WONDERLAND, excerpt from Chapter 7, with extreme liberties taken regarding punctuation and dialog.
2 THOMAS R. HAGGARD, Legal Drafting in a Nutshell (2003), at p. 5.