Wednesday, June 14, 2006

Legal drafting: an expert on notice vs. prior notice

Several months ago, I posted a question about whether, in a drafted document, the word notice includes the concept of prior, so that notice is the same as prior notice.

I then posted a note that a consensus of commenters believe notice includes prior notice.

I quickly followed up with a note that legal-writing expert Bryan Garner believes that notice and prior notice are, and need to be, distinguished in some situations.

My friend Ken Adams, who operates has written a thorough and thoughtful piece on this point, which I recommend. See it on his blog here.

Legal drafting: I teach putting words on paper

I teach legal drafting, but I do not teach how to negotiate a transaction, how to close a transaction, how to plan and carry out a transaction, or how to incorporate the substantive legal requirements of a doctrinal body of law into a transaction.

So what do I actually teach? I teach how to put words on paper to create binding legal text that is well written and clear according to modern, professional standards of legal drafting. I teach these things:
  • What ambiguity is and how to avoid it.
  • What vagueness is and how it is used appropriately.
  • The various words and phrases that create authority, obligation, entitlement, or discretion and how to use them consistently and correctly.
  • The canons of construction and how to draft for them.
  • Document design and layout.
  • Organizing the main topics in a contract.
  • Organizing the specific provisions within the topics of a contract.
  • Correct, modern rules of grammar and punctuation relevant to legal drafting.
  • The principles and practices of the plain-English movement in legal drafting.
  • Proper use of form documents.
  • Proper drafting of definitions.
  • Spotting and avoiding unnecessary formalisms, archaisms, and legalisms.
  • Employing an appropriate numbering and heading system in a drafted document.
  • Proper opening and closing language in a drafted document.
I usually throw in a few other lectures, on writing letters and on knowing and consulting the very best sources in the field of legal drafting. It makes for a good course, and when my students finish, they often know more about the mechanics of legal drafting than the majority of practicing lawyers.

Wednesday, June 07, 2006

Legal drafting: three definitions

If I said I am going to teach a class on legal drafting, I might mean three different things:
  1. "Legal drafting" can mean the preparation of any written legal document--a motion, a letter, a brief, a memo, or a contract. Lawyers and law teachers use the phrase in this way all the time: "Draft a brief" or "draft a letter."

  2. "Legal drafting" can mean the task of preparing a transaction, which includes a lot more than putting words on paper. It includes the substance of the underlying law, strategies for representing a client in a transaction, the skill of negotiation, and the ability to close a transaction.

  3. "Legal drafting" can mean the writing of binding legal text. It is the skill of putting words on paper to create rights and duties.
I use the phrase "legal drafting" only in the third sense. For the meaning in number 1, I say "legal writing." For the meaning in number 2, I say "transactions."

Teaching legal drafting as I conceive it is not as simple as it sounds. I've been teaching it for 10 years, and I cover a lot of things that are strictly putting words on paper. I'll list them tomorrow.

Tuesday, June 06, 2006

Legal drafting: a complement to brief writing

Those who have commented have said that legal drafting would be an important addition to the legal-writing curriculum in law school, but all have said it should not replace brief writing.

I agree. The legal-writing curriculum should include ample instruction and chances to practice all three types of legal writing:
  • objective legal analysis
  • persuasive legal analysis
  • legal drafting
I maintain that legal drafting is as important for legal practice as persuasive writing and that legal drafting is not taught or not taught well in our law schools.

Thursday, June 01, 2006

Legal drafting: could it replace brief writing?

Suppose I decided to replace instruction in brief writing with instruction in legal drafting (transactional drafting) in the required, first-year legal-writing course. How could I justify that?

Is brief writing so crucial to a young lawyer's development that all students must learn it? Could I provide quality analytical training in a drafting course?