When looking for a Legal drafting course in English, it is highly important for any lawyer, paralegal or legal assistant to examine the credentials of the organisation offering the course and also the course content itself. This type of highly specialised course should be delivered by a legal professional who has experience in the field of drafting. The course content should be challenging and needs to cover some of the areas developed in the paragraphs below.
The course needs to focus on a modern style of drafting. This style moves away from the heavy legalese that lay people find extremely difficult to understand. Some examples are as follows:
- Sentences should be shorter than was previously the case. Instead of drafting long sentences in which one attempts to cover a series of points, it is better to include one point in one sentence; this makes the legal document clearer and easier to read.
- Legal documents are often weighed down by unnecessary words (verbiage). These superfluous words can lead to problems of interpretation in documents where every word should be drafted for a reason.
- Two other areas which have been modernised in the interest of plain drafting are: the elimination of double negatives and the watering down of an overly formal style. See here for more information.
When drafting, it is important that the delegate learns certain ‘good practices’ which he/she can refer to whenever a document needs to be drafted. A few examples of ‘good practice’ are the following:
- Use templates to help drafting contracts, for example. These templates or ‘forms’, ‘standards’, or ‘precedents’ may only require the insertion of a few new details and therefore remove the need to draw up a new contract from scratch.
- It is also good practice to edit all documents, making sure that what is written is clear. Clauses should be written clearly. In the drafting of retention clauses, for example, it should be explicitly stated that the goods won’t pass to the buyer until the goods have been paid for.
- Two other good practices are: Latin phrases are often italicised (de facto, inter alia) and abbreviations are written with their full punctuation; unlike in general English, (e.g. and not eg).
It is important that a legal drafting course helps the delegate to analyse the structures that are preferred in legal writing.
Here are a few examples of legal structure:
- Legal English often uses past participles (existed, sold, bought) and present participles (existing, selling, buying) to make sentences more compact. Instead of ‘the price which is charged for the goods shall be…’, for example, it is better to write ‘the price charged for the goods shall be…’. Instead of ‘The agreement which exists between the parties is due to expire..,’ it is better to write ‘the agreement existing between the parties is due to expire…’.
- Hypothesising is essential in the field of remedies. It is therefore important that lawyers who need to draft contracts are familiar with the use of the third from of the conditional in English: ‘the loss of the benefits that the third party would have received had the contract been performed’. For the clause: ‘had the contract been performed’ the drafter could also have written: ‘if the contract had been performed’.
In addition to structure, the focus should also be on the terminology used in legal writing. This terminology is specific to legal English and so constitutes a fundamental area of knowledge for any delegate on a legal drafting course in English. A delegate should be able to understand and use Latin phrases such as ‘ipso facto, pro forma and sui juris’. When drafting contracts in English such terms as ‘offeror’ and ‘offeree’, ‘assignment of rights’ and ‘assignee’ are fundamental. See International Legal English for more examples.
The delegate also needs to know what differences there are when drafting under civil and common law. There are certain common law terms which have no equivalent in civil law. A few examples are: ‘deed’, ‘trust’ and ‘consideration’.
The move towards plain English, however, means that many of these terms will be given up in the interests of clarity. In Common law countries, the idea of ‘judge-made law’ is the tradition (TRIEDEL Dr Volker, from his essay ‘Pitfalls of English as a Contract Language’). This implies that the clauses have to be drafted in a more concrete and precise way as a broadly drafted clause might find itself void though uncertainty.
Common law courts have often interpreted English words and phrases that are not ‘terms of art’ (‘A term whose use or meaning are specific to a particular field of endeavour’) more precisely than in general English and sometimes in a special way. A legal English course such as Drafting Contracts in English should therefore point the delegate in the direction of such books as ‘Words and Phrases Judicially Defined’ by Rowland Burrows.
© Communicaid Group. Ltd. 2010