There are some very important skills that need to be mastered by anybody wanting to draft legal documents clearly and correctly. Some of the most important legal drafting skills are the following: laying out the document logically, keeping the writing clear and concise, avoiding grammatical and lexical errors with respect to the style of a legal text, and, finally, editing and correcting the document in a systematic and thorough way.

The layout of a legal document such as a contract must be as clear as possible. The drafter’s skill is to organise the text so that it is reader-friendly. Ideas need to be logically organised, white spaces and even a table of contents in longer contracts can help the reader find his/her way around the text. Long paragraphs can also be cut into sub paragraphs.

It is important to keep the text as simple and as concise as possible. Sentences need to be kept short. The first few words in a sentence determine readability. It is therefore advisable to avoid left-handed sentences (those which start with long phases and preambles). Verbs should be used, not nominalisations (words ending in -tion, -ancy, -ment, etc). The latter make the text heavy. For example, it is better to write ‘conform’ rather than ‘in conformity with’ and ‘amend’ rather than ‘make amendments to’.

The drafter not only needs to have an excellent knowledge of the fundamentals of English grammar, but he/she should also be aware of the special grammatical features of legal English. As a general rule, it is advisable to use the active voice in place of the passive voice. It is clearer if the actor of the sentence is known straight away. The active style is also less cumbersome and easier to read, e.g. ‘UK law governs this contract’ is preferable to ‘This contract is governed by UK law’.

Some words are notoriously difficult to get right and so the drafter needs to make sure that he/she understands their meaning and use. For example, according to the BBC Learning Zone ‘every’ refers to all the members of a group, whereas ‘each’ refers to individual members of the group, singly.

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Legal documents are very complex and difficult to word correctly, especially in a second language. It is therefore paramount that the document is edited and corrected. Editing is a way to check for good practice. In order to avoid the loss of valuable time, it is important for professional people to know what they are looking for when editing. A couple of main points to be aware of include:

• First, check that there is no ambiguity. If words or phrases can have two or more possible meanings, make sure that the one you want to convey is clear to the reader. ‘Shall’ is often used in legal documents to express obligation, but it also implies the future. Therefore, this modal verb can lead to ambiguity. As the Prof. Joe Kimble, Thomas Cooley Law School stated about ‘shall’…’ “it breeds litigation. There are 76 pages in “Words and Phrases” (a legal reference) that summarize hundreds of cases interpreting “shall”.
• Second, omit needless words. Being concise and clear is the objective, so remove unnecessary prepositions, ‘he drafted the document with regard to remov(e)ing unnecessary words’ and pronouns ‘The judge said that it was an issue that could be resolved’.

Becoming proficient in drafting skills requires a lot of study and practice. Some people recommend reading Richard Wydick’s book ‘Plain English for Lawyers’ as a guide, others would suggest that a legal English course specialising in drafting skills is the best solution.

© Communicaid Group Ltd. 2010