Drafting: an essential skill.

• Author: Segall, Harold A.
• Position: Legal drafting

INTRODUCTION

Needless to say, a good commercial lawyer must be skillful and facile in drafting. Frequently, speed in the preparation of legal papers is desirable, even if an early deadline has not been set.

1. ARITHMETIC

   While all elements of the draft should be impeccable, above all the arithmetic must be correct and make sense. A manufacturer and an independent sales agent or a salesman-employee after some discussion may agree that if sales in a given year are $2 million or less, the commission will be four percent, and if sales in a given year exceed $2 million, the commission will be five percent. If the sales in that year amount to $2,001,000, is it the intent that the commissions on the extra $1,000 in sales in effect will total $20,050 (four percent of $2,000,000 equals $80,000, and five percent of $2,001,000 equals $100,050)? Unfortunately, contracts are frequently written with insufficient thought, and lawsuits follow because a manufacturer did not consider the arithmetical possibilities. A plateau should have been established for the basic rate of commission and a second and higher rate of commission should have been specified for the excess.

2. CARE IN REVIEWING DRAFTS

   When a lawyer prepares a draft, she should review it carefully and make appropriate revisions before it is sent out. It should be read as if it were written by someone else. What questions will a third person ask in trying to understand the meaning? Are there any ambiguities to be cured? Have provisions been made for contingencies that may arise?

   It is not unusual for a lawyer to face a deadline in submitting a draft, but an early deadline is no excuse for making an error.

   Consider the following advertisement:

   "FOR SALE: Great Dane. Eats anything. Especially fond of children." It is amazing how people do not take the trouble to read what they have written and to think about the message the writing will convey or misconvey. Here are some other examples:

   "Smith's Restaurant: This is the town's most famous restaurant; it has an international reputation and with good reason. The specialty is seafood, including lobsters you can pick out of a tank. They've been at the same address for 100 years." "This book fills a much-needed gap." "Thank you for sending me a copy of your book. I'll waste no time in reading it." For your writing to be polished, you not only must be clear and definite, but also you should avoid gauche composition such as the use of mixed metaphors:

   "The hand that rocked the cradle, kicked the bucket." "Take the bit in your teeth and run with the ball." "The virgin forest where the hand of man never set foot." III. WORD PROCESSING DOES NOT OBVIATE THE NEED FOR CARE

   There is a tendency for lawyers not to be as careful in double-checking successive drafts when using word processing systems. A homonym can defeat spell-check. Proofreading is important, but copy-reading is even more important. Above all, you must concentrate on reading a final draft as if you were reading the document for the first time. We have all seen unbelievable bloopers over the years. There is no use in blaming mistakes on the secretary or typist. It is up to the draftsman to correct mistakes. Even so, absurd blunders seem to be occurring more frequently now than in prior years. Everyone has a favorite list. Here are some I have encountered:

   * an anti-nuptial agreement

   * an agreement of the same tenure

   * the canines of ethics

   * a smoke detective

   * there will be no smoking in the pubic regions.

   There is no question that the new word processing equipment is very helpful in making revisions with dispatch. Nevertheless, a lawyer must be as careful as ever. Needless to say, good work can be tarnished by the failure to spot errors. A large and well-regarded law firm prepared a certificate of incorporation that stated as the corporate purpose, "to engage in any unlawful act or activity for which corporations may be organized under the general corporation law of Delaware." (1) Errors such as this come from sloppy proofreading and are seriously embarrassing.

   One of the most costly mistakes in many years occurred in the preparation of a mortgage for the Prudential...