Updated On : May 17, 2023
Reader's Digest - Discover the key elements of successful legal drafting and enhance your abilities through practical exercises and expert guidance in this blog.
Legal drafting is a crucial skill for any aspiring lawyer or legal professional. It involves the precise and effective creation of legal documents such as contracts, agreements, and pleadings.
The ability to draft clear and concise documents is essential in conveying legal rights, obligations, and intent.
This blog post will explore practical tips and strategies to help you enhance your legal drafting skills and become a proficient draftsman.
First, we must comprehend what we mean by 'legal drafting'. In its simplest form, it refers to creating any document with legal effect or consequences. This could be a contract, a will, or even a simple notice.
For instance, if you've ever signed a lease agreement for a new apartment or drafted a letter to a business associate, you've dealt with legal documents.
Remember how every clause and term seemed so specific and meticulous? That's the precision we aim for in legal drafting.
Here are the steps to practice legal drafting. Remember, these steps and the draft clause are based on a hypothetical example for illustrative purposes. When drafting actual legal documents, it's important to conduct thorough research.
We will research non-compete clauses and their enforceability under current employment law.
Keywords for search: Non-compete clauses, employment law, enforceability, jurisdictional variations, case law, reasonable restrictions.
Special issues to resolve: Whether the employer's industry has any specific guidelines regarding non-compete clauses and if the state where the employer is based has particular laws about non-compete agreements.
Statutes impacting drafting: The "Defend Trade Secrets Act" at the federal level allows employers to include a notice of immunity in their non-compete agreements, which could impact how we draft our clause. Also, some states, like California, generally consider non-compete agreements unenforceable.
Cases impacting drafting: In "BDO Seidman v. Hirshberg," the court held that non-compete clauses are only enforceable to the extent necessary to protect the employer's legitimate interests. This case will impact our drafting by reminding us to keep the clause reasonable and directly related to protecting our client's interests.
We would need to counsel the client about the enforceability of non-compete clauses and the factors that courts consider when evaluating their reasonableness. This includes the geographic scope, duration of the restriction, and the nature of the duties restricted. We'd also discuss the potential consequences of drafting an overly broad clause.
We must ensure the clause is not overly restrictive regarding geography, time, and scope of work, as this could make it unenforceable.
For instance, a clause preventing an employee from working anywhere in the same industry for five years might be deemed unreasonable.
We'll address this by crafting a clause that is specific, limited, and directly related to protecting our client's interests.
Here's a simple yet comprehensive, non-compete clause:
"The Employee agrees that during the term of employment and for a period of one year following termination or resignation, the Employee will not work for a direct competitor within a 50-mile radius of the Employer's primary place of business. The Employee further agrees not to solicit any clients or employees of the Employer for the same one-year period.
This clause is intended to protect the employer's legitimate business interests, including trade secrets and other confidential information, client relationships, and investment in employee training."
Crafting precise and effective legal documents requires a meticulous approach and a keen understanding of legal principles. To ensure that your legal drafts are clear, comprehensive, and impactful, embracing best practices for improving your legal drafting skills is essential.
By incorporating these best practices into your workflow, you can refine your skills and produce documents that effectively communicate your client's intentions while maintaining legal integrity.
To create practical legal documents, remember these steps:
Using forms should be your last step in drafting, not the first. You can compare your zero-based drafting to a form to see if you might have overlooked anything. But starting with a form can limit your analysis.
By understanding the problem and creating a systematic analysis, you'll know what to include or exclude in the document and why. This understanding also helps when reviewing documents from others. Once you've crafted a suitable agreement, you've got a 'form' you can modify for future transactions.
If you've done your due diligence in drafting, nothing in your document should be deemed 'boilerplate'. Every clause, including limitations of the warranty, indemnity, merger clauses, or choice of law, should be carefully drafted.
Remember, your document instructs its readers, so you must understand your audience. To communicate effectively, you need to:
Keep your language simple and clear. Here are some tips:
Here is a simple table that lists these redundant phrases and their simpler alternatives:
|Redundant Phrases||Simpler Alternatives|
|last will and testament||Will|
|made and entered into||made|
|convey, transfer, and set over||convey|
|rest, residue, and remainder||residue|
|good and sufficient||good|
|suffer or permit||permit|
|true and correct||true|
|at the point in time||then|
|by means of||by|
|by reason of||because of|
|by virtue of||by, under|
|for the purpose of||to|
|for the reason that||because|
|the fact that she had died||her death|
|despite the fact that||although|
|because of the fact that||because|
|he was aware of that fact that||he knew|
Accuracy is key in legal drafting. Every word matters and can influence the meaning of a clause or an entire document. Be precise with your words and phrases.
For instance, instead of saying, "The person must not perform actions that could be considered harmful," it's better to specify what actions are considered harmful.
Be consistent in your use of terms and definitions. If you define a party in an agreement as the "Employee," for example, don't later refer to them as the "Worker." Consistency eliminates confusion.
While certain legal terms and phrases are necessary, don't use archaic or overly complex language just for the sake of it. Your document should be understandable to those who need to read it. If you're using a legal term, consider providing a definition.
Logically structure your documents. Use headings and subheadings to make your document easier to navigate. A well-structured document helps readers understand the flow of information and find relevant sections quickly.
Remember, legal documents are not a one-size-fits-all solution. You need to be able to adapt your drafts to fit the specific needs of your client, the unique circumstances of a case, or changes in the law. Stay informed and be ready to revise and update your documents as needed.
Never underestimate the power of proofreading. Always double-check your drafts for errors, omissions, or inconsistencies. Revision is a critical step in the drafting process. It helps ensure that your documents are accurate, clear, and effective.
Like any skill, legal drafting comes with its own set of challenges. For example, legal concepts can be complex, and translating these into clear, plain language isn't always easy.
Keep abreast of legal terms and concepts, and practice writing these out in plain language.
Accuracy is another common challenge. One misplaced word or punctuation mark can dramatically change a clause's meaning.
For example, "The supplier may not, without the buyer's prior written consent, assign this Agreement" means something entirely different from "The supplier may not assign this Agreement, without the buyer's prior written consent."
The first sentence restricts the supplier from assigning the Agreement without consent. In contrast, the second sentence might be interpreted as the supplier not being allowed to assign the Agreement, with the consent part being an afterthought.
To overcome this, proofread your document multiple times, and have it reviewed by a trusted colleague or mentor.
As for meeting strict legal requirements and deadlines, nothing beats good time management and organization. Start drafting well before the deadline, and schedule regular check-ins to ensure you're on track.
In summary, legal drafting is crucial in the legal profession and beyond. It's about more than just putting words on paper; it's about ensuring they carry the right weight and meaning.
Remember, practice makes perfect. So, draft, review, revise, and repeat. You're learning a language, the language of the law, and like any language, it takes time and practice to become fluent.
Frequently Asked Questions
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