In my experience most attorneys fancy themselves as capable, even good, writers. Sadly, in my experience, many of them are wrong (or, at least, they don’t have or don’t spend the time necessary for their written work product to evidence their skill in drafting). I know I am not immune from this malady. On many occasions I have revisited language I prepared previously and cringed at what I read.
Often more galling (and more difficult to avoid) than a flat-out error, one major drafting problem I encounter over and over again is ambiguity. (Hopefully what I mean by this is clear!) While the author may be certain of what he or she means by a clause, sentence, or provision, that certainty needs to translate to the reader (no matter if the reader is your client, the opposition, or some future third party – like a judge – who may need to interpret the instrument). While the following may not eliminate the “holes” in your writing, I find that these things can help me identify language that might need to be revised to clarify my intended meaning:
- Set aside your initial, completed draft for a significant amount of time before reviewing the instrument with a “fresh set of eyes.”
- If you compose on a computer screen, then print out the document and review the paper copy.
- Read your work product out loud. I am continually amazed how this “trick” enables me to see and hear potential problems with what I’ve written.
- Find another attorney to review your work product. I find this approach particularly useful in determining whether someone else will think what I’ve written means what I think it means. (For fans of The Princess Bride, you may find it inconceivable that someone might find a different interpretation of your work product than the one you intend, but trust me, it does occur!)
While there are many others “tips” and “tricks” to make sure your drafting is tight and as ambiguity-free as possible, the above are some of my favorites for uncovering a lack of clarity in my writing. Of course, given the time pressures attorneys today are often under, it may not be possible to always take the extra time to review your documents. When you have the time, however, those few extra minutes now may save you much more time in the future dealing with the repercussions of a poorly drafted document.
By Todd A. Schafer, Member, Dawda, Mann, Mulcahy & Sadler, PLC