I thought it would be worthwhile to outline some tips when it came to legal drafting that I often educate my clients on. This shows why legal kits aren’t as good to protecting your rights and promoting your interests as an experienced lawyer is – particularly when you need to negotiate the terms and conditions of an important agreement. So, without further adieu, here are my 10 big tips:
1. Organize your thoughts. I have a general rule about this: 1 idea per sentence, 1 idea per paragraph. Keep things simple and make sure it flows naturally.
2. Use clear language. I can’t say this enough. If you have the option of using lots of words to get your thoughts across, it’s likely going to get confused. You’d better cut up your sentence into clauses and then make those clauses separate sentences, each expressing only 1 idea.
3. Know your audience. At the end of the day, your contract – for it to mean anything – must be capable of being enforced through litigation. Therefore, write your contract with a judge in mind.
4. Anticipate concerns. There are lots of things you may not realize could impact the interpretation of your agreement at the time you write it. Try to anticipate those situations by looking for precedents and asking around.
5. Use precise language or wishy-washy language to suit your needs – just realize when to use it! If you’re a commercial tenant, you may want to use very loose language when it comes to the types of businesses you can operate in the leased premises (to give you flexibility); you may also want very broad language when it comes to an exclusivity clause which restricts te landlord from leasing out adjacent premises to competing businesses (so more types of businesses are captured).
6. What are the consequences? If your intention is to create an enforceable agreement, then you should spell out the consequences of breaching the agreement or a specific provision therein. Also, you should – when it is to your benefit – indicate WHO is the decision maker when it comes to things like breaching the document. By this, I mean: if there is an alleged breach, then under the agreement, final decision-making authority for making that call is Party X. This puts the power in that party’s hands.
7. Less is more. You’ve heard it before, but it’s still worth repeating: use smaller words, smaller sentences, smaller paragraphs, smaller everything to get your message across. Too many words and things get messy. Also, if you have the option of using smaller words to get the message across, use them!
8. Don’t use legalese unless you know what it means! Legalese is comprised of archaic words and phrases that only lawyers should be bothered with deciphering. They often have specific meanings which are beyond the knowledge or understanding of the lay person.
9. Leave room for amendments later on. Sure, you might not get everything you wanted down in one shot, so just make a provision in your agreement that things can change through mutually agreed upon (in writing) amendments.
10. Keep learning! There are always new techniques to better legal drafting so research them by reading books, articles, etc.