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1 of 7 DOCUMENTS: Australian Encyclopaedia of Forms & Precedents/Drafting Techniques/Drafting Techniques
Drafting Techniques
ROS MACDONALD
BA LLB(Hons) (Qld),GradDip Legal Prac (QIT), LLM, PhD (QUT)
Senior Lecturer School of Law,
Queensland University of Technology
2 of 7 DOCUMENTS: Australian Encyclopaedia of Forms & Precedents/Drafting Techniques/Drafting Techniques/Before you start drafting
Drafting Techniques
Before you start drafting
The first issue of this title was prepared by G M Tamsitt BA, LLB, Barrister and Solicitor of the ACT, Solicitor of the Supreme Court of NSW. A second issue of the title was prepared by Jude Wallace LLB, LLM, Solicitor, Victoria.
[1] Introduction
[Current to January 2010]
In a legal context, a document may be created for many different purposes. These include:
(a)creating, changing or conveying legal or equitable rights;
(b)recording information for the parties;
(c)providing information to third parties;
(d)providing information for government;
(e)preparing legal information sheets for the general community.
The document may exist in a paper form or may only exist electronically. It may take a number of different forms -- it may be an email; it may a formal legal document. No matter what the character of the document a good drafter constructs the document after considering, among other things, its relative importance and the use to which it is to be put.
[5] Preparing to draft the document
[Current to January 2010]
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Before doing anything else, the drafter must be certain about what the client hopes to achieve. Having done this, the next step is what document (if any) is needed to do that.
To address this question, the drafter must be aware of the law that affects the transaction to be documented. Thus, if there is a sale of land, the document must contain the four Ps (Parties, Price, Property and Promises) to satisfy the requirements of a memorandum that complies with the local adaptation of the Statute of Frauds.
The drafter must then be aware of the potential legal dangers to the client. Thus, in a lease, provision must be made for rent, what is to happen if there is non-payment of rent, other covenants that need to be included, rent review provisions, provisions for termination and usually, in a commercial lease, an option to renew.
The drafter also needs to consider the taxation implications of the transaction. For instance: does using Method A to complete the transaction result in less tax and duty being payable than if method B is used?
It is at this stage that precedents are useful if the drafter is not familiar with the type of transaction being documented. They give the drafter an idea of the matters that need to be covered and provide guidance about any further contact with the client to get instructions on points not previously covered.
It is axiomatic that the better the drafter understands the topic before him or her, the easier it is to express complex ideas clearly. It follows that a well-written plain English legal document is as much an expression of the drafter's knowledge of the subject matter as it is an expression of the legal concepts it conveys.
[10] Precedents are dangerous in the hands of fools
[Current to January 2010]
The authors of the precedents in this encyclopaedia assume that the users are lawyers of intelligence who know that it is highly unlikely that a particular form will exactly meet their need. Adaptation is thus necessary.
The courts often remark that their task in construing a document has become nearly impossible because the drafter has used different and sometimes inconsistent precedents that he or she may not have fully understood to cobble together a document with high sounding clauses.
Do not include a clause in a document without understanding what it means.
[15] The client prevails
[Current to January 2010]
Most legal drafters are not participating in a competition for the most attractive and stylistic document. They are retained by a client to produce a document or complete a transaction in the most efficient and fiscally effective way, while protecting the client from all foreseeable problems. Everything that is written in this introduction should be read subject to this statement.
[20] Using this drafting guide
[Current to January 2010]
The Australian Encyclopaedia of Forms and Precedents has been written by experienced practitioners, academics and the judiciary. Each has contributed in his or her own personal way to producing the basic tools used by those in
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legal practice. These are the precedents that the lawyer adapts to prepare documents for a particular client in particular circumstances.
Because of the peculiarities of individual style and drafting techniques, the precedents in this Encyclopaedia vary greatly in form and language. However, this does not compromise the value of this work because all lawyers know that precedents should not be followed slavishly. This introductory guide is designed to assist practitioners when they are adapting the precedents in the Encyclopaedia for their own use, to write in plain English, to think about the audience for whom they are writing and to reflect on what they have written.
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Planning and writing the document
[25] Naming precedents
[Current to January 2010]
Precedents must be available to all users in the firm. They must therefore be easy to find. Each firm must have protocols on naming, storing and protecting the precedents from unauthorised change. If your firm uses document management software, these processes can be automated. In any event, your system must use an intelligent precedent naming system which enables all the participants in the firm to find the right precedent.
[30] The pre-writing stage
[Current to January 2010]
At this point, the drafter decides the purpose and the scope of the document being drafted. To do this he or she needs to ask some questions:
o what is the central issue to be addressed?
o what information is to be given in the document?
ohow does the information to be given relate to the issue: for example: is it for resolution or clarification, or is it to create an obligation? and
o what sort of document will be the most suitable to fulfil the purpose?
At the same time as the drafter is working out the purpose of the document, he or she needs to think about the document's target audience. For whom is the document being drafted? The target audience is the intended reader -- what does this reader want from the document? Answering this question is an important part of the pre-writing stage. The answer may directly influence the drafting process in that a document may be less or more technical in its content depending on the knowledge of the reader. The reader's needs will often dictate the document's form and internal structure. It is vital that the drafter does not forget that he or she is drafting the document for the reader, not the drafter.
Finally, the drafter needs to consider the expected consequences of the document being drafted. What legal consequences follow if the reader signs the document? Is the reader expected to do anything? Is the document merely giving information?The answers to these questions assist the drafter to refine the objectives of the task he or she is about to start.
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[35] The writing stage
[Current to January 2010]
Lawyers should follow a four step process at this stage. The steps are to write out the draft document, put it aside for a period of time, then read and reflect on what has been written and then re-write the document in its final form, incorporating the changes reflection has shown to be necessary.
The draft document
As they write, drafters need to be conscious of and pay attention to the document's structure, its contents and the language used in it. The first question they need to address is form. For instance, should the document be written as a deed?
A deed is a document by which a right, an obligation, an interest or property may be created or transferred, or by which that transfer is confirmed. Deeds are necessary if obligations are to be imposed and consideration has not been provided.Statutes often require that a transaction be done by deed. Documents dealing with trusts, conveyances of interests in real property and powers of attorney, to name a few, are all written as deeds.
Stucture
Documents of the same kind usually have the same structure. A deed, whether it is creating, transferring or confirming the transfer of a right, obligation, an interest or property, usually comprises the following parts:
(a)the name of the document, the names of the parties and the date on which the document is signed;
(b)the recitals: often this part of the deed merely contains background information. Thus a useful heading for this part is "Background". It is important to state facts accurately in the recitals as inaccuracies may not only affect the construction of the deed, but they may operate as estoppels. Recitals are not legally necessary in a deed, but may be a useful inclusion in the document;
(c)the operative part of the deed: this is the part of the deed that sets out the obligations of the parties and the terms that apply -- a suitable heading is "Operative Part";
(d)the schedule: here are found matters of factual detail that relate to the operative part of the deed;
(e)the execution clause;
(f)attachments and appendices.
Contents
The operative part contains the most important information in the document, whether it is a deed or a contract. When drafting this part of the document drafters should:
(a)use a definition clause if it is appropriate;
(b)decide whether to use an interpretation clause;
(c)position the more important matters at the beginning of the operative part;
(d)keep separate matters separate -- for example, do not mix the parties' obligations in the same clause;
(e)give an appropriate heading to each clause;
(f)place each matter with those related to it -- for instance, clauses dealing with the trustee's powers and duties in a trust deed are grouped together, as are those dealing with the beneficiaries' benefits;
(g)break complex clauses up into their constituent parts;
(h)use paragraphing to break up complex clauses; and
(i)place generic clauses at the end of the operative part -- for example clauses dealing with notices, service, governing law, dispute resolution, etc.
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Care must be taken when using statutory short forms of covenants. Always be sure what the short form means in its expanded form and what the consequences are of altering or deleting a short form.
As an illustration of some of these principles consider the following clause, taken from a lease:
No obligation shall be imposed upon the Lessee in respect of any structural maintenance, replacement or repair except when rendered necessary by or arising out of any act, omission, neglect, default or misconduct of the Lessee or the Lessee's invitees, or by or arising out of its or their use or occupancy of the Premises or by the Lessee's Equipment.
A clearer draft using paragraphing is as follows:
28. Structural repair
The Lessee is not liable for any structural--
(a)replacement; or
(b)repair; or
(c)maintenance,
unless it is necessary because of:
(d)the Lessee's or the Lessee's invitees'--
(i)misconduct; or
(ii)deliberate or negligent act or omission; or
(iii)use or occupancy of the premises; or
(e)use of the Lessee's Equipment.
Definitions
A drafter of any document needs to be precise and avoid ambiguity. Where a word or expression is capable of more than one logical meaning in the context, a definition of the word or expression should be provided.
Although it is increasingly the case that general definitions in statutes are found, not at the beginning of the Act, but in a schedule at the end, lawyers generally do not do this when drafting private documents. The practice is to place definitions and interpretation clauses at the beginning of the operative part. This is a practice that should be continued. A person needs to know what a word or phrase means before reading it in the document.
Once words have been defined, there are a number of ways to highlight defined words throughout the document. Computer programs allow the use of bold, italics, a different font, underlining, CAPITALS, Initial Capital Letter and a different colour. Once a particular highlighting method has been chosen, it must be used consistently throughout the document.
Interpretation clauses
Interpretation clauses often recite, among other things, that:
o "month" means calendar month; o "person" includes a corporation;
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o the masculine gender includes the feminine gender; and o the singular includes the plural and vice versa.
This list of common word meanings is redundant in the document itself because legislation in all states contains these provisions, or variations on them.1
The interpretation clause also often expressly provides that the headings of the various parts and clauses of the document are for convenience only and are not to be used to interpret the agreement. This has the potential to be a particularly dangerous principle of interpretation. Drafters should carefully consider whether it is necessary before it is used.
The danger arises when a drafter uses the heading as an interpretative aid when drafting the document but fails to see the ambiguity that may arise if this principle of interpretation is followed. Headings may now be used in interpretation of statutes: there is no reason why the case should not be the same for simple contracts, deeds and other instruments.
Language
A later section of this guide looks at plain English language in document drafting in some detail. Here it merely needs to be emphasised that a document that is written in plain English and drafted with the reader in mind will be easier to read and understand than one that is not.
Reflection
After writing the draft document, reflection is necessary because a drafter who has had a close relationship with a particular document over a period of time may not have drafted it objectively. For reflection to be effective, the document must be put aside for a time. Putting aside the document has been referred to earlier as one of the four steps, but it is more like an interlude between the first and second steps. Even if it is put aside for half an hour or less, when re-read it will be in a fresh light and with a critical eye. Typographical mistakes and grammatical errors will be obvious where previously they were not. Legal flaws will become apparent and questions of style will be more easily addressed.
After reflection and re-writing, it is helpful if a colleague is able to review the draft document. In a busy practice it may be difficult to find a colleague who is willing. However, it is a useful task to undertake and is good for business too because, if it prevents mistakes in style, syntax, grammar and legal content, it is a good insurance policy for the firm.
Rewriting
Rewriting is usually necessary because, even if there are no major deficiencies in the document, on reflection the drafter usually finds that one point or the other could have been expressed more clearly or there is a need for additional information.
1 See for example, Property Law Act 1974 (Qld), s 48(1).
Legislation cited in [36] below. LawNow subscribers click through for daily updates and historical versions. (QLD) Property Law Act 1974 s 45, s 47(1).
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[36] Differences between agreements and deeds
[Current to January 2010]
A deed is a particular kind of document. A deed transfers a right, interest or property, confirms that transfer or creates an obligation. So documents that are sealed, but do not do one or more of these things cannot be deeds. A deed that fails because it does not comply with the formal requirements, may still be of legal effect if it can take effect as an agreement -- in other words, if there is consideration and the other requirements of an agreement are met.
Parties
An agreement can only be made between two or more parties; a deed can be made by one person, or by a number of people with the same intent. This deed is known as a deed poll.
Consideration
Consideration passing from the promisee is critical for an agreement; consideration is not necessary for validity of a deed. However, if equitable remedies may be relied on, consideration is necessary. Deeds are used in situations where a binding document is required but consideration cannot pass or has already passed. An example may be a guarantee where there consideration for entering into the guarantee has already been given.
Form
A written agreement can take any form so long as the parties are noted, the terms are clear and the document is signed by all the parties. A deed has a particular form, which is usually adhered to, although variation is possible.
Signature
An agreement must be signed by each of the parties. Under statute a deed must also be signed by the parties. At common law a signature was not necessary, but the deed must have been sealed.
Sealing
Sealing is not necessary for a valid written agreement. But it is necessary for validity of a deed, in all jurisdictions where it has not been removed by statute. In Queensland, sealing is still mandatory, but not sufficient on its own under s 45 Property Law Act 1974 (Qld) but if the deed is signed and witnessed, sealing is deemed. A seal could take many forms -- the most usual was a softened stamped circle of warmed wax.
Delivery
Delivery is not an element of an agreement. The agreement is binding once it is signed. Delivery is important in a deed. Once a deed is delivered the parties are bound by it. Delivery in this context means an intention to be bound. Statutory requirements differ across Australia, but in Queensland, because of s 47(1) Property Law Act 1974, it is advisable to include an attestation clause beginning'Signed, sealed and delivered by...',
In other states, a reference to the document being a deed implies delivery -- 'Delivered as a deed...'
Attestation clause
A written agreement does not require an attestation clause, a deed does. A witness to the signing of an agreement is not necessary, except if statute requires it. Witnessing was not essential to deeds at common law, but in most states the common law has been replaced by statute which requires a witness to the signature of each of the parties. That
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witness cannot be one of the parties or a person who may gain a benefit under the deed.
What form, when?
As referred to earlier, a deed is useful if there is no consideration, or consideration has already passed and thus there is no consideration.
Deeds of release: a deed is required for the express release of a right in land, personal property, or real or personal action claim or demand where valuable consideration has not passed.
Powers of Attorney: at common law a deed was required. This is not necessarily the case under statute.
Trust Deeds take the form of deeds because trustees take on obligations for which no consideration passes.
Deeds of transfer: a transfer of rights under a document for which there is no consideration.
[40] The post-writing stage
[Current to January 2010]
The final document needs to be evaluated for readability and clarity. The ultimate question is whether the document performs the task it was intended to. To answer this question the questions posed at the beginning of this section need to be revisited:
o is the purpose fulfilled?
o is the scope what was intended?
o does the document reach the target audience?
o will the consequences be those that were expected?
If the answer to each of these questions is yes, if there are no typographical or grammatical errors and if the drafter has written in plain English, the drafter has done all that he or she can be expected to do.
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Writing in plain English
[45] What is plain English?
[Current to January 2010]
Plain English is ordinary English. Plain English legal writing for a public audience is effective writing expressed in ordinary English, using words that people without specialist legal training understand. Michele Asprey defines plain English as:
... writing in clear straightforward language with the needs of the reader foremost in mind. There are no hard-and-fast rules. There are no international standards or infallible tests.1
Professor Joseph Kimble writes:
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Plain language has to do with clear and effective communication -- nothing more or less. It does, though, signify a new attitude and a fundamental change from past practices.2
John Leahy writes (in the context of legislation):
I do not see it [plain English] as a rigid set of techniques or rules to be applied indiscriminately. Rather, plain English is best seen as an attitude or philosophy that focuses on the client; that values the client as a client; and that values simplicity as particularly important to achieve clear, effective communication.3
Plain English is more than just words on a page.
Giving a document the "small word short sentences" treatment does not amount to using plain English techniques. The plain English approach requires a writer to think about word usage, sentence construction, organisation of ideas, document structure, design and appearance.4
1 M Asprey, Plain Language for Lawyers, 3rd ed, Federation Press, Sydney 2003, at 12.
2 J Kimble, "Answering the Critics of Plain Language" (1994-1995) 5 The Scribes Journal of Legal Writing 51.
3 J Leahy, The Advantages of Plain Legal Language , Paper presented at the 29th Australian Legal Convention, 24-28 September 1995 at 8. He was then the Queensland Parliamentary Counsel.
4 R Macdonald and D Clark-Dickson, Clear and Precise: Writing Skills for Today's Lawyer, 2nd ed, Thomson Custom Publishing, Sydney, 2005 at 2.
[50] The objectives of plain English
[Current to January 2010]
Plain English writing has several objectives that a drafter should apply to the construction of each document he or she prepares:
o |
coherence; |
o |
comprehensiveness; |
o |
consistency; |
o |
clarity; |
o |
care. |
Coherence
Coherence is vital in any writing and it is not a concept applicable only to plain English legal writing. However, it is particularly important in plain English legal writing because the language used exposes itself more easily to scrutiny.The writing must be understandable. Writing that uses plain English words, but is not coherent, is not plain English.
Comprehensiveness