A recent social media conversation about the importance (or otherwise) of grammar, spelling etc made me think it might be interesting to do an occasional blog post about the way legal documents are drafted and how they are written. In part, I am hoping to explain why legal documents are so wordy and complicated, but before I start defending myself and lawyers generally, let me make it clear that I do actually agree with many clients that a lot of legal documents are unnecessarily long, complicated and difficult to read. English documents are improving, but if you have ever read a US legal document…..!
All too often the authors of legal document could actually have made them a lot shorter and a lot easier to understand, but there are reasons why it’s not always possible to do that – or at least not to the extent our clients would like.
Let’s start at the beginning. When I teach young lawyers about drafting documents, I start by emphasising the three ‘C’s’ which govern the principles of drafting: the document you produce must be Comprehensive, as Clear as possible, and as Concise as possible.
My last blog was about entire agreement clauses – the clause in most contracts which says the contract contains the entire agreement and understanding between the parties. And so it should: no side letters; no “gentlemens’ agreements”; no “everyone understands what it means”; no “it’s obvious”. The document must be Comprehensive. It must contain all the terms agreed or understood by the parties. That is the first and most important rule.
After that (and I stress after that) it should be Clear. There is no excuse for using the archaic language and complex sentence structure so many lawyers use, and no excuse for not punctuating a document properly. But many corporate and commercial deals are extremely complicated, and trying to set them out in words, comprehensively, accurately and without loopholes can require considerable ingenuity: often, it is simply not possible to express it in such a way that it sinks in first time. Complicated deals remain complicated and you have to read them for them to be Clear.
Finally, every client’s plea: “Keep it short!” Agreed. Don’t use three words where one will do, or waste space defining things that everyone understands anyway. But the document has to be Comprehensive, and if the deal is long and complicated, the document recording it will be as well. And remember that Concise doesn’t always go with Clear. You can say “The hereinbefore recited covenant” or you can say “The agreement referred to in paragraph x above.” Which do you prefer? But the second (clearer) version is actually 4 words and half a line longer.
So, first – Comprehensive; second – as Clear as possible; third – as Concise as possible.
More thoughts to follow another time.