Generally, lawyers are decent writers. However, the legal vocation is also one of the slowest to change of any of the professions, mainly because it is steeped in tradition. Unfortunately, when it comes to drafting contracts, tradition is not always best. Unnecessary, inaccurate, and useless terminology and phrasing creeps into legal documents and infuriates clients who expect lawyers to draft documents an average person can read and understand.
Also, most lawyers learn by imitating the habits of other, more experienced lawyers, who in turn learned their skills from even older lawyers. For these reasons many good lawyers often produce contracts that are full of poor drafting. This article will point out of few of the pitfalls every lawyer should consider.
- “Herein” should be “Here-OUT” – This type of compound word should be avoided at all costs, it is unwieldy and unnecessary. “Herein” is an inherently ambiguous word because it could mean: ‘in this sentence’, in this paragraph, or ‘in this contract’. And ambiguity is the kiss of death in contract drafting.
- Provisos – Provisos take the form of wording that looks like this: “Provided that”, “provided further”, “provided, however”, etc. These are inherently imprecise and always evidence of poor drafting. Provisos entered the English language centuries ago and were used to separate sections of statues but what a proviso means in a contract is unclear. Provisos have been held to create: a condition, a duty, a limitation, an exception, and an additional requirement. With so many possibilities these phases should be avoided at all costs.
- Shall – Shall Not: The word “shall” is overused and often incorrectly used with different meanings within the same paragraph. In a recent SEC filing on EDGAR the word “shall” was used on average twenty times per page and misused almost each time. The problem is not with the word itself, but because drafters use the word to mean different things – they are inconstant. The proper use of “Shall” is to impose a direct duty on a party to an agreement. Any other use is incorrect.
- And/Or: This usage is a clear sign of sloppy, lazy, and poor drafting. Although the phrase has been around for more than a century, it is monstrously imprecise because the reader is unable to determine whether all items in a list are required or whether any one of them is sufficient to satisfy a condition. Avoid this phrase at all costs.
- A Poison of Defined Terms: Here again lawyers are guilty of being imprecise. Often, drafters go berserk defining words and terms at the beginning of a document without then even using those words in the contract. Or, lawyers will capitalize terms in a document without defining them so parties are left wondering. Sometimes, a contract may also contain multiple definitions for the same phrase or word. Use definitions sparingly, and always be consistent.
If you can avoid these common mistakes in commercial contract drafting your writing will be infinitely better and your legal work product excellent.