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.