How well did the drafters of complex securitization documentation do? “The documents were almost comically incomprehensible, frequently ambiguous, and occasionally produced the wrong numbers.” Howard Darmstadter, Precision’s Counterfeit: The Failure of Complex Documents, and Some Suggested Remedies, 66 The Business Lawyer 61, 61 (Nov. 2010).
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Here are my biggest pet peeves in legal drafting—primarily contracts and statutes. I’ve already posted my list for analytical writing here. This isn’t a list of the biggest problems in legal drafting, just the ones that bug me. Sentence length Sometimes sentences in a contract run to hundreds of words in length. A former student [...]
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I hereby authorize the Merchant, or it’s Agent, to initiate a debit entry to the account indicated above at the depository financial institution named above and to debit the same to such account. I acknowledge that the origination of ACH transactions to my account must comply with the provisions of U.S. Law. Huh? How can [...]
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If you want to draft a document in standard English, what can you do? If you are a transactional lawyer, and you now believe you have room to improve the language of the forms you use, here are my recommendations: 1. Get Adams’s Manual of Style for Contract Drafting. Although it might be a while [...]
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If not in plain English, then what? So if plain English is not right or cost effective for every document—especially large transactions with competent lawyers—what is the proper style for modern transactional drafting? According to Kenneth Adams, the leading expert on the subject, it’s called “standard English,” and he details that standard in his book, [...]
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If you need to draft in plain English, what can you do? There will be times you’ll need to draft in plain English. A corporate client needs a revised employee manual. Your supervisor asks you to draft a disclaimer for the firm’s website. A nonprofit organization you represent needs a basic contract. Or you need [...]
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The cost of revising forms into plain English. In fact, revising all your form documents into plain English may be unrealistically expensive and time-consuming. Who’s going to pay for it? Revising complex legal documents into plain English is taxing, tedious, and slow. The resulting plain-English only looks like it was easy to write. In reality, [...]
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What documents should be drafted in plain English? Not every transactional document needs to be drafted in plain English—there, I said it. Large transactions between knowledgeable parties who have lawyers do not need to be drafted in plain English. Yes, many plain-English principles would work well in those documents, and we do need to improve [...]
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Part 1: What is plain English—really? All legal writing should be appropriate for its audience—it should speak to the reader in words, sentences, and forms the intended reader can understand. Thus, transactional legal writing—legal drafting—should be appropriate for its audience: the parties to the transaction and, if they are represented by counsel, their lawyers. But [...]
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