IDENTIFY THE AUDIENCE
The drafter, however, must recognize that other people will also use the document, in a variety of different ways. Unless the drafter knows this audience, anticipates their sometimes conflicting uses, and protects the client as necessary, the drafting venture will be a failure. A simple contract for the sale of a house, for example, may well satisfy the desires of the seller-client and also those of the buyer. Yet, the closing attorney, who more-or-less represents the mort gage company, may find some of its provisions totally unacceptable.
EXPLORE THE BROADER LEGAL AND FACTU AL CONTEXT OF THE DOCUMENT
RESEARCH THE LAW
DETERMINE SUBSTANCE
What does a drafter need to include in a contract for the sale of a house or an ordinance establishing a teenage curfew? The answer to that question lies in a blend of the drafter's legal knowledge and experience, plus the client's desires. The contract drafter will know that some provisions are essential for the document to be valid, while others are extremely important in protecting the client's interests. Conversely, some provisions may be affirmatively illegal. Beyond that, substance is determined mainly by what the client wants. The client, however, may be unaware of the possibilities, thus shifting the responsibility back onto the drafter to educate the client. Checklists, of both the commercial and the drafter-prepared variety, play an invaluable role here. Similarly, in drafting legislation, the drafter will know that some provisions would be unconstitutional or inconsistent with a law emanating from a higher authority. The drafter's experience may also suggest that a particular provision would be unenforceable or ineffective for some other reason. Beyond that, however, substance is again something for the client to determine.
GET THE FACTS
IDENTIFY THE PROPER LEGAL AND FACTUAL CONCEPTS
First, in moving toward the realization of the client's objectives, the drafter must choose from potentially compet ing legal concepts. Will the client's purposes be better served if the other contracting party is conceptualized as an inde pendent contractor or an employee? Should the conduct that legislation is going to prohibit be conceptualized as a crime or merely a civil wrong? Those legal concepts have different legal consequences.
Second, the drafter must conceptualize the facts in a manner consonant with the client's objectives. Here, the drafter has three sets of choices:
DEVELOP AN ORGANIZATION
Division involves splitting the subject matter of the document up into subcategories. A rational division follows three rules: (1) the subcategories must be mutually exclu sive; (2) when combined, the subcategories must equal the whole; and (3) the division must be based on one consistent ly applied principle. Dividing the student body of a law school into 1st year, 2nd year, and 3rd year students is a rational division. Dividing it into 1st year students, women, and people over 5'7" tall violates all three rules.
WRITE THE DOCUMENT
Ambiguities
Ambiguity is the cardinal sin of drafting. Ambiguity exists when a provision is capable of two or more mutually inconsistent meanings. Unlike vagueness, which merely in volves some uncertainty at the margin, ambiguity is without justification. Indeed, the drafter who deliberately uses ambi guity to deceive or mislead the other contracting party is engaging in shady, if not outright unethical, conduct that may ultimately harm rather than help the client, since
courts generally construe ambiguities against the party that created them.
Ambiguity comes in three forms. Contextual ambiguity exists when one provision says one thing and another provi sion says the contrary. Semantic ambiguity arises out the use of words with multiple meanings. Syntactic ambiguity arises out of the order in which the words are used and how they are punctuated. These three forms of ambiguity are discussed in Chapter 12.
Rules of Style and Usage
The drafter's rules of style and usage are designed not only to avoid ambiguity, but also to promote consistency, brevity, clarity, simplicity, and professional tone. Although all legal writing shares those objectives, they are the essen tials of good drafting. These rules are discussed in Chapter 13.
In some areas of the law, a document must use a specific term of art to accomplish the intended result. This is true, for example, with respect to will drafting and conveyances of real property. Apart from that, there are very few magic words that must always be used in drafted documents, regardless of the type-with the possible exception of the language that is, or should be, used for creating definitions and specific legal consequences.
Definitions
Definitions are powerful tools, capable of making the drafter the master of the language rather than being con strained by it. Definitions also promote both clarity and brevity. The drafter, however, must construct definitions with care. The linguistic difference between "means," "in cludes," and "does not include" is enormous, and the choice of one term over another can radically alter the substance of a document. Definitions are discussed in Chapter 14.
Terms Creating Legal Consequences
Drafted documents create rights, duties, privileges, im munities, conditions, authority to act, and other legal rela tionships. Different words are used to create each of these legal relationships. They include "shall," "shall not," "will,"
"may," "must," "is entitled to," "is," "warrants," and others. The difficulty is not matching the right word with the intended consequence. The difficulty, rather, is in decid ing which legal consequence to create. Would it be better to make something a "right" or a "privilege"? The two are significantly different. Or should something be made a mere condition rather than a duty? Again, each has very different legal consequences. These terms are discussed in Chapter 15.
Format
The physical arrangement and appearance of a drafted document is more important than one might think. Look into a United States Statutes-at-Large volume from the late 1800s or resurrect from a firm's client files a contract drafted in the 1920s. What you may see is a gray mass of page after page of sparsely paragraphed, dense prose without any bolded headings or subheadings. These documents are a nightmare to read. They should not be. A drafted document should be easy to read, easy to use as a reference, and easy to understand. Ample white space, numbered lists and enu merations, leader dots, tabbing and indentation, and num bered and captioned headings and subheadings all promote these objectives.
REVIEW THE DOCUMENT FOR SUBSTANCE AND STYLE
POST-EXECUTION MONITORING
Going to the Essence of the Transaction
Although not affirmatively required by law, some provi sions are inherently necessary to the legal efficacy of the document. A criminal statute that contains no sanction, express or implied, is a nullity. Similarly, an alleged contract for the sale of unidentified and unidentifiable goods suffers from a fatal indefiniteness that makes it unenforceable. Indeed, unless the parties have expressly agreed to what the courts regard as all the essential terms of that type of contract, a court is likely to conclude that no enforceable agreement yet exists. The courts disagree over what is truly an essential term, and modern courts will go out of their way to supply them by implication. For example, under UCC Article 2, the only essential elements to a contract for the sale of goods are the identity of the parties, the identity of the goods, and the quantity. Everything else can be supplied by the Code's gap fillers-including price, delivery terms, payment terms, warranties, and other seemingly fundamen tal provisions.
The drafter, however, needs to know what the essential provisions are and ensure that the document contains them.
SUBSTANTIVE TERM CHECKLISTS
-who,what,when, where,how,why
Drafted documents, whether of the private or public law variety, can be conceptualized as a collection of rules. This is helpful because legal philosophers have identified the critical elements of an effective rule, and these can be used to ensure that the drafted documents cover everything that it should, at least a broad sense. The five elements of a rule are as follows:
A rule must identify the person to whom the rule applies. The subject may be universal (everyone) or nearly so (everyone within a broad class).
Or a rule may be selective with respect to whom it applies.
A rule must identify the conduct that is being prohibit ed, required, or permitted. In the above examples, parking and using the arbitration-of-disputes provision are the rele vant conduct.
A rule usually identifies an object of the action. This may be universal, in which case no further identification is necessary, or it may be limited.
A rule often identifies the circumstances of the action. This may consist of when or where the command is opera tive.
Those rules limit the operative place or time. Or the circumstances may consist of a condition that must be satisfied before the command is operative.
Circumstances may also consist of an exception to the rule.
A legislative rule prohibiting conduct must identify the consequences of noncompliance. This is sometimes called the "sanction." The consequences may be criminal liability, civil liability, forfeiture of goods, invalidity of a document, or simple ineligibility to obtain something.
If the consequences of satisfying a requirement are eligibility for benefits, then the rule must identify specifical ly what they are.
Legal consequences in private law documents are usual ly implicit in the term that was used to create the conse quence. If something is intended to create a right, then the legal consequence is that the right-holder may use the coer cive power of the state to compel the person with the correlative duty to perform or to pay for the damages caused by non-performance. Sometimes, however, the drafter may want to make a legal consequence express.
In sum, if the rules in a drafted document identify the persons to whom the rule applies; the permitted, required, or prohibited acts; the object of those acts; the circumstances of the action; and the consequences of action or non-action, then the document will usually be substantively complete./
SUBSTANTIVE GAPS
The substantive gap created by "if ... then" logical constructs is one of the major flaws in UCC § 2-207- although the provisions are not literally worded in those terms. For example, paragraph (1) introduces the possibility of an acceptance containing terms "additional to or different from" those contained in the offer. And paragraph (2) tells us what the legal consequence is when an offer contains additional terms. Translating that into an "if then"
sentence, it says: If an acceptance contains additional terms, they are to be construed a proposal to modify the contract and between merchants become part of the contract un less. . . . But UCC § 2-207 does not specify the legal conse quence flowing from an acceptance that contains different terms. Do they also become mere proposals to modify the contract, requiring express assent by the offeror? Or do the two inconsistent terms cancel each other out (the "knock out" rule), with the missing term now being filled with a UCC gap-filler? There is enormous disagreement over that. And the section contains other flaws of that nature.
One way to demonstrate the invalidity of this argument form is with an example that has true premises but an obviously false conclusion. For example:
If you are a ski instructor, then you have a job.
You are not a ski instructor.
Therefore, you have no job.[1]
That argument is intentionally bad, but arguments of the same form can sometimes seem superficially convincing, as in the following example offered by Alan Turing in the article "Computing Machinery and Intelligence":
If each man had a definite set of rules of conduct by which he regulated his life he would be no better than a machine. But there are no such rules, so men cannot be machines.[2]
However, men could still be machines that do not follow a definite set of rules. Thus, this argument (as Turing intends) is invalid.
iii. Abstract versus Concrete.........................................................
Division involves creating the hierarchical categories into which the data is to be placed. In the document, they will appear as numbered and headed sections. Rational divi sion is based on three rules: (1) mutual exclusivity, (2) total coverage, and (3) singularity of the principle of division. To illustrate these rules, assume a division that separates the class of "motor vehicles" into two subclasses, "Ford cars" and "red cars." Consider how that division violates all three rules.
Rule One-Mutual Exclusivity. The categories must be mutually exclusive, meaning no datum can fall into two or more categories. If the categories are mutually exclusive, then a particular provision can go in only one place. Where, however, would one put a red Ford Mustang?
Rule Two-Total Coverage. The categories together must equal the entire class; there must be nothing left over. Everything that the drafter wants to put into the document must have a place. But where in the motor vehicles classifi cation scheme suggested above would one place a green Toyota Tundra? The drafter who cannot find a place in the divisional scheme for a particular provision often creates a new category, "miscellaneous," that ends up being full of minor, unrelated, substantive provisions. This is the sign of a bad divisional scheme.
Rule Three-Singularity of the Principle of Divi sion. The division should be based on one consistently applied principle. Red cars and Fords are divisions based on two principles-color and make. This division would totally confuse a user of the document.
Within each category, the drafter should create as many levels of sub-categories as is needed-moving from the gen eral down to each specific provision. Each sub-category should also follow the rules of division
CLASSIFICATION
Classification involves putting each bit of information into its proper category and sub-category. If the drafter of a lease has created a category entitled "Limits on Occupancy," then a specific provision dealing with overnight guests should be included under that heading, not under one deal ing with "Alteration of the Premises." Conversely, a provi sion prohibiting the replacement of ceiling fixtures should not be put in the "Limits" category. The classification decision is more difficult if the drafter has fudged a bit in complying with the rules of division, especially the one requiring the sub-classes to be mutually exclusive. Indeed, no division can be completely airtight, and some items can usually fit into more than one category. For example, a prohibition against smoking at the worksite could go in an employment policy's Safety section or in its Employ ee Rules of Conduct section, depending perhaps on the purpose of the rule. In making classification decisions, the drafter must always keep the user in mind. If a user wanted to find a provision dealing with a specific topic, where would that person look first? That is where the provision should go.
within the substantive component itself-as distin guished from the definitions, recitals, preambles, housekeep ing provisions, and formalities-several sequences are possi ble. The overall document may follow one general sequence, but the major sections may have their own internal logical sequence of a different variety. Whatever sequence the draft r adopts, the measure of its validity is the extent to which it helps readers use the document in the regulation of their affairs. The major sequential possibilities are as follows:
If the document will regulate a relationship extending over several phases, then the drafter can deal with the events in the order in which they are going to occur. The sequence of a construction contract, for example, could par allel the construction process itself. Similarly, the major divisions of a lease can be presented in roughly chronological order, as follows:
The headings of a chronologically-divided document should indicate what is happening in this order. Unsophisti cated readers, like many of those involved in consumer transactions, can better understand a complex document if it is organized by reference to the sequential actions of the various parties rather than to abstract legal classifications. Thus, rather than referring to "Revocation Rights," which is a legal concept, title it "Revoking the Contract," which puts the emphasis on the action.
Within a category of related rules, a drafter might choose to present the most important ones first. For exam ple, in an employment contract, salary is a very important term, while the employee's choice of make and color of company car probably is not. Unscrupulous drafters will sometimes put an extremely important provision that strongly favors their client at the end of a long document, often following or included among a series of trivial provi sions. In extreme cases of deception, usually involving con sumer transactions, the courts have declined to enforce these provisions.
Provisions dealing with events that are likely to occur frequently during the transaction can precede those dealing with rare or episodic events. In a construction contract, change orders are a frequent occurrence; discovery of histor ical artifacts is not. That should dictate the order in which these matters are dealt with.
Some transactions are built around a familiar set of facts or events, with the rights and duties of the parties being fairly commonplace. A particular transaction, however, may move off into previously uncharted territory. To give the parties a shared point of departure, the drafter may choose to deal with the familiar provisions first and then move into the more novel aspects of the undertaking.
State generally what a requirement or prohibition ap plies to first. Then identify any exceptions. For example, a
section of a harbor regulation might contain a long list of things that a vessel under way is required to do. This could then be followed with a list of situations where the general rules do not apply, such as in an emergency. Putting the exceptions before the general rule would only confuse the reader.
A description of what the parties to a document must do should generally come before a description of how they are required to do it. For example, a contract for the sale of goods would normally indicate what is being sold, by and to whom, and for how much; it would then cover how delivery and payment are to be made.
Regardless of the nature of the document, the substan tive provisions should normally come before the procedural or enforcement provisions. For example, an employer's sexu al harassment policy would first identify what is being prohibited; it would then describe the procedures that the employer will follow in enforcing the policy. _