A Drafting Toolkit for Non-Lawyers

Christopher R. Trudeau, J.D.Associate Professor – Thomas M. Cooley Law School

trudeauc@cooley.edu or professortrudeau@gmail.com

Clear Legal Communication:

Inside the Lawyer’s Mind

A Reality: Lawyers focus onprotecting client’s interest and protecting themselves before

patients and consumers

Goals of this Workshop

• To show you that a lawyer’s interest and clear drafting are not mutually exclusive. – Harmony can be achieved, and should be the goal

• To teach you principles of clear drafting that benefit everybody – users, lawyers, execs, etc.

A Lawyer’s Definition of Drafting

• The expression of your client’s desires regarding legally significant transactions, information, or events.

– All documents should anticipate the arguments of the reader “in bad faith.”

– Ask yourself: “If someone were to try and get around this, how would they do it?”

The Drafting Process

• Understand the audience, purpose, & problems (many overlook the first two)

• Gather facts re: audience, purpose, & problems • Know/research the law (vital for lawyers)• Classify, organize, & outline• Write a draft• Test for consequences (vital for lawyers)• Revise, edit, & proofread

Generally, draft in the singular

• When drafting, it is conventional to consistently use the singular.– The plural can be okay. But be careful.

• Avoid the ambiguous plural– E.g., Applicants must file their forms before Jan. 1. • Does one applicant have more than one form to file?

Avoid needless synonyms

• A common problem in legal drafting.– E.g., authorize and empower; rest, residue, and

remainder; cease and desist

Origins of the problem?– This is an old habit that started when scriveners

were paid by the word, and – When legal documents had to be understood by

people who spoke Anglo-Saxon, French, and Latin.

Avoid Gender-Specific Language

• Not: A patient may realize that his disclosure was inaccurate.

• It is easy to “write around” it:– His or her: A patient may realize that his or her

disclosure was inaccurate. • This can read awkwardly if “his or her” is used too

much in the document.

Gender-Neutral (cont.) – Make it all plural:

• Patients may realize that their earlier disclosure was inaccurate.

– Repeat the noun: • A patient may realize that the patient’s disclosure was

inaccurate.

– Use an article instead of a pronoun: • A patient may realize that the earlier disclosure was

inaccurate.

Avoid Misplaced Modifiers

• To avoid ambiguity, a modifier must be as close as possible to the word it modifies. – My client has discussed your proposal to fill the drainage

ditch with his partners. (Did you just propose to use your partners as fill?)

– While sitting in the bathtub, the telephone rang? (Was the telephone in the tub?)

– Our neighbor was a lovely woman who wore sweatpants named Inger. (Do you name your sweatpants?)

Vagueness vs. Ambiguity

• Most people don’t know the difference – including lawyers.

Vagueness is acceptable – even desirable– It’s flexible – It allows for case-by-case analysis– It avoids the problem of exhaustive lists

Ambiguity creates confusion and uncertainty

Vagueness:

• Creates uncertainty at the margins

Dangerous Weapons

AK-47

Dagger

Baseball bat

Serving Fork?

Vague Terms

• Reasonable care• Informed consent• Rid segregation “with all deliberate speed.”

Brown v. Board of Education. • Motor vehicle? – Does a drivable cooler used at tailgates qualify as

a motor vehicle?

Ambiguity

• Presents an either-or choice• Always an error• Eliminating ambiguity is the key to clear

drafting

• Example: I will be doing rounds on Saturday and taking appointments if I have time.

Embracing Vagueness

• Perfect precision is nearly impossible.• Don’t fall into the trap of trying to spell everything out.

– Who would think of a drivable cooler as a motor vehicle?

• But think it through. Vagueness can cause problems.– E.g., Please do not ask permission to hunt.

• Can people hunt without asking? Or are they prohibited from hunting altogether?

First Latinism Key to Drafting: Expressio Unius Est Exclusio Alterius

• “To express one thing is to exclude similar alternatives.” See Alan v Wayne County, 388 Mich 210,253 (1970) [Every state has a similar rule]

• Creates a negative inference that when a document lists specific things, then the list is exclusive. – The City Council may prohibit picnics, dances, family

gatherings, weddings, and parties during construction of the gazebo. • Can it prohibit a protest?

Avoiding Expressio Unius

• Use a broader term (car vehicle)• Use a modifier to limit or expand– normally driven on public roads (limits)– Applicant must substantially comply (expands)

• Combine general terms (willing and able buyer)

• But be careful if you combine the general and the specific

Second Latinism Key to Drafting:Ejusdem Generis

• “Where a general term follows a series of specific terms, the general term is interpreted to include only things of the same kind, class, character or nature of those specifically enumerated.” Neal v. Wilkes, 470 Mich 661 (2004)

Ejusdem Generis: Example

You may not bring a dog, cat, hamster, or other pet into the hospital unless they are registered service animals.–What about a monkey or pot-bellied pig?

• Key tip: does not apply if the general term comes first.–May not bring pets, such as dogs, cats, and hamsters.

What do you see?

Three Types of Ambiguity

• Semantic Ambiguity• Syntactic Ambiguity• Contextual Ambiguity

Semantic Ambiguity

• Multi-meaning words– The board sanctioned the conduct. [Does sanction

mean approve or disapprove?]

• Sometimes the reader can use the context of the material to figure out the meaning [but we don’t want to cause this]

• “Elegant variation” can cause this– Cancelled v. terminated v. stopped

Syntactic Ambiguity

• Presents an either-or choice• Usually the result of sentence structure• Often created because of an “and” or an “or”• Example I use with my students: – I will grade your briefs and record the scores

carefully.• Will I only record their scores carefully?

Contextual Ambiguity

• Arises when two different parts of a document say contradictory things.

• Typically, the contradictions are between one or more sentences.

• In longer documents, the contradictory material is in different parts of the document.

Semantic Problems: Ages

• Careless phrasing can lead to serious inadvertent ambiguity

• Ambiguous: – Open to anyone between the ages of 21 and 30.

• Clearer: – Open to anyone 21 years or older and under 31.

Semantic Problems: Dates

• Again, careless references create inadvertent ambiguity

• The option must be exercised by May 8. (Is May 8 included? If so, how much of the day?)

• Ambiguous Examples:– The option extends from May 5 to May 8– Until May 8– Between May 5 and May 8

Syntactic Problems: And & Or

• “‘And’ and ‘or’ are not interchangeable, and the court will give them their strict meaning...” Niles Twp v Berrien County Bd of Commissioners, 261 Mich App 308, 318 (2004)

• And means all parts are required.• Or means one or more of the parts are required.

Don’t Use And/Or

• It is a befuddling, nameless grammatical monstrosity (263 N.W. 376 (1935)).

Syntactic Problems:A List or Series

1) And & or can pose problems here too

2) Punctuation can also pose problems• Use the Oxford comma• E.g., I gave intake packets to Jack, Jill, Jerry and Betty.

[Do Jerry & Betty share a packet?]

3) Modifiers can pose major problems• Tabulate the series to provide clarity

Ambiguous Modifiers: Most common types

• Squinting modifiers

– The patient with the foot broken recently came to see me. • Was the foot broken recently? Or did the patient recently come to

see you?

• Modifiers used in a series

– A student must abide by the honor code for group projects and papers that are graded. • For all group projects or only graded ones?

Rule of the Last Antecedent

• The modifier modifies only the noun it is nearest to.

• A modifying or restrictive word (or clause) contained in a document refers solely to the immediately preceding clause or last antecedent. Stanton v. City of Battle Creek, 466 Mich 611, 616 (2002)

An Example:

• The report is required of health care institutions and corporations making charitable contributions.

• How many possibilities are there?

Look at all the possibilities…

• The report is required of health care (1) institutions and (2) corporations making charitable contributions.

• The report is required of (1) health care institutions and (2) corporations making charitable contributions.

• The report is required of health care (1) institutions and (2) corporations making charitable contributions.

• The report is required of (1) health care institutions and (2) corporations making charitable contributions

Ways to Fix:(1) Repeat the ambiguous modifier

• Before: Liability is provided only for serious loss or damage.

• After: Liability is provided only for serious loss or serious damage.

Ways to Fix:(2) Switch the items in the series

• Before: Liability is provided only for serious loss or damage.

• After: Liability is provided only for damage or serious loss.

Pay attention to punctuation

Ambiguity and Punctuation

• Don’t rely on punctuation to resolve ambiguity.

• But the lack of punctuation (or poor punctuation) can create ambiguity.

Ambiguous Pronouns

• The health care providers told the patients that they would be responsible for paying the bills.– Who’s responsible here? The health care providers

or patients?

Avoid “shall” – it’s misused too much

• Must (imposes a duty)– The tenant must pay rent on time.

• May (reflects discretionary action)– The tenant may request repairs.

• Will (reflects a future promise)– The landlord will order repairs.

• Is (states a fact, policy, or legal rule)– This agreement is governed by Federal law.

Tabulation Helps Rid Ambiguity

• An effective tool for resolving ambiguity in complex sentences because

1. Breaks up a sentence to show the relationship between its parts

2. Provides visual emphasis3. Is reader-friendly

Drafting Tabulated Provisions

• Must “read with the lead.”

The application must(a) contain the patient’s name, address, and birthday; and(b) be filed with the patient’s insurance provider.

• Should sound like a sentence when read aloud.– But don’t tabulate simple sentences.

Definitions

Know your purpose for defining:

1. To identify terms and concepts that have no previously established lexical meaning (“Oceanside condominium property”)

2. To clarify terms that may have an unworkably vague lexical meaning (e.g., industry standards)

3. To add to (or subtract from) a lexical meaning (e.g., student means part-time students)

Types of Definitions

Lexical (aka the dictionary definition): this is the publicly understood meaning of the term

Stipulative: the meaning the document gives to a term– Restricting,– Naming (a concept),– Enlarging, or– Confining

Define fewer terms in contracts

• Don’t define when you are using the ordinary meaning of the word.

• If defined poorly, parties may rely on a strained or imprecise definition that is stated in a document.

• A document with a complex series of definitions (and cross-referenced terms) will be hard to understand.

Example of a useless definition

• “Form” means a piece of paper containing blank spaces, boxes, or lines for the entry of dates, names, descriptive details, or other items.

Definitely Define Technical Terms:

• Consider your audience– Consumer documents may require defining more

terms than documents written for providers or insurance companies.

Absurd Definitions From Statutes

• “September 16, 1940” means June 27, 1950.• “Day” means a period of 72 hours.• “Citrus fruit” includes eggs.

Leave Out Substantive Matters:

• Definitions give meaning to words; they should not impose duties or describe policy.

• Avoid this: “Place of delivery” means the hospital’s delivery bay, where appropriate loading equipment will be made available and used to avoid damage to the goods.

Part 3: Group Discussion & Sample Scenarios

Redraft this: an actual disclaimer

Disclaimer:This information is not specific medical advice and does not replace information you receive from your health care provider. This is only a brief summary of general information. It does NOT include all information about conditions, illnesses, injuries, tests, procedures, treatments, therapies, discharge instructions, or lifestyle choices that may apply to you. You must talk with your health care provider for complete information about your health and treatment options. This information should not be used to decide whether or not to accept your health care provider’s advice, instructions, or recommendations. Only your health care provider has the knowledge and training to provide advice that is right for you.

That’s an 11.4 Flesh-Kincaid grade level!

Just cutting words helps a little

Disclaimer:This information is not specific medical advice and does not replace information you receive from your health care provider. This is only a brief summary of general information. It does NOT include all information about conditions, illnesses, injuries, tests, procedures, treatments, therapies, discharge instructions, or lifestyle choices that may apply to you. You must talk with your health care provider for complete information about your health and treatment options. This information should not be used to decide whether or not to accept your health care provider’s advice, instructions, or recommendations. Only your health care provider has the knowledge and training to provide advice that is right for you.

Now a 7.3 Flesh-Kincaid Grade Level. Better.

A total redraft works the best.

This is only a brief summary. It does not give you all of the information available and is very general. Not all of it applies to everyone.

Always talk with your doctor. Together, you can decide what care is best for you. Your doctor can answer all of your questions and provide complete information.

A 5.3 Flesh-Kincaid Grade Level. Yeah!