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1970

General Considerations in Legal Drafting

Reed Dickerson Indiana University School of Law

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Recommended Citation Dickerson, Reed, "General Considerations in Legal Drafting" (1970). Articles by Maurer Faculty. 1572. https://www.repository.law.indiana.edu/facpub/1572

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By Reed Dickerson

Professor of Law, Indiana University; author, THE FUNDAMENTALS OF Professor Dickerson's article may not be reproduced in any publication or by other LEGAL DRAFTING (1965); Chairman, media-all rights reserved. This article is the text of his address at the 17th Mid-Year Standing Committee on Legislative Meeting of the Arkansas Bar Association. Drafting, American Bar Association.

I would like to thank the Arkansas work the existing student honor code. legal writing, including some draftsman- Bar Association for helping me escape, The important thing is that it was an ship. Also, I hear from many pro- even momentarily, from the turbulent instrument definitive of rights, privi- fessional, non-academic sources about atmosphere of the campus. Quite apart and obligations. the need to train law students in the leges, immunities, drafting discipline. I even get a letter from this, it is a high privilege to talk to We have never had in this country, the members of this distinguished now and then from a recent graduate nor probably elsewhere for that matter, saying how glad he is to have had even a group. a tradition of good draftsmanship. The Being a law professor, I am excused modest introduction, in law school, to latent talent has presumably been there. the fundamentals of draftsmanship. from saying anything practical, so let We just haven't gotten around to me begin with some glittering abstrac- recognizing the need, at least until The key people, as I see it, are the tions. First of all, I commend you for recently. law deans and the law professors. your perceptiveness in seeing the impor- Unfortunately, most of these are still tance of good drafting to today's law Why have we been so slow? The main operating under at least one of the reason, I think, is that the functions of following assumptions: (1) that drafts- practice. lawyers generally have been gradually It is lucky for me that in the field of manship is inherently unteachable, (2) undergoing, during the past 75 to 100 that it is just another name for freshman legal drafting subject matter is largely a years, a radical but not always observed matter of indifference, because other- composition (and thus the responsibility shift in emphasis. Even though you and of the colleges), or (3) that it is best wise my appearance here would be I know that the greater bulk of today's presumptuous. Because almost all my taught by the apprentice method in the lawyer's time is taken up, not in court, law offices. For me, only one of these experience has been in the field of but with helping people plan their I strongly resisted when assumptions makes sense and that is the legislation, affairs so that they won't wind up in Dean Blythe Stason and others at the first one. Certainly, legal draftsmanship American Bar Foundation started twist- court, people still tend to think of the has dimensions of depth and complexity ing my arm to broaden the scope of a lawyer as someone who helps bail them unknown to college students outside the prospective second edition of my book out when they get into specific hassles. field of mathematics. The law office Legislative Drafting to cover the field of This newly emphasized kind of plan- apprentice method has consistently legal drafting generally. After much soul ning, more often than not, ends with failed, because the masters have done searching, I consented, because I the preparation of a definitive legal little beyond giving renewed life to the realized that what was needed most was instrument. ineptitudes of the past. The question a book that dealt, not with contractual I used to be pessimistic about the remains: How else can drafting be disclaimers, hold harmless agreements, chances of improving the drafting taught? attestation clauses, or any other recur- standards of the bar, but there are signs The nub of the problem is that even ring provision, but with the general today that improvement may be on the the law faculties provide only meager principles of draftsmanship. It really way. The very fact that you are willing resources for breaking out of this makes no difference whether you to listen to a talk on this subject is unfortunate, self-perpetuating situation. improve your draftsmanship by drafting evidence of this. For one thing, there Who teaches the teachers? And even if a better contract, lease, will, statute, or doesn't seem to be the professional you are lucky enough to have on your constitution for the local tennis club. resistance to getting rid of legal faculty a couple of adequately trained Indeed, we recently conducted a suc- gobbledygook that there was 25 years professors, how do you personalize your cessful drafting exercise at Indiana Uni- ago. The law schools have even made approach in an era when the law schools versity by having the the students re- sporadic attempts to teach courses in are flooded with faceless customers? Who has time to meet each student to deeply grooved drafting habits. For us Administration thought that the solu- discuss his efforts? In broadest-terms, older draftsmen, I suggest only that we tion to the problems of good drafting how do you adapt traditional teaching try to update our styles to pick up some lay mainly in learning how to state our methods to the peculiar needs of legal of the specific tricks of simplification ideas in the language of the audiences drafting? that have been tested over the past 25 for whom we were writing, in that case Because the process is only imper- years. the American businessman. We did a fectly understood, it has been easy for As for improving the performance of pretty good job, I think, in ridding the law schools to steer around the your junior draftsmen, you can do what government price regulations of much diffifult problems of pedagogy by a number of law offices have done: of their spurious legalese, but in the characterizing legal drafting as a mere adopt a book such as mine as an office course of our efforts we discovered that "skill", which is the term that legal drafting manual and then require those the difficulties lay much deeper. We pedagogues condescendingly use to refer juniors to follow it. Not all of them will learned that good drafting was not to the more pedestrian routines of law comply with unrestrained enthusiasm, simply a matter of good style and practice that they prefer to entrust to but real benefits will accrue. Critical readability. As somebody once asked in the stewards of continuing legal edu- review by you or other senior lawyers Fortune Magazine, "Why make the cation. will help sustain their motivation. The fatuous readable?" The basic problem in Although we may not have the main thing is to instill the notions that drafting a legal instrument is always: answer at Indiana, we think that we drafting is a major legal operation and How do you get substantive sense into have developed an answer. Those of you that you expect a high level of what you are trying to say? who would like to see in detail how we professionalism. In the meantime, we The key, of course, is not to start have operated can examine the full text pedagogues will keep trying to adapt with the means of expression but with of a required exercise that we did our methods to the needs of continuing the underlying thought. The draftsman several years ago. This appears as legal education. of the Indiana administrative regulation Appendix D in my book The Funda- In your drafting or review, I hope providing that hunters may shoot deer mentals of Legal Drafting. that you will keep constantly in mind only between sunrise and sunset, "Cen- Because you are not directly con- those elements of the drafting discipline tral Standard Time," wasn't just expres- cerned with pedagogy, you would that produce not merely improvements sing himself badly. He was thinking probably prefer to listen to some in readability but improvements in the badly. Good drafting, therefore, starts suggestions for upgrading that are more substance of the ideas you are trying to with good thinking and ends with good immediately realizable. express. Because this highly important expression. In between, there are I suspect that many of you are too dimension of drafting is usually over- important steps such as getting the preoccupied with other matters, or looked, I will give it primary emphasis. architecture right. otherwise pressed, to spend any signi- In the early years of World War II, ficant time rechanneling your own some of us at the Office of Price Continued on page 52 PRIVATE INVESTIGATION Complete Trust Services MYERS, RAND & ASSOCIATES ANNOUNCE THE OPENING OF THEIR OFFICES 1090 TOWER BUILDING Little Rock, Arkansas Phone 372-1809 Professional Investigation Services- Civil, Criminal, Industrial for the Professions, Business, Industry and Individuals

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Many approach is wasteful, because much of "mosquito" as including gopher was not lawyers still yearn for a handy list of the research turns out to be irrelevant or only making it harder for his audience specific rules such as you'd expect to incomplete. The point is that you to get the legislative message, but find in Fanny Farmer or a Heathkit hi-fi should do as much of your research as making it easier for himself to make instruction book. If that is what you are you can with a sharp focus and specific mistakes of coverage and internal looking for here, I promise to dis- objectives. Unfortunately, it is almost coherence. appoint you. Good drafting just isn't impossible to sharpen a point of view The third ranking principle is that of easy and there is no known way to and specific objectives without first sound arrangement. Here, you must do make it so. It's still blood, sweat, and trying to express them. Systematic much more than merely stay awake. tears in a genteel atmosphere. efforts to record tentative conclusions This is the most elusive of the three, It is popularly assumed that you subject the underlying ideas to a because sound arrangement is essentially should first work out 100 percent of the discipline that most people cannot a matter of trying to develop the most substance of what you are trying to supply solely by mental effort. On the useful hierarchy of ideas. In general, the accomplish and then express it as clearly other hand, you shouldn't begin to problem is to start with whatever the as you can. The trouble with this write until you have a generally good over-all idea is, break it down into its approach is that the unassisted mind is idea of your problem and tentative main segments, and then break those for most of us an imperfect generator solution. The important thing is not to segments down into their respective and repository of thought. One thing put off composition to the end. subsegments. This is where an archi- that I have learned over the years about I have done several recent consulting tectural sense is highly important. It writing in general and legal drafting in jobs for the Federal Government. In one takes a sophisticated understanding of a particular is that there is a tremendous of these, involving altogether about problem to know what principles of substantive feedback from any sys- eight weeks, I began writing my report breakdown to use and to determine tematic attempt to express one's ideas. at the end of the first week. Ultimately, which are the main ones and which are This is true to the point where we can this saved me many hours, because subordinate. Your scale of values will almost say that the pen or typewriter is during the remaining seven weeks I had vary, of course, according to your an extension of the brain. I see this a much more sharply defined idea of particular objective. (My chapter on verified in almost every drafting exer- what I was up to. arrangement may be of some help on cise. Fortunately, this is one area of the this.) Arthur Littleton, a Philadelphia law- drafting discipline where we can talk Here, again, you will probably start yer, put it very well when he said several about specific, communicable prin- out with imperfect ideas and then years ago, "... ILI anguage is something ciples. Indeed, several of these principles discover, in the course of trying to more than a tool of thought. It is a part are so sure-fire that you don't have to frame a structural outline, that you have of the process of thinking." Notice how do much more than stay awake while omitted something, included something much of your own minds' working applying them. Substantive flaws will that you shouldn't have, or perpetrated emerge, almost by themselves, from the involves an attempt to formulate and an inconsistency. The most useful single written page. feature of arrangement, of course, is the verbalize. Here are what I consider the three well known principle of parallelism. Warren Seavey, late Professor at the most important principles to follow, if Let's take a simple example. Suppose, Harvard Law School, once told me that you want to use draftsmanship to after juggling your ideas on paper, you improve the substantive quality of the come up with the following outline: result. A. Gasoline vehicles The first ranking principle is that of (1) Trucks consistency. On different occasions in (2) Automobiles the same document, never state the B. Diesel vehicles same idea differently and never state (1) Trucks different ideas the same way. It pays to The parallelism in this kind of be almost fanatical about this. The juxtaposition of ideas immediately sug- reason is simple: It facilitates the gests that perhaps you should also comparisons that alone make it possible include diesel automobiles. Maybe you to see whether a pattern of ideas hangs should or maybe you shouldn't. The together. Conversely, inconsistencies of important thing is that the application expression tend to hide discrepancies of of the three ranking principles will inclusion, exclusion, or overlap. The inevitably suggest questions that it will Fall Legal Institute mechanical device to use here is the be profitable for you to try to answer. I "Legal Economics" specialized across-the-board check. For guarantee that in almost every applica- September 24, 25, 1970 University of Arkansas instance, during the codification of the tion they will produce worthwhile School of Law military laws, we assigned to one results. Fayetteville, Arkansas draftsman the job of going through our Professor Layman E. Allen, a law (Tulsa Game Weekend) revision of titles 10 and 32 of the professor at Michigan who is also a 18th Mid-year Meeting United States Code to see whether we mathematician and logician, developed CLE Program had used the term "commissipned an elaborate system of notation roughly January 21, 22. 1971 officer" consistently. The number of *Arlington Hotel equivalent to showing the kind of *Hot Springs, Arkansas substantive discrepancies that such logical branching you get in an aerial (CHANGED From Marion Hotel) searches uncovered was amazing. photograph of a railroad yard. He has The second ranking principle is to use used this to portray the various instances of syntactic ambiguity that wanted to deal with all the states, you even be a little bold. (Don't be afraid, continually creep into writing. He called would ordinarily name them indi- for example, to use lists, diagrams, or It "systematic pulverization." If this vidually but would refer to "the states" tables.) In todey's jurisprudence, there scares you, take a look at my own, less as a general class. To take a more are few words of art or other magical elaborate system of tabulation ex- sophisticated example, in his book on terms. The real problem is to get your emplified in Appendix B of my book. will drafting, Johnson pointed out that message over in language that is Professor Allen's most recent approach setting up cross remainders between generally familiar to your audience. to this problem is called "language trusts for three or more children is very One of the most important aspects of normalization," in which he uses complicated if you treat them as good drafting is developing a sensitivity symbolic logic as a tool. individuals, but it is much easier to to language and form. This involves Examples of the substantive benefits handle and understand if you treat them developing an adequate editorial point of sound drafting are not hard to find. as members of a single class. Sydney of view. This, in turn, means trying to For instance, here are some of the Lamb calls this minimizing "surface evaluate your work from the viewpoint pertinent questions that resulted from idea must of a typical member of your audience. organization and comparisons information". Simplicity of careful precede simplicity of expression. One way you can do this is to have your during the recent revision of a zoning work checked by another. Another way ordinance: Another thing: Don't be afraid to use (1) Is it intended to exclude residen- or develop forms or boilerplate. is to put your work aside for awhile tial uses from B2 zones, while Actually, you have no choice; you have before coming back to it. permitting them in BI and B3 to develop forms for instruments or To me, the most appealing feature zones? parts of instruments that deal with of the art of legal draftsmanship is not (2) If a movie house would not be frequently recurring situations. On the that it helps to do an immediate job permitted in a BI zone, should other hand, don't take them for granted better (which it does), but that in the it be permitted in a B2 zone? or follow them slavishly; they can cause long run it does more to sharpen the (3) Does the mention of "theatres" mind and its capacity to handle new in B3 zones mean that live a potful of trouble. So-called "adjudi- cated forms" are especially undesirable, problems than almost any other disci- theatres are meant to be ex- pline you could name. The sophisticated cluded from B2 zone? because they were bad enough to get Without parallelism, the juxtaposition into court. If possible, develop your draftsman is not merely a master of of related ideas, and an almost fanatical own office forms and then make clear language and the art of communication, devotion to consistency, significant to your draftsmen that they must never but a designer and molder of underlying questions such as these would often use a piece of legal boilerplate until they ideas. And if he finally acquires that remain obscured. have checked it carefully against the ultimate insight of being able to tell One of the nice things about the current situation. Also, allow your which human problems are problems of principles I have been talking about is ideas and which are problems of that as a bonus they also improve the draftsmen to make piecemeal improve- ments. In this way, inadequate forms expression, and to what respective understandability and readability of the extents, he has acquired one of the most result. As a minimum, you will confuse will ultimately grow into dependable ones. valuable single tools of human under- fewer of your intended audience. standing that a person can have. Do you have an audience in the case The main trouble with forms is that of a contract? Your primary audience is they tend to get the draftsman in a rut. the parties to the contract. Your They get out of date and tend not to fit secondary audience, who you hope will BLACK BEAUTY corporate outfit. have no occasion to read the in- the situation at hand. Kurt F. Pantzer, a strument, is the court to which it will be leading practitioner in Indianapolis, submitted if the deal goes sour. You made a systematic study of the should keep it in mind, too. boilerplate provisions of several kinds of You will notice that so far I have said insurance policies and was shocked to discover that, whereas some relevant nothing about the choice of particular of wording and matters had been verbally beaten to language. As for matters death, others were treated inadequately, style, I think I'll just refer you to the or overlooked altogether. That is why in of my book. My last couple of chapters a systematic attempt to update and present disposition is to play down the role of specific wording and style, simplify a standard contract or other important though they are, simply legal form you are likely to wind up because so many lawyers, professors, with a longer, rather than shorter, and students think that that's all there is instrument. While you are cutting out to drafting. the gobbledygook, revising the arrange- There are two general things that I ment, and translating the result into consistent current English, you are No. 70 BLACK BEAUTY $21. want to say about getting simplicity and WITH 50 BLANK SHEETS FOR MINUTES & BYLAWS likely to discover matters that either NO. 80 WITH PRINTED MINUTES & BYLAWS $22. clarity in legal ii struments. One is Outfits contains always to shoot for what James P. have been dealt with inadequately or 20 CERTIFICATES-POCK ET SEAL-TRANSFER SHEETS have been previously overlooked. MINUTE BOOK-MINUTES O BYLAWS-SLIP CASE Johnson has called the "lowest common Postage prepaid It remittance is sent with order Give Corp. Naime, State, Year of lncorp., No. of Share denominator". In other words, you In drafting a contract or other Par Value it any ...... Capital Stock S...... should always try to achieve the greatest instrument, you should normally feel SEND FOR COMPLETE CATALOG degree of generality that is consistent free to address yourself to the peculiari- with the objective that you have in ties of the problem at hand and shape EXCELSIOR-LEGAL STATIONERY CO. INC. mind. To take a crude example, if you the instrument accordingly. You can 62 White Street, New York, N. Y. 10013 Arkansas Supreme Court Admissions Ceremony

"I do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of Arkansas, and faithfully demean myself as an Attorney-at-Law and Solicitor in Chancery to the best of my ability, so help me God."

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"if your Honor Please-" Bar Association Figures University of Arkansas School of Law, Fayetteville, Arkansas 72701. A summer internship program is now in the fledgling state. This has been ..J I1EW planned with the cooperation of the Executive Committee of the Arkansas Bar Association and the special assist- ance of Henry Woods and Winslow Drummond. The plan is for second and third year students to work in law offices throughout the state for a wage by Professor Robert Brockmann scale as set by the members of the bar. The plan is for the summer months and possible and to have There are five areas of activity that many students as is designed to give the students some access to the records. Anybody interest- have been in the forefront at the law practical experience in the practice of school in recent months. One of these, ed in hiring a prospective law graduate the Law Student Division of the should write to George Kopp at the Continued on page 80 Arkansas Bar Association was explained in the notice sent out for the annual meeting and will have been voted upon arKanUs Lr iICmt uUmai uigcst by the time this is read. Compiled by the University of Arkansas for the The Arkansas Supreme Court Arkansas State Highway Commission. adopted the Model Student Practice 207 PAGES $6.00 Rule on February 23, 1970, by per curiam order. This rule was promulgated by the American Bar Association. In Arkansas Statutes Annotated essence it provides for third year law 21 Volumes with Current Supplement $175.00 in the students to appear in court on behalf of State of Arkansas. indigents. Under the plan at the law school students will appear in the Washington County municipal courts * WORKBOOK FOR and juvenile court. First and second year law students while not under the ARKANSAS ESTATE PLANNERS Model Practice Rule will be included in MITCHELL D. MOORE - WILLIAM H. BOWEN the juvenile court program but not in A Complete Source for Planning the positions and roles covered by the Rule. Standards have been developed Estates in Arkansas. for the students selected to participate Planned exclusively for Arkansas lawyers, it is based in practice under the rule-the student on the statutes, cases, regulations, and tax situations of the state. This workbook serves as a guide to drafting a will have to be in good standing and simple will, testamentary planning for benefit of minor approved by the dean of the law school. or aged, forms of property ownership, purposes and tech- It is planned to develop this program niques of making gifts, drafting partnership and business into a comprehensive clinical legal purchase agreements and many other important topics. education program eventually. The The handy loose-leaf format makes this source a unique working tool-an invaluable reference for the Arkansas program will commence this summer lawyer. and get under full swing with the fall semester. Based on the municipal and 11 Chapters $35.00 juvenile court experience further pro. grams will be implemented in other 43 Volumes courts. FEDERAL A placement program is now in full CODE $395.00 swing at Fayetteville directed by George ANNOTATED Kopp second year law student. Appar- atus is being set up for graduating law students to interview prospective law JONES THREE VOLUMES , 68 CHAPTERS, firm employers during the annual LEGAL FORMS $60.00 meeting and mid year meetings of the Arkansas Bar Association. A placement Contact Your Arkansas Representative, brochure is presently being assembled. Bobbs-Merrill Mr. Joshua E. McHughes This brochure will contain the pictures and biographical data concerning the 4623 West 11 th Street Little Rock, Ark. 72204 third year students. The law school THE BOBBS-MERRILL COMPANY, INC. would like to encourage as many A SUBSIDIARY OF HOWARD W. SAMS & CO., INC. prospective employers as can to come to 4300 WEST 62nd STREET • INDIANAPOLIS, INDIANA 46268 Fayetteville to interview so as to see as