Why drafting matters: the reader and the dispute, what a legal document is for, plain language against legalese and the drafting process

When two people make a deal across a table, they understand each other, because they have the same conversation in their heads: the tone of voice, the example one of them gave, the thing they both took for granted. The document is written to capture what was agreed. Then time passes. A person leaves the business. A new manager takes over. An insurer, an auditor, a buyer of the company or a judge picks up the document and has only the words. The conversation is gone. If the words say something different from what was meant, the words usually win, because they are what the reader has.

This is the first law of drafting: the document must work without you. A draft that depends on the writer being available to explain it has failed, however good it seemed at the time. Most drafting problems come from the writer’s knowledge leaking into the page without being written down. The writer knows what ‘the premises’ means; the page does not say. The writer knows that ‘the fee’ includes tax; the page does not say. The writer knows the deadline is flexible; the page says ‘by 1 March’.

There is also a practical side. A badly drafted document costs money in three ways. It costs time now, because people argue over what a clause means before they can act. It costs money later, because disputes about wording are expensive and their outcomes uncertain. And it costs trust, because a clause that can be read two ways invites each side to read it the way that suits them. A well drafted document, in contrast, is rarely noticed. It is read, understood and followed. Its success is that nothing happens.

A legal document is written for more than one reader. Think of three.

• The person who uses it every day. The manager who looks up the payment terms, the tenant who wants to know who repairs the boiler, the official who applies the rule. This reader wants to find the answer fast and to be sure it is the answer.
• The reader in a dispute. A lawyer for the other side, a mediator, an arbitrator or a judge. This reader looks for the gap, the conflict between two clauses and the word that can be read another way. The reader is not hostile to you in particular: reading closely for doubt is simply the job.
• The reader who comes later. A successor, an assignee, a regulator, a purchaser carrying out due diligence, an heir. This reader never met the people involved and needs the document to explain itself.

A document also does a job, and the job shapes how it should be written. Legal documents do five main things. They create rights and duties (a contract, a lease, a statute). They record a fact or a decision (minutes, a witness statement, a deed of transfer). They give notice or make a demand (a notice of termination, a letter before claim). They persuade (a pleading, a skeleton argument, a letter to a regulator). And they direct what happens after a person’s death or incapacity (a will, a power of attorney). Each job has its own readers, its own risks and its own conventions, and module 6 returns to the differences.

Before you write, ask the question that settles most choices: what must this document make true, and for whom? A termination notice must make it true that the contract ends on a date, and the person who receives it must be unable to say they did not know. A contract must make it true that each side knows what it must do. A will must make it true that the right people receive the right things and that a court will accept it. The answer tells you what to include, what to leave out and how much precision is worth paying for.

Legal writing has a reputation for being hard to read, and the reputation is partly earned. Old forms were copied from older forms. Writers were paid by the page. Fear of being blamed for leaving something out made every document longer. Words from Latin, French and Old English piled up in pairs, such as ‘null and void’ and ‘give, devise and bequeath’, because once a particular combination had been used, nobody dared to remove it. The result is legalese: long sentences, rare words, repeated words and references that point backwards (‘the said’, ‘the aforesaid’).

Plain language does not mean simple ideas or loose wording. It means writing that the intended reader can understand on the first careful reading, without a dictionary and without help. A plain draft can be as precise as an old one, often more so, because there is less to hide an error in. Many courts, regulators and professional bodies now encourage it, and in some places it is required for consumer documents. Studies of readers show the same thing again and again: people understand shorter sentences, active verbs and ordinary words more quickly and with fewer mistakes, and that includes other lawyers.

Plain does not mean that every technical word must go. A term of art is a word or phrase with a settled legal meaning that a plain word does not capture. ‘Consideration’ in the law of contract, ‘tenant in common’, ‘burden of proof’ and ‘force majeure’ are examples. Keep a term of art when it carries a meaning you need and the reader will understand it, or can be told what it means. Cut the words that carry nothing: the doubled pair, the old preposition, the phrase that is only there because it was there last time.

Two warnings. First, do not strip a draft of its safeguards in the name of plainness. A shorter clause that leaves out a condition the client needs is not better. Second, do not copy plain-looking wording from another document without checking that it does the same job. Plain drafting is a way of making the structure and the meaning visible, not a way of making the document shorter at any cost.

Drafting begins before writing. Most weak drafts are weak because the drafter started to write before knowing what the document had to do. A simple five-step process avoids this.

1. Instructions. Find out what is wanted and why. Who are the parties, what is the deal, what is the worry? Ask the client to describe the situation in their own words. Then ask what happens if things go wrong, since that is what the document is for.
2. Facts and law. Collect the facts that the document depends on and check what the law requires or forbids. Some documents need formalities, such as a signature, a witness or a particular form of words, and a document that misses them may have no effect.
3. Plan. Before drafting a sentence, list what the document must contain, in order. This might be a page of headings. Decide what goes in the body, what in the definitions and what in schedules (module 2).
4. Draft. Write each provision for the reader and the dispute. Use the techniques in modules 3 to 5: short sentences, clear duties, consistent defined terms and no ambiguity you can see.
5. Review. Put the draft aside, then read it as the other side, as a judge and as someone who has never met the parties. Check it against the instructions and the plan. Module 7 shows how.

A short list of questions to ask before you draft saves rework. Who will use this document, and who will read it in a dispute? What must happen, by whom and by when? What are the risks, and who should bear each? What happens if one side does not perform? How can the arrangement end? What could change in the next five years? What does the law require? Which documents already exist and must fit with this one? You will not always get answers. When you do not, record what you assumed, so that you or a colleague can check it.

Finally, drafting is rewriting. The first version is rarely the best. It records what you thought you were saying. The improvement comes from reading it again, cutting what it does not need, making the structure plainer and testing it against a hostile reader. Budget for at least two full passes after the first draft. The tools in this course, such as the Ambiguity Scan, are there to help with those passes, not to replace them.