Legal Drafting - Shortcomings and way forward - Part I

Introduction

The main aspect of successful oral communication is the correct deliverance of a message from one person to another. Successful legal drafting also entails the lawyers using words that express a particular concept to match the reader’s understanding with that of the lawyers. In most cases good legal drafting, goes beyond ordinary understanding and ensures that the reader’s understanding cannot be different from what the lawyer meant. To this extent she might be expected to phrase clauses and provisions in such a manner that not only convey the most obvious meaning but also eliminate any other possible interpretations that might arise.

This idea forms the basis of drafting and is often difficult to execute. Several civil litigation cases are pure results of poor drafting abilities[1], making this skill invaluable among legal professionals. As most skills, there are certain rules and techniques which need to be adopted and certain kinds of universal errors avoided to excel at it. This chapter seeks to discuss these techniques to master the art of legal drafting.

A lot of the problems with legal drafting originated due to its traditional form. Legal English has been a type of English that includes a mix of Latin and French, exceedingly dependent on the archaic language. The reason for this dependence has been purely for the sake of tradition and precision even as they continue to systematically mangle and dismember the English language.[2] Legal documents often peppered with jargon conferred a false notion of precision.[3]

The harm caused by this is unjustified and unnecessary. Moreover, it is odd for us to be using antiquated jargon even in the twenty-first century, when neither the clients nor the lawyers today are always able to understand what the document says. Thus, there has been a slow transition of drafting to the modern form, which is dependent upon plain English and simple meanings[4], breaking away from the shackles of the traditional form. While the traditional form of writing sought to benefit lawyers since earlier, they were paid on the basis of the number of sheets they produced,[5] the modern form is definitely more efficient and saves time and costs by making error disclosures sooner. Moreover, it is an indicator of clarity of thought and reflects positively on the legal professional who drafts the document.[6]

Independent of traditionally drafted documents, modern drafting is not free of its own set of issues. One of the biggest threats of bad modern legal drafting are litigations due to poorly drafted contracts. Clients often find themselves trapped between several interpretations of a contractual clause and have to resort to court remedies for a clearer understanding. This not only harms the client in terms of serious losses of money and hours spent in the courtroom but also affects the reputation of the lawyer.[7] Such cases are commonly observed in India, where the courts felt compelled to construct an interpretation of a clause in a document on their own accord.[8]

Despite bad legal writing having grave consequences, it has no statutory or universal definition and in India no legal penalties for the drafter.[9] The most accurate definition for bad legal writing could be when legal writing cannot communicate effectively. As already discussed, using traditional and archaic language is the best indicator of bad legal drafting, one that immediately predicts future litigations. Additionally, use of verbosity, double negatives, convoluted sentences, poor punctuation, assigning purely legal definitions to common words, passages replete with passive verbs, poor graphic and typeface layouts are some common issues.[10]

Good legal documents on the other hand contain a structure comprising of sections and sub-sections representing lesser important principles as one goes lower in the hierarchy. Numeral and tabular classifications also assist in clarity and make referencing easier.[11] However the most important focus for good legal drafting is choice of words, structure of sentences, grammar and creation of clauses favoring desired methods of legal interpretation.

This first section of this chapter will broadly address the issues that arise from choice of words used as well as assist in explaining the use of some phrases. The second part will emphasize on the common errors made in grammar while legal drafting, which can be avoided. Finally, the chapter intends to cover other non-grammatical issues and recommend techniques of simplistically explaining a point.

Language Issues With Drafting

Ambiguity and Vagueness

When a word is said to have two or more meanings, it is considered to be ambiguous. There are three main types of ambiguity, the first one is semantic where a word bearing different meanings makes it hard to identify which one was originally intended. The second type is syntactic ambiguity where the manner in which the words are arranged in a sentence implies two possible meanings.[12] Finally, contextual ambiguity, in which words that take on a certain meaning in the document demonstrate a conflict in their application to the context in which they operate.[13] All three types are commonly found in various legal documents for a number of reasons. Vagueness on the other hand arises by the use of words that do not have any boundaries and thus create a choice with regard to their degree or extent.[14] Vagueness almost always leads to uncertainty however there are also instances where it may be considered appropriate, which will be discussed later in the chapter. While vagueness can still be considered to be a drafting tool, ambiguity is not realized until much after the completion of the document and is thus not intentional.[15]

The most common causes of ambiguity are obvious omissions, difficult word choices and placements.[16] However, lawyers sometimes try and create ambiguity within legal documents to serve other purposes. In commercial negotiations often being unable to reach a consensus on a certain matter would drive the parties to include a more broadly phrased clause rather than to forego the provision entirely. After several such compromises the final version might be so convoluted that the original draft is barely recognizable.[17] Another important reason for leaving provisions ambiguous is when drafters want to leave room for future interpretations and are unable to predict the effects of the restrictive language.[18]

Such techniques, in some cases might have proved useful however, can also have detrimental legal consequences in courts. There are three primary ways in which these are manifested. The first such effect is a case escalating to the Supreme Court due to differences in the interpretation of the lower courts for poorly drafted documents. The matter to be decided was whether the said document was a lease or a license.

 “It is unfortunate that legal drafting by the respondent's lawmen has left the key documents in a blurred state, so much so, the trial Judge and the learned judges in appeal have had to diverge in their conclusions, and before us long arguments have been hopefully addressed to help us designate the contract with certitude a lease or license.”[19]

Another important legal consequence of ambiguity and vagueness in the document is when they are so prominent that not only do the parties have to go to court, but the judges themselves have had to redraft it.[20] The courts felt compelled to clean up the document so as to derive interpretations that can be legally sound for both the parties.

Finally, the impact of poor legal drafting has been so profound that it has resulted in changes in the law itself. In the context of poorly drafted arbitration agreements it is now only necessary that the parties can demonstrate an intention to enter into an arbitration agreement even if the clause is not properly phrased. The court has stated so in the supreme court case of VISA International Ltd. V. Continental Resources (USA) Ltd.[21]

“The existence of a valid Arbitration Agreement should be determined from the facts and circumstances of the case including the intention of the parties covered from the correspondence exchanged between them, surrounding circumstances and conduct of the parties…It was further held that when the intention of the parties is to seek arbitration in case of any further disputes is clear, then inartistic drafting of arbitration clause cannot be taken advantage of by any party…The reason for the inartistic language is apparent…The said managers are not used to astute legal drafting and have in their own commercial way provided for Dispute Resolution Mechanism by experts in the field of travel as also for arbitration. The plaintiff by accrediting itself as an agent with IATA, bound itself with the said agreement and cannot now be heard to contend otherwise.”[22]

Vagueness has not only been recognized by the court systems but also by the legislature and has manifested through certain provisions in legislations. One of the most serious consequences is declaring a contract to be void due to uncertainty.[23] On the face of it the agreement should be transparent and clear in its application.[24] If this criterion is not met the agreement cannot be enforced.

While there are several threats to vague documents, as discussed, they can also be useful to the objectives of the parties and is also treated as a strategy in drafting. In several cases vagueness has either been corrected or even appreciated. Sometimes even the law has not declared an agreement to be void on the basis of vagueness, though the omission of significant aspects of the document raised strong doubts.[25] The extent of ambiguity is also only to the extent where it materially affects the documents. In some cases, the ambit of vagueness under section 29 of the Indian Contract Act, 1872 has been explained, where lesser important details such as survey number[26] or use of the words approximate[27] were excluded. Further, in situations where a vague provision is also equipped with a remedy for resolution, vagueness is not always a negative tool.[28] In fact one of the accepted methods of resolution is by following the trade and custom of the said industry.[29]

In many other cases vagueness might even be deemed necessary where parties do not have a specific position as to a particular aspect of the agreement.[30] It is especially acceptable if the parties have agreed to it.

 This is eighth article in the series of Articles by Corp Comm Legal's student researchers team of Aarushi Kapoor, Abhijeet Srivstava, Disha Tulsyan, Kannan Jhunjhunwala, Krishna Bhattacharya, Mayukha Parcha, Raj Shekhar, Samyuktha Banusekar, Shambhavi Sinha, Sneha Chugh guided by Tanupriya Pal and Syed Tamjeed Ahmad

[1] Aspassia Daskalopulu, ‘Legal Contract Drafting at the Micro-Level, Law in the Information Society’ (5th International Conference of the Institute of Legal Documentation, Florence, December 1998)

[2] Paul Butt Modern Legal Drafting (2nd edn, Cambridge University Press 2006)

[3] Ravenseft Properties Ltd v. Davstone (Holdings) Ltd [1979] 1 All ER 929 “[The tenant shall] when where and so often as occasion requires well and sufficiently ... repair renew rebuild uphold support sustain maintain pave purge scour cleanse glaze empty amend and keep the premises and every part thereof ... and all floors walls columns roofs canopies lifts and escalators ... shafts stairways fences pavements forecourts drains sewers ducts flues conduits wires cables gutters soil and other pipes tanks cisterns pumps and other water and sanitary apparatus thereon with all needful and necessary amendments whatsoever ... .”

This clause is the perfect example of where an attempt to be precise through verbosity fails to prevent litigation over its meaning. Thus the very purpose for which it was made complicated backfired proving the failure of the traditional format.

[4] Peter Nash Swisher, ‘Techniques of Legal Drafting: A Survival Manual’ (1981) 15 U Rich L Rev 873

[5] Yeo Hwee Ying, ‘Plain English for Lawyers’ (1996) 8 SAcLJ 303

[6] Peter Butt, ‘Modern Legal drafting’ (2002) Statute Law Rev 23 (1): 12

[7] “Bad legal writing can result in increased legal fees for clients, detrimental reliance by citizens, thousands of hours of court resolution, loss of integrity for our legal institutions, and a disrespect for law and lawyers.” John D. Feerick, ‘Writing Like a Lawyer’ (1994) 21 Fordham Urb LJ 383-384

[8] In Garnett-Bottfield v. Garnett-Bottfield and others [1901] P. 335 (1) The court has practically created a new will for the testator due to key drafting mistakes made by the solicitor. The court was disappointed that it was compelled to complete this task of doing this, despite it falling afoul of their mandate.

[9] In other countries such as the U.S.A., there are ethical violations the lawyers might be subject to and rules for the manner in which a poorly drafted document is to read, where one ambiguity might favour a party over another. In the UK, the cases have held lawyers responsible for their errors. In Garnett-Bottfield v. Garnett-Bottfield and others [1901] P. 335 (1) the testator was not made to suffer because the lawyer missed out important details in the will.

[10] Robert W. Benson, ‘The End of Legalese: The Game is Over’ (1984-85) 13 N.Y.U. Rev. L. & Soc. Change 519, 531

[11] Peter Nash Swisher, ‘Techniques of Legal Drafting: A Survival Manual’ (1981) 15 U Rich L Rev 873

[12] Office of the Federal Register, Drafting Legal Documents: Ambiguity , < https://www.archives.gov/federal-register/write/legal-docs/ambiguity.html>, accessed on 20th April 2020

[13] Elmer Doonan, Drafting (2nd edn Cavendish Publishing Ltd. 2001) 98

[14] Elmer Doonan, Drafting (2nd edn Cavendish Publishing Ltd. 2001) 94 “For example, if a customer orders a red car from a motor dealer, it is clear that a blue car would not satisfy the contract description. But, an order for a blue car does not specify the shade of blue the customer has in mind. Delivery of a Navy-blue car is within the bounds of what was ordered, but it may be rejected. The dealer may wish to avoid the risk of the customer rejecting the car by requiring him to specify the shade of blue required.”

[15] Kenneth A Adams and Alan S Kaye, ‘Revisiting the Ambiguity of “and” and “or” in Legal Drafting’ (2006) St John's L Rev 1167

[16] Debra R. Cohen, ‘Competent Legal Writing: A Lawyer’s Professional Responsibility’ (1999) 67 U. Cin. L. Rev. 491

[17] Debra R. Cohen, ‘Competent Legal Writing: A Lawyer’s Professional Responsibility’ (1999) 67 U. Cin. L. Rev. 491

[18] John D. Feerick, ‘Writing Like a Lawyer’ (1994) 21 Fordham Urb LJ 381-382

[19] Qudrat Ullah vs Municipal Board, Barelly 1974 AIR 396

[20] “The trust deed dated September 13, 1958, executed by Ganga Bai has been made a part of the case. We have given the document the close attention it deserves. Parts of it we have read more than once. At the end of it all we cannot withhold our comment that it is not a perfect piece of legal drafting. We cannot, however, throw up our hands in despair. As a court of construction we have to construe the deed even on its defective language. If the document is clumsy, we have to tidy it up as we go along in our construction. We must iron out the creases, as one learned English judge described the process, in another context. We must try to make out, as best as we may, what the author of the trust was driving at. In order to enable us to do so, we will have to take in the entire document and try to fit in all parts of the document as of one piece, the operative portions as well as the recitals. Our endeavour is to get at the object of this trust and we must be thankful for these and other internal aids to construction wherever we may find them in the body of the document.” Addl. Commissioner of Income-Tax, Madras-I vs Gangabai Charities. (1983) 142 ITR 718

[21] 2009 2 SCC 55

[22] Delhi Express Travels Pvt. Ltd. v. International Air Transport Association (2009) 3 Arb LR 303

[23], Indian Contract Act, 1872, s. 29

[24] Kovuru Kalappa Devara vs Kumar Krishna Mitter AIR 1945 Mad 10

[25] S.R. Varadaraja Reddiar vs Francis Xavier Joseph Periaria AIR 1991 Ker 288

[26] Daulat Ram Rala Ram vs State Of Punjab AIR 1958 P H 19

[27] Edwards v Skyways [1969] 1 WLR 34

[28] According to Bahadur Singh vs Fuleshwar Singh AIR 1969 Pat 114, agreements capable of being made certain would not fall under the purview of section 29. In some cases like Brown v Gould [1972] Ch 53 and Scammell v Ouston [1941] AC 251 courts have emphasised on the intention behind the contracts to be able to resolve any uncertainties, focusing on the intention over the form. Uncertain time period can also be determined if a previous agreement has been renewed as happened in the case of Lani Mia vs Muhammad Easin Mia 33 Ind Cas 448. The problematic part of the contract can also be severed from the whole document to ensure the sanctity of the rest of the deal, if the vague part was not considered essential to the contract according to Nicolene ltd v Simmonds [1953] 1 QB 543.

[29] Indian Evidence Act, 1872; Ashburn Anstalt v Arnold [1989] Ch. 1

[30] Ollivette E. Mencer, ‘Unclear Consequences: The Ambient Ambiguity’ 22 S.U. L. Rev. 217