Published in The Clarity Journal 73 – 2015
By Joseph Kimble
No, I’m sorry, but most lawyers are not skilled drafters. It doesn’t matter how smart or experienced they are or how many legal documents they have drafted. Most — a supermajority, probably — are lacking. And yet, oddly enough, while they tend to be blind to their own shortcomings, the poor quality of others’ drafting is plain for them to see. When was the last time you heard a lawyer praise the clarity of a statute or rule or contract?
Elsewhere, I’ve identified five reasons for this professional deficiency, but I think two of them stand out. First, until very recently, law schools have tended to neglect legal drafting. Shamefully neglect. For how can lawyers practice effectively without training in how to draft — and critically review — legal instruments? Second, rather than take it upon themselves to acquire the skill, lawyers naturally turn to formbooks— those bastions of dense, verbose, antiquated drafting. So the ineptitude cycles on.
Neglect by law schools. The poor models in formbooks. If anything, law schools have historically provided a perverse kind of antitraining — through the models that the profession itself saddled them with. Think of the generations of law students who studied, intensively, the Internal Revenue Code, the Uniform Commercial Code, the Federal Rules of Civil Procedure, and the Federal Rules of Evidence, among other such promulgations. And I doubt that many professors made it a point to criticize the drafting in those laws and rules or occasionally asked the class to work on improving a provision. So most law students must have come away with the impression that the drafting was perfectly normal and generally good. Well, it may have been normal, but it was far from good, as I’ve tried to show.3 The heartening news is that current and future generations will at least not have to endure the old Federal Rules of Civil Procedure and Rules of Evidence, since completely redrafted sets took effect in 2007 and 2011.
Still, we need to be constantly reminded of how pervasive the ailment is in our profession, so I’ll dutifully keep nagging.
Another Would-Be Model
In October 2012, the Charleston School of Law hosted a symposium on Federal Rule of Evidence 502 — governing the extent to which a waiver occurs when a party discloses legally protected information. As part of the symposium, the participating judges, lawyers, and professors prepared a “model” order to carry out Rule 502(d), which allows a judge to order that a disclosure connected with pending litigation does not create a waiver. The order was published in the Fordham Law Review,4 and it presumably has since come to the attention of federal district judges. Thus, another typical piece of drafting makes the rounds as an imitable form, an example to follow, a convenient resource.
At the end of this article, I have reproduced the order as published. (On a positive note, the word shall is nowhere to be found.) Alongside it is my redraft. I decided against annotating the original in detail — to spare readers a swarm of forbidding
footnotes. Instead, I’ll just highlight the drafting slips in the original and stand on the comparison between the two versions.
So what’s wrong?
The original uses 125 more words than the revision.
The first sentence favors us with hardcore legalese — pursuant to.
The original uses four unnecessary parenthetical definitions (starting with “Disclosing Party”). This is one of the worst tics of all — producing any number of distracting, unnecessary capitals.
- In several places, the original departs from the language of Rule 502 for no apparent reason. For instance, section (a) uses waiver or forfeiture, but forfeiture does not appear in 502. And then (b) drops forfeiture, creating further inconsistency. For another instance, (a) refers to information that is privileged — generally — or protected by the attorney–client privilege. But 502 refers to the latter only. Why the difference?
The sequence of events seems questionable. Under (b), the receiving party must — unless it contests the claimed privilege or protection — notify the disclosing party that the receiving party will make best efforts to properly handle the information. Then the disclosing party has five business days to explain its claim. But can the receiving party usually know whether to contest the claim before getting the explanation? My redraft follows the sequencing in the original, but should the disclosing party’s explanation (my (d)) accompany its original notification (my (b))? The second sentence in (a) is 94 words. The average sentence length in the original is 34 words. The revised version averages 26.
- The second sentence begins with the truism Subject to the provisions of this Order.
And note the pointless (and inconsistent) capitalization of order.
- Besides pursuant to, (a) contains two other multiword prepositions — in connection with and with respect to.
- (b) and (f) both contain unnecessary cross-references.
(b) should be divided into additional sections.
(b) uses review, dissemination, and use, but (e) uses examining or disclosing for what seem to be the same ideas.
- (e) and (g) start with Nothing in this order, but (h) doesn’t follow suit.
(e) uses privileged only, not privileged or protected. Is that difference intended?
(f) switches from Proving in the heading to establishing in the text. What’s the difference?
The relationship between the two sentences in (h) needs clarifying, but I didn’t venture into that.
- After the first mention, attorney-client privilege or work product protection can be shortened to privilege or protection. That’s what Rule 502 does.
- Work-product protection needs a hyphen throughout.
Incidentally, if my revision makes some inadvertent substantive change, it would be easy to fix and would hardly rationalize the old-style drafting in the original.
One more time: legal drafting is a demanding skill that needs to be learned and practiced. The more important the project, and the more it affects the public or the profession, then the more important it is that this skill shine through.
