Red Pen at the Ready: Assessment 2 and 3 – Legal Writing and Drafting

The skill of legal writing and drafting, writing in particular, sounds easy. After all, you will have been writing now for, what, at least 16 years? In fact, they are both very subtle skills which take time to master. When reading a letter or a contract, the distinction between a competent and great legal writer or drafter is clear, but explaining what made the difference is much more difficult! As a trainee, this is all too clear: often you spend hours on a piece of writing only for it to be butchered by your supervisor's red pen, often making changes that emphasise that very subtle distinction. Luckily, you only need to be competent for the Legal Practice Course (LPC)!

Legal writing

Legal writing is the skill of putting your knowledge to paper, often for your client. The assessment will be taken through one of the core modules – in my case, litigation– and you will be asked to produce a piece of writing, such as a letter or instructions to counsel within a set timeframe. You need to remember the rules for the particular kind of writing you have been asked to do (the format of a letter for example) whilst producing a skilled piece of writing.

The skill with legal writing is to make your message understood whilst using as few words as possible. The issue many lawyers have when they're fresh out of degree is that we are fond of using words. Especially long ones. The number of words is usually unnecessary and, depending on the audience, the long words will not make you seem intelligent. I would not say I am an expert (I think my supervisor has a dedicated supply of red pens just for me!); I don’t think any junior lawyer is, but I have picked up a few tips that might help you in your exam:

The skill with legal writing is to make your message understood whilst using as few words as possible.

• Don’t use legalease when writing to a layperson – words that only lawyers understand don’t go down well with clients or examiners. If you have no choice, explain it the first time you use it.
• If you do define something, remember to be consistent throughout. Don’t forget to capitalise the first letter of a defined term.
• Don’t use three words when one will do. Lawyers don’t get paid by the word any more!
• Plan what you are going to say. If you have three points to make in a letter, use a paragraph for each point with headings if necessary.
• Provide a summary if it is useful.
• When writing a letter to the client, always finish with what will happen next (in practice, this helps manage expectations), e.g. you need them to provide more information, or you will contact them when you have a court date.
• Make sure it makes sense! If you get lost in a sentence, don’t try to keep going; take a step back and start again.

My last, and possibly most effective tip will not help you in the exam, but has proved invaluable in practice: leave a piece of writing alone for an hour or overnight if you have the time. When you go back to it, get rid of all the bits that don’t add anything to what you are saying. It is amazing how much you can take out if you look at a piece of writing with fresh eyes.

Legal drafting

Legal drafting is a different skill. This is real stuff – drafting creates documents that have binding legal effect. Again you will be examined in a core practice area, in my case Property Law and Practice, and will be asked to draft a document such as a transfer document or a standard clause in a contract. The actual drafting you will be asked to do will not be difficult because, again, true drafting is a skill that takes time to master. Also, in practice (and reality) lawyers rarely draft freehand so you won’t be asked to either.

Drafting is creating documents with binding legal effect and you will be asked to draft a document such as a transfer document or a standard clause in a contract.

The reason why lawyers rarely draft freehand is because there are a wealth of precedents to draw from; documents that have already been drafted either for a previous client or by legal support companies whose job it is to know all the base law and to provide a framework for lawyers to work from.

Lawyers are far too risk averse to burden themselves with the risk of getting it wrong unless they have no choice! And you shouldn’t either. You will have practice material to hand – take it with you and don’t feel guilty for copying as much as you can! You will do it in practice and will be missing a trick if you don’t in your exam.

Here are a few more tips for legal drafting:

• Think about what you are trying to achieve and ensure your drafting does that.
• Be clear – any ambiguity will be interpreted against the party seeking to rely on it, i.e. you!
• Group clauses together in logical groups, e.g. encumbrances, rights reserved, rights granted, etc.
• Each point should be a separate clause or sub clause – don’t try to say too much in one go.
• If you are writing a list, for example, for restrictions on use of a property, write one main clause (1. The Buyer will not use the property: ) and put each item as a subclause (1.1 for any other purpose other than residential; 1.2 in any way which may interfere with the enjoyment of the retained land, etc.).
• Make sure you are using the correct word: 'may' is in some cases different than 'can'; 'shall' could be different to 'will'.
• Have you covered all bases? e.g. if you are saying one party will pay for damage caused by his act, do you also need to include damage caused by his negligence or omission?
• Rely on precedents where you can, but don’t be afraid of altering them if they don’t quite do what you want them to. Don’t use a precedent that is completely different from your need.
• Are the legal formalities covered – are the parties correctly defined, are the attestation clauses correct, etc.

Overall, the most important thing with drafting is that it does what you want it to. A transfer can have the most beautifully drafted encumbrances clause in the world, but if it is not executed properly because the attestation clauses were wrong, it will not be legally binding!

The skills themselves are not simple, so please don’t take the exams lightly.

Both legal writing and drafting exams should be simple, mainly because the tasks you are asked to complete should be simple. The skills themselves are not simple, so please don’t take the exams lightly. Practise and prepare well, use your time wisely and produce a good piece of work. Any principles and good habits you pick up now will be worthwhile when you start your training contract and will help keep that red pen at bay!

Next post will be looking at choosing electives for term 2.