When it comes to legal writing, I may be the biggest nerd of all. Let me give an overview of why I think I’m qualified to provide you all with tips on legal drafting today:
I practiced litigation in California for nearly two decades. Throughout that time, I encountered the full spectrum of drafting challenges, from dense contracts to persuasive pleadings and everything in between.
Ten years ago, I walked away from my legal career to pursue my dream of being a full-time writer.
Today, I do everything from freelance writing (like this post), to helping attorneys write novels, to helping law students prepare for the essay portion of the bar exam.
I told you I was a writing nerd.
So, in this article, I want to focus on three core areas of legal drafting that each require slightly different skills: contracts, pleadings, and legal correspondence.
With insights drawn from both legal practice and professional writing, my goal is to help you approach these key areas with confidence.
Consider this a refresher course in legal drafting, and remember: no matter how advanced your skills, you can always get better.
1. Mastering contracts: Creating clarity and avoiding ambiguity
Contracts are the cornerstone of legal relationships. A well-drafted contract can help the parties stay out of the courtroom forever and a poorly-drafted contract can give rise to more litigation than spilled hot coffee from a drive-thru window.
That is precisely why contracts are one of the most challenging types of legal documents to draft effectively.
You can’t just throw them together using stale boilerplate from the firm’s basement files. The law changes and contracts have to keep up. Yet, there’s so much more to it.
Here are a few strategies to consider:
Know your audience
One of the first steps in drafting any contract is to understand who will be bound by it.
If you’re drafting a complex business agreement, you need to understand the industry the contract is being used in and the terms of art that apply in that business.
I’ve told this story a thousand times but I once spent several years litigating the meaning of a contract that used the terms “dehydrated food” and “dehydrated food products” interchangeably.
The attorney who drafted that contract didn’t understand that those terms could mean very different things within the commercial packaging industry.
As a consequence, the parties spent many years (and countless dollars) embroiled in federal court litigation.
If you don’t know the terms of art for your client’s industry, ask. Trust me when I tell you they’d rather talk about them now than litigate them later.
Outline essentials first
Every contract should include certain foundational elements. Define terms at the outset, then address major sections like obligations, timelines, and remedies for breach.
Consider things like venue and choice of law provisions – and explain to your client how different variations on those clauses could impact them.
Also, ask your client if there is anything in particular they want included in the contract. While it’s your job to filter out anything illegal or voidable, their input as to the essentials of the deal is paramount.
Outlining the terms ahead of time gives the parties the opportunity to really think about the terms before they’re bogged down with paragraph after paragraph of actual words.
Edit, edit, edit
Editing is essential to clear drafting. Ambiguities, redundancies, and inconsistencies can open the door to monumental disputes.
Take the time to double-check definitions, cross-reference terms, and eliminate any potential contradictions.
Once you think you’ve got it right, as a colleague to edit for you. Then, once that person has given your contract the green light, read it aloud to yourself.
Nope, I don’t care how long and boring it is. Reading aloud is one of the best ways to catch mistakes and avoid problems down the road.
2. Drafting pleadings: Telling a compelling story within legal confines
While contracts focus on establishing rights and duties, most pleadings tell a story.
Drafting a compelling pleading means creating a clear, concise narrative that supports your argument within legal confines. This requires structure, balance, and above all, a strong command of your case’s facts and issues.
IRAC always
When in doubt, remember IRAC – Issue, Rule, Application, Conclusion. We all learned this structure in law school but I’m often surprised at how many people let go of it. Don’t.
This structure allows you to organize your argument in a way that’s both easy to follow and rooted in legal reasoning.
And it’s relatively easy, isn’t it? Start by identifying the issue, then follow up with relevant rules and apply them to your facts. Conclude with a concise summary that leads into your argument’s next steps.
But wait, there’s more…
Lead with the facts
Okay, okay … I could have referenced FIRAC in the last section, right? Of course you have to include relevant facts in your pleading.
In fact, the facts section of your pleading is important enough to warrant its own treatment here.
After all, a good pleading is a narrative with purpose. You need to use your facts section to paint an accurate picture for the reader.
Make it chronological where possible and avoid overloading the reader with too many details. Stick to those facts that are relevant to the pleading at hand – adding extraneous background facts only as absolutely necessary to give context.
Also, please stick to the facts and not your opinion of the facts. For example, don’t write, “The idiot defendants constructed a ridiculously narrow sidewalk.” Do write: “The defendants constructed a sidewalk that was six inches narrower than applicable city building codes allow.” Trust me, the court will notice (and appreciate) the difference.
Persuade without misleading
Indeed, what you say and how you say it matters throughout your brief. The challenge with pleadings is balancing formal language with a persuasive touch.
Be mindful of the reader’s expectations and avoid overly aggressive language (see above example). While it is often tempting to be colorful, inflammatory language can detract from your argument’s strength.
This same rule applies to your descriptions of case precedent. Don’t overstate a prior ruling’s applicability to your case.
Just tell the court why a particular case is helpful to the case at hand and move on. Sure, you can argue for an extension of the prior ruling, but don’t act like that extension exists when it does not.
3. Effective legal correspondence: Communicating with impact and respect
Legal correspondence, whether directed to clients, opposing counsel, or anyone else, is another critical form of legal drafting.
These letters, emails, and memoranda serve as a reflection of your professionalism, your commitment to the issues at hand, and your understanding of your clients’ needs.
Set the tone early
It’s important to establish the right tone from the outset. Your tone should reflect the nature of the relationship and the purpose of the correspondence.
For instance, correspondence to clients should be informative and supportive, while communication with opposing counsel can be more assertive but always respectful.
Be concise but complete
Legal correspondence should be direct and to the point, covering all necessary information without overloading the reader.
Begin with a clear statement of your purpose for writing and follow with concise details. See what I did here?
Be courteous
Early on in my legal career (at a time when I thought being an attorney meant I had to “win” everything), an older, much-wiser partner gave me an invaluable piece of advice about writing letters to opposing counsel. He said, “you have to assume that everything you write will end up on the Judge’s desk at some point.”
He was right. And you can make a forceful point without being rude.
You may have to create a first draft that says everything you want to say to opposing counsel. But then do some heavy editing with your judge top of mind.
Conclusion
Obviously, there are many more things you will draft in your career besides contracts, pleadings, and letters.
In addition to the above tips, there are other overarching strategies that can help you develop and maintain strong drafting skills no matter what you are writing.
In his book, The Outliers: The Story of Success, author Malcolm Gladwell reminded us that it takes around 10,000 hours of practice to really become good at anything. He’s not wrong.
Strive to create opportunities to draft a range of documents, and don’t hesitate to try new approaches.
Reading well-crafted contracts, pleadings, or professional letters by others can also provide inspiration and insights.
Also remember that legal drafting conventions can shift with time. Legal writing is influenced by case law, statutory changes, and client preferences.
Regularly consulting continuing education resources and staying informed on drafting best practices helps ensure your skills remain current and adaptable to any changes in legal standards.
Competent legal drafting is an absolute necessity to your success as a legal professional. Adopting a solid commitment to continual improvement will serve you – and those you represent – for years to come.
