LESSON 4

(cont.)
DRAFTING
TECHNIQU
ES
LECTURER: LUONG MINH HIEU
 DISCUSSION
 According to your knowledge, what
requirements of style should a drafter
follow?
 As a drafter, what do you do to obtain
the styles of a drafting?
DRAFTING
STYLES AND
USAGE
 Consistency
THE REASONS…
- Avoid ambiguity.
- Make clear and understandable
Simplicity
DRAFTING Concision
STYLE - Reduce the use of wordy
expressions.
- Reach the purpose of
effectiveness.
Clarity
1. CONSISTENCY
- Contribute to an ambiguity.
- Not use different words or structures.
- Synthesize the changes in precedents with
the same style.

- Terminology

- Grammatical

- Document structure
 Terminology
TERMINOLOGY
Grammar
Structure - Not say the same things twice.
- Lead to various understanding.
- Cause confusion.
Document
Structure “It has been a general rule for drawing legal
documents from the earliest times, one which
one is taught when one first becomes a pupil
to a conveyancer, never to change the form
of words unless you are going to change the
meaning ...”
Hadley v Perks (1866) LR 1 QB 444, Blackburn J
said (p 57)

CONSISTENCY
 AVOIDING INCONSISTENCY
1. ELEGANT VARIATION
More undefined words / terms referring
to the same thing
2. DEFINED WORDS/TERMS AS
IF UNDEFINED
Use a defined meaning in the every
appropriate place in the document

3. TWO DIFFERENT THINGS

The same term / word not for the
different meanings
 Terminology
GRAMMAR
Grammar
Structure Producers of toxic chemicals have the following
options: (1) require purchasers to assume

Document
responsibility for subsequent spills, (2)
Structure
depositing money in a damages escrow fund, (3)
termination of production, or (4) a conspicuous
disclaimer of liability on every container.

CONSISTENCY
Keep the same structure of grammar
 Terminology
GRAMMAR
Grammar
Structure
Buyer may accept the goods without inspection,
authorize the shipper to hold the goods pending
Document inspection, accept the good and reverse a right
Structure
of later inspection, or the provision of section 6
dealing with acceptance will otherwise control.

The agreement between the introductory

CONSISTENCY
words and the language of each item
 Terminology
GRAMMAR
Grammar
Structure
The recipient of Title IX funds may –
a. Use the money to fund day care centers directly,
Document
Structure b. Channel the money to day care through the tax-
exempt charity. The charity’s articles of
incorporation must list this as a purpose of the
charity.
CONSISTENCY Enumerated sentences under the
introductory sentence
 Terminology
Grammar
Structure

DOCUMENT
APPROACH
Document
Structure
- Show how to structure provisions or points.
- Show how to use numbers or headings.

CONSISTENCY
 2. CONCISION
Example

“The trustee shall have full power over the trust estate, including but
not limited to, the right to invest the trust property, even commingling
funds in common funds, upon such terms and conditions that he in his
sole discretion shall determine as appropriate to fulfill the purpose of
the trust, it being my express desire that the trustee have the broadest
powers allowable to manage and control the trust estate.”

Student rewrites:

“The trustee shall have the broadest powers to invest trust

property”
 2. CONCISION
“The trustee shall have the broadest possible powers allowable
to manage and control the trust estate. These powers shall
include but not be limited to the power to invest the trust
property. In investing the property, the trustee shall have the
sole discretion to determine any terms and conditions that are
appropriate to satisfy the purpose of the trust. In investing the
property, the trustee shall also have the right to commingle
funds in common funds.”
 2. CONCISION
a. Unnecessary Content i. Rhetorical and Traditional Words
b. Cross-references j. “Of the…”
c. Repetitious Substance k. “who’s, which’s, that’s”
d. Couplets, Triplets, Chain Synonyms l. Redundant Numeration
e. Redundant Expressions m. Expletives
f. Legalese n. Nominalizations
g. Prepositional Phrases o. Passive Voice
h. “The fact that” p. “To Be”
a. Unnecessary Content

- The substantive content being considered as necessary content

- Unnecessary provisions without considering the certain content
- Signature page being the separate document for multi-party contract
b. Cross-references and
Section/Paragraph References

- Cross-references help readers understand the sections or paragraphs

in isolation;
- Cross-references could be categorized as “internal and external
cross-reference)
- The fewer cross-references in a contract, the better, in general.
Some notes to cross-refer…

- “Section” to refer to separate provisions of a formal

agreement; “paragraph” to refer to separate provisions of an
informal agreement;
- Proofreading to remain accurate;
- Stating whether a section or article being referred to, plus
its enumerations.
Some notes to cross-refer…
c. Repetitious Substance
‘The legal mind finds magnetic attraction in redundancy and overkill.’
- An American judge (cited in Butt, P. & Castle, R. (2006)) -

“Landlord’s acceptance of rent payments in arrears does not otherwise

affect any right Landlord has under this lease. An acceptance of late rent
payments does not constitute a waiver of Landlord’s right to insist upon
timely rent payment in the future. Landlord’s failure to call an immediate
lease forfeiture when rent is late does not preclude Landlord from calling
such forfeiture at any time before payment is tendered.”

“The non-enforcement of any provision of this contract does not constitute a

waiver of the right to enforce the provision in the future.”
c. Repetitious Substance
“During liquidation, the court-appointed trustee shall distribute all [a word of
total inclusiveness] of the Petitioner’s assets, of any or character, tangible
or intangible [paraphrasing “all”], whether in the form of cash, real estate,
movable property, inventory, equipment, accounts receivable securities,
goodwill, or anything else of value [examples], in strict compliance with the
terms of subparagraph 89(b)(16).”

“During liquidation, the court-appointed trustee shall distribute Petitioner’s

assets in strict compliance with the terms of subparagraph 89(b)(16).”
 c. Repetitious Substance

TOGETHER WITH the right in common with the Landlord and all others having the like right
to use for the purpose of ingress to and egress from the Flat the pathway leading thereto
from Grenville Road and also the right to use the yard at the rear of the Flat and the
washing line situate therein TOGETHER WITH the free and uninterrupted use of all gas
water electricity and other pipes wires flues drains passing in through or under any part of
the property but excepting and reserving to the Landlord and the person or persons for the
time being occupying any other part or parts of the property (a) the free and uninterrupted
use of gas water electricity drainage telephone supply and other pipes wires flues conduits
and drains in through and under the Flat (b) the right to install or renew any such services
causing as little disturbance as possible and making good any damage forthwith.
 c. Repetitious Substance
With the right to use (along with other users):
• the path between the flat and Grenville Road
• the yard behind the flat
• the washing line in the yard
• all service conduits and wires running in any part of the property

but reserving to the landlord and occupiers of other parts of the property:
• the use of all service conduits and wires running in the flat
• the right to install or renew any service conduits and wires serving the flat but
causing as little disturbance as possible and repairing any damage straight away.
d. Couplets, Triplets, and Other
Chain Synonyms
“If you want your writing to have a musty formbook smell, by all means use as many
coupled synonyms as you can find. If you want it to be crisp, use few or none.”
-Richard C. Wydick (2015), PLAIN ENGLISH FOR LAWYERS 19 (5th ed.)-

- Limitation of the use of strings

- Two, three or more synonyms or near-synonyms
(null and void, settlement and compromise, swear and affirm, goods and
chattels)
- At risk in use in the three respects.
“The Company shall not operate any engine, motor, or machinery or
use gasoline or other flammable substances on the property.“
1. Director shall grant or deny said
application within 10 days.
 Director shall grant or deny the
application withing 10 days.

2. Director shall review the application

within 10 days and grant or deny same /
such.
 Director shall review the application
within 10 days and grant or deny it.
 h. “The fact that”
- A subject: "The fact that the buyer fails to inspect constitutes waiver.”
- A direct object: "Upon delivery, the shipper must note on the invoice the fact
that the buyer failed to inspect.”
- An indirect object: "The consequences of the fact that the buyer fails to inspect
are that buyer waives all defects.”
- An object of a preposition: Under paragraph (c), the buyer may recover for
defects that were not discovered because of the fact that the seller made timely
inspection impossible.
* Avoid using “The fact that”

- "The buyer's failure to object constitutes waiver.”

- "Upon delivery, the shipper must note on the invoice the buyer's failure to
object."
- "The consequences of the buyer's failure to object are that buyer waives all
defects."
- "Under paragraph (c), the buyer may recover for defects that were not
discovered because the seller made timely inspection impossible."
k. “who’s, which’s, that’s”
1. Voters who are registering to vote absentee must file within 30 days,
 Voters registering to vote absentee must file within 30 days.
2. The goods, which are sold only in bulk, are warranted against insect
infestation,
 The goods, sold only in bulk, are warranted against insect infestation.
3. The inspection that the buyer conducts is subject to section 3(a),
 The inspection the buyer conducts is subject to section 3(a).
3. CLARITY AND SIMPLICITY
- How to give a clear but simple expressions.
- Provide some rules of simplicity.
- Emphasize the use of words and phrases.
- Illustrate the obligatory grammar structures.
- Require to use the consistent style throughout
the documents.
 Example…
“Tenant (unless Landlord has agreed in writing in advance) shall
not keep or allow the presence of pets (including dogs, cats,
rabbits, birds, hamsters, gerbils, or reptiles of any kind) in the
Leased Premises (as defined in paragraph 6(b)(7)), and any
violation of this provision is a material breach (justifying
immediate termination of the lease)”
 Example…
“Tenant shall not keep or allow the presence of pets.”
“Landlord may waive this provision in a signed writing in
advance.”
“For the purpose of this provision, “pets” includes dogs, cats,
rabbits, birds, hamsters, gerbils, or reptiles of any kind.”
“A violation of this provision is a material breach of the lease
Simple present
“If seller’s inability to deliver on
time is (not was or has been)
caused by circumstances beyond
seller’s control, buyer is not (not
will not be) entitled to control.”
Simple and Ordinary
Words
- Do not use fancy version of words.
“advantageous – good; feasible – possible; inform/state
– tell/report; assist - help”
- Do not use words or expressions in different
languages
- Do not use suffix “-ee” / “-or”
“employee / employer ; educator / educatee”
Terms of Art
- Used for a particular purpose.
- Understood in the domain of the court.
- Be helpful when documents are silent
+ not precise and fixed in legal meaning
as defender’s thoughts
+ can be fixed but so general.
- Consider the use of Technical Terms and
Foreign words.
Compound Adjectives and
Noun Phrases
- Normally use hyphens in compound adjectives.
“a 10-day period” / “a year-round
container supply”
 Do not overuse
“research-and-development-department-
approved rotor-wheel-abrasion-removal device”
Positive and Negative
“(1) The vehicle is not safe.

(2) The exception does not apply to persons with

more than 3 children.

(3) Under Rule 36, a defendant who does not

plead not guilty is not entitled to representation

by the Public Defender”

Exception

- Stay focus on the targeted group.

- Be acceptable for the specific list.

Personal Pronouns
- The drafters should avoid using “I” “we” “you” as:

+ Establish a tone of informality

+ Misunderstand the personal pronouns

+ Be against the other documents

+ Cause confusion with more than 2 parties.

 Possessive

Punctuations
and Slashes

GRAMMAR

Misunderstandi S-V
ng vocabulary Agreements
Possessives
- No possessive form for time period.
- Form: “N + ’s” for singular and “Ns’”
for plural.
- Possessive pronouns
Punctuations
- Semi-colon could be at the highest level compared with
comma.
“the available color combinations are red, white, and blue;
yellow, green, and tan; and gold, red, and purple.”
- Colon shows the following details.
“The model you like is available in: red, blue, white, and ochre”
- Slashes indicate “conjunctive” and “disjunctive”

- Parenthetical expressions
- Quotative expressions
S-V Agreement
- The number of subjects.
- Plural and singular nouns.
- Unidentified pronouns.
- Special words and phrases.
- Special structures
Misunderstanding Vocab
- Effect / affect
- Farther / further
- Regarding to / in regard to
- Fewer / less
- Like
- Principal (adj) / principle (n)
Gender Languages
1. Limitation of using pronouns
2. Change pronouns
3. “He”  “he/she”
4. Repeat nouns
5. Reword
6. Plural subjects  specific contexts
7. “-man”  “-person” / gender-neutral
languages