Legal drafting: an expert on notice vs. prior notice

Several months ago, I posted a question about whether, in a drafted document, the word notice includes the concept of prior, so that notice is the same as prior notice.

I then posted a note that a consensus of commenters believe notice includes prior notice.

I quickly followed up with a note that legal-writing expert Bryan Garner believes that notice and prior notice are, and need to be, distinguished in some situations.

My friend Ken Adams, who operates www.AdamsDrafting.com has written a thorough and thoughtful piece on this point, which I recommend. See it on his blog here.

Legal drafting: I teach putting words on paper

I teach legal drafting, but I do not teach how to negotiate a transaction, how to close a transaction, how to plan and carry out a transaction, or how to incorporate the substantive legal requirements of a doctrinal body of law into a transaction.

So what do I actually teach? I teach how to put words on paper to create binding legal text that is well written and clear according to modern, professional standards of legal drafting. I teach these things:

• What ambiguity is and how to avoid it.
• What vagueness is and how it is used appropriately.
• The various words and phrases that create authority, obligation, entitlement, or discretion and how to use them consistently and correctly.
• The canons of construction and how to draft for them.
• Document design and layout.
• Organizing the main topics in a contract.
• Organizing the specific provisions within the topics of a contract.
• Correct, modern rules of grammar and punctuation relevant to legal drafting.
• The principles and practices of the plain-English movement in legal drafting.
• Proper use of form documents.
• Proper drafting of definitions.
• Spotting and avoiding unnecessary formalisms, archaisms, and legalisms.
• Employing an appropriate numbering and heading system in a drafted document.
• Proper opening and closing language in a drafted document.

I usually throw in a few other lectures, on writing letters and on knowing and consulting the very best sources in the field of legal drafting. It makes for a good course, and when my students finish, they often know more about the mechanics of legal drafting than the majority of practicing lawyers.

Legal drafting: three definitions

If I said I am going to teach a class on legal drafting, I might mean three different things:

1. "Legal drafting" can mean the preparation of any written legal document--a motion, a letter, a brief, a memo, or a contract. Lawyers and law teachers use the phrase in this way all the time: "Draft a brief" or "draft a letter."
   
   
2. "Legal drafting" can mean the task of preparing a transaction, which includes a lot more than putting words on paper. It includes the substance of the underlying law, strategies for representing a client in a transaction, the skill of negotiation, and the ability to close a transaction.
   
   
3. "Legal drafting" can mean the writing of binding legal text. It is the skill of putting words on paper to create rights and duties.

I use the phrase "legal drafting" only in the third sense. For the meaning in number 1, I say "legal writing." For the meaning in number 2, I say "transactions."

Teaching legal drafting as I conceive it is not as simple as it sounds. I've been teaching it for 10 years, and I cover a lot of things that are strictly putting words on paper. I'll list them tomorrow.

Legal drafting: a complement to brief writing

Those who have commented have said that legal drafting would be an important addition to the legal-writing curriculum in law school, but all have said it should not replace brief writing.

I agree. The legal-writing curriculum should include ample instruction and chances to practice all three types of legal writing:

• objective legal analysis
• persuasive legal analysis
• legal drafting

I maintain that legal drafting is as important for legal practice as persuasive writing and that legal drafting is not taught or not taught well in our law schools.

Legal drafting: could it replace brief writing?

Suppose I decided to replace instruction in brief writing with instruction in legal drafting (transactional drafting) in the required, first-year legal-writing course. How could I justify that?

Is brief writing so crucial to a young lawyer's development that all students must learn it? Could I provide quality analytical training in a drafting course?

Thoughts?