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Eight Simple Rules for Clear Drafting

Created for 2014 Rocky Mountain Legal Writing Conference on March 28-29.

Chris Trudeau

on 12 April 2018

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Transcript of Eight Simple Rules for Clear Drafting

Try to Poke Holes in Your Document
Use forms & past contracts only as raw material. Create your own work of art.
Read "Against" the Document
Avoid Ambiguity; Tame Vagueness
Avoid the Gateway to Legalese
Something is ambiguous if it has at least two different meanings.
Something is vague if its meaning isn't clear in context.
Think of one major literary work that uses prior to?
Drafting Contracts,
Spring 2018
Christopher Trudeau, JD
UALR Bowen School of Law
Design for User Experience
Understand the User
Clarifying doesn't always mean shortening
Eight Simple Rules for Clear Drafting
Most contracts are used by lay people.
Contracts are usually used as reference tools. They aren't read from beginning to end.
Contracts are usually used by more people than you think.
The average American reads at about the 7th-grade level!
Yet the average credit card agreement, for example, is written at the 12th-grade level.
Prefer Clear Language the Public Understands
Every law student studies contracts for at least a year, but many don't learn how to draft one.
Contracts are inherently pessimistic.
Users have an incentive to interpret language in a certain way.
As lawyers, our role is to anticipate and guard against these possible holes.
Many students (and lawyers) don't know the difference
Ambiguity is always an error.
Ex. The board
the conduct.

Usually unintentional because the writer knows what he or she means. But the reader doesn't.
Dangerous weapons
are prohibited on campus.
But too much vagueness causes its own problems, so we must shape it.
"Prior to," "pursuant to," etc. create a slippery slope for students
It's not "The Night Prior To Christmas" for a reason
: Prior to is like marijuana. By itself, it's not so bad, but it's the gateway to stodgy legalese.

Normally, attorneys should reduce the number of words in their documents. But if those words are essential to explaining a term, then attorneys should include that explanation.
78% —
If you don’t respond, the court will issue a default judgment. That means you’ll lose, and the court will give the plaintiff what he is asking for.
Question 20
22% —
If you don’t respond, the court will issue a default judgment.
The takeaway?
From: The Public Speaks: An Empirical Study of Legal Communication, 14 Scribes J. Legal Writing 121 (2012)
See Trudeau, Christopher, The Public Speaks: An Empirical Study of Legal Communication, 14 Scribes J. Legal Writing 121 (2012)
The Survey: 28 questions
Designed to gather information in areas for which there is little or no empirical data, such as
Preferences for Attorney Communication
The responders’ reactions when reading material that was difficult to understand.
The percentage who have received a legal document that was difficult to understand, and
The importance responders attached to understanding an attorney,

Limited to the following areas:
Active voice v. passive voice
(four questions)
Strong verbs v. nominalizations
(two questions)
Plain words v. complex words
(four questions)
Explaining a legal term v. not explaining that term
(one question)
Choice-of-Language Questions
These questions gave responders a randomized choice between a plain passage and a traditional passage.

59 (16.3%) were 18 – 29 years of age;
100 (27.6%) were 30 – 39 years of age;
64 (17.7%) were 40 – 49 years of age;
78 (21.5%) were 50 – 59 years of age;
46 (12.7%) were 60 – 69 years of age;
11 (3.0%) were 70 – 79 years of age; and
1 respondent (0.3%) was 80+ years of age.
Analyzing the Responses
376 people responded to the survey
Clients comprised 54.5% of the sample. (220 responses)
Non-Clients comprised 45.5%. (171 responses)
Responses in every age category:
Question: In your lifetime, have you ever received a letter or document from any attorney that was difficult to understand?
99.7% of the responders thought it was important to understand attorneys, yet 7 out of 10 have struggled to do so at some point in their lives.
71% of responders indicated that they had received a document that was difficult to understand at some point in their lifetime.
The takeaway?
Question: How does it make you feel when an attorney uses Latin words or complicated words in written documents?
It was all in the English language, yet I could not understand the mumbo-jumbo!! This for me feels condescending and corrupt.
Selected responses on why respondents stop reading legal documents
Lack of answer, simplicity, and way too long.
Because of legal terminology. I do not feel like I am a stupid person by any stretch of the imagination, but just imagine how those feel of average or below-average intelligence due to lack of education, social circumstances, etc.
Because it made me feel dumb. And I didn’t know what was being said.
If too much of the content is difficult to understand, I feel like I’ve already missed too much to get the full meaning.
I used to work for some good attorneys that treated people as equals. So when I used my own, I was mad that he was using terms to make himself sound better than me.
See Kimble, Joseph, A Pox on
Prior To
, Mich. Bar J., p. 48 (June 2004) https://www.michbar.org/generalinfo/plainenglish/PDFs/04_jun.pd


normally used on public roads
Vagueness can be useful to avoid the problems with exhaustive lists.
Full transcript