Georgia Bar Journal — October 2013
Common Ground: Five Essential Writing Skills for Litigators and Contract Drafters
Attorney Carmen Contracts is drafting a contract. In the office next door, Lawrence Litigator is writing a brief. They share a quick lunch and end up in a heated conversation about legal writing, of all things. Mr. Litigator says that his writing is creative, persuasive and difficult to craft—compared with the “cut and paste” work of the contract drafter. Ms. Contracts says that she is creating a private law between the parties1 while he is merely writing around and about the law.
These attorneys should not need a mediator to help them recognize that they have more in common than they think. Just what are some of the essential writing skills that highly effective litigators and contract drafters share?
Judicious Use of Samples
Both litigators and contract drafters need to understand when and how to use samples. Senior attorneys often advise junior attorneys not to “reinvent the wheel,” but this advice does not mean “please mindlessly cut and paste from the first sample you find.”
For example, the litigator drafting a motion may be more efficient if he works from a sample. But he must use the sample strategically, tailoring the text to the situation at hand and discarding portions that do not fit. Likewise, the contract drafter may work from a contract used in another similar deal, but she must be very careful not to copy fully negotiated provisions tailored just for that other, similar deal.
And both litigators and contract drafters must know when to move away from samples and start from scratch. For litigators, a sample may not be a good model if it emphasizes a different aspect of the law or the wrong type of legal argument altogether. It may not even be good for a formatting model, if the court rules have changed. When the litigator realizes that following a sample would waste time and generate an ineffective argument, the litigator should open up a new document and start from scratch.
Similarly, contract drafters must know how to draft from scratch because they may not always have applicable samples in hand. They must master what Tina L. Stark calls “translating the business deal into contract concepts.”2 Then, after talking to a client about a deal, the contract drafter can translate the deal terms into covenants, representations and warranties, conditions, etc. Additionally, when an applicable sample contract is available, the drafter trained to draft from scratch knows to ask: Why is it drafted this way? Does it achieve my client’s objectives? Can it be drafted more effectively?
Appropriate Attention to Audience
The importance of audience is another area of common ground. Writing to your audience can be difficult to do when the audience comprises many groups, present and future, some with different competing interests.
Litigators write not only to judges and their law clerks, but also to the client, opposing counsel and the opposing party. What they write may affect future arguments to judges on appeal. Thus, the best litigators can artfully address different audiences without neglecting others. For example, a great brief can use precedent and other arguments to suggest that the court “will” and “must” do something, thereby affecting opposing counsel’s view of settlement—but without risking offense to the court in saying what the court “must” do.3
Highly effective contract drafters remember to consider multiple audiences as well. Besides the client, the other side and the other side’s attorney, contract drafters must think about any adjudicator who may one day have to interpret or enforce the document. Also, from a practical standpoint, the contract drafter’s audience includes the business people who will have to implement or follow the contract. If the contract contains a complex formula for calculating royalties, for example, the business people responsible for performing the calculation have to be able to understand it.
The Right Amount of Concision
Both litigators and contract drafters need to know how to write concisely. Judges and clients alike frequently complain that lawyers use more words than necessary to communicate. Upon receiving a party’s motion to extend a brief’s page limit, one federal judge responded by editing part of the motion from 125 words down to 47 words.4 The judge denied the motion and instructed the lawyer to meet the page limit by eliminating “redundancy, verbosity, and legalism.”5
Similar critiques regarding contracts abound because some contract drafters remain wedded to “sounding like a lawyer” as opposed to communicating clearly and concisely. As chronicled in the Steve Jobs biography by Walter Isaacson, Jobs once received a proposed contract from IBM spanning 125 pages. Jobs threw it down and ranted, “You don’t get it.” As Isaacson reports: “He demanded a simpler contract of only a few pages, which he got within a week.”
But both litigators and contract drafters have to avoid taking concision too far. The scourge of the first-year legal writing student, “skipping analytical steps,” can infect experienced lawyers’ briefs as well, owing to their familiarity with their own case. Great brief writers achieve the perfect balance: they include everything they need to fully support a point in appropriate language for the audience— but nothing more.
In a contract, some attorneys take concision too far by losing sight of their multiple audiences and drafting as if everyone is familiar with the terms of the deal. They begin to use a kind of shorthand that only the parties to the deal understand. Nevertheless, although contract drafters sometimes have to spell things out methodically, they do not have to use lengthy, convoluted sentences. Moreover, they can make use of headings and tabulation to shorten sentences and make provisions more readable.
The Right Amount of Clarity
Highly effective litigators and contract drafters know how and when to be vague or abstract for a strategic reason. In litigation, a classic example is selectively using passive voice to strategically emphasize the object of the action or to de-emphasize the action itself. In a copyright-infringement case, the defendant might want to consider the occasional use of passive voice to describe how images “were reproduced” rather than continually emphasizing that the defendant actively reproduced them.
With the exception of some representations and warranties and some standard boilerplate, contract drafters generally use active voice because they want to assign responsibility to a particular party. But contract drafters may choose to be intentionally vague in other ways. For example, a contract drafter may fail to define a key term such as “reasonable” or “material” because it is to the client’s advantage to leave the term vague or because it would take the parties too much time to hammer out a mutually agreeable definition.
Creativity and Advocacy Within Formal Structures
Both litigators and contract drafters must write creatively and advocate for their clients within certain formal structures. Some legal writing experts analogize writing for litigation to a sonnet or a haiku: it is creative, within a structure established by custom.7 The creativity comes from what the lawyer does within that form to advocate for the client. This analogy may also be applicable to contract drafting. A contract must have certain essential parts; within this structure established by custom, the contract drafter strives to capture the unique terms of the particular deal.
While exercising their creativity within certain structures, both kinds of writers must advocate strategically. A litigator must zealously advocate for her client without alienating the judge by being overly aggressive. There is written advocacy in contract drafting, too. One reason for taking the laboring oar on the first draft is that the drafter gets to have the first word on provisions that the parties may not have discussed yet. Of course, the contract drafter who makes the first draft too one-sided can lose credibility with the other side, making continued negotiations difficult.
Ms. Contracts and Mr. Litigator should amicably end their lunch by acknowledging that they share common ground. They both need to know how to use samples judiciously, pay appropriate attention to multiple audiences, write clearly and concisely, and be creative advocates within formal structures. These attorneys would do well to acknowledge that, even though one is drafting a contract and the other is drafting a brief, they are both engaged in the act of writing.
The authors would like to thank attorneys Bard Brockman and Lou Spelios for their feedback on earlier drafts of this article.
Sue Payne is the executive director of the Center for Transactional Law and Practice at Emory University School of Law, where she teaches Contract Drafting and Deal Skills. She is the author of Basic Contract Drafting Assignments: A Narrative Approach (2011).
Jennifer Murphy Romig has taught Legal Writing, Research and Advocacy at Emory University School of Law since 2001. She recently founded the blog “Listen Like a Lawyer,” www.listenlikealawyer. com, to explore listening skills for lawyers and legal professionals as well as law students and professors.