Transcript Principles Draftingx

Drafting
Drafting
The ability to write clearly, concisely and
professionally under time pressure is a core
skill for every lawyer. Every type of written
communication needs to be effective,
unambiguous and well drafted, especially
your written pleading.
Clarity is best
Vague is not always ambiguous. Common
terms,
‘reasonable,’
‘satisfactory,’
and
‘immediately’ are vague but not necessarily
ambiguous within the context of an agreement.
Plain language can avoid ambiguities. Many
people overdraft, for example “shall not now, or
in the future” instead of just saying, “shall not.”
The solution is unambiguous: Use plain language
whenever possible.
Good writing and drafting requires?
Preparation and research
identify the objective(s)/purpose of the
document, research the law.
Planning
decide on the best structure and
necessary content.
Drafting
clearly and concisely set out the
information/points following your plan
Checking
cross-check your document to ensure
that it is correct, unambiguous and
meets the objectives you identified.
Preparation and research
• Fact handling - part of your role at this
stage
is to ensure that you identify
everything you need to know.
– Separate key facts from background facts;
– Highlight the key facts, understand what
makes them key.
Planning
• Unadvisable to simply ‘make a start’
– Identify your client’s objectives and decide
how they can best be met.
• Plan your strategy
– What are your main goals;
– Secondary goals;
– Settlements.
• Once you know these you will then need
to select the most appropriate structure.
Drafting
Having carefully planned the content and
structure of your document, you can confidently
begin to draft. Your document should be as easy
as possible to read and understand.
It is essential that everything you draft is precise
and unambiguous. You should try to be as
concise as you can. Concise documents are easier
and quicker to read.
Padding/superfluous words
Cut out unnecessary phrases which lengthen
the sentence while adding nothing to its
meaning. For example:
– ‘in the circumstances’;
– ‘in this instance’;
– ‘the fact that’;
– ‘of course’.
Tautology
• Tautology or saying the same thing twice using
different words should be avoided. For example:
– ‘unfilled vacancy’;
– ‘true facts’;
– ‘now current’.
• Similarly, avoid excessive use of adjectives which
do not make the meaning more precise. For
example:
– ‘grave and fatal error’;
– careful and detailed consideration’.
Compound prepositions
Use single prepositions instead of compound
prepositions. For example:
•
•
•
•
‘in accordance with’
‘by reason of ’
‘with reference to’
‘in order to’
under/by
by/through
about
to
Nouns derived from verbs
• Use the verb itself rather than a noun
derived from it. This helps create a more
immediate effect.
• ‘make an admission’ (admit);
• ‘give consideration to’ (consider);
• ‘effect a termination’ (terminate or end).
Archaic language
Twenty-first century documents should be
drafted using contemporary language. Delete or
replace archaic words and phrases such as:
–
–
–
–
–
‘crave leave’;
‘the said’;
‘hereinbefore’;
‘aforementioned’;
‘whereof ’.
Keep sentences and paragraphs short
In long sentences, the verb, subject and
object may be separated by too many
subclauses. This places a strain on the
reader’s memory and understanding.
Always try to keep the sentence core
together.
Spelling and grammar
I am writing with reference to your enquiry concerning the use of
the entrance area and hallway at the gallery for the purpose of
displaying informational materials and presenting visual displays
on the subject of recycling. In the circumstances the central
question will be whether the internal content origins and visual
qualities of the material hereinbefore mentioned are to be felt to
be appropriate after due consideration has be given by the
Gallery Board, such permissions are at the sole dicretion of the
board. The Boards decision concerning any such request will be
made after it has met in session on the first Thursday of each
calendar month and notification will be sent within 14 days of the
said meeting.
I am writing with reference to your enquiry concerning the use of
the entrance area and hallway at the gallery for the purpose of
displaying informational materials and presenting visual displays
on the subject of recycling. In the circumstances the central
question will be whether the internal content origins and visual
qualities of the material hereinbefore mentioned are to be felt to
be appropriate after due consideration has be given by the
Gallery Board, such permissions are at the sole dicretion of the
board. The Boards decision concerning any such request will be
made after it has met in session on the first Thursday of each
calendar month and notification will be sent within 14 days of the
said meeting.
‘I am writing about your request to use the entrance area and
hallway at the Gallery for a display about recycling. Permission
to mount a display is given by the Gallery Board (“the Board”)
which meets on the first Thursday of each month. The Board will
decide whether the quality and content of the material is
appropriate. The Board will let you know its decision within 2
weeks of and including the date of the meeting.’
• The original paragraph was 120 words. The paragraph above which
contains the same information is only 76 words. It is also easier to
read and understand.
PEEP – Starting Your Agreement
Protect
Profit
Enter
Exit
Starting to Draft
Parties
Make sure they are clearly identified, what about subsidiaries?
Recitals
Understated importance, this goes to purpose, relationship and intent
and often certainty of object. This sets the tone for the interpretation of
the remainder of the agreement.
Definitions
Important but often overused and with little thought to the consequences.
Entry
Licence fee? Upfront costs? Registrations? Regulatory costs?
Exit
Trial period? Repurchase of stock? Reimbursement of overpayments?
Confidentiality? Termination costs? Specialist costs? Term? Renewal?
Profit
Margins? Low entry costs, low exit costs, Sunk costs? Marketing?
Avoiding payments in advance? Buy backs? Betterments? 2nd
Generation.
Protect
IP, Litigation Costs, Confidentiality, Arbitration? (Privacy), Termination,
Bankruptcy, Property and Title, Territory?
Boilerplates
Using precedents & boilerplates
• A precedent agreement is like a template that has
already been drafted and covers many of the
issues that may arise in the particular agreement;
• Advantages and disadvantages;
• Should be used with caution;
• Should not be read in isolation, must be applied
to your facts.
Boilerplates
Common boilerplate clauses include:
• Applicable law
• Jurisdiction
• Confidentiality
• Insolvency
• Force majeure
• Termination
Insolvency
• Why is it important?
This Agreement may be terminated only:
(b) By the Company if: there is an unacceptable change in the control
or management of the Distributor; if the Distributor ceases to
function as a going concern or makes an assignment for the benefit
of creditors; if a petition in bankruptcy is filed by or against the
Distributor, resulting in an adjudication of bankruptcy; or, if the
Distributor fails to pay its debts as they become due and provided
due notice has been given by the Company to the Distributor and
the Distributor has not cured such breach within thirty (30) days
thereof;
Is this sufficient?
Force majeure
• Why is it important?
Force Majeure
• Neither Party to this Agreement shall be liable for any failure or delay in
performing their obligations where such failure or delay results from any
cause that is beyond the reasonable control of that Party. Such causes
include, but are not limited to: power failure, Internet Service Provider
failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts
of terrorism, acts of war, governmental action or any other event that is
beyond the control of the Party in question.
• In the event that any event of force majeure continue to render
performance of either Party’s obligations impossible for a period in excess
of 6 months the Parties shall agree to bring this Agreement to an end as
soon as possible thereafter by negotiating a settlement.
• Problems with this?
Each Party agrees to maintain secret and
confidential all Technical Information obtained
from the other both pursuant to this Agreement
and prior to and in contemplation of it and all
other information that it may acquire from the
other in the course of this Agreement, to respect
the other's proprietary rights therein, to use the
same exclusively for the purposes of this
Agreement, and to disclose the same only to
those of its employees and sub-licensees pursuant
to this Agreement (if any) to whom and to the
extent that such disclosure is reasonably
necessary for the purpose of this Agreement.
Is this sufficient? Do you have concerns with it?