The Clear Drafter’s Toolbox: Ten Tools for Creating Clear Legal Documents

Christopher R. TrudeauProfessorWestern Michigan University – Thomas M. Cooley Law Schooltrudeauc@cooley.edu

Keys to clear writing:① Will – getting people to buy

in to writing clearly.② Skill – learning the tools

needed to communicate clearly.

Understanding the lawyer’s mindset

A Reality: A lawyer’s duty is to protect a client’s interest. This trumps everything else.

We can better protect clientsand create clear documents

Clear Conten

t

User-Focuse

d Design

Clarity

Facts about most legal documents

Most documents are used by lay people.

Most documents are used as reference tools – not read from start to finish.

The average American reads at about the 6th to 7th grade level. Yet the average credit card

agreement, for example, is written at the 12th grade level.

Many tools are needed to create clear legal documents

Tip: Clear drafting is an iterative process Understand the audience, purpose, & problems. (Many

overlook the first two) Gather facts re: audience, purpose, & problems Know/research the legal requirements (vital for

lawyers) Classify, organize, & outline concepts to include Plan initial document design Write a draft Test for consequences (vital for lawyers) Tweak doc design (after input from others) Revise, edit, & proofread User-test document (Lawyers never do this though)

The main tool in the toolkit

Tip: Eliminate ambiguity & shape vagueness

Vagueness v. AmbiguityFact: Most people don’t know the difference – including lawyers.

Vagueness is using flexible language It allows for case-by-case analysis It avoids the problem of exhaustive lists

Ambiguity is creating unintended meanings Always confuses because the writer knows the meaning

but the reader doesn’t.

Vagueness:Creates uncertainty at the margins

Dangerous Weapons

AK-47

Dagger

Baseball bat

Serving Fork?

Vague TermsReasonable careInformed consentRid segregation “with all deliberate speed.” Brown v. Board of Education

Motor vehicle v. automobile Does a drivable cooler used at tailgates qualify as a motor vehicle?

Keys to Shaping Vagueness

Use a broader term (car vehicle) Use a modifier to limit or expand

Vehicle normally driven on public roads (limits)

Applicant must substantially comply (expands)

Combine general terms (willing and able buyer)

Carefully combine the general and the specific

Managing the Latin Maxims: (1) Expressio Unius Est Exclusio Alterius “To express one thing is to exclude similar

alternatives.” See Alan v Wayne County, 388 Mich 210, 253 (1970) [Every state has a similar rule.]

Creates a negative inference that when a document lists specific things, then the list is exclusive. The City Council may prohibit picnics, dances,

weddings, and parties during construction of the gazebo. Can it prohibit a protest?

(2) Ejusdem Generis “Where a general term follows a series of

specific terms, the general term is interpreted to include only things of the same kind, class, character or nature of those specifically enumerated.” Neal v. Wilkes, 470 Mich 661 (2004)

Ejusdem Generis: Example

You may not bring a pistol, shotgun, semi-automatic rifle, or any other weapon into the hospital.What about knives? Explosives?

Key tip: will not apply if the general term comes first.You may not bring any weapons into the hospital, such as guns, knives, or explosive devices.

Notice how the term “explosive devices” is quite vague.

Maxims cause the most problems when creating lists

Start with a general, encompassing term first.

Then list the key things you want the reader to be aware of. (Max of 5.)

Use (1) “such as” or (2) “includes” (but not limited to?) to lead into these specifics.

Ambiguity Presents more than

one possible meaning to the reader.

Always an error. Remember,

eliminating ambiguity is the key to clear drafting!

Three Types of Ambiguity

Semantic AmbiguitySyntactic AmbiguityContextual Ambiguity

Semantic AmbiguityMulti-meaning words

The board sanctioned the conduct. [Does sanction mean approve or disapprove?]

Don’t use “elegant variation.” Ex. Cancelled v. terminated v. stopped Why? Because courts and readers will presume

you switched for a reason.

Syntactic AmbiguityPresents an either-or choice.Usually the result of sentence structure.Often created because of an “and” or an

“or.”

Example I use with my students:I will grade your briefs and record the

scores carefully. (Will I only record their scores carefully?)

Avoid Misplaced Modifiers To avoid ambiguity, a modifier must be as

close as possible to the word it modifies. My client has discussed your proposal to fill the

drainage ditch with his partners. (Did you just propose to use your partners as fill?)

Our neighbor was a lovely woman who wore sweatpants named Inger. (Do you name your sweatpants?)

Semantic Problems: Ages & Dates Careless phrasing can lead to serious

inadvertent ambiguity.Ambiguous:

Open to anyone between the ages of 21 and 30.

Also Ambiguous: The option expires on May 8, 2016.

Pay attention to punctuation

To avoid ambiguity, use the serial comma

Tip #2: Define “legal terms of art” Explaining Legal Terms: Question 20 (from the study

included in the plenary section of the materials) 22% — If you don’t respond, the court will issue a

default judgment. 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.

The ONLY question where the longer version prevailed!

The Takeaway: Normally, reduce the number of words in docs – unless those words are essential to convey meaning.

More tools . . .Tip: Use the active voice & strong verbs

Tip: Eliminate excess words

Tip: Use words that people can understand

Avoid nominalizations. Use verbs to explain the central action.

Nominalizations occur when you use the noun form of a word instead of the verb form.

Utilize = use Who says this: May I utilize your pen?

Use high-frequency words

Readers understand more when you use short, familiar high-frequency words.[See Zipf study, 1949]

Decorated not festoonedGive not disseminate

Bonus tip: Use pronouns to “speak” to the reader

Use “we” or “it” to refer to a company, an agency, or other entity.

Use "you” or “your” when referring to the user. Use “I” in a first-person document like a form.

But be sure the pronoun doesn’t cause confusionEx. The professors told the students that they would be responsible for creating the final exam.

Who‘s responsible? (Professors or students?)

Tip: Eliminate the “S” words

ShallSaidSuch Same

Avoid “shall” -- The worst “S” wordWhy? “Shall” can have several meanings, and using it can create ambiguity.

Use “must” for an obligation. Use “must not” for a prohibition. Use “may” for a discretionary action. Use “should” for a recommendation. Use “will” for a future promise. Use “is” for a fact, policy, or legal rule.

Tip: Avoid Gender-Specific Language

Not: A patient may realize that his disclosure was inaccurate.

It is easy to “write around” it: His or her: A patient may realize that his

or her disclosure was inaccurate. This can read awkwardly if “his or her” is

used too much in the document.

Gender-Neutral cont. Make it all plural:

Patients may realize that their earlier disclosure was inaccurate.

The singular “they” & “their” is gaining steam: A patient may realize that their earlier disclosure was inaccurate. (Sotomayor recently used it in an opinion)

Use an article instead of a pronoun: A patient may realize that the earlier disclosure was inaccurate.

Can clarify, reinforce, reframe

Helpful for visual learners

Highlight the most relevant information. Too much information can still be a problem.

Tip: Use visual aids & cues

Icon arrays, pie charts, and graphs

Icon arrays help personalize/humanize numbers. See:

http://www.iconarray.com/ But this can take up a

lot of space for large numbers (i.e. 1 in 1000)

Pie charts & graphs can work well – but they must be simple & intuitive.

Which one works better?

Tip: Document design is critical

Non-artists can do these things

Use plenty of white space

Use informative headings

Use tables, charts, and graphics

Avoid too many highlighting TECHNIQUES

Organize topics by order of importance

Putting it all together:

How would you fix this? An actual disclaimer.Disclaimer:This information is not specific medical advice and does not replace information you receive from your health care provider. This is only a brief summary of general information. It does NOT include all information about conditions, illnesses, injuries, tests, procedures, treatments, therapies, discharge instructions, or lifestyle choices that may apply to you. You must talk with your health care provider for complete information about your health and treatment options. This information should not be used to decide whether or not to accept your health care provider’s advice, instructions, or recommendations. Only your health care provider has the knowledge and training to provide advice that is right for you.

That’s an 11.4 Flesh-Kincaid grade level!

Cutting words helps a little

Disclaimer:This information is not specific medical advice and does not replace information you receive from your health care provider. This is only a brief summary of general information. It does NOT include all information about conditions, illnesses, injuries, tests, procedures, treatments, therapies, discharge instructions, or lifestyle choices that may apply to you. You must talk with your health care provider for complete information about your health and treatment options. This information should not be used to decide whether or not to accept your health care provider’s advice, instructions, or recommendations. Only your health care provider has the knowledge and training to provide advice that is right for you.

Now a 7.3 Flesh-Kincaid Grade Level. Better.

A total redraft works bestThis is only a brief summary. It does not give you all of the information available and is very general. Not all of it applies to everyone. Always talk with your doctor. Together, you can decide what care is best for you. Your doctor can answer all of your questions and provide complete information.

A 5.3 Flesh-Kincaid Grade Level. Yeah!

What’s ambiguous about this provision?

How about this instead?

Section 7.  Indemnification

 To the maximum extent allowed by law, Vendor will defend, indemnify and hold harmless XYZ and its directors, officers, employees, and agents (collectively, the “Indemnitees”), from and against any and all claims, losses, damages, suits, fees, judgments, costs and expenses (collectively referred to as “Claims”), including attorneys’ fees incurred in responding to such Claims, that the Indemnitees may suffer or incur arising out of or in connection with: (a) Vendor’s breach of warranty or damages due to Vendor’s negligence or willful misconduct; (b) any allegation that the Indemnitees’ use of any goods or services (including without limitation any computer code and Work Product) created for or provided to XYZ in connection with this Agreement constitutes an infringement, contributory infringement or violation of any patent, copyright, trade secret, trademark, or other third party intellectual property right or a misappropriation of a trade secret or other personal rights of a third party; (c) any breach by Vendor of its: (i) confidentiality obligations; (ii) obligations to comply with laws; (iii) obligations under the HIPAA and GLBA Exhibit or the Security Exhibit (if applicable); or (iv) obligation to pay any compensation, fees, salary, bonuses, mandatory or fringe employee benefits, social security, taxes or other withholdings which are alleged to be owed in respect of any personnel or contractors of Vendor; (d) any personal injury (including death) or damage to property resulting from Vendor, Vendor personnel or its agents’ acts or omissions; and (e) Vendor’s introduction of any unauthorized material, including without limitation, a “computer virus” or other contaminant into XYZ’s environment.  The Indemnitees will give prompt notice of any Claim to Vendor, and Vendor will defend the Indemnitees at the Indemnitees’ request.  Vendor may settle, at its sole expense, any Claim for which Vendor is responsible under this Section provided that such settlement shall not limit, unduly interfere, or otherwise adversely affect the rights granted herein, Vendor’s obligations under this Agreement, or impose any additional liability on XYZ.  XYZ reserves the right to employ counsel at its own expense and participate in the defense and/or settlement of any Claim.  If XYZ is unable to use a good or service (including without limitation any computer code and Work Product) because of a Claim that such use constitutes an infringement, contributory infringement or violation of any patent, copyright, trade secret, trademark, or other third party intellectual property right, Vendor will, at its expense: (1) procure for XYZ the right to continue using such good or service (including without limitation any computer code and Work Product) or (2) replace or modify such item so that it becomes non-infringing.  If neither option is available to Vendor through the use of commercially reasonable efforts, XYZ will return (if possible) such item to Vendor, and Vendor will refund all fees paid for such good or service (including without limitation any computer code and Work Product).

Text Statistics

No. of sentences 7 No. of words 479 No. of complex words 117 Percent of complex words 24.43% Average words per sentence 68.43

Readability Indices

Flesch Kincaid Reading Ease -18.2

Flesch Kincaid Grade Level 32.8

Where to begin?

Read the text. Outline the ideas/topics conveyed in original. Locate the horizontal lists & make vertical Look for redundancy Start applying the other tools in your toolkit

Slightly Modified Version

Section 7.  Indemnification (change heading if you can convince to change other headings too)

To the maximum extent allowed by law, you will defend, indemnify, and hold harmless XYZ and its directors, officers, employees, and agents (collectively, “we,” “us,” or “our”), from any and all claims that we may incur in connection with:

(a) your breach of warranty;(b) your negligence, your willful misconduct, or your failure to act; (c) your introduction of any unauthorized material, including a

“computer virus” or other contaminant into our environment; or(d) your breach of any: (i) confidentiality obligations; (ii) obligations to

comply with laws; (iii) obligations under the HIPAA and GLBA (Exhibit or the Security Exhibit (if applicable)); or (iv) obligations to pay any amount alleged to be owed to your employees or contractors.

This agreement specifically includes that you indemnify us from any Claim that alleges that our use of any goods or services (including any computer code and Work Product) created for or provided to us in connection with this Agreement constitutes an infringement, contributory infringement, or violation of any intellectual property rights or a misappropriation of a trade secret or other right of a third party.

We will promptly notify you of any Claim, and you must defend us at our request. We reserve the right to employ counsel at our own expense and participate in defending or resolving any Claim.

You may settle, at your sole expense, any Claim for which you are responsible under this Section. But you may only settle a Claim if that settlement does not limit, unduly interfere, or otherwise adversely affect our rights, your obligations under this Agreement, or impose any additional liability on us.  

If we are unable to use a good or service (including any computer code and Work Product) because of a Claim that such use constitutes an infringement, contributory infringement, or violation of any intellectual property right, you will, at your expense:

(1) obtain for us the right to continue using such good or service (including any computer code and Work Product), or

(2) replace or modify the good or service so that it becomes non-infringing.  

If after using commercially reasonable efforts, neither option is available to you, we will return (if possible) the good or service to you, and you will refund all fees paid for the good or service (including any computer code and Work Product).

In 37 minutes, I reduced by 88 words and reduced by 10 grade levels. Not ideal. But better.

A complete redraft would work best.

Main Changes: Used pronouns instead of Vendor and

Indemniteeso Note the inconsistency in the original. It says

Indemnitees, but it uses XYZ at times too. That implies that those references to XYZ aren’t meant to include the agents, employees, etc.

Used labels lists & vertical lists – they help a lot. Used vague terms strategically to reduce the

amount of recurrent listing – i.e. intellectual property. Separately defining that term would work too.

Used multiple paragraphs. Multiple subheadings would be ideal.

Eliminated inconsistency of terms. Can’t switch from good or service to item, and then back.

“In connection with” is broader than “arising out of,” so I just used the broader one.

Applying this to consent forms

To create a form that complies with the law and promotes a doc-patient conversation.

Thank you!