Julie Brook, Esq., reprinted with permission from CEB.
A contract is a form of communication that a diverse audience will read and use. Attorneys who focus strictly on the legal terms and not on their word usage may find that style got in the way of substance. Don’t let that happen to you—review and apply these five writing tips whenever you draft a contact of any kind.
- Don’t use legalese. The agreement shouldn’t use stilted or legalistic language, even if it documents a complex commercial transaction. Using Latin terms or formal legal language, such as “hereinafter,” “whereas,” and “vehicular collision,” is neither necessary nor helpful. Effective agreements are written in language the parties can read and understand.
- Avoid ambiguities. Ambiguities are construed against the drafting party. (Civlil Code, § 1654.) To avoid ambiguity, follow these basic rules of composition:
- keep sentences short;
- start the sentence with the subject, follow closely with the verb, and end with the object;
- place adjectives close to the words they modify; and
- use words consistently.
- Don’t use sexist language. Sexist language can be distracting and/or offending. Instead, use gender-neutral terms or restructure sentences as necessary whenever possible.
- Use consistent terminology. Use words in a consistent way throughout a document. If, for example, the agreement defines or uses “days” to mean “business days” at one point in a contract, then it may confuse the reader to use “days” in another part of the same document to mean “calendar days.”
- Avoid redundancy. The agreement shouldn’t address a single issue in the same contract more than once. A repeated provision may contain slight variations, creating internal inconsistencies or confusion. Be aware that this problem may occur when using a standardized contract as a starting point and then expanding or modifying it in the course of negotiations.
Attorneys sometimes get so caught up in the substance of a contract that they don’t pay enough attention to the ways in which that substance is expressed. This can have disastrous results. Before you draft another contract, check out the strategies and standards for drafting contacts covered in CEB’s Drafting Business Contracts: Principles, Techniques and Forms, chapter 2.