Drafting Legal Documents by kmaghakhani


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									                                     Rules for Drafting Legal Documents
A. Ambiguity
     a. Ambiguity - is a word or the way a word is used or sentences constructed leaves its open to be
         interpreted one or more ways ( 2 or 3 meanings)
               i. can be interpreted in different ways but it can be cleared up
              ii. It can appear in a word which is defined in different ways
             iii. Can be cleared up by the context in which its used
             iv. Throughout a document stick with the same term

       b. Fixing Ambiguity
              i. Court has no other way of determining the intent of the parties and if they can’t decide then
                 they will apply rules of construction ie the court determines what that word or phrase means

               ii. One of the ways the courts will fix ambiguity to invoke the rule of the last antecedent
                      1. Rule restricts the last word or modifying word to the immediately proceeding word or

       c. 3 Types of Ambiguities
              i. Symantec Ambiguity –there are multiple meanings of a word
                     1. Ex sister shall not marry a brother

                       2. Rule: For dates and times use before and after
                              a. after May 4 and before May 8
                              b. must be exercised before May 8.
                              c. by 11:59 pm
                              d. On or before next wed , on or before 11:59
                              e. Option expires at 11:59 pm on wed.
                       3. Ages
                              a. Its open to anyone 21 years old or older and under 31
                              b. Option open to anyone who has passed his or her 21st birthday
                              c. Option is open to anyone who is 22 years old or older
                       4. Plurals cause problems so draft in the singular
                       5. Provided that – eliminate it , and say what you mean instead
                              a. Only appropriate in one instance:

               ii. Syntactic Ambiguity – arise from the arrangement of words in a sentence
                      1. Most common issue is a modification problem
                              a. If you are a doctor or a lawyer or both
                              b. To qualify you must be either a doctor or lawyer

                       2. Pimping Statute
                             a. D wants Or to mean that solicits and receives apply to compensation not the
                                 actual sex
                             b. Correction: solicits her or receives compensation for soliciting her

                       3. Modification problems pg 329
                             a. the report is required of education
                                      i. institutions and
                                     ii. corporation
                             b. making charitable contributions
                       4. Pronoun references
                             a. If you have a plural pronoun and noun it creates confusion

               iii. Contextual Ambiguity – conflicting info in document because of change of terms used for the
                    same idea
                       1. Ex; always use parties if that is what you use don’t change

B. Vagueness
      a. Vagueness - is left open for an infinite number of possibilities
               i. Can’t be perfectly eliminated
              ii. There are many ways to interpret a word
                       1. Ex. Reasonable , probable cause
                       2. Standards of proof- reasonable doubt, clear and convincing
             iii. The challenge is
                       1. must determine in the context of the word being used how much vagueness will be
      b. Fixing Vagueness
               i. Ejustum generous will be used when something is vague will limit the word to type of things in
                  the list
                       1. Over specification will be decided that what you wrote is what you meant
                       2. Limit the descriptions to categorical descriptions

C. Modifying problems
     a. Court costs & expenses
              i. Does court modify both or just costs
             ii. Expenses & court costs
                    1. Rule: Keep the modifying word with the one that its modifying and switch the order

       a. Modification Problem Ex Serious physical or mental harm
             i. Does “serious modify only physical or also mental harm,

               ii. The way to solve this problem is to switch the terms if it’s a modification problem: “ Mental
                   harm of serious physical harm“
                      1. Courts will look to the statue itself to determine the intent of the legislature
                      2. Use the same terms don’t try to get creative by using synonyms
                      3. Distribute my estate to John, Tom & Dave
                      2. but with the comma there is no problem with interpretation ex: to John, Tome, & Dave

       b. Modification Problem
             i. Ex 1: one section needing revision surely is not to be quoted
                     1. Does the section surely need revision or
                     2. Is it surely not to be quoted?
            ii. Ex2: the client with the foot broken recently filed an action
                     1. Was the foot broken recently or
                     2. Did the client file recently

       c. Modification Problem
             i. Court costs & expenses
                     1. Does court modify both or just costs
                     2. Expenses & court costs
                            a. Rule: Keep the modifying word with the one that its modifying and switch the

D. Rules of Construction – used to construe K or statute
      a. These are rules of last resort , don’t want courts resorting to these rules instead of trying to decide what
          the language meant regardless of what you meant

        b.    Rule of the last antecedent : A qualifying phrase modifies the immediately preceding word or phrase
             and not words or phrases that are more remote
                  i. A modifying or restrictive word or clause is confined solely to the immediately preceding
                     clause or last antecedent, unless something in the statute requires a different interpretation
                          1. Ex. Conditions of ordinary visibility – means daylight and where applicable, nighttime
                               in non precipitating weather
                                   a. What does non precipitating weather modify? Nighttime
                                   b. It does not modify daylight b/c of the rule of the last antecedent

                 ii. Syntactic ambiguity : “conditions of ordinary visibility” means daylight, and where applicable,
                     nighttime in non precipitating weather.
                         1. precipitating could apply to night or day or just night
                iii. here the court will resort to the rule of the last antecedent – so here court will say that daylight
                     is not included in the precipitation, court will look to the very last item

        c. Rule of edjusdem generic – means that the general words that follow a designation of particular
           subjects will be presumed to be restricted by the particular designation and to include only things of the
           same kind or character as those specifically enumerated
                i. The general words will be read to follow the list so a gun is not prohibited ( so gun is restricted
                   by the other words)
                        1. It is illegal for a person to carry a dagger, dirk, stiletto, or other dangerous weapon.
                        2. including but not limited to still poses the same problem
               ii. so list categories of items rather than specific items
                        1. stabbing device, an item that fires a projectile or other dangerous weapon/ including
                            but not limited to ( this latter is redundant you could just use including )
              iii. Landlord is not responsible for damage caused by cats, dogs, ferrets, or other animals. Is the
                   landlord liable?
                        1. Ideal phrase could have been by adding “ or other domesticated/ household animals” -
                            house hold animals would be better

E. Tabulation
      a. Tabulation Rules
               i. Rule 1: must have “and” “or” in the second to last list item
              ii. Rule 2: Must have parallel structures – lead in must be grammatically insinc with each list item
             iii. Rule 3: Must have appropriate commas or semicolons between each list time
             iv. Rule 4: Colon in lead in is not necessary

        b.   Will help with clearing up ambiguities or modification problems
        c.   Reserve it for more complex scenario
        d.   Don’t tabulate everything
        e.   Lead in info must be grammatically in sink with all items , to see if correct read the lead in with each
        f.   Punctuation w/b exactly what it would be in the actual sentence
                  i. Don’t put colon after the lead it
                 ii. Between list items, comma or colon
                iii. And / or after last item & last item have period

F. List is different than Tabulation
       a. The whole sentence is the lead in and there are items in a list explaining something relating to what the
            lead in says

G. Definitions in Legal documents
      a. In definitions you must use either
                i. Means – allows you to restrict the dictionary/lexical definition to what ever it is that you want
                      1. limiter – what ever you say it means, it means that an nothing else – you are giving it
                          an exclusive meaning
                      2. Ex. Writing means writing in longhand
                      3. Conveyance means one made before My 4, 1970
                      4. Department means the Department of Natural Resources

                 ii. Includes – allows you to expand the lexical meaning of the word
                         1. implies that it has its common meaning and whatever else you say
                         2. lexical is always included in includes so you don’t need to include the common
                            meaning of something , you only need to add something that is not already included in
                            the lexical definition
                         3. Exception: Technical terms in a consumer document is the exception to including
                            common meanings – so if they have a common meaning you want to include it

        b. Must avoid strained definitions
              i. Where you really extend the meaning beyond recognition or defies all common sense
                     1. ex Citrus fruit is oranges, lemons and eggs
                     2. ex “automobile” includes all motor vehicle with four or more wheels
                             a. would want to use other term for automobile

        c. Naming concept
              i. Can create a naming concept for shorthand
                     1. Ex you will repeatedly used doctors, hospitals or nursing homes – you could assign
                        “health care provider” to mean doctors, hospitals or nursing homes

        d. Common meanings
               i. Words in legal writing are given their common meaning in general
              ii. If using a word in its common meaning you won’t define it in the def section but it you are
                  adding something to it
             iii. however if you want to restrict or expand a term you can include it even though it’s a common
                  usage word
                      1. ex “student”
                               a. could be full time or part time
                               b. whether on term off or extern considered still student
                               c. LLM/ JD
                               d. Once attending classes or upon acceptance
                               e. If you are auditing a class or here for fun
                               f. Probation
        e. Generally
               i. Definition should go at the beginning
                      1. In K after recitals & background
                      2. In legislation after purpose or findings
              ii. Put a definition in def section only if you use the word more than 3 times

        f.   Functions of having definitions in documents
                 i. Precision so that you don’t have to explain what you meant
                ii. Whatever you says its means that is what is means so there is no room of argument
               iii. Don’t overuse definitions
               iv. Do them at the end of the drafting so you can really evaluate which phrases or terms need

        g. Don’t include definitions
              i. If used the term once or twice in document, just incorporate the meaning while using the
                   actually word/phrase
                       1. If less than that then incorporate it in the section that you are using it

        h. Substantive Issues
               i. Never include substantive issues in the definitions
              ii. Should not include a right or obligation

H. Distinctions
       a. Between – used when there are 2 things only
       b. Among – used when there are more than 2

A. Areas of a Contract
      a. Pg 115 Employment K , go through annotations this will be helpful for K project
      b. Include parties entering into the K
      c. Definitions
                i. “Colorado territory” includes Utah & Wyoming
                       1. this includes 2 other things besides its regular meaning ie Colorado
                       2. this is a naming concept – so won’t have to use all 3 throughout the K
               ii. Confidential info means – its limited to whatever is in this list but they didn’t want to exclude
                   something else that was left out but even so its limited to categories discussed
              iii. Employment Year – good
      d. Background – explain why the parties decided to enter into the K , there is nothing that includes rights
          or obligations – its just the state of the party as they enter into the K, what their purposes were
                i. This is helpful in determining the intent of the parties in case of a dispute arising later
      e. Compensation
                i. Salary
               ii. Commission
              iii. Max Comp
      f. Termination
                i. By employer
               ii. By employee

B. Plain English
       a. Eliminate archaic legal language or extra words not relevant or repetitive phrases, words for which a
          simpler word may suffice
       b. Use active language
       c. Use accurate punctuation
       d. Write in gender neutral words
       e. Draft in the present tense where appropriate
               i. In K’s use future term
                       1. will do something
              ii. In legislation its present
       f. Choose and’s & or’s properly
       g. Eliminate words that don’t have any legally relevant meaning

C. General Rules of drafting
      a. Daft in the singular when ever possible
              i. b/c ambiguities are created when plurals are used
      b. however use plural if that is what is meant
              i. Incorrect: Applicants with hardships must file affidavits
             ii. Correct: An applicant with a hardship must file two affidavits

       c. Specify who has the duty to do something
              i. Imagine yourself in position of person who ha to carry out the duty to determine if what you’ve
                  stated is specific enough
       d. Don’t use the word Shall
              i. Shall is the most litigated term
             ii. It has 11 different meanings
                       1. Must – saying must you are ordering
                       2. May
                       3. Is going to
                       4. Will – making a promise

       e. Don’t make so many demands so that other won’t be able comply
       f. Don’t use
              i. And/Or
             ii. His/Her or He/She

D. General Rules for Drafting a K
      a. Always include choice of law clause in contract
      b. Provide enough info so the person carrying on the duty ex of deciding to pay client , so they will know
         what to do

       c. Indemnification clause
              i. Subcontractor will indemnify general contractor for all claims arising out of the K
                 /performance of K

                ii. Subcontractor will indemnify general contractor for all claims arising out of the breach of
                    performance of the K – this is better than above not too broad allowing room for other

       d. Must also make your titles fair and accurate
              i. If not then court will not enforce it in your favor b/c person is giving up their right to sue you
                  so it must be specific and accurate
                       1. Waiver of your liability

       e. Must also state that you have read the agreement and understood it
       f. Include signature & date
       g. Usually release of liability is separate than the K
               i. If its part of the K should have an initial like by that release language
       h. Make sure you don’t make the K too one sided that no one would agree to it

       i.   Rule : Everything related to a topic should be all together and the heading is a general term that would
            encompass all the things under that ( look at compensation)

       j.   Rule of numbering in a legal document: Use Arabic numbers not roman numerals

       k. House keeping provision go at the end (for all types of contracts)
              i. Modification
             ii. Governing law/Choice of law
            iii. Merger agreements
            iv. Severance

       l.   Rule: Organize topics based on importance of topics or chronological importance

       m. No shall in a K : use will b/c shall is an order used in ordinances
              i. Must put actor in contractual terms so the word “will” requires you to use an actor
             ii. Don’t use “there are” or “there is”

       n. Don’t use provided that Provisos

       o. Be consistent with terms – ie worker/employee
              i. This is done at the beginning “Dynatro inc (“employer”)

       p. Should have spacing between paragraphs

       q. Style
               i.   Avoid all capital letters
              ii.   Headings ok to be capital
             iii.   Needless elaboration ( refer to Kimble book & 391 in drafting book)
             iv.    If there is a legally significant reason to keep a word then do so
                         1. Do you need particular language and why?

E. Organization
      a. Consider what type of document it is & best way to organize
               i. Determine purpose of what you are writing to determine the proper way to organize or degree
                  of ambiguity to use
      b. Types of order : what ever makes the most sense
               i. Chronological order
              ii. If employment K the payment when it starts & ends
                      1. group by what’s important
                              a. in subsections do chronologically
                                        i. signing bonus
                                       ii. weekly pay
                                      iii. severance agreement

       c. Make sure all info about a particular topic shows up under the particular heading
       d. Most important to least important
               i. House keeping provisions in the end of K
              ii. Effective date of legislation should go to the end
       e. General to Specific
               i. Rules before exceptions
       f. Numbering system should be Arabic numerals NOT Roman
       g. Page numbers
               i. Page _of _
              ii. Header-footer click on footer and choose Insert …. Choose X of Y (center)
       h. Signatures & Date lines
               i. Date ------- Signature
              ii. Date ------- Typed Name
       i. Put descriptive titles & headings in
               i. Every document s/h a title
              ii. Headings s/b specific & adequately indicate what’s under the heading


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