Drafting principles

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The JC’s guide to writing nice.™


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  • Draft for an ordinary reader, not a lawyer (or a judge)
  • Agreement should be capable of:
    • Negotiation by a non*lawyer
    • Day-to-day interpretation by operations staff

Structure

  • Key principles
  • Main operational provisions
  • Boilerplate
  • Definitions
    • Keep to a minimum and avoid where possible
    • Defined terms used throughout the agreement, at the back
    • Where used in a single Section, inline in the section

Layout

  • Consider using 2 columns to moderate line length (see below)
  • Agree an effective numbering convention and use it consistently
    • All levels should be numbered – even “orphans”
  • Split agreements into sections
  • Definitions bold, no quotation marks.
  • No “this page is intentionally left blank” or “Intentionally deleted”.
  • Format for maximum readability assuming both screen and print use.
    • Font: Use fonts that are freely available on common operating systems
      • serif fonts for body text;
      • sans-serif for headings.
    • Size: Body text: 10-11 point.
    • Leading: 6-8 points larger than type size (so for 11pt body text, 16-19pt)
    • Line Length/Columns: Optimal line length is 50-60 characters per line (query whether therefore the document should be typeset in two columns)
    • Margins: sufficient to yield an average line length of 50-60 characters per line (see above)

Content

  • Keep boilerplate to a minimum.
  • Include general principles to avoid repeating the same tropes
    • “Subject to applicable law”
    • Parties to act in “good faith and commercially reasonable manner” unless otherwise indicated
    • Acts include omissions
    • Parties includes officers and employees
    • Agreements, legislation is as amended.
  • Contain only legal obligations.
    • Exclude descriptions and disclaimers.
  • Do not state things which are true as a matter of law

Expression

  • Use short sentences
    • Aim for a 20-word maximum.
    • Break long sentences into short ones.
  • Use short paragraphs
    • Break long paragraphs into multi-level sub-paragraphs (See layout above)
    • Enumerate at the end of a clause, never at the beginning or middle (i.e. avoid unnumbered “dangling flush text”).
  • Use strong verbs; avoid nominalisation: eg
    • “instruct us on your behalf” and not “act on your behalf in the giving of instructions to us”
    • “breach the contract” and not “commit a breach of the contract”;
    • “judge”, not “pass judgment upon”;
    • “indemnify” and not “provide an indemnity in respect of”
  • Prefer the active to the passive
  • Prefer the positive to the negative
  • Avoid double negatives
  • Avoid provisos
  • Avoid over-particularisation:
    • Avoid unnecessarily conferring options that are not excluded by the agreement in the first place
    • Avoid disclaiming responsibility for persons who would not otherwise have it.
    • Strike non-limiting language: eg

 “whether or not…”,  “(whether … or otherwise)”,  “irrespective of…”  “including …”;  “without limitation”  “without prejudice to the generality of the foregoing…”  “for the avoidance of doubt …”  “either in whole or in part

  • Use expressions consistently
  • Strike legal comfort blankets: eg
  • Use simple expressions:
    • Why sayconstituteswhen you mean “is”?
    • Why say “Prior to” when you mean “before”?
    • Why say “In the event that” when you mean “if”?
    • Why say “pursuant to” when you mean “under”?
    • Why say “Shall be entitled to” when you mean “may”?
    • Why say “On a regular basis” when you mean “regularly”?
    • Why say “Have regard to” when you mean “consider”?
    • Why say “Have the right to” when you mean “may”?
    • Why say “Be required by regulatory rules to” when you mean “must”?
    • Why say “As agent on your behalf” when you mean “as your agent”?
    • Why say “For the purposes of” when you mean “under”?
    • Why say “In accordance with” when you mean “in/under”?
  • Avoid doublets and triplets
    • Why say “Exclude or restrict” when you mean “restrict”?
    • Why say “Do or fail to do” when you mean “do”?
    • Why say “Transaction effected by or cleared for you” when you mean “your Transaction”?
    • Why say “trading recommendations, market commentary or other information” when you mean “information”?
    • Why say “transfer or propose to transfer” when you mean “propose transfer”?
    • Why say “officers, employees or agents” when you mean “personnel”?
    • Why say “You agree and acknowledge” when you mean ““””?