The Art of Legal Drafting
There are many famous books about how to play the violin. The titles of two have always intrigued me: The Art of Violin Playing by Carl Flesch and the Science of Violin Playing by Rafael Bronstein (who taught my teacher). These two books highlight the dichotomy whether playing the violin (and music generally) is an art or a science.
Nearly everyone would agree that music is an art. It involves creating beauty and moving people’s emotions. Each violinist adds a unique artist’s perspective to a composition.
Yet, the violin depends upon physics. The strings are tuned to mathematical precision. Plus, violinists learn harmonics and combination tones (called Tartini tones). There is a need for scientific precision in placement of the fingers on the string and movement of the bow to create the intended pitch and sound. Woodwind instruments operate on a similar principle. The musician pushes down keys to change the length of the instrument through which air flows, changing the pitch produced.
Music may best be described as a blend between art and science, with the musician maintaining the balance between those the two to produce a pleasing performance.
Law–Science or Art?
In contrast, few people would consider law to be an art. When one Googles “art and law,” the results are overwhelming for “art law,” legal issues about artists or art museums.
The study of law in the U.S. is more a science than an art. Law school requires that students learn hundreds of legal concepts, like a musician would learn mechanically how to play an instrument.
Much of the study of law involves memorization of rules, like rote memorization of a piece of music. There are court rules, equitable maxims, statutes, and regulations.
The Multistate Bar Exam, which is required to obtain a law license in 49 states, is multiple-choice. Law schools have implemented training in legal writing and advocacy and many law school exams and part of the bar exam is an essay exam. Yet, many essay exams are grading using a “grid,” where students get more points for identifying legal concepts than for artfully applying the law to the circumstances.
Because I come from a musical background, I view law as both art and science. Unlike with music, the art of law is neglected. This article, discussing legal drafting, is the first in a series discussing the art of law.
The Art of Legal Drafting
Based upon courtroom dramas, one might think that lawyers only practice the art of persuasion. Although persuasion has a role in business law, it is only one part of a business lawyer’s job. A large part of the business law practice involves preparing legal documents, which lawyers call “drafting.”
Legal drafting is similar in approach to music composition or orchestration. The composer may have a general goal, for instance, to write a string quartet. A business attorney’s goal might be to prepare a limited liability company operating agreement.
The composer knows the typical conventions for a string quartet. There are four instruments: two violins, a viola, and a cello. Quartets frequently have four movements following an established sequence of fast and slow tempos. An operating agreement also has a framework, established by state law, of items which are in most limited liability company operating agreements.
We don’t view the composer’s string quartet as art because of the composer’s stringent compliance with convention. What makes that quartet art is how the composer weaves a message into the conventional framework and when and how the composer departs from convention.
Similarly, the artful aspect of preparing an operating agreement is how the attorney to incorporate the client’s needs into the conventional operating agreement framework. Legal drafting becomes elegant when it succinctly meets the client’s needs yet remains as faithful as possible to the established framework.
Path to Artful Drafting
Legal drafting is only minimally taught in law school. Attorneys spend the first several years of their careers learning how to modify legal forms to meet their clients’ needs. Attorneys then spend decades honing their art.
The usual steps in the legal drafting process are:
1. Determine the client’s needs. This may come from a client interview, a review, legal analysis of existing legal documentation, or researching how others have addressed similar situations.
2. Identify the best form. Attorneys rarely draft a document from scratch. Usually, they build upon the scaffolding of a previous document or form.
There are thousands of legal form books covering different legal areas and jurisdictions. There also are online legal form sites. Sometimes attorneys start with a document from previous transaction. Most attorneys and law firms have their own favorite forms. Plus, many legal documents are publicly available on sites, such as EDGAR or PACER.
It is easy to locate a form to use as scaffolding, but it is artful to identify identifying the best form for the situation. It may take more time to locate that better form. However, it will save time and likely result in a better final product if the form is close to the client’s needs.
3. Add key information into the document. The next stage is more science than art, as an attorney or paralegal changes the form to conform to the client’s situation. This includes changing the names of the parties, and dates, locations, and other factual information.
Some documents, particularly those that consumers purchase online, come with merge lists that enable scientific customization of the document without reading it. But the attorney or paralegal should read the entire document during this stage to begin the artful crafting of a custom contract.
During this read-through, the legal professional should make necessary changes so the basic information is correct and that irrelevant sections are removed. For instance, if the form was for purchase of a restaurant that sold liquor, but the client is buying a diner that doesn’t serve alcohol, then the sections relating to transfer of the liquor license could be deleted during this stage.
4. Refine the document. The true art comes next. The attorney will read the document again, honing the document to meet the client’s specific needs. The attorney may craft language to emphasize or play down certain provisions to reflect the parties’ focus or business cultures. For instance, in a consumer transaction, the attorney might use plain language so the parties can better understand the document.
Drafting starts to shift from scientific to artistic, as attorney modifies language and sentence structure. The goal is that even the most complicated document reflect simple elegance.
5. Error Checking (aka Proofreading). As the artful stage of drafting draws to a close, science once again takes front stage. Through attorney and staff review and computer review, the attorney should make sure that spelling and grammar are correct. The attorney also should confirm that any language specific to the original form has been obliterated. It is embarrassing when a contract for purchase of real estate in North Carolina references Massachusetts law!
As the pendulum again favors science, technology can be helpful. There are spelling and grammar checkers and software which verifies mechanics such as paragraph numbering and cross references. There also is software which suggests improvements for writing style. Over the years, I have tried several document reviewers, ranging from spelling and grammar checkers included with Microsoft Word to software designed to mimic a professional editor, such as Grammarly, Hemingway, WordRake, PerfectIt, and BriefCatch and its sister, ContractCatch.
Commercially available software still cannot artfully review a document. An attorney must review and approve any changes to be sure that technology has not swept away art.
Merger Art and Science in Legal Drafting
A student composer may start by writing short songs following a prescribed format. Frequently, first compositions will follow structures used by Bach and other Baroque composers. It may be years before masterful works of art spring from the composer’s pen. Even then, the composers continue to hone their skills and refine their art, with the compositions changing as the composers mature.
With technology, many people view legal drafting as a science. Individuals may rely upon software to write their wills or create basic business documents. Many professionals, including attorneys, rely upon software to provide the most recent tax, bankruptcy, or court forms and to aid in completing those forms.
Forms and software tools may even provide attorneys with a jump start on the scientific aspects of legal drafting and enable attorneys to move to the art of legal drafting. Software may offer thesaurus and style features, which allows the attorney to improve word and style choices, and some software boasts the ability to help the attorney select sections for custom contract preparation.
Yet consumers and attorneys should remember that technology has not yet replaced the art of legal drafting, which finesses legal documents to meet the parties’ specific needs. As of now, attorneys continue to refine and develop their art through experience and hard work during years of practice.
© 2019 by Elizabeth A. Whitman
Any references clients and their legal situations have been modified to protect client confidentiality
DISCLAIMER: The content of this blog is for informational purposes only and does not provide legal advice to any person. No one should take any action regarding the information contained in this blog without first seeking the advice of an attorney. Neither reading this blog nor communication with Whitman Legal Solutions, LLC or Elizabeth A. Whitman creates an attorney-client relationship. No attorney-client relationship will exist with Whitman Legal Solutions, LLC or any attorney affiliated with it unless and until a written contract is signed by all parties and any conditions in such contract are fully satisfied.