Critical Client Documents - Drafting for Precision and Flexibility

Precision and flexibility may not be immediately apparent as common goals in legal documents. As my 25th year of estate planning and business law nears a close, I find myself reflecting on just those two thoughts. When writing documents for clients, my focus is more and more, drafting and planning for flexibility, and for precision in the meaning of words. Both are elusive!

Flexibility, is necessitated by the fact of change. I am consistently impressed by how much, and how rapidly change occurs. Laws change. Technology progresses, causing change we could never have anticipated. Client circumstances change (death, divorce, children maturing, employment). Views change for all of us as we experience life. As a practical matter, if 25 years of drafting has taught me anything, it is that there will be plenty of surprises -- things we did not anticipate. Nonetheless, I believe it is an important and primary goal to try to anticipate them.

Law students are drilled on using words precisely during their first year. It is a "sense" that over time, given all the other exigencies of the business of law seems to become "dulled." In an age of ever-increasing written communication (who would ever have dreamed 15 years ago that we would be "texting" instant messages around the world as a primary means of communication?), precision in written communication is arguably ever more important. Paradoxically, it is becoming less precise, between our always evolving slang terms and the abbreviations "texting" hath wrought.

I mention this, not because it has great relevance to writing legal documents, but because it underscores the difficulty in communicating precise, consensual ideas in writing!

Surprisingly, it has taken me years to come to the awareness that you and I may say the same words and mean something altogether different.

We live in a culture where multiple marriages are common. Use of terms like "spouse," "children" and "heir" in estate planning documents may be more ambiguous at the time of application than we considered at the time of writing the document. Terms like "in writing," and "signature" have taken very different (and unanticipated) meanings in the age of electronic commerce and communication. And terms of art in an industry may well have different meanings in different contexts. Use of precision by including "definition" language will perhaps be more and more called for in the drafting of business and estate planning documents.

Read more...