Confession: my introduction to the legal profession started at a relatively young age, reading the popular novels by John Grisham. Of course, just like the Hollywood depictions of legal practice, Grisham’s books didn’t exactly give an accurate portrayal of the day-to-day duties of a lawyer. Fortunately for me, though my interest was piqued by those books, I quickly learned that other skills, including critical thinking and problem-solving, would be essential to my success as an attorney. I also learned that the best way to develop those skills is through reading and legal writing, which occupies the majority of my time in law practice.
So why should you care about legal writing? Well, for one, it’s important to know the potential consequences of poor drafting. Mistakes can range from carelessness to a lack of understanding of the meaning of a particular word in legal applications, which may have been interpreted by courts to have a meaning that leads to unintended or unexpected results. Whether it’s a business transaction, a contract or an estate plan, the impact of imprecise or uninformed drafting can be significant – often times frustrating the entire point of the exercise.
If you are responsible for drafting an agreement, one of the common principles of legal construction is that an ambiguity will be construed against the drafter of the agreement. Therefore, if care is not taken to make sure all terms clearly support one’s position, a reviewing court could find against the drafting party.
Sometimes, substantial amounts of money hinge upon something as seemingly innocuous as a comma. There was an article yesterday in the New York Times about a Maine company that could lose millions of dollars in an overtime dispute with truck drivers that depends on the lack of an oxford comma in a state law. In another recent case, a contract dispute between two telecommunications companies in Canada hinged on the placement of a single comma – that comma ended up costing a company nearly $900,000, plus the attorneys’ fees to litigate the matter.
In the estate planning context – does the document comply with all legal requirements to make sure your wishes are carried out in the event of disability or death? Did you know that Pennsylvania’s power of attorney law recently changed, which, among other things, impacts the way certain powers may be granted to your agent?
Other times, sloppy drafting can work to one’s benefit – a woman got out of a parking ticket for her truck because the area didn’t allow parking of a “motor vehicle camper.” Had there been a comma in between “motor vehicle” and “camper,” she probably would’ve been out of luck on that ticket.
That being said, I certainly wouldn’t rely on poor legal drafting to act to your benefit. After all, there are attorneys just a phone call or an email away that are ready, willing and able to help you with drafting legal documents and determining legal risks.