If your work involves drafting contracts, then you should read A Checklist for Drafting Good Contracts, by M.H. Sam Jacobson. Why a checklist? Jacobson explains:

For all drafters, a checklist can ensure that the contract will contain the necessary substantive provisions and that the decisions about those provisions will have been made by design, not by accident. For the time-challenged drafter, a checklist eliminates the need to rethink from scratch what to include in a contract and how best to draft it. For the detail-challenged drafter, a checklist ensures that all tasks associated with the drafting are completed. For the occasional drafter, a checklist is an invaluable reminder of content and form that might otherwise be forgotten. For the experienced drafter, a checklist effectively reminds the drafter when boilerplate or often-used language is inappropriate, that special circumstances require special language.

Every advocate confronts the problem of handling bad facts or adverse authority. Do you ignore it? Do you wait for the other side to raise it and then rebut it? Or do you confront it head-on, hoping to defuse it? Experienced advocates have differing opinions on this question but usually cannot cite scientific studies supporting their opinions.

If you’re interested in knowing what social science has to say about the best strategy for handling negative facts or law, then read Kathryn Stanchi’s new article, Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy. In it, she explores social-science studies about the persuasive effect of disclosing negative information, including when and how to do it.

(Hat tip to Legal Writing Prof Blog.)

Today, most lawyers who collaborate on writing a document probably swap numerous drafts by e-mail. But an interesting post on Legal Writing Prof Blog suggests a possibly better way to collaborate: wikis. The post includes a short video explaining what wikis are and demonstrating how they can be used to facilitate collaboration.

If you’ve ever bristled at editors who mangled your draft, then you have some famous company: Thomas Jefferson. In America’s Founding Editors, University of Missouri law professor Douglas E. Abrams tells the story of how a group of 65 editors—the entire Continental Congress—worked over Jefferson’s draft of the Declaration of Independence, line by line. The process and its result left Jefferson resentful for years.

But here’s the punch line: This editing by a 65-member editorial committee actually improved the document! The editors tightened many passages and deleted others; the result of their efforts was a tighter, stronger document. Professor Abrams cites Pauline Maier’s description of their work:

Pauline Maier calls Congress’ close scrutiny of Jefferson’s draft “an act of group editing that has to be one of the great marvels of history.” “This was no hack editing job,” she continues, because “the delegates who labored over the draft Declaration had a splendid ear for language. . . . By exercising their intelligence, political good sense, and a discerning sense of language, the delegates managed to make the Declaration at once more accurate and more consonant with the convictions of their constituents, and to enhance both its power and its eloquence.”

Somehow I cannot imagine a contemporary 65-member congressional committee accomplishing such a feat. Nevertheless, there’s a lesson here for us writers who, proud as we may be of our own prose, are no Jeffersons. Those editors who we think are mangling our work might be improving it.

(A tip of the tricorne to Legal History Blog.)

If you’re a lawyer who reviews and critiques other lawyers’ writing, then you will want to read A Methodology for Mentoring Writing in Law Practice, by Jane Kent Gionfriddo, Daniel L. Barnett, and Joan Blum. In their article, the authors suggest a methodology for helping the senior lawyer focus on substance and offer comments that will help the junior lawyer improve as a legal thinker and writer. (Hat tip to Legal Writing Prof Blog.)

If your work involves drafting business contracts, then you need the second edition of Ken Adams’s book, A Manual of Style for Contract Drafting. It is to drafting what Bryan Garner’s Redbook is to legal writing in general.

Ken is the authority in this area. Besides writing the first edition of MSCD, he writes a blog devoted to drafting. After more than two years of blogging on this focused topic, he hasn’t run out of ideas. In fact, many ideas he’s hashed out on his blog have found their way into MSCD2.

One thing I like about Ken is that he does his own thinking. For instance:

Defense of shall. Unlike Bryan Garner,¹ Ken does not advocate eliminating shall from all legal writing. He agrees that shall is overused to mean too many different things, which in turn leads to ambiguity. And he agrees that shall probably shouldn’t be used in consumer contracts. But he finds no reason to banish shall from business contracts, and he offers several paragraphs of thoughtful reasons why banishing shall would create other problems. He insists, though, that shall be used to mean one and only one thing: “has a duty to.” MSCD2 ¶¶ 2.25–2.65.

Contractions. Ken agrees that contractions are fine for most prose; hence his book is full of them. But a business contract is not most prose. “The prose of business contracts is like computer code—it’s devoid of tone or rhythm, unless it’s poorly done, in which case it can be redolent of pomposity. So the idea of using contractions in business contracts is at odds with the very nature of contract prose.” MSCD2 ¶ 16.51.

Typography. Briefwriters are told never to use sans-serif fonts for text.² But a contract is not a brief, and there’s no court rule against sans-serif fonts for contracts. Ken challenges the notion that serif fonts are always easier to read than sans-serif fonts (MSCD2 ¶ 15.18), and so he recommends 11 point Calibri, a sans-serif font, for all contracts. MSCD2 ¶ 15.13. Not content to simply state his opinion on this point, he offers 18 paragraphs of reasons why Calibri is a good choice for contracts. (But if you must have serifs, then Ken recommends Cambria.)

This book is designed primarily as a reference. But if, like me, you’re relatively unschooled in the best practices for drafting contracts, then you would do well to read it cover to cover—which is what I intend to do over the next few weeks.
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¹ See Bryan A. Garner, A Dictionary of Modern Legal Usage 940 (2d ed.1995).

² E.g. Fed. R. App. P. 32(a)(5)(A).