Monthly Archives: October 2010

Schiess’s biggest pet peeves: legal drafting

Here are my biggest pet peeves in legal drafting—primarily contracts and statutes. I’ve already posted my list for analytical writing here. This isn’t a list of the biggest problems in legal drafting, just the ones that bug me.

Sentence length

  • Sometimes sentences in a contract run to hundreds of words in length. A former student sent me a change-of-control provision that was a single sentence of 379 words.

Witnesseth

  • Huh?

Archaic words that are not terms of art.

  • whereas, herein, said

Shall

  • It’s not just the word you use whenever you feel the sense should be “mandatory.”

Doubling text and numerals

  • This practice has annoyed me for nine (9) years.

Unnecessary or redundant word strings

  • right, title, and interest
  • transfer, convey, and set over

Which that

In my writing, I observe the distinction between that and which, using that for restrictive modifying clauses and [comma] which for nonrestrictive clauses. I try to teach my students the difference, but I do not make it a topic of intense focus in the first-year legal-writing course.

When you see mistakes, the mistake is almost always using which without a comma. Thus, the reader is not entirely sure if you intended a restrictive clause but misused which or a nonrestrictive clause but neglected the comma. Like this:

The lawnmower which is broken is in the garage.

This could mean—

The lawnmower that is broken is in the garage.

  • I have more than one lawnmower, and the broken lawnmower is in the garage.

or

The lawnmower, which is broken, is in the garage.

  • I have one lawnmower. It is in the garage. By the way, it is broken.

Are you still with me?

Well, yesterday I read this sentence. The writer used [comma] that for a nonrestrictive clause—something you almost never see:

  • Agent Diaz said he engaged in a conversation with Mrs. Hanover through a window at her apartment and delivered, to her husband, a copy of the subpoena, that  Mr. Hanover placed on the kitchen table.

Perhaps of interest only to writing nerds.