The Clear Drafters Toolbox- 10 Tips for Creating Clear Docs

The Clear
Drafter’s
Toolbox:
Ten Tools for
Creating Clear
Legal Documents
Christopher R. Trudeau
Professor
Western Michigan University –
Thomas M. Cooley Law School
trudeauc@cooley.edu

Keys to clear writing:
①Will – getting people to buy in to
writing clearly.
②Skill – learning the tools needed
to communicate clearly.

Understanding the lawyer’s mindset
A Reality: A lawyer’s duty
is to protect a client’s
interest. This trumps
everything else.

Clear
Content
User-
Focused
Design
Clarity

Facts about most legal documents
 Most documents are used by
lay people.
 Most documents are used as
reference tools – not read from
start to finish.
 The average American reads at
about the 6th to 7th grade level.
 Yet the average credit card
agreement, for example, is
written at the 12th grade level.

Many tools are needed to
create clear legal documents

Tip: Clear drafting is an iterative process
 Understand the audience, purpose, & problems. (Many
overlook the first two)
 Gather facts re: audience, purpose, & problems
 Know/research the legal requirements
(vital for lawyers)
 Classify, organize, & outline concepts to include
 Plan initial document design
 Write a draft
 Test for consequences (vital for lawyers)
 Tweak doc design (after input from others)
 Revise, edit, & proofread
 User-test document (Lawyers never do this though)

The main tool in the toolkit
Tip: Eliminate ambiguity &
shape vagueness

Vagueness v. Ambiguity
Fact: Most people don’t know the difference –
including lawyers.
Vagueness is using flexible language
 It allows for case-by-case analysis
 It avoids the problem of exhaustive lists
Ambiguity is creating unintended meanings
 Always confuses because the writer knows the meaning
but the reader doesn’t.

Vagueness:
Creates uncertainty at the margins
Dangerous
Weapons
AK-47
Dagger
Baseball
bat
Serving Fork?

Vague Terms
Reasonable care
Informed consent
Rid segregation “with all deliberate
speed.” Brown v. Board of Education
Motor vehicle v. automobile
Does a drivable cooler used at tailgates qualify
as a motor vehicle?

Keys to Shaping Vagueness
 Use a broader term (car  vehicle)
 Use a modifier to limit or expand
 Vehicle normally driven on public roads
(limits)
 Applicant must substantially comply
(expands)
 Combine general terms (willing and able
buyer)
 Carefully combine the general and the
specific

Managing the Latin Maxims:
(1) Expressio Unius Est Exclusio Alterius
 “To express one thing is to exclude similar
alternatives.” See Alan v Wayne County, 388 Mich
210, 253 (1970) [Every state has a similar rule.]
 Creates a negative inference that when a
document lists specific things, then the list is
exclusive.
 The City Council may prohibit picnics, dances, weddings,
and parties during construction of the gazebo.
 Can it prohibit a protest?

(2) Ejusdem Generis
 “Where a general term follows a series of
specific terms, the general term is
interpreted to include only things of the
same kind, class, character or nature of
those specifically enumerated.” Neal v.
Wilkes, 470 Mich 661 (2004)

Ejusdem Generis: Example
You may not bring a pistol, shotgun, semi-
automatic rifle, or any other weapon into the
hospital.
What about knives? Explosives?
Key tip: will not apply if the general term
comes first.
You may not bring any weapons into the
hospital, such as guns, knives, or explosive
devices.
Notice how the term “explosive devices” is quite vague.

Maxims cause the most problems
when creating lists
Start with a general, encompassing
term first.
Then list the key things you want the
reader to be aware of. (Max of 5.)
Use (1) “such as” or (2) “includes” (but
not limited to?) to lead into these
specifics.

Ambiguity
 Presents more than
one possible meaning
to the reader.
 Always an error.
 Remember,
eliminating ambiguity
is the key to clear
drafting!

Three Types of Ambiguity
Semantic Ambiguity
Syntactic Ambiguity
Contextual Ambiguity

Semantic Ambiguity
Multi-meaning words
The board sanctioned the conduct. [Does sanction mean
approve or disapprove?]
Don’t use “elegant variation.”
 Ex. Cancelled v. terminated v. stopped
 Why? Because courts and readers will presume you
switched for a reason.

Syntactic Ambiguity
Presents an either-or choice.
Usually the result of sentence structure.
Often created because of an “and” or an “or.”
Example I use with my students:
I will grade your briefs and record the scores
carefully. (Will I only record their scores carefully?)

Avoid Misplaced Modifiers
 To avoid ambiguity, a modifier must be as close as
possible to the word it modifies.
 My client has discussed your proposal to fill the
drainage ditch with his partners. (Did you just propose to
use your partners as fill?)
 Our neighbor was a lovely woman who wore
sweatpants named Inger. (Do you name your sweatpants?)

Semantic Problems: Ages & Dates
Careless phrasing can lead to serious
inadvertent ambiguity.
Ambiguous:
Open to anyone between the ages of 21
and 30.
Also Ambiguous:
The option expires on May 8, 2016.

To avoid ambiguity, use the serial
comma

Tip #2: Define “legal terms of art”
 Explaining Legal Terms: Question 20 (from the study
included in the plenary section of the materials)
 22% — If you don’t respond, the court will issue a
default judgment.
 78% — If you don’t respond, the court will issue a
default judgment. That means you’ll lose, and the
court will give the plaintiff what he is asking for.
 The ONLY question where the longer version
prevailed!
 The Takeaway: Normally, reduce the number of words
in docs – unless those words are essential to convey
meaning.

More tools . . .
Tip: Use the active voice &
strong verbs
Tip: Eliminate excess words
Tip: Use words that people
can understand

Avoid nominalizations. Use verbs to
explain the central action.
Nominalizations occur when you use the noun
form of a word instead of the verb form.
Utilize = use
Who says this: May I utilize your pen?

Use high-frequency words
Readers understand
more when you use
short, familiar high-
frequency words.
[See Zipf study, 1949]
Decorated not festooned
Give not disseminate

Bonus tip: Use pronouns to “speak” to
the reader
 Use “we” or “it” to refer to a company, an agency, or
other entity.
 Use "you” or “your” when referring to the user.
 Use “I” in a first-person document like a form.
But be sure the pronoun doesn’t cause confusion
Ex. The professors told the students that they would
be responsible for creating the final exam.
Who‘s responsible? (Professors or students?)

Tip: Eliminate the “S” words
Shall
Said
Such
Same

Avoid “shall” -- The worst “S” word
Why? “Shall” can have several meanings, and using it can
create ambiguity.
 Use “must” for an obligation.
 Use “must not” for a prohibition.
 Use “may” for a discretionary action.
 Use “should” for a recommendation.
 Use “will” for a future promise.
 Use “is” for a fact, policy, or legal rule.

Tip: Avoid Gender-Specific
Language
 Not: A patient may realize that his disclosure
was inaccurate.
 It is easy to “write around” it:
 His or her: A patient may realize that his or
her disclosure was inaccurate.
 This can read awkwardly if “his or her” is used too
much in the document.

Gender-Neutral cont.
 Make it all plural:
Patients may realize that their earlier disclosure was
inaccurate.
 The singular “they” & “their” is gaining steam:
A patient may realize that their earlier disclosure was
inaccurate.
(Sotomayor recently used it in an opinion)
 Use an article instead of a pronoun:
A patient may realize that the earlier disclosure was
inaccurate.

 Can clarify,
reinforce, reframe
 Helpful for visual
learners
 Highlight the most
relevant information.
Too much
information can still
be a problem.
Tip: Use visual aids & cues

Icon arrays, pie charts, and graphs
 Icon arrays help
personalize/humaniz
e numbers.
 See:
http://www.iconarray.com/
 But this can take up a
lot of space for large
numbers (i.e. 1 in
1000)
 Pie charts & graphs
can work well – but
they must be simple
& intuitive.

Tip: Document design is critical

Non-artists can do these things
Use plenty of white space
Use informative headings
Use tables, charts, and
graphics
Avoid too many
highlighting TECHNIQUES
Organize topics by order of
importance

How would you fix this? An
actual disclaimer.
Disclaimer:
This information is not specific medical advice and does not
replace information you receive from your health care provider.
This is only a brief summary of general information. It does
NOT include all information about conditions, illnesses,
injuries, tests, procedures, treatments, therapies, discharge
instructions, or lifestyle choices that may apply to you. You
must talk with your health care provider for complete
information about your health and treatment options. This
information should not be used to decide whether or not to
accept your health care provider’s advice, instructions, or
recommendations. Only your health care provider has the
knowledge and training to provide advice that is right for you.
That’s an 11.4 Flesh-Kincaid grade level!

Cutting words helps a little
Disclaimer:
This information is not specific medical advice and does not
replace information you receive from your health care provider.
This is only a brief summary of general information. It does NOT
include all information about conditions, illnesses, injuries, tests,
procedures, treatments, therapies, discharge instructions, or
lifestyle choices that may apply to you. You must talk with your
health care provider for complete information about your health
and treatment options. This information should not be used to
decide whether or not to accept your health care provider’s
advice, instructions, or recommendations. Only your health care
provider has the knowledge and training to provide advice that is
right for you.
Now a 7.3 Flesh-Kincaid Grade Level. Better.

A total redraft works best
This is only a brief summary. It does not give you all
of the information available and is very general. Not
all of it applies to everyone.
Always talk with your doctor. Together, you can
decide what care is best for you. Your doctor can
answer all of your questions and provide complete
information.
A 5.3 Flesh-Kincaid Grade Level. Yeah!

What’s ambiguous about this provision?
How about this instead?

Section 7. Indemnification
To the maximum extent allowed by law, Vendor will defend, indemnify and hold harmless XYZ and its directors, officers,
employees, and agents (collectively, the “Indemnitees”), from and against any and all claims, losses, damages, suits, fees,
judgments, costs and expenses (collectively referred to as “Claims”), including attorneys’ fees incurred in responding to such
Claims, that the Indemnitees may suffer or incur arising out of or in connection with: (a) Vendor’s breach of warranty or
damages due to Vendor’s negligence or willful misconduct; (b) any allegation that the Indemnitees’ use of any goods or
services (including without limitation any computer code and Work Product) created for or provided to XYZ in connection
with this Agreement constitutes an infringement, contributory infringement or violation of any patent, copyright, trade
secret, trademark, or other third party intellectual property right or a misappropriation of a trade secret or other personal
rights of a third party; (c) any breach by Vendor of its: (i) confidentiality obligations; (ii) obligations to comply with laws; (iii)
obligations under the HIPAA and GLBA Exhibit or the Security Exhibit (if applicable); or (iv) obligation to pay any
compensation, fees, salary, bonuses, mandatory or fringe employee benefits, social security, taxes or other withholdings which
are alleged to be owed in respect of any personnel or contractors of Vendor; (d) any personal injury (including death) or
damage to property resulting from Vendor, Vendor personnel or its agents’ acts or omissions; and (e) Vendor’s introduction
of any unauthorized material, including without limitation, a “computer virus” or other contaminant into XYZ’s
environment. The Indemnitees will give prompt notice of any Claim to Vendor, and Vendor will defend the Indemnitees at
the Indemnitees’ request. Vendor may settle, at its sole expense, any Claim for which Vendor is responsible under this
Section provided that such settlement shall not limit, unduly interfere, or otherwise adversely affect the rights granted herein,
Vendor’s obligations under this Agreement, or impose any additional liability on XYZ. XYZ reserves the right to employ
counsel at its own expense and participate in the defense and/or settlement of any Claim. If XYZ is unable to use a good
or service (including without limitation any computer code and Work Product) because of a Claim that such use constitutes
an infringement, contributory infringement or violation of any patent, copyright, trade secret, trademark, or other third party
intellectual property right, Vendor will, at its expense: (1) procure for XYZ the right to continue using such good or service
(including without limitation any computer code and Work Product) or (2) replace or modify such item so that it becomes
non-infringing. If neither option is available to Vendor through the use of commercially reasonable efforts, XYZ will return
(if possible) such item to Vendor, and Vendor will refund all fees paid for such good or service (including without limitation
any computer code and Work Product).

Text Statistics
No. of sentences 7
No. of words 479
No. of complex words 117
Percent of complex words 24.43%
Average words per sentence 68.43
Readability Indices
Flesch Kincaid Reading Ease -18.2
Flesch Kincaid Grade Level 32.8

Where to begin?
 Read the text.
 Outline the ideas/topics conveyed in original.
 Locate the horizontal lists & make vertical
 Look for redundancy
 Start applying the other tools in your toolkit

Slightly Modified Version
Section 7. Indemnification (change heading if you can convince to change other headings too)
To the maximum extent allowed by law, you will defend, indemnify, and hold harmless XYZ
and its directors, officers, employees, and agents (collectively, “we,” “us,” or “our”), from any
and all claims that we may incur in connection with:
(a) your breach of warranty;
(b) your negligence, your willful misconduct, or your failure to act;
(c) your introduction of any unauthorized material, including a “computer virus” or other
contaminant into our environment; or
(d) your breach of any: (i) confidentiality obligations; (ii) obligations to comply with laws; (iii)
obligations under the HIPAA and GLBA (Exhibit or the Security Exhibit (if applicable));
or (iv) obligations to pay any amount alleged to be owed to your employees or contractors.
This agreement specifically includes that you indemnify us from any Claim that alleges that our
use of any goods or services (including any computer code and Work Product) created for or
provided to us in connection with this Agreement constitutes an infringement, contributory
infringement, or violation of any intellectual property rights or a misappropriation of a trade
secret or other right of a third party.

We will promptly notify you of any Claim, and you must defend us at our request. We reserve the
right to employ counsel at our own expense and participate in defending or resolving any Claim.
You may settle, at your sole expense, any Claim for which you are responsible under this Section.
But you may only settle a Claim if that settlement does not limit, unduly interfere, or otherwise
adversely affect our rights, your obligations under this Agreement, or impose any additional
liability on us.
If we are unable to use a good or service (including any computer code and Work Product)
because of a Claim that such use constitutes an infringement, contributory infringement, or
violation of any intellectual property right, you will, at your expense:
(1) obtain for us the right to continue using such good or service (including any computer code
and Work Product), or
(2) replace or modify the good or service so that it becomes non-infringing.
If after using commercially reasonable efforts, neither option is available to you, we will return (if
possible) the good or service to you, and you will refund all fees paid for the good or service
(including any computer code and Work Product).
In 37 minutes, I reduced by 88 words and reduced by 10
grade levels. Not ideal. But better.
A complete redraft would work best.

Main Changes:
 Used pronouns instead of Vendor and Indemnitees
o Note the inconsistency in the original. It says Indemnitees, but it
uses XYZ at times too. That implies that those references to XYZ
aren’t meant to include the agents, employees, etc.
 Used labels lists & vertical lists – they help a lot.
 Used vague terms strategically to reduce the amount of recurrent
listing – i.e. intellectual property. Separately defining that term would
work too.
 Used multiple paragraphs. Multiple subheadings would be ideal.
 Eliminated inconsistency of terms. Can’t switch from good or
service to item, and then back.
 “In connection with” is broader than “arising out of,” so I just
used the broader one.

Applying this to consent forms

The Clear Drafters Toolbox- 10 Tips for Creating Clear Docs

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