Three posts ago I focused on yet another case for the “Consequences of Sloppiness” category, a case in which yet another court admonishes a law firm for grammatical and other errors in documents submitted to the court. Certainly, an important function of a paralegal is to review all work (whether initiated by the paralegal or the attorney) for errors before it goes to a court, another attorney, a client, or any “outsider.” Frequently the attorney relies on the paralegal for that kind of attention to detail. (At one point there was a very helpful paralegal who would write to me pointing out errors my posts. While blog posts need not need the same degree of correctness as court briefs, I appreciated her oversight. Unfortunately, I have not heard from her for quite a while and I’m fairly certain it’s not because I have made no errors!)
However, there is more to good legal writing than good grammar. Legal writing requires precision and critical thinking that goes far beyond the normal standard. Today’s example comes from the blog of Judge Larry Primeaux in a post entitled, “A Costly Lesson in PSA Draftsmanship:”
What does this fairly commonplace paragraph from a PSA mean:
School and Extracurricular Expenses. Husband and Wife shall each be responsible for one-half (1/2) of all school and extra-curricular expenses incurred by the minor child including but not limited to the cost of books, activity fees, lab fees, school uniforms, tuition, and sports equipment.
Does that provision refer to private elementary and/or high school? Or does it refer to college? Is the language ambiguous?
In Mcleod v. McLeod, decided July 19, 2011, by the COA, those questions were presented squarely to the appellate court.
Judge Griffis wrote the opinion that held the language above to encompass all levels of education, and rejected both the arguments that the language was ambiguous and that private elementary and high school expenses are usually included in child support as the court had held in Southerland v. Southerland, 816 So.2d 1004 (Miss. 2002), and Moses v. Moses, 879 So.2d 1043 (Miss. App. 2004). The opinion distinguished the two cases from the facts in this case. The COA decision is worth a read, and I will not rehash it further here.
The point I want to make is how important it is to be aware of precision in your draftsmanship. It would have been a simple matter for the husband’s attorney to clarify the language to specify that it pertained to college, if that was, in fact, the agreement.
Some PSA’s lack clarity. The meaning is hidden behind a cloud of words. That was not the problem in this COA case, but it’s a common problem nonetheless. You can read some ideas for clearer draftsmanship here.
Mostly, though, it seems that we sometimes get in too much of a hurry. The client may be pressing or you put off tending to it until you had no more time to spare. Haste is the enemy of precision.
Make time to set aside what you have drafted for at least a few hours or a couple of days. Then pick it back up and look at it through fresh eyes. Put yourself in the role of a judge who is reviewing it. You know what you meant to say, but will that judge looking through different eyes see it the same way? Are there more precise words that could be used? Is what you have written susceptible to more than one interpretation? Is there something there that can come back and bite your client?
You want your PSA’s — and everything you draft, including pleadings, contracts, briefs — to say exactly what you mean to say and to promote the best interest of your client. Take your time on draftsmanship. Haste is the enemy of precision.
This type of precision is very difficult to teach and requires much practice to master. The language in any document that leaves a law office is ultimately the attorney’s responsibility, but the professional paralegal will work hard to master legal writing skills and, as the judge says, apply them “to everything you draft, including pleadings, contracts, briefs.”
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