Professionalism Requires Precision in Writing

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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2 Comments

  • Vicki Voisin says:

    This is a great reminder to paralegals to take their time when drafting documents and then look at the document from every angle and perspective. Asking yourself questions as you go along may be helpful. Just because something is clear in your mind doesn’t necessarily translate to clear on paper.

  • Ellen Wright says:

    Robert-

    I come from a background of training in the clinical laboratory as well as a strong familial background of writing (journalism primarily). From my technical training, there is a truism that there is a difference between “accuracy” and “precision”. These are two totally and completely different concepts despite the oft repeated objection that they are the same thing. They are NOT. Let me explain.

    ACCURACY = is the ability to do the same thing over and over again. It does not necessary mean to hit the bull’s eye of a target. It just means that you hit the same thing again and again. In writing or communication, it means that you get the same points over and over again. It may not be the CORRECT points-but it is the same points.

    PRECISION = the ability to keep within a certain percentage of your goal/target (preferably the bull’s eye). It is not a measure of accuracy, but a measure of skill. A shooter, for example, can have a high degree of precision (and kill his target), but never actually hit the bull’s eye. Snipers, of course, are the best example of those who excel in both.

    Yes, you can have both and it is desirable to have both. Most frequently, however, you are going to have one or the other in varying degrees. It is my personal experience, however, that most people are working in such distracted surroundings that they simply do not consider alternative situations at the time of drafting these documents. It never occurs to them. Yes, I agree-the client winds up paying the price for the oversight and that is most unfortunate, but attorneys and paralegals are humans, too.

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