Presented by Christopher Trudeau, JD, on September 26, 2013 at the fourth annual Center for Health Literacy Conference: Plain Talk in Complex Times.

1. A Drafting Toolkit for Non-Lawyers
Christopher R. Trudeau, J.D.
Associate Professor – Thomas M. Cooley Law School
trudeauc@cooley.edu or professortrudeau@gmail.com
Clear Legal Communication:

2. Inside the Lawyer’s Mind
A Reality: Lawyers focus on
protecting client’s interest and
protecting themselves before
patients and consumers

3. Goals of this Workshop
• To show you that a lawyer’s interest and clear
drafting are not mutually exclusive.
– Harmony can be achieved, and should be the goal
• To teach you principles of clear drafting that
benefit everybody – users, lawyers, execs, etc.

4. A Lawyer’s Definition of Drafting
• The expression of your client’s desires
regarding legally significant transactions,
information, or events.
– All documents should anticipate the arguments of the
reader “in bad faith.”
– Ask yourself: “If someone were to try and get around
this, how would they do it?”

5. The Drafting Process
• Understand the audience, purpose, & problems
(many overlook the first two)
• Gather facts re: audience, purpose, & problems
• Know/research the law (vital for lawyers)
• Classify, organize, & outline
• Write a draft
• Test for consequences (vital for lawyers)
• Revise, edit, & proofread

6. Generally, draft in the singular
• When drafting, it is conventional to
consistently use the singular.
– The plural can be okay. But be careful.
• Avoid the ambiguous plural
– E.g., Applicants must file their forms before Jan. 1.
• Does one applicant have more than one form to file?

7. Avoid needless synonyms
• A common problem in legal drafting.
– E.g., authorize and empower; rest, residue, and
remainder; cease and desist
Origins of the problem?
– This is an old habit that started when scriveners
were paid by the word, and
– When legal documents had to be understood by
people who spoke Anglo-Saxon, French, and Latin.

8. 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.

9. Gender-Neutral (cont.)
– Make it all plural:
• Patients may realize that their earlier disclosure was
inaccurate.
– Repeat the noun:
• A patient may realize that the patient’s disclosure was
inaccurate.
– Use an article instead of a pronoun:
• A patient may realize that the earlier disclosure was
inaccurate.

10. 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?)
– While sitting in the bathtub, the telephone rang? (Was the
telephone in the tub?)
– Our neighbor was a lovely woman who wore sweatpants
named Inger. (Do you name your sweatpants?)

11. Vagueness vs. Ambiguity
• Most people don’t know the difference –
including lawyers.
Vagueness is acceptable – even desirable
– It’s flexible
– It allows for case-by-case analysis
– It avoids the problem of exhaustive lists
Ambiguity creates confusion and uncertainty

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

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

15. Ambiguity
• Presents an either-or choice
• Always an error
• Eliminating ambiguity is the key to clear
drafting
• Example: I will be doing rounds on Saturday
and taking appointments if I have time.

16. Embracing Vagueness
• Perfect precision is nearly impossible.
• Don’t fall into the trap of trying to spell everything out.
– Who would think of a drivable cooler as a motor vehicle?
• But think it through. Vagueness can cause
problems.
– E.g., Please do not ask permission to hunt.
• Can people hunt without asking? Or are they
prohibited from hunting altogether?

17. First Latinism Key to Drafting:
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, family
gatherings, weddings, and parties during construction
of the gazebo.
• Can it prohibit a protest?

18. Avoiding Expressio Unius
• Use a broader term (car  vehicle)
• Use a modifier to limit or expand
– normally driven on public roads (limits)
– Applicant must substantially comply (expands)
• Combine general terms (willing and able
buyer)
• But be careful if you combine the general
and the specific

19. Second Latinism Key to Drafting:
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)

20. Ejusdem Generis: Example
You may not bring a dog, cat, hamster, or other
pet into the hospital unless they are registered
service animals.
–What about a monkey or pot-bellied pig?
• Key tip: does not apply if the general term
comes first.
–May not bring pets, such as dogs, cats, and
hamsters.

21. What do you see?

22. Three Types of Ambiguity
• Semantic Ambiguity
• Syntactic Ambiguity
• Contextual Ambiguity

23. Semantic Ambiguity
• Multi-meaning words
– The board sanctioned the conduct. [Does sanction
mean approve or disapprove?]
• Sometimes the reader can use the context of
the material to figure out the meaning [but
we don’t want to cause this]
• “Elegant variation” can cause this
– Cancelled v. terminated v. stopped

24. 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?

25. Contextual Ambiguity
• Arises when two different parts of a document
say contradictory things.
• Typically, the contradictions are between one
or more sentences.
• In longer documents, the contradictory
material is in different parts of the document.

26. Semantic Problems: Ages
• Careless phrasing can lead to serious
inadvertent ambiguity
• Ambiguous:
– Open to anyone between the ages of 21 and 30.
• Clearer:
– Open to anyone 21 years or older and under 31.

27. Semantic Problems: Dates
• Again, careless references create inadvertent
ambiguity
• The option must be exercised by May 8. (Is
May 8 included? If so, how much of the day?)
• Ambiguous Examples:
– The option extends from May 5 to May 8
– Until May 8
– Between May 5 and May 8

28. Syntactic Problems: And & Or
• “‘And’ and ‘or’ are not interchangeable, and
the court will give them their strict meaning...”
Niles Twp v Berrien County Bd of Commissioners, 261 Mich
App 308, 318 (2004)
• And means all parts are required.
• Or means one or more of the parts are required.

29. Don’t Use And/Or
• It is a befuddling, nameless grammatical
monstrosity (263 N.W. 376 (1935)).

30. Syntactic Problems:
A List or Series
1) And & or can pose problems here too
2) Punctuation can also pose problems
• Use the Oxford comma
• E.g., I gave intake packets to Jack, Jill, Jerry and Betty.
[Do Jerry & Betty share a packet?]
3) Modifiers can pose major problems
• Tabulate the series to provide clarity

31. Ambiguous Modifiers:
Most common types
• Squinting modifiers
– The patient with the foot broken recently came to see me.
• Was the foot broken recently? Or did the patient recently come to
see you?
• Modifiers used in a series
– A student must abide by the honor code for group projects
and papers that are graded.
• For all group projects or only graded ones?

32. Rule of the Last Antecedent
• The modifier modifies only the noun it is
nearest to.
• A modifying or restrictive word (or clause)
contained in a document refers solely to the
immediately preceding clause or last
antecedent. Stanton v. City of Battle
Creek, 466 Mich 611, 616 (2002)

33. An Example:
• The report is required of health care
institutions and corporations making charitable
contributions.
• How many possibilities are there?

34. Look at all the possibilities…
• The report is required of health care
(1) institutions and
(2) corporations
making charitable contributions.
• The report is required of
(1) health care institutions and
(2) corporations
making charitable contributions.
• The report is required of health care
(1) institutions and
(2) corporations making charitable contributions.
• The report is required of
(1) health care institutions and
(2) corporations making charitable contributions

35. Ways to Fix:
(1) Repeat the ambiguous modifier
• Before: Liability is provided only for serious
loss or damage.
• After: Liability is provided only for serious loss
or serious damage.

36. Ways to Fix:
(2) Switch the items in the series
• Before: Liability is provided only for serious
loss or damage.
• After: Liability is provided only for damage or
serious loss.

37. Pay attention to punctuation

38. Ambiguity and Punctuation
• Don’t rely on punctuation to resolve
ambiguity.
• But the lack of punctuation (or poor
punctuation) can create ambiguity.

39. Ambiguous Pronouns
• The health care providers told the patients
that they would be responsible for paying the
bills.
– Who’s responsible here? The health care providers
or patients?

40. Avoid “shall” –
it’s misused too much
• Must (imposes a duty)
– The tenant must pay rent on time.
• May (reflects discretionary action)
– The tenant may request repairs.
• Will (reflects a future promise)
– The landlord will order repairs.
• Is (states a fact, policy, or legal rule)
– This agreement is governed by Federal law.

41. Tabulation Helps Rid Ambiguity
• An effective tool for resolving ambiguity in
complex sentences because
1. Breaks up a sentence to show the relationship
between its parts
2. Provides visual emphasis
3. Is reader-friendly

42. Drafting Tabulated Provisions
• Must “read with the lead.”
The application must
(a) contain the patient’s name, address, and
birthday; and
(b) be filed with the patient’s insurance provider.
• Should sound like a sentence when read aloud.
– But don’t tabulate simple sentences.

43. Definitions

44. Know your purpose for defining:
1. To identify terms and concepts that have no
previously established lexical meaning
(“Oceanside condominium property”)
2. To clarify terms that may have an unworkably
vague lexical meaning (e.g., industry standards)
3. To add to (or subtract from) a lexical meaning
(e.g., student means part-time students)

45. Types of Definitions
Lexical (aka the dictionary definition): this is the
publicly understood meaning of the term
Stipulative: the meaning the document gives to
a term
– Restricting,
– Naming (a concept),
– Enlarging, or
– Confining

46. Define fewer terms in contracts
• Don’t define when you are using the ordinary
meaning of the word.
• If defined poorly, parties may rely on a strained or
imprecise definition that is stated in a document.
• A document with a complex series of definitions
(and cross-referenced terms) will be hard to
understand.

47. Example of a useless definition
• “Form” means a piece of paper containing
blank spaces, boxes, or lines for the entry of
dates, names, descriptive details, or other
items.

48. Definitely Define Technical Terms:
• Consider your audience
– Consumer documents may require defining more
terms than documents written for providers or
insurance companies.

49. Absurd Definitions From Statutes
• “September 16, 1940” means June 27, 1950.
• “Day” means a period of 72 hours.
• “Citrus fruit” includes eggs.

50. Leave Out Substantive Matters:
• Definitions give meaning to words; they
should not impose duties or describe policy.
• Avoid this: “Place of delivery” means the
hospital’s delivery bay, where appropriate
loading equipment will be made available and
used to avoid damage to the goods.

51. Part 3: Group Discussion &
Sample Scenarios

52. Redraft 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, t
herapies, 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!

53. Just 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.

54. A total redraft works the 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!