Drafting documents

Friday, 01 February 2013
A look back of the bygone days of handwritten legal papers.

Now I am going to let you into a secret. My article for this column a couple of issues ago was way under the number of words that the kind Editor graciously allows me. The reason for this was not just that I handwrote it on a train. I was quite convinced that I had used the normal number of words, which I can check when dictating, so I was astonished that it was so much shorter.

When I joined the law, all my drafting was handwritten. I had, as an articled clerk, a typist who took shorthand dictation from me for short letters. She steadfastly refused to be called a secretary, and she did not type documents. They were sent to law stationers, who would type drafts from my handwriting. We did have some office will and settlement precedents, but much of the drafting was taken from precedent books, such as Hallett’s Conveyancing Precedents, and I would copy out the relevant passages – photocopying was frowned upon.

If you read cases from the 19th century, you may be struck by how short the judgments were. There were often oral judgments that the court reporter would take down and have corrected by the judge, but most were handwritten, which does encourage economy of words. I was no exception.

One of the problems with handwriting is that at times you miss out words, however carefully the document is proofread, and often the omission is in the handwritten initial version and is never spotted later. Another issue is that, depending on one’s powers of concentration, handwriting is so much slower than thought that one can advance beyond one’s writing speed and miss out a logical link.

Sometimes brevity can reflect an earlier stage of development in the jurisprudence of a particular subject. If you come across discretionary trusts written in the 1950s and early 1960s, they were probably not much more than ten pages long. Subsequent negotiations with tax authorities, inter-family litigation and the development of concepts such as protectors’ powers have led to much longer documents being needed.

Now, however, documents are freely available in precedent form and can be downloaded and printed out immediately. But there are dangers here, too. Newcomers to the profession have to take as gospel what is in the precedent that they are using. Do they get prizes for taking clauses out of a long precedent document? No, but they might get a prize for putting in an extra clause!

I challenge you as to whether you could look through a precedent of a document you are dealing with now and explain why each clause was originally included, what legal issue it was meant to solve, and why it is still needed. I am sure many of you would meet that challenge famously, but, if you do, ask yourself if you are sure that you would have the confidence to remove a clause when it is not so much a ‘must have’ as a ‘nice to have’.

I remember taking my office ‘will form’ of the 1970s round to one of the big firms of accountants to explain the clauses to their estate planning team. Goodness, I had to work hard at that, and it took a day going through the clauses explaining such erudite matters as appropriation powers, non-apportionment of income, the rule in Howe v Earl of Dartmouth, and why the case of Re Power is authority that an ‘investment’ had to be income-producing, so you needed express power to have non-income producing assets! Could I do that now?

My secretary tells me that she very much hopes that I will not revert to handwriting because even if there would be less to type, there is the hazard for her that my handwriting is both small and illegible!

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Martyn Gowar

Martyn Gowar TEP is a Partner at McDermott Will & Emery UK LLP and an Editor of the STEP Journal.

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