Whereas henceforth witnesseth.

The quality of legal drafting  in America got apparently so bad at one point, that my law school -many years ago- introduced a mandatory class for second year students. The purpose: to get them to write in English again, rather than some form of medieval legal jargon. I'm not sure if it's common practice throughout United States and what other schools do, but I have to say that the lessons from my Legal Drafting course are some of the few I still remember from my days at the University of Florida and use in my every day work.For the first few weeks we focused on grammar exercises. That worried me initially, but amazingly enough I got the hang of it pretty quickly. We've learnt why passive voice may create ambiguity. It doesn't tell you who is the one actually performing the action. Objects don't simply have things done to them, it's people who do those things. I was taught to break up sentences in Contracts and Pleadings to express just one point. To not be afraid to have many paragraphs and headings;  To not fear whatever term I coined to name a Party multiple times in one paragraph instead of any gender specific designation.  I was taught to to never use "shall" in a Contract. If a party is doing something for their own benefit, the present tense is appropriate,  if it's a promise to the other party I was required to use will.  "May" was reserved for situations when a party had an option to do something at its discretion.  I know the difference between my recitals and obligations in the Contract. How some passages have no active, binding role on their own, but instead help to explain the background, the intention, the position of the parties.

There are of course many ways to write perfectly good, enforceable Contracts, but that's the way my instructor would run the show. To her, drafting was a form of art. And the point of the document was not only to assist the Court in interpreting what the parties' intent was and what actually happened but to tell a story. So that the parties themselves can look at it and now what to do when, without a need of a lawyer or a dictionary. She made us think about how to effectively group issues together. In what part of a Contract should a specific issue appear. Is that the most effective way to phrase it? Should I divide it up and introduce subsections? Using what key? How does the narrative flow from one paragraph to the next? She made us think about every single sentence. And I became a tortured man. In the two week period that we had to turn in my final assignment I redrafted mine six times. And at the and I still wasn't satisfied. That's the way I am with my drafting work today. I always feel like moving things up, playing with words and sentences and orders and grouping and it never feels finished. It's like a puzzle but there isn't just one answer. But I have to say that those months in the drafting class made me never use a form and a sample and put a lot of thought and time into every legal document I write. Her preference was that a heading should always have at least three words and that by looking at it you should be able to tell exactly what the section that follows is about. I still do what she taught me. I draft, I divide, I  group, I move things around. There's a lot of good ways to write a contract, but if it doesn't tell you who's doing what to whom when and in what form it's not doing it's job. Another thing I was taught to watch out for is when some other party is to perform an obligation under the contract. If they're not a party and they're not signing it, they're obviously not the ones committing themselves to perform. We were always taught to make it about the parties doing things or promising things to each other.

 I get slightly irritated when I see words like: Whereas, henceforth, witnesseth. My best guess is that lawyers have been using them for eons and nobody told them not to. That's just the way things been always been done, so for some people it became part of what it means to be a lawyer. But those words are not even present in today's English anymore, what is the point of writing a document that nobody can understand? Perhaps people think that these archaic words and necessary, they are not. And they don't accomplish anything. I would think that new lawyers who know better join established law firms and are told to write like this, because that's the way they have always done things there. I've also heard that its the clients who sometimes  are not happy with the use of plain language because they don't sound "lawyer-y" enough. All I have to say is that once again as I redraft somebody else's  contract that is riddled with legalese but missing some essential information, that may have been downloaded  off the internet but it may have been a lawyer- I'm thankful to my drafting professor for giving me a skill, that years later I can use again and  again. And every time I see a document like this I want to say: Your contracts don't have to look like that. You're allowed to use English!