First step in doing a business or for an agreement between two or more people for operating smoothly and systematically is a well drafted Contract. Contract are legally binding agreement which set particular requirements to fulfill. It guarantees that the terms and conditions are accepted by both parties and that everyone is having same knowledge for this. All parties have a legal obligation to abide by conditions of contract. Having knowledge on how to do Legal Drafting creates a better contract which is much important as minute errors can result in major loss or worse in downfall of the company. For avoiding such consequences it is important to be aware of the faults which shall be avoided.
Common Legal Drafting Mistakes To Avoid :-
1. Failure in defining major terms:-
Its important to clearly define the terms which may be subjected to the interpretation or having particular legal meaning. This helps in avoiding confusion and potential disputes.
2. Lack of Consistency in Language:-
Ensuring uniformity in language and terminology in the document and avoiding ambiguity or contradictory statements. Avoid overusing legal language as some level of legal terminology is required to draft legal documents, excessive use of archaic or unnecessary jargon could make document difficult for non lawyers to understand.
3. Using Convoluted language:
Legal drafting shall be clear, concise and easy to understand. Avoid using over complex or technical language which can confuse the reader.
4. Neglecting Format and Structure:
Proper formatting and structuring the legal documents is important for enhanced readability and comprehension. Use Headings, Subheadings, Paragraphs, Bullet Points and Numbering Properly.
5. Including Unnecessary Information:
Being mindful for including only the relevant information in the legal drafts. It includes irrelevant details which could make the document unnecessarily long and confusing.
6. Failure to Proofread for Error:
Always proofread the drafts with care for grammatical error, typos, inconsistencies or ambiguities which can impact the clarity or validity of the document.
7. Ignoring Consistency in Language:
Consistency is required in legal drafting as it makes sure in clarity and reduces confusion between the different sections or provisions within a document.
8. Correct Citation Format:-
If required reference laws, regulations, cases or other authorities within the draft, ensure to follow proper citation format constantly through the document.
9. Lack of precision in Language:-
Drafting requires using proper language for avoiding confusion and misinterpretation. Avoid using vague terms or the general statements which can lead to confusion.
10. Failure in considering audience:
Always keep in mind the audience of the legal document and customise the detail properly. Use plain language whenever possible, especially when the drafting documents is for the non lawyers.
11. Overlooking Numbering and Cross References:
Ensuring Numbering, headings, Sub headings, Sub headings and cross reference are constant throughout the document. Inconsistency could create confusion or make it difficult in following the logical flow of information.
12. Neglecting Potential Future change:
Anticipate potential changes or updates which can occur after drafting a legal document which includes proper provisions for amending or revision necessary.
13. Failure in using terms consistently:
If you have defined specific terms within the document, it ensures that they are being used consistently through the text instead of using synonyms or phrasing.
14. Ignoring Jurisdiction Specific Requirements:-
Different Jurisdiction have particular formatting requirement, terminology preference or legal principle which shall adhere to legal drafting. Beware of these jurisdictional nuances while preparing the documents.
15. Omitting necessary clauses or provisions:-
Reviewing all the relevant laws, regulations, contacts and other documents related to the legal draft for ensuring that you include all the necessary clauses, provision, warranties, indemnities, limitations on liability, etc, which is required by law or best practice.
16. Neglecting Clarity on Rights and Obligations:
Identify Rights and Obligations for each party which are involved in a contract or agreement within the draft so there is not any misinterpretation or dispute in it.
17. Failure to Address Potential Contingencies:-
Possible scenarios which can arise during implementation of contract or agreement while providing the correct contingency plan in your draft where it is necessary.
18. Inadequate Consideration of Potential Legal Consequences:-
Its important to properly consider the legal consequence of each provision in the draft. As Failure in doing so could result in unintended liabilities and obligations.
19. Failure in incorporating necessary confidential provisions:-
As confidentiality is much important for subject matter of legal document this ensures that the appropriate confidentiality clauses which are included to protect the sensitive information from any unauthorised disclosure.
20. Neglecting to Incorporate Termination or Expiration:-
It depends on the nature of the agreement, its important to include termination or expiration provisions which clearly define the circumstances under which the contract could be terminated and what happens once terminated.
21. Inadequate consideration for Future Amendments/Modifications:-
If there is possibility that terms of the agreement could require modification in the future, this includes provision on outlining how these amendments will be made and under what conditions to be met for changes to take effect.
22. Neglecting Proper Identification and Inclusion of parties:-
Identify all the parties which are involved in an agreement by full legal names, addresses, contact details, roles and responsibilities, etc. this ensures their accurate inclusion through the document.
23. Failure in addressing the Intellectual Property Rights:-
If the subject matter of the legal document involves intellectual property or proprietary rights, this ensures that the proper clauses are included for protecting these rights and specify the ownership, usage, licensing, etc.
24. Ignoring Regulatory Compliance requirements:-
Beware of specific regulations or compliance requirements which are relevant to the legal document and ensure that it is addressed properly for avoiding potential legal issues in future.
25. Omitting the required Disclosure and Disclaimers:-
Specific types of agreements may require certain disclosure and disclaimers which are mandated by law. This ensures that you include all the necessary disclaimers and disclosure where applicable.
26. Neglecting proper record-keeping provisions:
Consider to include the provisions which outline record keeping obligations for the parties involved in an agreement, especially when it comes to financial transactions or the sensitive information handling.
27. Failure to conduct Final review by Qualified Attorney:-
Before finalising any important legal document, its much advisable to get it reviewed by a qualified attorney who could identify potential pitfalls or areas for improvement based on their expertise.
Conclusion:-
The most crucial and starting phase of every commercial transaction. There is an increasing demand in communication and trade which leads to numerous discussions and agreements between the parties. As not all the contracts are clear cut and non-confusing. Many of these contracts are longer and more complicated than others. They can contain extensive information and Specific Business features . Such type of contract mistakes will only result in major losses but also unwelcome the confusion and disagreements.
It takes knowledge of contractual law and proficiency in contract drafting for obtaining appropriate information and include it in contract. Properly drafted contract shall have vital elements of keeping all points in mind, reviewing contract and finally concluding deal.
