Getting the tone right in legal work-product

polishPart of IP Draughts’ job is to review draft documents that have been prepared by junior colleagues, before the document is sent out to a client or another party. The document may contain legal advice, explanation or commentary, argue a case, or ask for further information.

More often than not, IP Draughts has little to say about the substance of any advice or other information that is contained in the draft. Prepared by IP Draughts’ excellent and diligent colleagues, the substance tends to be accurate.

The main task, in many cases, is making sure that the content of the document is expressed in the best way possible. ‘Best’ may vary between types of document, but often includes providing information in a helpful way, or arguing a case persuasively. In most cases it is important to use clear language and to structure the document in a way that helps the reader to find their way through the details. For example, if the document is lengthy, it may be better to put it in a Word document, with plenty of headings and a summary at the beginning, rather than just paste it into a lengthy email.

mindreadingIt is also useful to try to put oneself into the mind of the intended reader. How do they process information? Are they looking for reassurance, or a simple overview, or chapter and verse? Are they likely to be ‘difficult’ and should the tone be checked for anything that might give them an excuse to react in an unproductive way? Are they expecting a recommendation, rather than just a setting out of options? Is the purpose of the document to try to steer the reader in a particular direction, and is it likely to have this effect? Predicting some of these points may require several years’ experience and a degree of empathy. Adjusting the document to take account of these points will similarly require experience and well-developed drafting skills.

too-hardSometimes, the task is to make the document more user-friendly and less lawyerly. At other times, the drafter may have gone too far in this direction. In a well-intentioned effort to be helpful, he may have stated his views with too much certainty, based on too little knowledge of the client’s commercial objectives. The result may be a document that appears useful but isn’t. It may be necessary to rein back on the recommendations and make them more robust, or to make clear the limits of the author’s expertise.

All of this requires thought and care. IP Draughts tries to follow an approach that he learnt as a junior lawyer, that there should be no personal pride in a document, and it should be critically scrutinised by the author or others before it is sent out. Sometimes, this results in more than one draft.

Sometimes, IP Draughts finds it helpful to think hard about the following points:

  1. Purpose. What is the document trying to achieve? In the case of a letter of advice, what has the client asked for and how will they use the advice?
  2. Reader. Who is the reader, and how will they understand and react to the document?
  3. Clarity and presentation. Is there a logical structure and flow to the document? Is it signposted with headings, an overview and other aids to reading? Is the language clear?
  4. Content. Is the document providing the right information and the right amount of information? Or is it too detailed or not detailed enough? Are there any inconsistencies in content between different parts? Is it answering questions that weren’t asked or which are not needed by the reader?
  5. Boundaries. Are there any limits on the scope of the document, eg that it is not intended to be comprehensive (because the work involved would require disproportionate expense), or depends on information provided, or is focused on one aspect of the problem, or that the reader is responsible for taking commercial decisions in light of the content of the document? Do these limits need to be stated explicitly?
  6. Professionalism. Is the document a professional piece of work, that would withstand scrutiny by a hostile regulator? While this criterion should usually flow naturally from dealing with the earlier points, and one should avoid being too defensive, there may be occasions where something in the document sticks out as not looking quite right, and where some tweaking of content or tone may be required.

working-outTypically, a well-drafted document will not show these workings, even if the drafter has made use of them in the background. They are part of the toolkit of the lawyer, perhaps less obvious than other elements such as understanding of the law, or even the ability to draft clear contract terms, but no less important when it comes to providing an excellent service.

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