4-minute read, 10-minute exercise
We often think about artificial intelligence disrupting the legal industry, and closely watch its emergence into many aspects of the way that we work. Lawyers are quickly gaining the skills they need to create content that can be read by this technology.
I have good news for you. If you draft legal documents for humans to read, then you have a natural advantage when drafting because you’re human too.
What is a quality that humans have that artificial intelligence doesn’t? Emotion.
So why not bring some emotion into your legal drafting? Not to the level of the latest reality TV show, just enough emotion to make your legal document effective.
Don’t worry. I’m not crazy. It’s just a very new way of thinking about legal drafting.
I understand that you need to draft certain types of legal documents in a specific way. But what about documents that set out an agreement between human parties or between a business and a human customer?
To understand how you can add some emotion, you need to know the purpose of your document.
Every legal document has a purpose. You’ll need to think a little more deeply beyond just the functional purpose to discover the emotional purpose. While the functional purpose will be to achieve a specific outcome, the emotional purpose will be how human readers should feel to achieve that outcome.
As an example of a document between a business and a human customer, you may be drafting an agreement that has a functional purpose of successfully managing a high-value product sale/purchase transaction. The emotional purpose would be to make the human customer feel confident and positive about the transaction and the business.
As an example of a document between human parties, you may need to draft an agreement which manages their ongoing relationship after a period of conflict. The emotional purpose would be to alleviate ill feelings and set a positive foundation for future interactions.
Adding some emotion is a great way to help your document be more effective in achieving its purpose. Now that makes sense.
You can add emotion to your legal document by setting the tone to match its purpose.
You can do this by using words and drafting techniques throughout the document which work together to create the appropriate tone.
Use plain English wording and phrases. Doing so creates a feeling of confidence in the reader and helps to dispel negative stereotypes about lawyers and traditional drafting. Instead of “Each party shall henceforth maintain the confidentiality of the terms of this agreement, save for necessary disclosure to their financial and legal advisors.”, try “Each party must keep the terms of this agreement confidential. However, each party may disclose the terms of this agreement to their financial and legal advisors.”
Use positive words to clearly explain the process to manage issues. Doing so helps to create a level of trust between the parties. There’s no need to change a party’s rights but check that the document describes that process in a similar tone to the party’s customer service standards. Instead of “If Party X alleges that the product is faulty due to a manufacturing issue, they must provide written notice to Party Y detailing the allegations and return the product to Party X by pre-paid post to its registered address.”, try “If it appears that the product is faulty, please send us an email at firstname.lastname@example.org to explain the issue and return the product to us by posting it to 123 Main Street, Melbourne VIC 3000. We will review the issue and let you know the outcome.”
Refer to the parties in a way which reflects the nature of their relationship. Doing so helps to reinforce the way the parties see each other, and it may be important to the branding of your business client. For example, if the document is between a business and their customers and the business would like to be seen in a personal way, try using “we” and “you” to refer to the parties. However, if the purpose of the document is to establish a positive ongoing relationship after a period of conflict, using clear labels for the parties would be more appropriate.
Explain in enough detail what a party needs to do to achieve an outcome. Doing so helps to get rid of uncertainty and potentially nasty surprises, especially if the parties don’t have an existing functional relationship with one another. Instead of “Party X must do xx by xx date.”, try “Party X must use the services of a courier company to deliver xx product to xx address by xx date.”
Give examples to make points clear. Doing so helps to create certainty and avoid potential misunderstandings between the parties. If something is unclear, it is likely that the parties will each interpret it to mean something different. Instead of “The rent will be reviewed annually according to the following CPI formula.”, try including an example with numbers.
Don’t include words or phrases which show a lack of regard for the parties. It’s hard to believe, but it still happens often. For example, don’t use “he” throughout the entire document when one of the parties or potential parties is female. Show the human reader that you’ve been clever enough to refer to the correct genders for the parties.
In all cases, you should avoid tones that may appear to be criticising. It leads to unwarranted emotions, which can then cause problems in the relationship between the parties. After all, while your document can serve a purpose, it is the people in connection with the document that must make an objective assessment of an issue based on facts.
If you don’t consider the tone of your legal document, there’s a good chance that it will be confusing and inappropriate. That means that there is also a good chance that the human readers won’t engage with the document, won’t respect detail of the agreement and won’t respect the lawyer who drafted it.
What Was the Tone of Your Last Document?
Open up the last document you drafted for a client and spend the next ten minutes considering its tone. Send a copy to a trusted non-lawyer friend after you’ve removed identifying details and ask them to consider its tone.
Is the tone appropriate or not? Was it just confusing? Did your friend see the same tone in the document?
What will you do to improve the tone of the next document that you draft?
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