Hong Kong Lawyer

October 2017

Issue link: https://asianlegalbusiness.uberflip.com/i/881267

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Page 67 of 99

PRACTICE SKILLS 實 踐 技 能 R ichard Bates' inspired takedown of the use of the "and/or" construct when drafting legal documents in last month's issue of Hong Kong Lawyer prompted me to submit a short column of my own, detailing the manifold ways I've seen lawyers in this jurisdiction shoot themselves in the foot, repeatedly, in the course of drafting legal documents. What follows is a distilled list of drafting tips based on many years of editing the work product of junior associates in this city. Read, and reflect on your sins. 1. Go wild with archaic language. Hong Kong trainees tend to emerge from law school with an instinctive command of formal English circa 1907, perhaps because this is the year in which the Law Society was founded. This is the first step on the road to drafting that clients can't readily understand. Here are some words to avoid at all costs: "whereas", "thus", "hereunto". If you refer to "the above-captioned matter," in an email, the email had better include a picture with a caption in it. If you find yourself typing "hereinbefore" (ever), seek professional help. Jin Yong and Charles Dickens got paid by the word. You do not. Use plain English, and your clients will thank you. 2. Use Elegant Variation. Let me tell you a secret about drafting: it is basically writing computer code that does not get compiled and run until someone has already lost a ton of money (or is about to). You know who doesn't get points for stylistic elegance? Programmers. Good drafting uses as few words as possible to convey an idea that is accurate and unambiguous. The same concept should always be stated the exact same way. Use a defined term if necessary. Be consistent. 3. Misuse Defined Terms. Here are the rules for using a defined term. Do you need to refer back to a concept multiple times? Use a defined term. Does it only show up in one section? Define it in the text. Does it recur across multiple sections? Put it in the defined terms schedule. 4. Misuse Defined Terms (Part 2). There is one true way of recording defined terms: in a schedule, at the back, with all terms defined in the text cross-referenced, just as God intended. If you put them at the front of a contract, people will waste time reading them before reviewing the substantive terms. Every. Single. Time. 5. Misplace Exceptions. There are two schools of thought on drafting exceptions, one of which is garbage. Smart lawyers state the rule and then list the exceptions. Bitter, angry lawyers fuelled by misery and caffeine state the exception and then the rule. You don't want to be a bitter, angry lawyer, do you? 6. Use Giant Paragraphs. Paragraph breaks are your friend. Let's say you want a rule to apply to three classes of shares. You could write "This rule applies to shares of Class A, Class B and Class C." Better, you could write: "This rule applies to shares of the following classes: (a) Class A; (b) Class B; and (c) Class C." Why is this better? Three reasons. First, it is easier to scan the text and spot whether the class you are concerned with at that specific time is included in Eight Ways to Ruin Your Reputation in the Course of Drafting By Peter Davies, Asia Legal Tech Correspondent Thomson Reuters 66 www.hk-lawyer.org •  October 2017

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