Great jokes often come from double entrendres or playing on words: “What is the difference between ignorance and apathy?” “I don’t know and I don’t care.”
The best have an element of the unexpected: “A man walks into a bar with an alligator on a lead and asks, “Do you serve lawyers?” “Of course,” says the bartender. “Then I’ll have a beer for me and a lawyer for my alligator.” With this joke we think we know what the first sentence means until we read the last sentence. Context is all.
When it comes to drafting documents, precision and clarity are essential. Whilst the draftsman (presumably) knows exactly what he wants to say, to another reader’s eyes the text may be ambiguous. The following tips should help to avoid some of the uncertainty that we frequently encounter in documents:
- Avoid ambiguous pronouns. “Adam hereby appoints Ben to be an additional trustee of the Trust but if he dies then he appoints Charlie.” If who dies? Ben or Charlie?
- Be clear about the class of persons to whom you wish to refer. “The children of David and Elizabeth” would refer to the children born to David and Elizabeth; it would not refer to the children of David and the children of Elizabeth.
- The incorporation of spouses or civil partners into a defined class can be problematic. A reference to “Fred’s spouse, Greta” will include Greta for as long as she is married to Fred. It would not include Greta if Fred predeceased her; nor would it include another spouse of Fred if he divorced Greta and married again. Also, the term spouse does not include civil partner unless defined as such.
- If you wish to make reference to a specific charity, make sure you do so correctly. For example, “Cancer Research” could mean “Cancer Research UK” or “Imperial Cancer Research Fund”.
- Use the correct modal auxiliary verb to convey accurately what is intended. For example, “could” is used to indicate options or to express possibilities; “may” indicates that something is possible; “should” is used to make a recommendation, “must” imposes an obligation and “will” is used for actions that take place in the future.
- Avoid time period inaccuracies. Decide if a period of days includes weekends and holidays. A well-defined time period should have a start date (and possibly a start time) as well as an end date (and an end time). The times and dates should be readily determinable without any ambiguity.
- Identify the correct domicile or law. It would be nonsense to say that an individual is domiciled in America and accurate to say that he is domiciled in a given state of America.
In legal drafting ambiguity, double meanings and imprecision can be disastrous and may prove costly to correct. Avoid double negatives where possible. Stay away from convoluted sentences and long paragraphs: keep them short, like this article!