From start to finish

There is an art of reading, as well as an art of thinking and an art of writing.

Isaac D’Israeli Literary character

2.1 From start to finish

This chapter considers the various matters which form part of the process of drafting legal documents, from the moment the client gives instructions which will require the production of a legal document, to the time when that document is executed. As drafting can involve anything from a single page document (for example, a simple will), to documents of 100 pages or more (for example, an agreement for the sale of a business), the complexity and time required to complete any particular stage of the drafting process will vary.

In all cases, the drafting process will involve two main stages, namely, the thinking stage and the composing stage. The former is concerned with analysing the material and assembling the legal concepts which are to be included in the document, whilst the latter is concerned with the actual preparation of the document. The time and effort involved in each stage may not be represented by the number of pages in the finished document.

2.2 Time

2.2.1 Estimating the time needed

The time needed to complete any drafting task will have to be estimated in advance, for several reasons. The client may request an estimate of the cost of producing the document (which may be based on the time it will take), or may indicate that the document

must be ready by a given date. It will also be necessary to ensure that there is sufficient time to fit the drafting task within existing or anticipated commitments to other clients.

Sometimes, it is found in retrospect that an estimate of the time required to complete a drafting task had little relation to the time actually spent on it. Unforeseen complications may have arisen at either the thinking stage or the composing stage, or the client may have wanted to discuss the matter at greater length than was necessary or anticipated. With experience, it should be possible to estimate with a fair degree of accuracy how much time will be needed to draft a particular document and to deal with any problems which are usually associated with drafting that type of document.

Estimates of the time required for drafting are usually only inaccurate in the case of documents of an unusual nature, or those of which the lawyer has little experience in drafting. Although underestimates of the time needed to draft a document are the most common problem in time management, occasions also arise where drafting a document takes up much less time than was anticipated because problems which it was felt might arise in either the thinking stage or the composing stage do not materialise.

2.2.2 Time and the thinking stage

If the time needed to draft a document is underestimated, it is more likely that this will arise from problems at the thinking (rather than the composing) stage. The thinking stage may take up more time than anticipated because of unexpected problems arising from the client’s instructions, or because the instructions involve complex legal matters. For example, a short will may require considerable time and thought because its apparently straightforward provisions need to be discussed in detail with the client and careful legal research is necessary before they are finalised. Sometimes, a discussion with the client may elicit additional matters of the

‘Perhaps I ought to tell you’ variety, which may put a different perspective on how the drafting should proceed and mean that time

spent has been wasted, or that much more time than anticipated will be needed. The length of the document to be drafted is not an infallible guide, either, to the time which may be needed at the thinking stage, since a document may only be long because it contains numerous pages of standard provisions which have been adopted from a precedent, which will need little more than reading through to ensure their contents are appropriate and to adapt them to fit with the language and drafting style of the document (see above, 1.13–1.15).

2.2.3 Time and the composing stage

Underestimates of the time needed to complete the composing stage can arise for a number of reasons. Sometimes, it may be necessary to ponder over the choice of words to ensure that they reflect the client’s wishes and are neither too narrow nor too wide in their scope. It may be necessary to read and re-read sentences and clauses to ensure they are not ambiguous or will not cause ambiguity elsewhere in the document. Cross-references in the document and references to provisions in other documents may need to be checked several times for accuracy, and clauses read and re-read to ensure they are not repetitive of matters stated elsewhere in the document, or do not overlap in some other way.

The legal implications of the words used in other provisions in the same document and related documents may also require careful consideration. If it is necessary to attend to some or all of these matters, it is likely that the composing stage will take considerable time to complete. Furthermore, these are matters which cannot be rushed, as this will only lead to mistakes and omissions.

2.2.4 Time and experience

The time and effort which drafting may require will, of course, vary according to the experience of the lawyer. A novice may take days to produce a draft document which an expert could run off in a short time, because the expert is aware of the pitfalls that that type of drafting may hold and how they should be dealt with. It is also worth

remembering that the opportunity to do the drafting without interruptions which break the train of thought will save on time, as interruptions invariably mean that the matters being dealt with have to be done over again.