§ 6.00    Writing Effectively: Introduction

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Once a policy has been thought through, it is time to put pen to paper and words to the page. Your focus turns from identifying the policy to expressing it in the most effective way.

The language used for legislation is not special and mysterious; it is the same language used for anything else. For that reason, any guide about how to write well can help you draft well. Likewise, any guide specifically for legal writing applies generally to drafting.

This chapter could be spent generally on how to write well, but it would not be well spent. As a drafter, you already should have on your shelf at least two other guides on writing: one on good writing and one on good legal writing. You should not need to be told, for example, to plan before you write and to edit after you write. You already should have mastered grammar and spelling and punctuation.

As a federal drafter, you also should have on your shelf a third guide on writing: the Government Printing Office Style Manual, which is the style manual for most federal writing. With very few exceptions, federal drafting follows this style manual. A link to the manual is available online at <www.Legislative Drafter.com>.

This chapter builds on the principles of good writing (and good legal writing) and emphasizes the techniques and approaches that are most important for drafting effectively.

The essence of effective drafting is clear writing--that is, writing the meaning of which is not in doubt. As a drafter, you should always strive to write as clearly as possible under the circumstances. Writing clearly provides two very important benefits.

First, a clear draft is an accurate draft. Take a clear draft and show it to your client. Because the draft is clear, by definition it has only one meaning; it can be read in only one possible way. After reading it, the client can only accept it as accurate or return it with an explanation of what is not yet quite right (or perhaps abandon the project).

Now take an unclear draft and show it to your client. By definition, the draft has more than one meaning; let's call them A and B. If the client accepts the draft as accurate, you cannot be certain what the acceptance means. Did the client accept the draft, thinking it meant A? Did the client accept the draft, thinking it meant B? Did the client accept the draft, recognizing that it was ambiguous (and embracing the ambiguity)? Only when you provide a clear draft can you be sure, through this sort of exchange, that you and the client have had a meeting of the minds.

Second, clear writing ensures that the draft, if enacted into law, carries out the client's policy effectively. If the law is not clear to the officer responsible for carrying it out, the officer might carry out the policy in a way the client did not intend--or might not carry it out at all. If the law is not clear to those affected by it, they might be unsure how to comply. Lawsuits might follow, and the courts might interpret the law in a way that the client did not intend--or might void it altogether.

You must be able to draft with great clarity. Until and unless the client instructs you otherwise, you should draft on that basis. And as part and parcel of being able to draft with great clarity, you must also be able to spot every way in which a draft is not clear.

Some of those who write about drafting claim that drafters have a duty not only to the client, but also to the public. They focus on the societal costs of unclear laws and exhort drafters to do their alleged civic duty to produce clear laws.

Whether such a civic duty applies to you is beside the point. (A civic duty to produce clear laws, if there is one, would seem to apply more directly to a legislator than to you.) To a drafter, the cardinal virtue of a clear draft is not that it may turn into a clear law to the benefit of society; the cardinal virtue of a clear draft is that it is necessarily an accurate draft. It fulfills your duty to your client.

In short, be clear not because you have a sense of civic duty, however virtuous and well-meaning that might be. Be clear because clarity is the way to accuracy, and being accurate is your ultimate duty.