Drafting the Documents

Drafting documents is a pain for lawyers but provides a distinct advantage.

Drafting documents is a pain for lawyers but provides a distinct advantage.

So, you are practicing law now. You have all kinds of work. Some of your work involves talking to people. Some of it involves working out disputes. Some may involve litigation, lawsuits, mediations, and other adversarial matters. No matter what you do, sooner or later you are probably going to have to come up with a document.

I am not going to sugarcoat it, most lawyers seek to avoid some jobs. Most lawyers avoid drafting documents. Now, I know that there are some lawyers who love to draft contracts, Motions, judgments, and yes, insurance policies. For those of you that are these lawyers, never mind. If you do not like drafting documents, read on.

I have trained a lot of associate lawyers. Sooner or later, they reveal themselves. How you ask? Well, they decide that all of their drafting duties are “admin” or administrative duties. That’s right, they simply assign their secretary, paralegal, or legal assistant to the task of document drafting. Now, this is a great strategy if someone else has trained the “admin” and the admin knows what they are doing. This is pretty rare these days for most solo practitioners or young lawyers.

If the lawyer does not know how to go about drafting documents, he/she is in for a rough time. I would insist that the associates know both how to draft documents, and also to know what documents had to be compiled to get something done. Once an attorney knows this information, they become far more powerful.

A Motion is More than a Motion
By way of illustration, take a simple Motion in family court. The job entails more than just drafting a Motion. In addition, the Motion has to be “noticed,” which requires a separate document. The Motion also has to be “served’ which requires a separate proof of service document. Also, the Motion must be served on the proper parties including, if children are part of the proceeding, proper service on the Friend of the Court’s office. It can also be helpful if the judge actually reads your Motion. In many Michigan Courts, it is very helpful (sometimes required) to serve a separate “Judge’s Copy” of the documents on the Judge so that she can review it ahead of time, and mark it up, if preferred.

Again, all of these steps and documents are necessary. Truth is, your paralegal or assistant is not going to be standing up in Court to take the blame if there is a defect. Also, it is considered “bad form” for an attorney to blame a member of his or her staff for a problem; after all, that attorney is responsible for their staff, and hence the defect.

Learn the Rules
Learning these rules (in Michigan, they are in the Michigan Court Rules) is essential. The associates I have worked with who refused to learn these rules, and have refused to learn how to draft these documents, have not been associate attorneys for long, and some have quit the practice of law all together. In short, learn the rules and learn how to draft documents.

The Power of Drafting the Documents
We recently had a divorce case wrap up. The negotiations lagged for months and, as usual, sped up and were fast and furious right before trial. We drafted the documents. The closer we got to trial, the less we were willing to bend on the terms. If they wanted a change, I would modify the documents only slightly in reply. We got to hang tough, and much of that was because we drafted the documents, and were in charge of the changes.

Throughout my career, I have run into lawyers who avoid drafting documents. They may not know how to construct them. They may not know the rules. They may just be lazy. The result is that I get to draft them to my client’s advantage from the start. Sure, I get some requests to change or modify documents, but many times I do not. Either way, if you put together the contracts, Motions, Orders and Judgments, you have a distinct advantage.

More than once I have seen my opponents let things slide in documents I have drafted because their clients were tired of being billed and wanted the matter concluded. I have seen lawyers, desperate to obtain an extension, agree to the wording of an extension Order, only to be whipsawed by the wording of the order later. I have seen lawyers approve language because they did not understand the meaning of the language and were either too proud to ask what it meant or they overlooked it.

Be Competent & Confident
In short, learn to be both competent and confident in your drafting ability. Learn what to file and serve, what to send and who to include. Learn the rules and you will have a distinct advantage over those who don’t.

Brian Vincent has over 30 years of experience as a business law attorney and has worked extensively with business owners to protect and defend their interests. Contact Brian online or at (616) 608-4440 with your questions.