Legal drafting is one of the most important practical skills a lawyer develops. Yet, it is also an area where lawyers and law students frequently rely on habits rather than deliberate drafting. A contract may contain all the expected clauses, use formal language and run into dozens of pages, but still fail to communicate the parties’ intentions accurately. The problem often begins with an overdependence on templates and continues with the careless use of legal terminology.
A template is useful because it provides a structural starting point. It reminds a lawyer of provisions that may need to be considered and can save considerable time. However, a template is not a substitute for understanding the transaction. Every contract represents a particular commercial arrangement, and the drafting must reflect the specific parties, obligations, risks, timelines and remedies involved. Copying a precedent without analysing its relevance is therefore one of the most common drafting mistakes.
For example, a lawyer drafting a consultancy agreement may begin with an earlier agreement and simply change the names of the parties, fees and dates. But the earlier agreement may have been prepared for a different scope of services, a different intellectual property arrangement or a different allocation of liability. A clause that was appropriate in the original transaction may be entirely unsuitable for the new client. The danger is particularly high when the original template contains provisions that are inconsistent with the commercial understanding of the present transaction.
The correct approach is to treat a template as a checklist and starting point, rather than as a finished document. Before using it, the lawyer should identify the commercial objective, understand the client’s instructions, identify the legal and business risks and determine which provisions genuinely apply.
The second major problem is the failure to distinguish between legal terminology and legal drafting. Knowing the meaning of legal terms is important, but inserting technical words into a document does not automatically make the drafting stronger. In fact, unnecessary legal terminology can obscure the parties’ actual agreement.
Words such as “hereinafter”, “heretofore”, “aforementioned”, “notwithstanding”, “thereof”, “therein” and “whereas” have traditional places in legal documents, but they should not be used merely because they appear in older precedents. A modern drafter should ask whether a simpler expression communicates the same legal meaning more clearly.
Consider the difference between a provision stating that a party must provide information “forthwith” and one requiring it to provide the information “within two business days of receiving the request.” The latter is generally more precise because it establishes an identifiable obligation and timeline. Similarly, replacing vague expressions such as “reasonable time” with a defined period may reduce uncertainty where the commercial circumstances permit it.
This does not mean that plain language should replace legal precision. Legal drafting requires a balance between clarity and accuracy. A term should be simplified only where doing so does not change its intended legal effect.
One of the most common terminology-related mistakes is the careless use of “shall”, “may”, “will” and “must”. These words can have different implications depending on context, and inconsistent usage can create uncertainty about whether a provision imposes an obligation, grants discretion or describes a future event. The drafter should therefore choose language deliberately rather than mechanically reproducing wording from previous agreements.
Another frequent problem is inconsistent terminology. If a contract defines an entity as the “Service Provider”, the drafter should not later refer to the same entity as the “Consultant”, “Vendor” or “Supplier” unless these terms have distinct meanings. Defined terms should be used consistently throughout the document. Inconsistency may appear minor during drafting but can become significant when a dispute arises.
The same principle applies to “and” and “or”. These seemingly simple words can materially affect contractual interpretation. A clause requiring compliance with conditions A “and” B generally requires both conditions, whereas “or” may indicate that compliance with either is sufficient. The drafter should never use these terms casually.
The third major category of errors involves failure to draft for the future. A contract is not merely a record of what the parties agreed on the date of signing. It is a framework intended to govern their relationship over time, including circumstances that may not have been anticipated.
A good drafter therefore asks a series of practical questions: What happens if one party fails to perform? What happens if payment is delayed? What happens if the scope of work changes? Who owns newly created intellectual property? What happens if confidential information is disclosed? Can either party terminate the agreement? What obligations survive termination? What happens if a dispute arises?
Templates can encourage lawyers to overlook these questions because the presence of a clause creates an illusion of completeness. A contract may contain an indemnity clause, for example, without actually addressing the specific risks that the client wants the indemnity to cover. Similarly, a limitation-of-liability clause may contain a liability cap without clearly identifying exceptions to that cap.
Another important drafting mistake is overloading a single sentence with multiple obligations and conditions. Long sentences can make a provision difficult to interpret. If a clause contains several independent obligations, exceptions, timelines and consequences, separating them into logically structured sub-clauses may significantly improve clarity.
Poor cross-referencing is another recurring problem. A contract may refer to “Clause 12.3(b)” when the relevant provision is actually in Clause 13.2(b), particularly after multiple rounds of amendments. Such errors can undermine confidence in the document and, in serious cases, create interpretive disputes. A final cross-reference check should therefore be part of every drafting process.
Lawyers must also be careful with standard boilerplate provisions. Clauses dealing with entire agreement, waiver, severability, assignment, notices, governing law, jurisdiction, force majeure and dispute resolution are sometimes copied from one agreement to another without considering whether they fit the transaction. Boilerplate is not necessarily unimportant simply because it appears frequently in contracts. Some of the most significant disputes arise from provisions that were assumed to be standard.
The final stage of drafting should therefore involve a legal, commercial and linguistic audit. The legal audit should examine whether the provisions comply with applicable law and adequately protect the client’s position. The commercial audit should determine whether the document actually reflects the negotiated transaction. The linguistic audit should identify ambiguity, inconsistent terminology, unnecessary repetition and grammatical or structural problems.
A useful technique is to read the contract as if you were the judge or arbitrator deciding a dispute three years later. Would the reader understand exactly what each party was required to do? Are the timelines measurable? Are the defined terms consistent? Are the consequences of breach clear? Does the dispute resolution mechanism actually work? If the answer to any of these questions is uncertain, the drafting requires another review.
Ultimately, good legal drafting is not about producing documents that look complicated. It is about producing documents that are clear, precise, internally consistent and legally effective. Templates can provide structure, but judgment must determine what stays, what goes and what needs to be rewritten. Legal terminology can provide precision, but only when used deliberately and correctly.
The transition from a beginner to a competent legal drafter therefore involves moving away from the mindset of “What template should I use?” towards the more sophisticated question: “What does this particular client need this particular contract to accomplish?”
That shift is fundamental. The best lawyers do not simply copy clauses; they understand why the clause exists, what risk it addresses and how its language affects the client’s rights and obligations. In legal drafting, every word should earn its place—and every template should be subjected to careful legal judgment before it does.
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