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312019253-Christovel Yamado Yacob
312019253-Christovel Yamado Yacob
312019253-Christovel Yamado Yacob
NIM : 312019253
TRANSKIP 87 PODCAST CONTRACT DRAFTING TIPS WITH NATASHA
COSTELLO
hello and welcome to study legal English I am really pleased today to be joined
by a special guest she is a non-practicing british solicitor and has over 16 years
of experience teaching law legal english english and now lives and works in
paris and teachers at universities she's previously taught at Manchester
Metropolitan University so hi Natasha Costello hi Louise thanks for inviting me
good so I'm super pleased to have a Natasha on the show because we met a few
years ago we met through you leta the European legal English teachers
association and we've collaborated together we presented together at the last
Elita conference on practical skills and natasha is my go-to person to talk to
about contract drafting to get tips about contract drafting because natasha has
got loads of experience about it so I'm really grateful to get tips from you and I
thought she's got so many tips I want her to be able to share them with people
who listen to the show so we are yeah so we're focusing on contracting today so
I gave a bit of background a bit of your background but can you explain a little
bit more about how you got to where you are today yeah okay so perhaps the
starting point is that I began my career as a practicing solicitor in England in
Manchester and so I was drafting contracts at that point I specialized in
commercial real estate law so I was drafting contracts for sale and purchase of
property land commercial leases option agreements lots of different types of
contracts and then as you said I went I went to teach at Manchester
Metropolitan University so I was a senior lecturer on the legal practice course
and in case in case you listeners don't know the legal legal practice course is of
course you have to do after your degree that before you do your training to
become a solicitor so it focuses on practical skills so as well as teaching law I
was teaching contract drafting and drafting leases and I was also running a
program on commercial lease drafting in a local law firm as well and then as
you said I came to Paris so that was about ten years ago and so whereas in
England I was teaching native English speakers now I'm working with non-
native speaking lawyers and law students as I'm working with French practicing
lawyers and French University law students teaching them legal English and
teaching contract draftee hmm very interesting and challenging and quite
different ways to work great so moving into contract drafting and tips about
contract drafting now in your experience what are some of the top errors or
mistakes or problems with contract drafting and how can these these problems
be resolved or improved upon maybe I'll just fix all three mm-hmm common
problems if you like that I see so the first problem is using archaic language and
what we sometimes call legalese and I know a lot of your previous interviewees
or in previous podcasts deal with this this question of legalese I might just just
interrupt you just in case the listeners don't know what legalese is we could say
that it's language that doesn't have a specific technical legal meaning but that's
used kind of to give maybe a legal flavor to the the contract or to your legal
writing but that doesn't necessarily add anything you can give plain English
alternatives so do you have well you're going to give some examples legally
like slepak so I just wanted to kind of just clarify what it was yeah but a good
one is something like where as and that was funny because I had a student that
said to me but I like whereas it makes me sound like an English lawyer so I
think people perhaps use these words because they sound more loyally and but
whereas for example is a word that you can just cut out you don't need it at all
and then some of the sort of more problem words are things like hearing
hearing before hearing after and as I said I know you've dealt with that on
previous podcasts perhaps an example of where it caused an ambiguity recently
it doesn't sound too archaic but I have the word or I saw the word above-
mentioned contract so this was a settlement agreement where party a was
agreeing to pay party B various sums of money and so you know in one clause it
said they would pay this much in another clause this much for various different
items and then at one point in the contract it referred to the above-mentioned
sums and so I have to stop an oscar the lawyers well which sums do you mean
do you mean all of those sums that you've mentioned before in the contract or
do you just mean the the one you mentioned in the previous clause so the
problem with those types of words like hearing before or hearing is what
exactly do they mean what exactly are you referring yeah so what how could
you resolve that what would you recommend probably is something like that
you need to be specific about which songs you're referring to so you can
perhaps referred to the sums in clause 4 for example then you'd have to be
careful because if you change your Clause numbering then you could have a
problem too so it's not always easy when it's just something to be aware of just
make sure if you've said the sums in Clause 4 then you change clothes for to
Clause 5 that you've got some system to check that you've got those correct
numbers exactly okay a very good first problem and first tip thank you and
what's what's your second one okay so still on the theme of language and again
most of these tips relate to things I see with non-native speakers they could
apply to native English speakers as well I think is the problem of lack of
consistency and what I mean by that is using different words or expressions for
the same thing so the the obvious example I have is taking the example of an
obligation in a contract and what I often see is that different words used to
express an obligation so and I see that you know within one contract there are
different expressions use so for example I saw one where it had party a
commits to doing this and in the next closed party a is required to do this party
a agrees to do this and then this one I love then it said party a especially agrees
to do this so I don't know whether that means especially agrees it means more
than just agrees but the point is that if you start using different words to
describe an obligation then it's open to interpretation by the court they might
think we'll hang on a minute do you mean something more by saying you
commit to doing something rather than agreeing to do something so that is
something I see quite often mmm that's probably I just suddenly thought that's
it that's a really good point as well to mention for translators for court translator
because we actually went to a conference yesterday about legal language and the
judicial system and there were it was attended by quite a lot of translators and
there was a debate at some point about how you know should translators not
translators or interpreters who translate orally simple normally simultaneously
or as soon as someone's spoken and there was this debate as to whether they
can change slightly the word or miss out particular words and someone said
that in some instances in legal language it's really it can change everything so
that's a good example although it's talking about contract drafting if you have a
cross that says party a agrees to and then party a especially agrees to a judge
can interpret that as being something completely different and perhaps in a in
a different scenario you know it could change could change the meaning in in an
actual court case yeah cuz that's changing meaning and another point about
again just about being consistent is there was a case a couple of years ago and
this time it's where there was a definition and as I'm sure your your listeners are
probably know that often in a contract you have defined terms and when you
have defined terms you have capital letters to for the defined term and then you
use those capital letters throughout your contract so there's a case a couple
years ago where there was a definition of practical completion capital P capital
C but at one point in the contract it referred to practical completion with a small
P and a small C and so one party tried to argue this meant something different
so a different obligation can only be carried out by a person or a party yes and
this kind of links to the writing and the active voice but if you always think who
is doing that obligation so construct your sentences as Company A shall pay X
amount to Company B that's a really simple version of it but try to keep in your
mind when you're drafting those points I think that's a really good tip actually
to always think of having party with shell so that it's clear it's not obligation on
a party to the contract good ok so so your main point with shall and must is that
shell is it's mainly used in cutting company or business to business contracts it's
and must is more used in consumer contracts but it's also used in legislation and
it's part of the plain language movement shall isn't used in plain language but
the main point is to be consistent and make sure you're using this language as to
express an obligation and not something else good so one of my last points was
what resources do you recommend ok I mentioned a few already first in terms
of plain legal English which we've talked to that I mentioned Brian Garner's
book which I've got here I could show legal writing in plain English by Brian
Ghana so if you want to see what he says about the plain legal English then
there's also a very good resource the Adobe legal department style guide it
shows a company really embracing plain legal English it's a really good
resource again they say don't use shall use use another verb and they give
examples they'll give examples of legalese and how you can avoid that and
examples of alternatives to show so really good resource actually when I was
starting doing some contract drafting I asked Natasha for some helpful resources
and you recommended that to me and it's a really good resource and like you
mentioned it's got the on some of the pages it's got like the legalese version and
then the plain English equivalents which you can just it's a really helpful
resource but if you're drafting contracts and not just drafting I think it covers
good writings years as well yeah so and it just shows you that there are
companies out there who are following the the plain English principles it's not
something to be scared of yes yeah so it's a good resource for teachers as well if
you are interested in kind of teaching the plain language style it's a good
resource to show to students that is used by companies and it's Adobe it's not
like a random yes small company they are a major multinational multi probably
million or billion pound company I don't know but you know a big one so it's a
good example yeah and then in terms of contract drafting a book that I like of
us here is this one drafting contracts by Tina Stark I really like Tina Starks
approach because she looks at the business deals she as I mentioned before she
gets you to think about the purpose behind your drafting and then using the
correct language to achieve that purpose so Tina Starks an American writer but I
think that the contract drafting principles she talks about applied to any English
language contracts but another good resource is this book their manual of style
for contract drafting by Ken Adams some of your listeners will have heard
other people mention Ken Adams he also has a blog on contract drafting so I'd
recommend you look at his blog as well there's another book also by an
American author Cynthia Adams with Peter Kramer this one's called drafting
contracts in legal English and again some good tips on contract drafting in
terms of something from a British author I think I would recommend this book
the Law Society publication called clarity for lawyers which was recently
updated it's not purely about contract drafting it's about good writing but again
the the principles and techniques apply to contract rafting - and actually
Natasha's written a an article which is for the clarity journal and it was called
teaching lawyers teaching non-native English speaking lawyers to draft
contracts with clarity it's a really really helpful article especially for teachers
and because it gives some tips and it's really really concise and it's quite a nice
resource to use actually with with students and to get those tips so sometimes
the the most difficult question to answer from students is when they say have
you got some examples of some well drafted contracts I'm often asked that
question and the problem is that I usually take contracts that haven't been
drafted well and and show how they can be improved so it's difficult it's
difficult to find examples of well drafted contracts I mentioned the model
commercial leases earlier but perhaps if your listeners have got any good
examples yes yeah you could share those yes yeah yeah if you do have good
examples of contract drafting if you feel like you're an amazing contractor in
English or even if you just would like to share some of your writing and take
out the confidential information and send them in to Louise at study legal
English comm and as well you know you can get in touch directly with Natasha
she's on LinkedIn and you can find her by searching Natasha Costello I can
leave a link in the show notes so if you've got any further questions would you
be happy to answer those yeah good excellent so brilliant so that was a really
really you gave some really helpful tips there so Thank You Natasha thank you
thank you and for listeners you know I hope you found that helpful I hope you
found something new and I've got a question for you what do you find difficult
about contract drafting get in touch send me an email to Louise at study legal
English comm or you can join in the conversation on social media on Facebook
Twitter just search for legal English or you can probably if you're watching this
on youtube you can leave a message down below and either Natasha or I will
yeah hopefully we respond so thank you for listening and see you next time