Guides to drafting. Apart from writing changes and extra clauses for the Conditions of the contract, the engineer has to face the difficulties of effective drafting in preparing the technical documents, bill of quantities, specification, etc., and the contractor in preparing tender qualifications (p. 20) (all of which as part of the contract are legal documents ultimately to be interpreted by the courts (p. 302)). Bad drafting even in writing minutes of meetings and letters may cause unnecessary disputes (p. 18). Some hints for the draftsman:

(a) Insist on having full and clear instructions and information as to what the document to be drafted is to achieve. Do not draft a clause without visualising clearly all possibilities intended to be covered. Refer to the instructions and information often to make sure that the draft has not drifted away from what is intended. Preserve the instructions and information.

(b) Generally find out as much as possible about the subject matter, and ask as many questions as necessary—when in doubt ask, do not assume.

(c) Do not rely on memory more than is essential. In particular, make (and keep up to date) a checklist of the points to be covered.

(d) Make a skeleton plan of the document and do not add details, which may obscure basic faults, until this ground plan is correct and logically organised. As far as possible in the whole document and each part follow some logical sequence—why (it often helps to make a clause clearer if the reason for the clause is put first), who, what, when.

(e) Use published forms and forms from previous documents wherever possible, but as an aid only. Avoid the scissors and paste drafting of using undigested clauses from previous contracts; there is no substitute for thought about the particular works.

(f) Make “across the board” checks of the draft. Check definitions one by one, then cross-references, and so on, i.e. take one point at a time and check that it is fully and consistently dealt with in the various sections of the document.

(g) Any special alteration or addition to the standard forms must be explicit and precise, and each of the other terms of the forms must be run through to see if any consequential changes are necessary.

(h) Simple words and sentences are best. Pompous and tortuous phrases and legal jargon often hide (even from the draftsman himself) the fact that the draftsman is confused about what he wants to say. But the use of words and phrases with a meaning settled by the courts in past cases (see the doctrine of precedent below) is often wise, however out of date they may have become in ordinary language. Do not use more words than necessary or use any word the purpose of which is not fully understood.

(i) Take special care about the position of words in a sentence. An American statute reads: “No one shall carry any dangerous weapon upon the public highway except for the purpose of killing a noxious animal or a policeman in the execution of his duty.” Take care in choosing between “and”, “or” and “and/or”.

(j) Above all, time and pride are the enemies of good drafting. Do not be too proud to prepare as many revised drafts as necessary, or to have the document read and checked by others if at all possible. However urgent it is, never finalise an important document without putting it aside for a time! forgetting about it, and considering it again with an open mind. Compare the usual hurry in which construction documents are drafted with the following appreciation of the difficulties of drafting, written by a parliamentary draftsman:

A friend of a draftsman walked into his office late one evening and enquired: “Done any useful work today?” The draftsman replied: “Well, to be frank, I inserted a comma before a particular word this morning, I took it off in the afternoon and just as you were entering my room I was thinking of putting it back. That is all the work I have done today.”