Document Preparation

In most movies and television shows, lawyers are shown interviewing clients, investigating the facts, and making witty, barbed comments when examining a witness on the witness stand. However, for most attorneys, document preparation is one of the most important aspects of their responsibilities. Litigators need documents to file claims, to obtain or respond to discovery, and to make motions. They are also responsible for preparing settlement agreements and court orders. Transactional attorneys prepare contracts, wills, trusts, and corporation papers. Dotting “I’s” and crossing “T’s” reflect just how careful an attorney must be in prepare documents.

 

 

Many terms have been standardized and interpreted by the courts. It is safer for attorneys to use standard language and to use forms incorporating standard terms. Many of these forms are available online, and a wise attorney will take advantage of the online forms. The wise attorney will also search online for copies of pleadings, motions and briefs. These documents show what theories of similar cases other attorneys have considered, researched, and argued.

 

 

Most rules today require only a short statement of the case, just enough to put the defendant on notice of what the case is about.  Each claim against each party is included in a separate count.  It is not necessary to repeat each factual allegation in each count; prior facts can be incorporated by reference.

 

A typical motor accident case will explain contain sufficient information to identify the parties, show that the court has jurisdiction, where the accident occurred, in which ways defendant was negligent, and that the plaintiff was damaged. LexisNexis(R) Forms: FORM 521-8-8 is a complaint against the driver and the owner of a vehicle for damages arising from an accident. The complaint contains two counts, consists of 11 paragraphs, each one sentence long.

 

A typical contract claim would identify the parties, show jurisdiction, state the date the contract was made, whether it is oral or written, how defendant breached the contract, and how plaintiff was damaged. There are many online fill-in-the-blank forms available to accommodate most situations.

 

Some complaints require heightened pleadings. Pleadings alleging fraud must provide all of the details of the alleged fraud. Claims under the Racketeer Influenced and Corrupt Organization Act (RICO) must expressly provide information on the predicate acts necessary to invoke a RICO claim.

 

Substantive responses to pleadings may be either a general denial to the entire pleading or count, specific denial for each individual paragraph, or a combination of the two. In addition, substantive responses must contain any affirmative defenses a party may have. It must also be remembered that defendants may move to dismiss before responding to a complaint.

 

For more information on pleadings, see 1-8 Bender's Federal Practice Forms.

 

Motions to dismiss may first be made in response to a complaint, challenging jurisdiction of the court over the person or over the action, insufficient or improper service of process, the failure to state a claim, or failure to join a necessary party. Motions to dismiss may subsequently be brought after discovery of facts indicate that plaintiffs cannot prove their case or if plaintiffs fail to diligently pursue their claim.  Motions to dismiss must contain the facts on which the movant relies and the source of such facts.

 

 

During the court of a law suit, one or more parties may believe that the material facts are uncontested and that judgment may be rendered without the need of a trial or a jury.  This includes sufficient facts to prove a case or the absence of necessary facts to prove that case. Motions for summary judgment must be accompanied by affidavits, deposition transcripts, admissions, or other admissible evidence. Responses must either point to an element of the claim at issue that is missing or not supported by evidence or be accompanied by admissible evidence establishing a dispute as to material facts.

 

 

In preparing for a trial, the attorney must examine all of the relevant evidence necessary to prove the cause of action and to contest it.  In addition to information supplied by the client and the attorney’s own investigation, the attorney uses interrogatories, depositions, requests for admissions, production of documents, and physical, and sometimes mental, examinations. Sample forms and litigation documents can be obtained through online form books on Lexis.com, and on other online dockets such as Courtlink or PACER. Law libraries also carry books containing sample forms. These sources are invaluable in providing a wide scope of ideas for the attorney, but the attorney needs to tailor each request to the particular issues in case at hand.

 

See 6-26 Bender's Federal Practice Forms 26.syn for standard federal forms of discovery. 

 

Other pretrial motions include removal to federal court, remand to state court, change of venue, severance of parties or claims, consolidation with other cases, permission to amend the complaint, and requests for continuances.

 

 

The questions asked of potential jurors are called void dire. Some judges prefer to ask voir dire questions themselves; others permit the attorneys to ask the questions. At the most basic level, the potential jurors are asked if they know any of the parties, the attorneys, or the judge. They are also asked if they have any personal knowledge of the case itself. They are asked what they do and where they work.

 

After the first basic questions are asked, potential jurors are asked a series of questions aimed at determining whether any potential juror had a bias or point of view that would impair that person’s ability to render a fair and impartial verdict. Does any potential juror work for an insurance company or have a close family member who works for an insurance company?  Has anyone been involved in a similar incident? Does anyone believe that certain witnesses are always more truthful than others. Does anyone work in an industry similar to that of one of the parties. Does anyone have sympathy toward a particular industry. Does anyone have any ethnic prejudices? Does anyone hold strong philosophical opinions against awarding substantial damages?  Because people may be reluctant to admit to bias, subtlety should be used.

 

In complex, lengthy cases, attorneys use voir dire to attempt to teach the jury about the intricacies of the case and to sway them toward their point of view. 

 

See 9-47 Bender's Federal Practice Forms 47.syn for typical voir dire questions.

 

 

The jury is given many instructions by the judge during the course of a trial. These include instructions on not talking about the trial and on avoiding television, radio and other media discussions of the case. Juries are told to ignore evidence after it has been stricken, that comments by attorneys are not evidence, and perhaps that certain evidence is to be used for limited purposes.

 

Final jury instructions are prepared by each party. They explain the law, and the issues as understood by the party preparing the instructions. Attorneys usually prepare jury instructions prior to the trial, but they often have to be revised or supplemented based on issues that arise during the course of the trial.

 

Each attorney should prepare a full set of instruction, including such basics as the burden of proof. Although most judges have their own boilerplate instructions, it is helpful to the attorney to present a total picture.  Each instruction should be a short statement of the substantive law. Jury instructions should cover the use of each type of evidence, the issues to be decided, the burden of proof, the liability of each party in respect to the action for each count, and the amount of damages, if any.

 

Most states have pattern jury instructions based on statutes or case law. To the extent those instructions are applicable to the case at bar, they should be used. When a case presents special circumstances, an issue that is unresolved, or differences that may be exploited; the attorney should draft an instruction favorable to the client’s cause of action or defense. In drafting such instructions, the attorney must support the point of view by providing case law or a statute.

 

See 9-51 Bender's Federal Practice Forms 51.syn for typical federal jury instructions. These may vary substantially from those in individual states. Jury instructions should also include a verdict sheet. In some cases, the verdict sheet simply asks whether the defendant is liable and the amount of damages. Where special or punitive damages are permitted, there should be a separate line for such damages. In other cases, specific issues are presented for a factual determination. The jury is then requested to state their decision as to those facts. For example, in a will contest, the jury may be asked whether they found that the testator signed the will or was it forged. The purpose of the jury sheet is to make clear exactly what was found by the jury.

 

See 9-49 Bender's Federal Practice Forms 49.syn for information and forms on special verdicts and jury interrogatories.

 

 

Many state courts require the attorneys to draft court orders.   In most cases, the prevailing attorney drafts the order, presents it to the other attorneys for approval, then it is submitted to the judge for signature. Most orders of this type tend to be simple, one line documents covering the ruling of the court. Others, involving multiple parties and issues, may be lengthy documents covering several counts and claims. Where parts, but not all, of a law suit are settled or withdrawn, the attorney must be very careful in using words that establish exact what the parties decided so as to avoid future disputes over interpretation of the order.

 

 

Courts strive to settle matters rather then wait for the decision of a judge or jury after a contested trial.  Simple personal injury cases require little more than a fill-in-the-blank form supplied by the insurance company defending the defendant. Complex issues between multiple parties or involving an ongoing relationship require careful drafting so that only the terms actually agreed upon by the parties are included in a written settlement agreement. See  4-49 Federal Litigation Guide P 49.40 for information on the different types of settlement agreements.

 

In some situations, the parties will continue to have a relationship. An employee who sues her employer for discrimination may continue to work for the same employer. A tenant who sued his landlord for breach of contract may continue to lease the property for a number of years. In these situations, a settlement and release should identify the particular problem being resolved and the release or settlement should be no broader than necessary under the circumstances.

 

An attorney who practices transaction law, writing contracts, estate planning, securities law, mergers and acquisitions, need to be very careful in making sure that the documents they draft reflect the intent of the parties.

 

 

The drafting of a will is an simple or complex as the desires of the testator. A young, married man may leave everything to his wife. An old unmarried man may leave everything to a sibling, a church, or a friend. A grandparent may leave something to the children and trusts for the grandchildren. In today’s world of complex relationships, the attorney must carefully ascertain exactly what the client wants and draft the will accordingly.

 

There are many online fill-in-the blank forms that may suit the needs of a person who needs only the most basic simple will.  However, when going beyond the simple will, the attorney needs to read and understand the various provisions available before drafting a will. A testator may devise any or all of his assets to any number of people and entities. To whom and when a bequest should be made, who should control assets until the bequest is conveyed, the tax consequences, and other issues should be explored by the attorney in order to let the client know what choices are available and what the client’s intentions are.

 

One consideration in drafting a will is whether one or more beneficiaries could be a minor at the time of death of the testator. If the amount is of relatively small value, an outright gift may be in order. However, if the amount is a substantial sum, the testator may want to place the assets in trust until the testator believes the minor will be old enough to handle it wisely. Some trusts pay over the principal when the minor reaches age 21 or 25. Other trusts pay out the principal in installments at various ages.

 

Another consideration in drafting a will is what happens if a devisee does not outlive the testator. Does the amount devised go to the spouse or issue of the predeceased beneficiary or to another beneficiary? The obverse also must be considered, what happens if the testator remarries or has a new child or grandchild since the signing of the will. Is a new will or codicil needed or should the will the attorney is drafting cover such a contingency. The attorney must also consider what would happen if a bequest should fail.

 

In addition to deciding the devises of a will, the testator also needs to decide who to trust to serve as personal representative of the will and trustee of any trusts created by the will. While a testator may have full faith and credit in a close friend or relative, all too often that friend or relative will put her own interests before those of the beneficiaries. It is important that a testator not choose someone whose interests will be adverse to the beneficiaries of a will.  See In re Estate of Rothko, 43 N.Y.2d 305 (N.Y. 1977)..

 

For more information on wills, see 1-1 Murphy's Will Clauses: Annotations and Forms with Tax Effects 1.

 

The purpose of a trust is to transfer income from the donor to the beneficiary for a period of time. The donor transfer assets from himself to a trustee, who then manages the assets and pays the income to the named beneficiary, which may be the donor himself. A trust may be revocable or irrevocable, and a trust may be created by a will. A revocable trust is one which the donor may terminate; upon termination, the principle is returned to the donor. An irrevocable trust lasts a specific number of years or a lifetime and may not be revoked by the donor. A testamentary trust is one created under the terms of a last will and testament. There are different tax considerations for each type of trust.

 

The attorney has the responsibility of explaining the choices the donor can make in establishing a trust. There are numerous forms that can be used by the attorney to cover the myriad circumstances and contingencies. A grandparent may want to leave certain money in trust for minor grandchildren. The grandparent must decide at what age each grandchild would receive his or her share, whether the trust could be invaded for educational or medical expenses, or whether each must get the same amount. The donor must also consider what should happen if the beneficiary of the principle of the trust should die before the principle is paid.

 

For more information and forms, see 3-I TRUST ADMINISTRATION AND TAXATION I.syn, 3-II TRUST ADMINISTRATION AND TAXATION II.syn, and 3-III TRUST ADMINISTRATION AND TAXATION III.syn.

 

Contracts are agreements between two or more parties. The contract controls the relationship of the parties, spelling out each party’s duties and responsibilities. Inherent in each contract is the duty of fair dealing and the requirement that the parties comply with the law.

 

 

Employment contracts, whether between an actor and a studio, a professional athlete and a team, an officer and a corporation, or a union and an employer, control the terms and conditions of employment. These include, among other things, the amount of pay, the duration of the contract, the employee’s duties, any benefits, and reasons for termination.  For those with special knowledge or duties, the contract may include provisions concerning the ownership of patents, disclosure of trade secrets, and non-compete clauses.

 

Union contracts involve a large number of workers performing the same job. In addition to the usual provisions for pay, benefits, and job description, the union contract frequently contains provisions for a grievance procedure in the event of a dispute between employees and the employer, rules for a strike or lockout, and rules for laying off workers if the company downsizes.  An online version of provisions for a union contract can be found in Matthew Bender’s Drafting a Union Contract.

 

 

Under the Uniform Commercial Code, (UCC) written contracts are required for the sale of goods valued at greater than $500. Where there are two equal parties, the parties may negotiate the terms of the sale, such as price, date of delivery, breach of contract rights, and warranties. When the parties are not equal, such as when a customer buys a car, many of the terms and conditions are contained on the preprinted forms drafted by attorneys to protect the seller. These contracts do have some negotiating room and customers are protected by statutory rights.

 

When the buyer finances the purchase through the use of credit, the transaction is subject to Title 9 of the UCC. To properly protect the seller or creditor, the attorney must file a financing statement in the proper courthouse.

 

 

Most realtors have fill in the blank forms for the sale of real property. The fill-in-the-blank portion of the contract covers the names of the buyers and sellers, a description of the property to be sold, any personal property to be conveyed at sale, and any contingencies for obtaining a mortgage or for the sale of property owned by the buyer. The preprinted provisions concern any deposits and the circumstances under which a deposit will or will not be refunded, the payment of realtor fees, the adjustment at settlement for taxes, water, and electricity, and the responsibilities of each party.

 

Rental contracts for the lease of residential property include the terms under which the tenant may occupy the property. Terms include rent, late fees, length of the lease, whether pets are permitted, responsibility for repairs, defaults, and attorney fees. Commercial leases, while containing the same type of provisions frequently add provisions for apportionment of taxes and other common expenses and may include an escalation clause.

 

 

Construction contracts are typically between the owner of land and a builder. The owner may be building for his own use or for sale to another.  Provisions are made for payments to the builder at specific stages during the course of construction. Because most construction is financed by a bank or other lender and the lender wants to protect its investment, provision is made for the lender to inspect the property before making the staged payouts. There is also a requirement that the builder provide a performance bond to make sure that the subcontractors are paid and the owner or buyer can take the property free and clear of any encumbrances arising from construction. Attached to the construction contract should be a blueprint of the building to be constructed and a list of specifications as to the material to be used. Any changes in the blueprints or specifications must be in writing. Typical commercial contracts require the arbitration of any disputes arising from the construction.  For more information see 1-3 Construction Law 3.syn.

 

The owner of a patent may want to sell his rights in a patent to a corporation. In the alternative, he may choose to license the right to use or manufacture the patented product.  The patent holder may grant multiple licenses or an exclusive license. The licensee may pay a flat fee for a period of time or a royalty on each product sold. The contract should include not only the names of the parties, the patented product, and the licensing fee, but also the length of the contract, the use of any name, the territory covered, and termination responsibilities.

 

 

A franchise agreement is a special form of license by which the franchisee owns and operates a business under rules established by the franchisor. The franchise agreement covers the sale of the franchise to the franchisee. It covers the cost for the right to operate the business and royalty payments based on sales. The rules that are included in such agreements cover what the franchisee can sell, quality control, advertising and advertising expenses, costs of goods, termination rights. The agreement may also provide exclusive or nonexclusive rights in certain territories. 

 

For more information, see 1-3 Business Law Monographs: General Business § 3.syn. This section provides information on an attorney’s role in advising a client and considerations in drafting a franchise agreement.

 

 

Attorneys are frequently called upon to draft articles of incorporation for new companies. These documents require the name of the new corporation, its place of business, the person incorporating the business, a place of contact for that person, the business purpose, and information on the number of shares to be authorized. Once a state approves the articles of incorporation, the new corporation is required to approve a set of bylaws. These two documents make provisions for electing officers and directors, responsibilities and liabilities of subscribers, shareholders and officers, termination of officers and directors, allocation and types of shares of stock, and rights of minority shareholders.

 

Another frequently used method of opening a business with a measure of liability protection for the business owners is a limited liability partnership.  Instead of articles of incorporation and bylaws, limited liability companies operate under an operating agreement. This agreement covers the formation of the partnership, management, rights and duties of the managers, members, accounting, transfer of interests, and termination. See 22-18A Lexis Forms: Rabkin & Johnson Current Legal Forms 18A.06 for a typical long form.

 

Other business documents include general partnerships, professional associations, real estate investment trusts, and joint ventures. In addition, there are numerous charitable and non-profit entities, including churches, hospitals, schools, and community associations.