How To Do Legal Drafting?

A lawyer friend of mine (who probably got it from someone else or through the Net) sent me this brilliant and humourous yet realistic illustration of how lawyers would make things (and life) difficult for others. Also with this illustration, it might de-mystifies for those financially affected as to how legal fees can escalate, especially when billed by the hours or time spent (by the legal assistant(s), senior legal assistant/associate and a partner before the penultimate draft is reviewed by the senior partner).


Original wording:

I want to eat burgers with you.

First amendment:

I want to eat burgers with you. For the avoidance of doubt, the foregoing shall not be construed to mean that I want to eat a burger that has you in, on or under it.

Second amendment:

I want to eat burgers with you. For the avoidance of doubt, the foregoing immediately preceding sentence shall not be construed to mean that I want to eat a burger that has you (or any part of you) in, on or under it.

Third amendment:

I want to eat burgers with you. For the avoidance of doubt, the immediately preceding sentence :

(i) shall not be construed to mean that I want to eat a burger that has you (or any part of you) in, on or under it ; and

(ii) shall be construed only to mean that I want you to eat a burger and me to eat a burger at the same time and in the same place.

Fourth amendment:

I want to eat burgers with you. For the avoidance of doubt, the immediately preceding sentence :

(i) shall not be construed to mean that I want to eat a burger that has you (or any part of you) in, on or under it; and

(ii) shall be construed only to mean only that I want you to eat a burger and I want me to eat a burger at the same time and in the same place.

For the purposes of the immediately preceding paragraph, with respect to the consumption of one or more burgers (if any) by a person (for the purposes of this paragraph, the “first person”) and another person (for the purposes of this paragraph, the “second person”):

(a) “at the same time” means the consumption of the first person’s burger by the first person at approximately the same time as the consumption of the second person’s burger by the second person; and

(b) “in the same place” means to the geographic location at which such burgers are consumed and does not, for the avoidance of doubt, refer to any part of any burger.

Final amendment:

I want to eat burgers with you (the “Original Sentence”). For the avoidance of doubt, the immediately preceding sentence Original Sentence:

(i) shall not be construed to mean that I want to eat a burger that has you (or any part of you) in, on or under it; and

(ii) shall be construed to mean only that I want you to eat a burger and I want me to eat a burger at the same time and in the same place.

For the purposes of the immediately preceding paragraph, with respect to the consumption of one or more burgers (if any) by a person (for the purposes of this paragraph, the “first person”) and another person (for the purposes of this paragraph, the “second person”):

(a) “at the same time” means the consumption of the first person’s burger by the first person at approximately the same time as the consumption of the second person’s burger by the second person (Provided, for the avoidance of doubt, that the “first person’s burger” means the burger (whether made of beef, chicken, fish, lamb or the flesh of any other animal) owned by that person and not a burger made from the flesh of that person and the same shall apply to the “second person’s burger”, mutatis mutandis and Provided Further that “at approximately the same time” means that (1) the first person commences the consumption of the first person’s burger within 10 minutes of the consumption of the second person’s burger by the second person and (2) the first person finishes consuming the first person’s burger (or notifies the second person, in a notice in writing which is signed by the first person, that the first person has determined that it will not finish the consumption of said first person’s burger) within 10 minutes of either (A) the completion of consumption of the second person’s burger by the second person or (B) the delivery of notice in writing (signed by the second person) by the second person to the first person which states that the second person has determined that it will not finish the consumption of said second person’s burger; and

(b) “in the same place” means to the geographic location at which such burgers are consumed and does not, for the avoidance of doubt, refer to any part of any burger the first person shall consume the first person’s burger whilst seated at a table (the “Table”) and the second person shall consume the second person’s burger whilst seated at the Table.

For the avoidance of doubt, nothing in the Original Sentence (or any paragraph referring thereto) shall be construed to refer to the consumption of human flesh by any person or express the desire on the part of any person to do the same.


Note to draft:

Wording is not ideal but may be the best that may be accomplished under the circumstances, given the complexity of the subject matter and the completely unreasonable deadline.

What 10 Things To Do In Negotiations?

Work lately involved some lengthy negotiations ...

Most people think negotiation is a game, played every day, every week, anywhere, anyhow and anytime, when one wants a change in his or her position/status quo for a gain or advance in interests (be it personal, financial or otherwise). For example, pre-schooler does not want to bathe or off the TV; teenager wants an iPod from daddy or mommy; customer wants more sotong (at no additional cost) for the nasi lemak he’s buying; person not willing to pay more for a watch in Petaling Street “bazaar”; etc.. Sometimes people just argue for the sake of arguing to see who will win at the end; it’s a matter of “face” for some...but that's tiring (if not fruitless) negotiation.

I have these 10 things to remember (which may or may not help) when doing a negotiaton:

1. Be prepared thoroughly prior to any negotiation. Preparation also includes having alternatives ready. After having alternatives ready, rank them in order of priority from the most attractive to the least attractive.

2. Begin by doing or saying something to ease the tension of the situation, eg. begin by saying something positive and appreciative to the person you are dealing with so as to increase the goodwill on both sides.

3. Set out to reach a win-win situation. Both sides should leave the negotiation feeling something is achieved and that they are satisfied and feel good about it. Further, who knows, there may be future dealings or interactions.

4. Know what you like to have. In a best-case scenario, if you could have everything you want, what would that be?

5. Know what you intend to have. Decide what really matters to you and what doesn’t that you can do without.

6. Know what you must have. Imagine a worst-case scenario: What is the very least you would accept to make a deal? Without this, then it is no deal, i.e. a deal breaker.

7. Write down or formulate your best estimate of the opposite side’s best-case and worst-case scenarios. Give yourself room to maneuver. Make sure you have something to offer the other person, as well as something you want. Getting what you need but leave others satisfied that their needs have been addressed.

8. Listen. It helps much to understand what the other person is saying and their point of view. To listen shows respect and good intentions, and will make the other person feel valued. If you need to know what it is the other party wants, listen for it. As Sigmund Freud said, “If you can get the other fellow to talk enough, he simply cannot disguise his real feelings or his real motives.”

9. If the other person is angry or hostile, then refuse to get drawn into it or to fight. Keep smiling and being pleasant and sooner or later they will calm down. (This is something I have to tell myself constantly to do…)

10. Keep options open. It does not help to insult the other person or storm out, even if you don’t get what you want. End the negotiation politely, and with a smile. That way you can always try again later.

Qualifiers:
- The above is neither fool-proof nor water-tight. Every negotiation can be subject to external pressures and circumstances.

- I am not saying that one should “negotiate” with God. God knows what’s best; we need not “negotiate” with Him, unless of course, if the Spirit prompts strongly. Be that as it may, this is one topic of a conversation which can be lengthy and hence, to be dealt with another time (and place).

What is an Advocatus?

An Advocatus, an expression used in the Middle Ages, is an advocate, charged with the protection and representation in secular matters of the church.
I am legally-trained as an advocate, in my middle age and serving the church particularly in "secular" or legal matters. That's as far as the similarities go.

From the early years of my legal training, I have been taught to understand and apply what I learnt through the Socratic method of questioning. This has now become like a knee jerk reaction in every aspect of my life. In every situation or anything I face, I ask: "What if...?".

The following aptly sums up the value of questioning is to legal reasoning and learning:

"There is a value to asking questions. We all learn from asking questions either of ourselves or of others. And the answers lead to the next question, on and on. Thus, if the teacher can take the student from question to question, thereby demonstrating the progression of the teacher's own thought (or a judge's thought or a court's thought, or a litigant's thought), the student can begin to visualize what forms the progression of his or her own thought might take. The ability to formulate the question that will best advance the inquiry is the skill that students need to develop to be able to think and learn on their own. Accordingly, the student must be able to see us, their teachers, in the act of formulating the best next question. Where we have figured some things out and reached certain conclusions, the student needs to see what guided our figuring out, how we got from point A to point B. By showing our students the questions that we formulated along the way, we demonstrate how they can reach conclusions of, and on, their own." [Jennifer Jaff, Frame-Shifting: An Empowering Methodology for Teaching and Learning Legal Reasoning, 35 J. Legal Educ. 249, 262 (1986)].

As such, this blog of mine is more like a conversation and at the very least, just asking and talking aloud to myself on what I see, hear, taste, feel and think about things which matter most to me in living this life according to the Word of God.