Executive Summary: I draft legal documents the way a tailor fits a suit. I start with a proven structure, show the client an actual draft, and then adjust the approach, facts, tone, and requested relief until the document fits the case. Good legal drafting is iterative, not clairvoyant.
When I send a client a first draft of a motion, petition, memorandum, or other legal document, the draft is not simply an unfinished version of something I already know exactly how to finish.
It is part of figuring out what the finished document ought to be.
That is how I draft. I start with a sound basic approach, put something concrete in front of the client, and then we find out what needs to change.
Good legal drafting is iterative, not clairvoyant.
What’s on the rack
“Off the rack” can sound cheap, so let me explain what I mean.
The rack is not stocked with cheap, generic forms downloaded from the Internet.
No, in my practice “the rack” is stocked with structures and approaches I have developed, tested, revised, and improved over nearly three decades of practicing family law. Experience gives me somewhere intelligent to start. Your case determines where we finish.
A tailor does not weave the cloth and reinvent trousers every time someone walks through the door. Likewise, I already know what a motion to modify generally has to establish, what a Rule 108 objection has to accomplish, and how a memorandum should be organized so that a busy judge or commissioner can understand the issue without digging for it.
If I pretended otherwise, you would be paying me to forget what I know and rediscover it for your case.
What you should be paying for is judgment: deciding what belongs in the document, what does not, what deserves emphasis, what creates unnecessary risk, and when the familiar approach does not fit the case in front of me.
Why a draft changes the conversation
Ask someone who has never drafted a motion, “What do you want the motion to request?” and the answer is often necessarily general.
That is not a failing. Designing a legal document in your head is difficult when you do not draft legal documents for a living.
Put an actual draft in front of the client and the conversation becomes much more specific.
“Yes, that’s basically it, but paragraph 17 isn’t right.”
“I don’t want to ask for that.”
“You left out what happened in March.”
“I see what you’re trying to do now, but that’s not really what I meant.”
A concrete document produces reactions that an abstract discussion often cannot and does not.
The draft also shows you what I understood from our conversations. You can see which facts I think matter, which facts I left out, how I understand the dispute, what relief I think we should seek, and how restrained or forceful I think the presentation should be.
That gives you a chance to correct my understanding before my understanding becomes a representation to the court.
You lived the history. I did not. A wrong date, missing event, misunderstood sequence, or unintended implication is inexpensive to correct in a draft. It is much more troublesome after the document has been signed and filed.
Choose the suit before you tailor it
Sometimes a first draft does not need alterations. It needs to be replaced altogether.
There is no point spending hours polishing paragraphs in a document built on the wrong approach. Perhaps a narrow enforcement motion makes more sense than a broad and expensive petition to modify. Perhaps one issue should lead instead of another. Perhaps seeing the requested relief in writing causes you to realize that it is not actually what you want.
Better to learn that before we spend time perfecting the wrong document.
This does not mean I keep producing alternatives until you find one you like. Part of my job is to identify the reasonable options, recommend the approach I believe best serves your objectives, and explain the tradeoffs.
But sometimes putting an approach on paper reveals that you and I were solving different problems.
If other legally sound approaches exist, that is the time to consider them. Once we have the right basic approach, then detailed tailoring makes sense.
Within the range of legally appropriate choices, your priorities matter too. In a child custody dispute especially, the question is not simply what a court theoretically could order. The choices made during litigation affect real parents and real children long after the hearing is over.
The fitting, in order
1. Tell me what you’re looking for. You tell me what is happening, what you want to accomplish, and what matters most to you. That gives me an idea of what to show you and what related requests, arguments, or other “accessories” may need to go with it.
2. Take it off the rack. I start with a proven structure that appears to fit your circumstances and objectives.
3. Try it on. You get an actual draft rather than an abstract description of what I intend to write.
4. Try another if necessary. If the basic approach is wrong and another sound option exists, we change direction before spending substantial time polishing the wrong document.
5. Pin what doesn’t fit. You identify facts, omissions, emphasis, tone, and requested relief that need adjustment.
6. Alter it. I apply legal judgment to your corrections, concerns, and preferences.
7. Try it on again. You review the revised version.
8. File only when it fits. The document should be factually accurate, legally sound, strategically appropriate, and consistent with your legitimate objectives.
Where I stop being flexible
Collaboration is not abdication.
You have real say in how your story is told and in the lawful objectives we pursue. But I remain responsible for what I sign and file.
Under Utah Rule of Civil Procedure 11(b), when I present a pleading, written motion, or other paper to the court, I am certifying, after reasonable inquiry, that it is not being presented for an improper purpose; that its legal contentions are warranted by existing law or a nonfrivolous argument for changing the law; and that its factual contentions have evidentiary support or, where properly identified, are likely to have such support after reasonable investigation or discovery. (Utah Rules of Civil Procedure, Rule 11)
So I will not include something I know is false, and I will not make an argument I consider frivolous.
More commonly, though, the disagreement is not about truth. It is about usefulness.
A client may understandably want a motion to say the other parent is “manipulative,” “narcissistic,” “controlling,” “vindictive,” or “only doing this to punish me.”
My job is often to remove the adjective and concretely identify the conduct.
What happened? When did it happen? What evidence supports it? Why does it matter to the question the court actually has to decide?
This comes up constantly in child custody disputes and other high-conflict family cases. Wanting the judge to understand how badly you believe the other side has behaved is understandable. But characterizations and guesses about motive often add much less than clients expect, and they can detract from stronger evidence.
A pleading generally becomes stronger when accusation gives way to demonstrable fact.
If I push back on something you want to include, I should be able to explain why. And when there is a better way to make the legitimate point you are trying to make, I should propose it.
You know the facts of your life in a way I never can. I know the legal process in a way you should not have to. Good drafting requires both.
A note on privilege
The drafts and comments I send you are attorney-client communications. Do not casually forward them to friends, relatives, a new partner, or other outsiders because you want another opinion.
Under Utah Rule of Evidence 510(a)(1), subject to the rule’s exceptions, privilege is waived when the holder voluntarily discloses or consents to disclosure of a significant part of the privileged communication, or fails to take reasonable precautions against inadvertent disclosure.
That second part deserves particular attention in a divorce.
If your spouse or former spouse still has access to your personal email, your device, or your personal cloud storage, take reasonable steps to protect your attorney-client communications. Secure your own email, devices, and cloud storage, and check with me before changing access to anything joint.
If you believe someone else genuinely needs to see a draft, talk to me first.
Why I work this way
Legal work does not become more valuable merely because it takes longer.
If experience allows me to get to a sound first draft efficiently, that should benefit you. The time saved by not reinventing familiar legal structures can be spent on the parts of your case that actually require individualized thought: the unusual facts, the difficult strategic choices, the weaknesses we need to address, and the objectives that matter to you.
Revision is part of that work (the key to good writing is rewriting).
I do not expect you to design the perfect pleading before you have seen one, and I do not pretend I can read your mind well enough to produce the perfect finished document without your reaction to it.
I would rather give you a strong draft relatively quickly and have you tell me, “This is 80 to 90 percent right, but these three things need to change,” than spend twice as long privately trying to guess my way from 90 percent to 100 percent.
Utah Family Law, LC | divorceutah.com | 801-466-9277