Content and risk management - Including assumptions, caveats...

Learning Outcomes

This article explains content and risk management in legal writing, with particular focus on:

• identifying key risk management requirements for content in legal writing
• understanding when and how to use assumptions, caveats, and risk warnings in advice and documents
• distinguishing between implied and express risk disclosures
• structuring your communications to ensure compliance and effective risk limitation, as assessed in SQE2
• applying plain-English drafting to avoid ambiguity and ensure client understanding
• setting and confirming a clear scope of retainer and limits on liability
• recording client decisions and confirmations to manage professional risk
• implementing practical techniques (active voice, precise dates, unambiguous connectors) to reduce drafting risk

SQE2 Syllabus

For SQE2, you are required to understand the practical steps for managing risk in legal documents and advice, with a focus on the following syllabus points:

• the use of assumptions and caveats in legal drafts and correspondence
• effective drafting of risk warnings to protect clients (and solicitors)
• how and when to communicate limitations and uncertainties to clients
• managing scope of retainer and liability in advice
• recognising consequences of not including appropriate warnings
• using plain English and active voice to avoid ambiguity and assign responsibility
• avoiding drafting traps (and/or; subject to vs without prejudice to; inclusive/exclusive dates and time zones)
• documenting client instructions, confirmations, and decisions to evidence informed consent
• categorising and managing risks (time, financial, evidential, legal, and conduct) and planning contingencies
• integrating and using definitions and structure to control meaning across a document

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the difference between a caveat and a risk warning in legal advice?
2. In which situations should you include an explicit assumption or caveat in a client letter?
3. Which key risks must be highlighted to clients when a matter’s outcome is uncertain?
4. What could be the consequence for a solicitor who fails to set out a clear limitation on the scope of advice when drafting a report?

Introduction

In legal practice, you have both a professional and a regulatory obligation to manage risk when producing written work. Clear, express communication about risks, limitations, and uncertainties helps clients make informed decisions and protects you from potential liability. This duty aligns with the SRA Standards and Regulations (including the Code of Conduct for Solicitors), which require solicitors to act in clients’ best interests, provide information in a way they can understand, keep clients informed, and enable them to make informed decisions. Exam scenarios often test your ability to identify when a content-related risk arises and how best to address it in drafting.

Risk management is not merely about disclaiming liability. It involves accurate fact-gathering, structured legal analysis, explicit scope-setting, careful drafting choices, and recording and evidencing client decisions. Adopting plain English, using active voice to assign responsibility, and avoiding ambiguous connectors or vague time references all materially reduce the risk of misunderstanding and error.

Managing Content and Risk

Risk management in legal writing has two key aspects:

1. Ensuring clients are properly warned of any relevant legal or factual risks.
2. Limiting your own (and your firm's) liability if the client acts on incomplete, uncertain, or misunderstood advice.

This is achieved by using assumptions and caveats and, where appropriate, issuing direct risk warnings.

Alongside these, a sound personal risk-management approach includes identifying the goals of the instruction, categorising key risks (time limitation, financial exposure, evidential gaps, legal uncertainty, and conduct risks), mapping when they may arise, and agreeing action plans and contingencies. Documenting what you will and will not do, and confirming the client’s decisions and understanding, is a core safeguard.

Key Term: assumption
An assumption is a fact you state as taken for granted in your advice or document, clarifying that you have not verified it and are not responsible for it.

Key Term: caveat
A caveat is an express limitation, qualification, or warning about an uncertainty or gap in your advice; it flags a point the client must not ignore.

Key Term: risk warning
A risk warning is a clear statement alerting a client to a material legal, factual, or commercial danger or uncertainty relevant to their decision or action.

Key Term: scope limitation
A scope limitation is a statement that defines or restricts the boundaries of your advice or work, expressly excluding areas not covered.

Key Term: professional risk
The risk of legal liability, disciplinary action, or loss caused by the solicitor's act or omission, managed by including accurate content-related warnings.

Using Assumptions

Stating reasonable assumptions is normal when key facts have not been confirmed. You must identify any critical facts you are relying on but have not checked. For example, if you have not seen an original document, say so.

Assumptions should be specific and only used where appropriate. Over-reliance can undermine advice. Examples include:

• where information comes from the client or third parties and you have not independently verified it
• where your advice depends on future events or third-party decisions (e.g., lender approval, planning permission)
• where you have had limited access to documents or data sets

Draft assumptions in plain English, avoid legalese, and link each assumption to the relevant part of your advice. Use active voice to assign responsibility or clarify that verification lies outside your scope. For example: “We have not independently verified X and rely on the information you provided.” Keep definitions consistent; if a term is defined, use it consistently throughout to avoid drift in meaning.

Worked Example 1.1

You are drafting a report and have not received copies of all relevant contracts. What should you state regarding missing documents?

Answer:
Include an assumption such as, "This advice is given on the assumption that any missing agreements reviewed subsequently do not materially alter the contents of the agreements we have already seen."

Caveats in Documents and Advice

You must use caveats to signal any limitations on what you can confirm, where facts are genuinely unclear or the law is unsettled. A caveat protects you if later events reveal that different facts or law apply.

Caveats should be precise, not generic. Avoid vague language like “This is complex” without explaining what the complexity is and how it affects the reliability of the advice. Useful caveats include:

• identifying unsettled case law or pending appeals that could change the position
• noting that a conclusion depends on evidence not yet available (e.g., expert report)
• stating that advice is limited to a jurisdiction or period and does not consider changes in law after a specified date

Use chronological or categorical structure to keep caveats close to the relevant points. This aids the reader and avoids caveats being overlooked.

Worked Example 1.2

You have identified a recent case that is being appealed. What should you include in your advice?

Answer:
Insert a caveat: "Please note that this area of law is awaiting clarification from the Court of Appeal. The guidance provided may change once a decision is handed down."

Risk Warnings

Risk warnings are essential whenever there is any material risk, uncertainty, or adverse outcome the client could realistically face. They must be explicit, not implied. This includes legal, factual, or commercial dangers, as well as professional limitations.

Examples of risk warnings include:

• the prospects of success and the range of possible outcomes (avoid vague terms like “substantial” or “near future”; be as specific as possible)
• the time and cost consequences of litigation or transactional steps
• limitation period risks and critical deadlines (“Proceedings must be issued on or before [date] to avoid being time-barred”)
• third-party dependencies (e.g., completion is contingent on lender approval)
• compliance or enforcement risks if the client acts without certain pre-conditions

Plain English is important. Use active voice to assign responsibility and clarify actions: “You must file X with Y by [time and date]” rather than “X should be filed.”

Risk warnings also include clear advice to seek further information or refrain from acting until certain pre-conditions are met.

Key Term: professional risk
The risk of legal liability, disciplinary action, or loss caused by the solicitor's act or omission, managed by including accurate content-related warnings.

Scope Limitation and Limitations on Advice

Specifying the limits on what your advice covers avoids assumption by clients that you have addressed or checked more than you have. State the limits clearly, and refer back to any agreed written scope of instruction.

Scope limitations should:

• set out the task(s) you will perform and expressly exclude areas not covered (e.g., tax, regulatory, technical, valuation)
• clarify any boundaries (jurisdiction, time frame, service type)
• state any assumptions relevant to the scope (e.g., reliance on client-provided financials)
• set expectations about communication, timelines, and client responsibilities

Ensure consistent terminology and avoid ambiguous connectors that can change meaning. Use headings and numbered paragraphs sparingly (to aid readability), keep sentences concise, and avoid archaic terms that obscure meaning.

Worked Example 1.3

A client consults you about a property purchase. You only provide tax advice, not on the physical structure or title.

Answer:
State: "Our advice relates solely to tax implications and does not address any legal or structural defects in the property, or matters of title or tenure."

Failing to Communicate Risk

Failing to include appropriate caveats or risk warnings exposes you (and your firm) to liability if the client suffers loss from acting on misunderstood, incomplete, or over-optimistic advice. Clear disclaimer language and client confirmation may be required.

Consequences include negligence claims, complaints, reputational damage, and disciplinary action. Many claims arise not from incorrect law, but from human error, poor office systems, unclear scope, or inadequate communication. Recording what you have advised, the risks you flagged, and the client’s informed decisions is as important as the advice itself.

Exam Warning

For the SQE2, failure to indicate the limits or risks of your advice, where relevant, may result in failing to "enable the client to make informed decisions" and a loss of marks.

When to Use Assumptions, Caveats, and Warnings

Include assumptions when:

• You have not verified a key fact.
• You rely on documents or information not reviewed.
• External experts are relied on but not appointed by you.
• A conclusion depends on events outside your control (e.g., regulator decisions).

Insert caveats where:

• The law is unsettled or likely to change.
• There is a factual gap or unknown relevant to the outcome.
• You can advise only within an agreed scope.
• Jurisdictional limits or temporal limits apply (e.g., law as at [date]).

Include risk warnings whenever:

• There is a material legal or commercial danger.
• The client may misinterpret the likely success.
• There is a risk of actions outside your control affecting outcome.
• The matter carries significant time, cost, or compliance implications.

Worked Example 1.4

You are drafting a contract with an extra obligation in December. The current clause reads: “Subject to clause 2, the Supplier shall supply 10 crates of beer every month.” Clause 2 adds a December champagne obligation.

Answer:
Replace “Subject to” with “Without prejudice to”: “The Supplier shall supply 10 crates of beer every month. Without prejudice to clause 1, in December the Supplier shall supply two crates of champagne.” This avoids inadvertently subordinating or displacing the main obligation.

Worked Example 1.5

A clause states: “The supplier shall provide X, Y and/or Z.” How can you make permissions clear and avoid ambiguity?

Answer:
Use clearer phrasing: “The supplier shall provide any or all of X, Y and Z.” If choices are restricted, tabulate: “The supplier may provide: (a) X; (b) Y; or (c) Z.” Avoid “and/or” where three or more options are involved.

Worked Example 1.6

A condition says “X shall apply for a Permit by 3 December 2026.” What is the risk and how do you fix it?

Answer:
Clarify whether the date is inclusive or exclusive: “X shall apply for a Permit on or before 3 December 2026.” If time matters, add time and time zone: “by 17:00 (UK time) on 3 December 2026.”

Worked Example 1.7

A clause states: “Notice shall be served promptly.” How can you assign responsibility and reduce ambiguity?

Answer:
Use active voice: “Party A shall serve the notice promptly.” Active drafting assigns responsibility and makes obligations enforceable.

Practical drafting choices that reduce risk

Precision and structure are practical safeguards. To reduce content risk:

• use active voice to assign obligations and avoid obscuring doers of actions
• avoid vague language (e.g., “substantial damages”, “near future”); specify ranges or dates
• state inclusive/exclusive dates and times; avoid ambiguous “midnight” references and specify time zones (e.g., “23:59 UK time”)
• avoid “and/or” unless the context is strictly two options with genuine disjunctive intent
• use clear connectors (“without prejudice to”, “in addition to”) to preserve primary obligations
• avoid archaic or Latin terms that clients may not understand; prefer plain English
• keep defined terms consistent; place definitions where they will apply and use them consistently across the document
• place caveats and assumptions close to the relevant advice; use headings sparingly to signpost key points
• avoid ambiguous pronouns; repeat the noun where the referent may be unclear
• where a list may be construed conjunctively/disjunctively, make your intent explicit (“all or any of the following” vs “one only of the following”)

Communicating, documenting, and evidencing informed decisions

Risk management is supported by good client communication. Explain options (legal and non-legal), costs and timescales, and risks; then assist the client to reach a decision. Confirm the agreed scope, assumptions, caveats, and risk warnings in writing (e.g., in an engagement letter or advice note). Where the client decides to proceed despite specific risks, record that decision and the fact you flagged those risks.

In practice, an action plan helps you track tasks, responsibilities, deadlines, and contingencies. Basic contingency planning—what could go wrong, how to prevent it, and how to fix it—reduces the risk of missed steps or deadlines, and supports compliance with duties to act promptly and keep clients informed.

Revision Tip

When in doubt, be specific: set out each key risk, limitation, or uncertainty explicitly. Vague statements rarely protect you or inform the client. Prefer active voice, clarify dates and times, and replace “and/or” with precise alternatives.

Summary

Effective risk management in legal writing requires you to use assumptions, caveats, and risk warnings whenever facts are unclear, law unsettled, or uncertainties and limitations exist—and to set out the precise scope of your advice. Assign responsibility with active voice, define permissions precisely, and avoid ambiguous connectors. State inclusive/exclusive dates and time zones, use consistent definitions, and keep caveats close to the relevant advice.

Beyond drafting, manage professional risk by categorising and tracking time, financial, evidential, legal, and conduct risks; agreeing action steps and contingencies; and recording client instructions, decisions, and confirmations. Clear, plain-English communication that enables the client to make informed decisions is both a regulatory expectation and a practical safeguard against claims.

Key Point Checklist

This article has covered the following key knowledge points:

• Assumptions are used to clarify what you are relying on without verification.
• Caveats state expressly any limitation, qualification, or uncertainty in your advice.
• Risk warnings alert clients to significant legal or commercial dangers relevant to their decisions.
• Scope limitations define what areas your advice covers—and equally, what it does not.
• Failure to include appropriate warnings or caveats can lead to client loss and solicitor liability.
• Use active voice to assign responsibility and avoid ambiguity in obligations.
• Avoid drafting traps: replace “and/or” with precise alternatives; clarify inclusive/exclusive dates and time zones; prefer “without prejudice to” over “subject to” where obligations must coexist.
• Keep definitions and terminology consistent; use plain English and avoid archaic terms.
• Record client instructions, confirmations, and decisions to evidence informed consent.
• Plan tasks and contingencies (deadlines, dependencies, risks) and keep clients informed.

Key Terms and Concepts

• assumption
• caveat
• risk warning
• scope limitation
• professional risk