Oops! What to do About a Drafting Error

We all make mistakes. But some mistakes, particularly in high-stakes legal documents, are bigger than others. Take, for example, a lawyer’s recent billion-dollar blunder, which, to the lawyer’s massive relief, was erased by the court. Here’s how to deal with the inevitable mistake in one of your legal documents.

For mistakes made in the drafting of a contract, the contract can be nullified because the mistake is a factor that may defeat mutual consent. In a classic case for reformation of a contract, the contract has been formed but a provision of the written contract contradicts the terms to which the parties actually agreed as a result of a mistake, e.g., a drafting error. The court in such a case has the power to correct the error by deleting the mistaken language and inserting other appropriate language if there is evidence of the parties’ actual agreement. PG&E v Superior Court (1993) 15 CA4th 576, 593, 19 CR2d 295. 

When it comes to a mistake in a court’s judgment or order, the court has the statutory and inherent power to correct its clerical mistake to conform it to the judgment or order actually made. CCP §473; In re McGee (1951) 37 C2d 6, 229 P2d 780 (appellate court); Bastajian v Brown (1941) 19 C2d 209, 214, 120 P2d 9 (trial court).

You can move to correct a clerical error in a judgment or order whenever:

  • A clerk enters an order that was not intended by the court,
  • The court did not express its actual intention in the order it made,
  • An irregularity occurred that made the order or judgment premature, or
  • The court was ignorant of some fact that was material to its action. 

A motion to correct a clerical error may be made at any time, even after the judgment or order has been appealed. See Culligan v Leider (1944) 65 CA2d 51, 56, 149 P2d 894. 

On what to do about errors in contracts, go to California Law of Contracts §11.64 (Cal CEB 2007). On moving to correct a clerical error in a judgment or order, including sample forms, see California Trial Practice: Civil Procedure During Trial, chap 25 (3d ed Cal CEB 1995).

© The Regents of the University of California, 2010. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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