When Jery Payne isn’t helping Colorado legislators turn their policy ideas into legislative bill drafts, he’s thinking about ways to help other legislative counsel produce high-quality drafts. Payne is senior attorney at the Colorado Office of Legislative Services, where he has served the Colorado General Assembly since 1999. Along with drafting legislation, he’s been drafting articles for professional publications and participating in panels and sessions around the U.S., providing best practices to fellow drafters. While Payne has had to navigate technological changes through his career, today Colorado’s drafters work on a WordPerfect platform. We caught up with Payne recently to talk about his drafting, teaching and the technology on his desk. The interview was conducted by Hudson Hollister, founder and CEO of HData and former president of the Data Coalition. This transcript has been edited for clarity.
Hudson Hollister
Jery Payne, senior attorney at the Colorado General Assembly, thank you so much for spending some time with us.
Jery Payne
You’re welcome.
Hollister
Jery, tell us about your role in the state of Colorado and also about the work you do drafting with legacy WordPerfect technology.
Payne
My main job is to draft the bills and the amendments and the changes that legislators want to vote on or propose to make changes to the statutes. It’s kind of the main reason why they’ve hired me. I also review the rules of the state agencies to make sure they’re in compliance with the statutes, and that they’re doing what the legislature intended. So I do some of that too. And, and then a bunch of other little things like providing legal advice.
Hollister
Tell us a bit about the history of your office at the Colorado General Assembly.
Payne
It’s been around a very long time. Probably close to 100 years. It evolved into being over time, so it’s kind of hard to give you an exact start date. If you’re writing laws, you need legal help, especially since, generally speaking, in Colorado, we have a citizen legislature. It only meets five months a year, which means many legislators have outside jobs. You don’t have to be an attorney to be a legislator, but if you want to write laws, you need a fair amount of legal help. So that’s basically what I do. I not only write a draft, but give them legal advice, and just in general help them do their job.
Hollister
And along the way you’re helping at the International Law Institute.
Payne
Well, I’ve been writing articles about the law and about drafting for a long time. Just something I enjoyed doing. I got started doing it in part because I would see recurring errors from attorneys, primarily, but also from other folks, who come to the legislature with a draft. Part of why I started writing was to provide an explanation about why something that even attorneys do often with a legislative draft is a problem. Instead of writing a long email, over and over, to explain what the problem was, I could publish it in one of the publications about legal writing, like Scribes, and send them a link or two. They can read through it, and then come back to me and say, OK, I understand now why you want to make these changes. So that’s why I started, and that got me noticed. And I was asked to speak, to teach drafting at the National Conference of State Legislatures (NCSL), for short, and then I was asked to give a talk, someone there noticed me and apparently liked the talk, because they invited me to give a talk at the International Conference on Legislative and Law Reform.
So I’ve been giving these talks, and then someone from ILI noticed that and asked me to talk. Normally, I’m teaching more about advanced drafting problems, how to approach them, and giving practical advice about how you can avoid these problems. But, ILI asked me to give a talk about working on WordPerfect and word processors.
Hollister
Jery, one of the interesting things about your background is that you came into legislative drafting as major technological changes were taking place. Moving to WordPerfect seems like ancient history now – but it’s an example of how technology shifts can happen. I would love for our audience to learn a little bit about that technological change and the cultural change that you saw happening as you came into your career.
Payne
I think, actually, technological change happens and cultural change slowly follows.
The reality is that lawyers are pretty conservative when it comes to things like this. If they have something that works, they really, really don’t want to make a change – especially when they’re so busy. And there always seems to be things that come up – particularly when most of your job as a drafter is to fix problems created by what was done in years past, issues that no one thought of at the time. So technology changes slowly. But we did adopt it. I was coming on just as the office was moving to WordPerfect.
The stories I’d heard were about literally typing up the documents, and then making changes to the documents by cutting out little pieces of paper and taping that over the words that needed to change. Thankfully, I never had to do those kinds of things, but the jump to word processing was, I think, massive. And it took a while for everything to kick in. In fact, years later, there are ways in which we haven’t maybe truly embraced WordPerfect completely, and really use all its tools to their fullest potential – just as we’re getting ready to move on to the next technology.
The next set of tools always has the greater promise to make our lives easier, right? Honestly, the ability in a word processor to fix changes to make small changes, I think, changed the way things are drafted quite a bit. Because if you can easily make a small change, you can make 1,000 small changes in a large bill without having to start over again. Whereas before, that was a lot harder. There would be a question when we’re drafting something and we’re reviewing it…how many changes are you going to make? Back then, the time involved could be huge, so you had to prioritize and think about whether you had time to make those changes. It may be that a subtle change wouldn’t be made. That was a big shift.
Hollister
What are some of the other technological changes that you’ve seen in legislative drafting in the ensuing decades?
Payne
Well…of course, the fax went the way of the dinosaur. When I first started, we were faxing documents to people – email killed that pretty much. And thank goodness! That was not something I enjoyed doing for sure.
One of the biggest things has been the ability to communicate, the way that you can now communicate with your clients. When I first started, the thought that you would be giving legal advice over a text message to a member on the floor of the Senate or the House would have been absurd. And to some degree, it still is an odd thing, you know? Because if you have to give anything more than a simple answer, then you really need to have a conversation. But some legislators or lobbyists want to text, so you do. You can do it over text, but it’s difficult.
Email has enabled me to be able to give longer answers. But one of the reasons why I wrote those articles is because you don’t necessarily want to write that article every time the issue comes up. So email has enabled you to give a longer answer than you could give on the floor of the Legislature. Those are a few that come to mind.
Hollister
At Data First we spend a lot of time talking about the next wave of technological change – and the idea that legislation could be drafted as data first. So that tools can automate the creation of amendments, redline right into the code and the amendment is automatically drafted, and then it can flow right back into the code, if it is approved – changes like that. Assuming that that is going to happen, what do you think are the first couple of applications? And what do you think will be the easiest for the legislative drafting community to take advantage of early? Do you think these changes are comparable to the adoption of word processing decades ago?
Payne
You think about the editors, and how they spend a lot of time putting the changes we make into the statutes. That’s a major time commitment. And they have to start working on that as soon as the legislature gets out. WordPerfect helped make our job easier, with our ability to make many more changes and update things without it being so labor intensive. But for the editors, new technology like you’re talking about could bring big benefits.
In terms of leap forward, I have a hard time imagining – at least in my job – anything that can push us forward more than going from typing, being able to cut and paste documents together, to word processing. It’s probably a bigger change for the folks who have to deal with the bills after they’re passed; it’s probably going to be a bigger deal for them. For us, I imagine it’s probably going to be similar. But again, I’m not a tech guy. I’m a drafting guy. It strikes me that such a technology might help the drafter see errors and fix them.
Hollister
One final question. I know you’re passionate about legislative drafting and about maintaining legislative information. Tell us a little bit about your mission orientation, about the role in a representative democracy that a legislative drafting professional has.
Payne
The statutes are something that everyone is required to obey and follow. Real citizens’ lives are affected deeply by the words we write. That’s the importance of trying to raise or elevate what we do, so that the average person can read a statute and have a fair understanding of what their duties are – that is very, very important.
So our mission is really just to write statutes in a way that has almost no ambiguity or as little as possible. I know that it’s not really possible to have no ambiguity – but to have as little as possible so that people can look at the statutes and not need to go to court to find out what their duties are, what the law expects of them. And I think that is profoundly important to the average person who’s trying to get something done. Our mission is really to try and draft something that’s useful and understandable, and that means clear and precise.
Hollister
Thank you so much for your work on behalf of those that need to understand the law. Jery, thanks for spending time with us.
Payne
You’re welcome. Thank you for the opportunity.
