Tips on Simple Clear Legal Writing


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Some tips to help you explain yourself more effectively. Drawing on a wealth of resources, this guide helps lawyers to understand both the why and how of plain language.

As author of the 500-Word Contract™, Sarah Fox understands the value of plain language.

Do you find yourself unable to agree or understand contract terms because of their complexity and jargon?

If so, these tips along with other tips and techniques from her 500-Word series of talks, workshops and contract coaching can help you create simple contracts you can read, use and understand.

Contact Sarah on 07767 342747 or email her:

Developed by Sarah Fox, plain language advocate and author of the 500-Word Contract

Published in: Business, Education
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Tips on Simple Clear Legal Writing

  2. 2. Page 2 © 500 Words Ltd, 2014 Simple, Clear Writing Some tips to help you explain yourself more effectively “Don’t write merely to be understood. Write so that you cannot possibly be misunderstood.” Marcus Fabius Quintilianus Using simple, clear writing is a skill. It requires patience and practice. Simple, clear writing should be used in a wide range of written documents and drafting, in particular letters to non-lawyers and your clients. Bryan Garner, a respected authority on legal writing, says plain language is ‘the idiomatic and grammatical use of language that most effectively presents ideas to the reader.’1 Over the last 40 years, across a wide range of industries and services, there has been a push towards the adoption of plain language with ‘consumers’ (in the UK this has been led in part by the Plain English campaign).2 The US and South Africa have introduced laws requiring authorities to use plain language in public documents.3 The Reader “Drafting a document in plain English takes a lot of skill. Communicating your points clearly so that the reader can accurately interpret your meaning is the most important task in writing. The draftsman's job is to communicate precise ideas, not produce a work of literature.”4 The aim of simple, clear writing is effortless reading. Your aim should be that your reader understands your writing on her first reading. And it needs to be understood in the sense it was intended. This is true whether your reader is your client, a professional adviser, legal representative or member of the project team. “Regardless of your country, language, industry or document, the reader expects to receive a document that is clear, concise and easy to understand.”5 In one sense, there is nothing special about legal writing: “good legal style is good English style.”6 You do not need to go on lengthy courses or adopt specific rules in order to write in simple, clear language. Some authors doubt that the ‘religion’ of plain language is a necessity at all. But legalese and poor writing is endemic in the legal profession so you need to be aware of the need to suit the needs of your reader and not just your supervisor. Don’t be tempted to change the way you write just because you are a lawyer. Don’t be tempted to ape your predecessors. Don’t be tempted to say that because your content is technical, complex, emotive or life-changing, and your reader may need to re-read your document, it doesn’t need to be understood first time. It does! Your writing should be capable of being understood, and it should help your reader want to re-read it.7 You should draft documents which are clear, concise and correct.8 This is essential for good communication. But, as a lawyer, you not only need to communicate, you may need to persuade. Persuasive writing is another skill. Garner recommends “[v]ariety, elegance, imagination, force and wit”9 as means of influencing and cajoling your reader.
  3. 3. Page 3 © 500 Words Ltd, 2014 Why Are Lawyers Bad Writers? “Using a big long word can be a beautiful thing – unless you should have used an everyday word instead.” Charles Harrington Elster The history books, judgments and editors of legal tomes are often not paragons of great writing.10 Many lawyers adopt their approach and use complex vocabulary as a matter of course. Although this may create an air of mystery - or mastery – your reader will soon lose interest. She is not at all keen on you adding legal terms, technical talk or wordiness to your documents simply to ‘add a veneer of sophistication and importance’.11 This is not what your client needs. Your client wants clear, well-considered and intelligible advice. Lawyers face fairly specific issues when it comes to communication: “we constantly struggle to distinguish terms of art from highfalutin jargon, and that from useful professional shorthand… We use ordinary English words in extraordinary senses, and extraordinary English words in sense ordinary only to us. We use and cite authorities in peculiar ways.”12 You need to avoid the trap of complexity and aim for clarity and simplicity. So starting in the preparation stage, before you put pen to paper (or finger to keyboard), you should know:  who your reader will be – this affects word choice, tone, paragraph types and the level of detail you will use;  the purpose of your document – this also affects word choice, and provides focus. Benefits The benefits of simple, clear writing are:13 1. Confidence: it inspires confidence in both the reader and the writer. Clear writing is evidence of clear thinking. 2. Saves time and money: the clearer your writing, the quicker your reader can understand and act upon what they've read. It means fewer queries, and fewer mistakes. 3. More efficient: effective writing is succinct. Clients are more likely to read shorter documents. 4. More effective: badly written communication doesn't pay. It leads to increased administration, misunderstandings, frustrated readers and loss of clients, projects or more disputes. 5. Increased competitiveness: it builds trust and helps you stand out. 6. More satisfied customers and staff: the clearer your communication, the happier your readers and teams are. “Merely obeying rules will never yield literary excellence.” This document provides some tips on simple, clear writing. Rules are helpful reminders. But you need to understand the theory, use your skills, learn and reflect. You also need to practice judgment, intelligence, and maturity.14 For more information see the Resources Section.
  4. 4. Page 4 © 500 Words Ltd, 2014 Style “Proper words in proper places make the true definition of style.” Jonathan Swift Style combines elements of writing such as word choice, tone, sentence structure, paragraph flow and punctuation.15 “[A] good legal style powerfully improves substance…[it] consists mostly of figuring out the substance precisely and accurately, and then stating it clearly.”16 As far back as 1906, these principles were proposed: “Prefer the familiar word to the far- fetched. Prefer the concrete word to the abstract. Prefer the single word to the circumlocution [roundabout expression]. Prefer the short word to the long.”17 Although these rules or principles will help you to know and avoid ‘bad style’ there is no single ideal style for all legal writing. Remember that “every style is good save that which bores”: Voltaire. Words: edit edit edit  Keep to frequently used words  Avoid redundant words and phrases18  Avoid all jargon and Latin phrases  Use verbs not nouns19  Beware ‘terms of art’  Do not discriminate20  Get rid of ‘puff’ and clichés  Use technical words (legalese) sparingly  Be specific, use definitions when needed  Avoid double negatives  Delete ‘throat-clearing’phrases  Use ‘must’ not ‘shall’21  Delete inessential prepositions  Purge ‘pursuant to’ and other fillers  Remove pompous, vague, abstract and buzz words  Use a dictionary and thesaurus when you get stuck22  Punctuate properly  Clarify euphemisms and ambiguities There are many lists of words you should avoid.23 Read them and revisit every 3 months or so! One way to improve your style is to find out what weaknesses you have:  ask others or dispassionately review your documents as edited by others;  use software like StyleWriter;  read your document aloud (or record it and play back if you prefer);  use an interactive on-line quiz for specific grammar issues e.g. grammarbook or the light-hearted oatmeal comics;  use free software to check for readability e.g. online-utility. Style: your aim is effortless reading  Write like you speak (root out verbiage)  Be elegant24  Be reader-centric  Read widely and learn great style  Use active tense (not passive)  If 1+page, use headings and paragraphs  Read it aloud to check for style  Draft in short sentences  Organise your arguments25  For each idea, use a new paragraph  Develop your own (simple, clear) style or voice  Add depth and/or feeling, when appropriate
  5. 5. Page 5 © 500 Words Ltd, 2014 Structure To “ensure your message is clear and precise, you must know exactly what you mean to say and how you mean to say it.”26 This applies for each type of document and for each separate audience.27 Always plan what you need to say and how to structure it – even experienced writers can produce rubbish at times! All documents should have start, middle and end sections. Structure: create good flow  Think then organise28  Explain why readers should continue  Split longer documents by headings  Link topics into paragraphs  Check your grammar, style, readability and punctuation  Consider the flow within and between sentences  Summarise first, then explain  Use great typography  Provide both detail and essence  Conclude forcefully Towards a Structure? One tip which can help with the preparation of any legal document is to use Enjoy’s FORMAL template: F Format are there any structural requirements for the document? O Objective what are your purposes in preparing/using the document? R Readers who are the audiences for this document? M Message what is the overall content of the document? A Analysis how does the document represent the factual/legal issues? L Language what is an effective style of language for the document? Never lose sight of the fact that legal documents may have specific requirements on formality or content which must be adopted for the document to be effective. Always: plan, write and revise.
  6. 6. Page 6 © 500 Words Ltd, 2014 The ABC of Crisp Communication Use writing which is accurate, brief and clear:29 Be Accurate Surely the need for accuracy is an essential in writing about the law for readers. But “legal writers should loosen their obsession with accuracy and think about readability too. Accuracy is obviously the paramount objective for the writer of a judicial opinion. But elements that enhance readability are also very important.”30 Accuracy calls for colour “our enticement to our readers to continue reading…Lord Denning [said]: ‘No matter how sound your reasoning, if it is presented in a dull and turgid setting, your hearers—or your readers— will turn aside. They will not stop to listen. They will flick over the pages. But if it is presented in a lively and attractive setting, they will sit up and take notice. They will listen as if spellbound. They will read you with engrossment.’ ” Be Brief “Writing is concise when it contains no unnecessary words. In everyday parlance, concise is frequently used as a synonym for short or brief. Strictly speaking, however, concise means direct or to-the- point. ..Brevity is not what matters: necessity is.” Brevity calls for a core message “Whatever you write must have a point, a central idea... the whole purpose of writing anything is to convey a central idea, to share a core message…Good writing is writing in which everything, every scrap of information, every idea or opinion, every argument – clarifies or strengthens the core message. Anything that doesn’t help to get that message across, doesn’t belong.” Be Clear “Writing is clear when the intended readers understand it, accurately and completely in one reading… If that doesn’t happen, if the intended reader has to re-read what you’ve written, puzzle over it, ask someone else to interpret it or call you on the phone to find out exactly what you meant, the writing isn’t clear” Clarity calls for coherent writing “When writing is coherent, unified... then you have mastered coherent writing. There are no loose ends or dead ends. Every sentence belongs, every sentence is in the right place and every sentence strengthens or reinforces the central point. A document is coherent when it has a logical beginning, middle, ending and all of these are linked by transitions for smooth flow.” And if you want your reader to come back for more: “Add colour to your writing to make it livelier for your reader.… First, rather than dryly reciting facts, tell a story. Second, inject humour if and when appropriate. Readers relate to stories. A dry recitation of facts, on the other hand, will put them to sleep.” Plain language need not be dull31 it should be “refreshing, persuasive, interesting and sometimes colourful. It has strength and, yes, beauty.” The Author As author of the 500-Word Contract™, Sarah Fox understands the value of plain language. Do you find yourself unable to agree or understand contract terms because of their complexity and jargon? If so, Sarah can help you create simpler contracts or understand complex ones. Contact Sarah on 07767 342747 or email her:
  7. 7. Page 7 © 500 Words Ltd, 2014 Some Ideas to Review Words Which Are Redundant, Archaic or Verbiage Hereafter, hereinafter, hereinabove, inasmuch as, whereupon, thereupon, wherein, therefor, wheretofor, albeit, foregoing, to wit, aforementioned. Phrases to Avoid in excess of with the exception of by means of not less than shall be entitled to shall be at liberty to in accordance with for the purpose of in order to covenants and agrees prior to in the event of due to the fact that provided that subsequent to with reference to has a requirement for it is understood and agreed undertakes to in the absence of enclosed herewith X and/or Y notwithstanding the foregoing in order to remove doubt, it is hereby clarified that the parties shall mutually agree including but not limited to notwithstanding anything to the contrary herein except otherwise agreed herein without derogating from the generality of the aforesaid without limitation or derogation And lastly: “in witness whereof, the parties to these presents have hereunto set their hands and seals.” Foreign Words to Translate or Avoid “A sine qua non of good legal writing: do not use Latin in lieu of well-known English equivalents”32 contra proferentem ceteris paribus inter alia modus operandi mutatis mutandis res ipsa loquitur prima facie quid pro quo ergo ab initio status quo per se Interpretation under English Law In English law, s61 of the Law of Property Act 1925 (and this provision applies to all contracts, not just property ones), provides that: "In all deeds, contracts, wills, orders and other instruments executed, made or coming into operation after the commencement of this Act, unless the context otherwise requires- (a) “Month” means calendar month; (b) “Person” includes a corporation; (c) The singular includes the plural and vice versa; (d) The masculine includes the feminine and vice versa."
  8. 8. Page 8 © 500 Words Ltd, 2014 Resources Tips on Gender Neutral Writing by Caryn Gootkin 50 Words to Improve your Writing from the Bad Writing Blog Plain English campaign website Bryan Garner’s tips on legal writing from the Lawyerist blog and his books Marx brothers sketch: party of the 1st part on YouTube Footnotes 1 Garner (2002). ‘The Elements of Legal Style.’ 2 There are other companies and organisations in other countries with similar messages. 3 For more information on government initiatives on plain language see the PLAIN website. 4 Quote from the website of the Plain English Campaign. 5 ‘Write Like a Pro’, Dr Marcia Riley, available from 6 Garner, ‘Elements of Legal Style’, p1. 7 You need to eliminate readers who are ‘distracted, disinterested, disengaged, disenchanted and discouraged’, ‘Write Like a Pro’. 8 Garners favours clarity, brevity and accuracy, ‘Elements of Legal Style’, pp4-5. In’ Write Like a Pro’, Riley says, without any trace of irony, “According to Nirmaldasan, a multi-faceted writer and academic scholar, effective technical writing requires an understanding of three principles: brevity, clarity and scan-ability. Brevity is the avoidance of superfluous words, phrases, clauses and sentences. Clarity is the unambiguous and logical presentation of data, facts or ideas. Whereas scan-ability is the use of lists, visuals and tables based on the principles of brevity and clarity.” I don’t consider this sentence to be brief, clear and her book has no tables or visuals (some lists). 9 Garner, ‘Elements of Legal Style’, p5 10 They may be poor models which simply fortify bad habits. See ‘Elements of Legal Style’ p5 and Garner’s ‘Legal Writing in plain English’ pxvii. 11 Lawyers’ Skills 2011-12, page 35. 12 Garner, ‘Elements of Legal Style’, pp1-2. 13 See James Hurford’s blog. 14 Garner, ‘Elements of Legal Style’, p221. 15 Riley, ‘Write Like a Pro’, chapter 4. 16 Garner, ‘Elements of Legal Style’, p2. 17 The King’s English (1906), H W Fowler. 18 Known as verbiage i.e. using more words than necessary which may obscure your message. 19 Avoid nominalisations ie verbs turned into nouns. 20 Gender neutral language gives you more credibility with your readers, whoever they are. As a female construction lawyer, I could rarely relate to authors who referred to all lawyers, clients and consultants as ‘he’. See Cathryn Gootkin’s article on gender neutral writing, in the resources section. 21 Shall can be permissive or mandatory so is unclear. 22 Try for a simple on-line dictionary. 23 For example: UandtheLaw, Lawyerist, A to Z of Alternative Words. 24 “Figures of speech help make writing something more than serviceable; they help make it memorable.” Garner, ‘Elements of Legal Style’, p140. You should be familiar with literary forms such as metaphor, simile, hyperbole, irony, climax, rhetoric and alliteration. 25 If you are developing a critical argument, then Garner provides the outline progress at pp58-59 of his ‘Elements of Legal Style.’ 26 Lawyers’ Skills 2011-12, page 33. 27 Garner recommends you assume your audience is well-informed generalists, even if legally trained: ‘Elements of Legal Style’, p181. 28 “Clear thinking is a pre-requisite to clear writing” Jan Venolia, as quoted in ‘Write Like a Pro’. 29 Adapted from and quoting both ‘Write Like a Pro’ and this article on legal writing. 30 From Ernie the Attorney blog. 31 See this article from the Michigan Bar Journal. Plain language should be clear, strong, direct and confident. 32 Quoted by Jo Meadows in a LinkedIn discussion group comment