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  1. 1. MAKING LEGAL DOCUMENTS READABLE [And at the same time removing unnecessary uncertainty and ambiguity] by David C. Elliott
  2. 2. MAKING LEGAL DOCUMENTS READABLE Contents Introduction Protocol for Writing Legal document I. Purge the legalese......................................................................................................................2 Wasted words Foggy phrases Clarifying cross-references II. Break up the text.....................................................................................................................6 Numbering system How breaking up text removes ambiguity Be careful with commas Making lists III. Problem words.......................................................................................................................8 Problems with time Problems with numbers "Provided that", "providing", "provided however" and/or Definitions The shocking misuse of shall Conclusion
  3. 3. MAKING LEGAL DOCUMENTS READABLE Introduction Too much time is wasted reading poorly written legal documents. Poorly written documents result in uncertainty, ambiguity, and sometimes in litigation to settle the meaning.(1) Poor writing practices, and the problems and costs created by them, are avoidable. Lawyers might consider adopting a personal drafting protocol for writing legal documents to commit to an understandable document and to avoid needless errors. The protocol might be based on the following: Protocol for Writing Legal documents The purpose of this Protocol is to create the most understandable and efficient document that circumstances allow. I will use the following as a guide in writing documents: 1. I will try to achieve an average sentence length in the document of 20-25 words. If the sentences are longer than this I will try to make a list to break up the text. 2. I will use gender neutral language unless a gender specific reference is appropriate. 3. I will use words my readers are likely to understand. 4. I will avoid legalese. 5. I will only use as many words as are really needed. 6. I will write documents in the present tense. 7. I will write in positive rather than negative terms when possible. 8. I will avoid unnecessary cross references and briefly explain to what they refer when I do use them. 9. When appropriate I will use examples and diagrammatic aids to explain the document. 10. I will prefer the use of must to shall. I will not use and/or.
  4. 4. To reach agreement, parties sometimes deliberately agree on ambiguous wording. But too often ambiguity and uncertainty is caused by careless writing. This paper addresses some of the more common problems caused by careless writing and how those problems can be corrected. I. Purge the legalese Wasted words Legal documents are full of lawyers' cant: said, aforesaid, wherein, whereof, therein, thereof, hereinbefore, hereinafter, hereinunder. You have seen it, and wasted time reading it, hundreds probably thousands of times. Aren't you sick of legalese?(2) Then get rid of it - put a red pencil through the offending words. The aforesaid provisions in this Article . . . (just unnecessary) March 19 A.D. 1990 (it could hardly be "BC"!) the terms of this agreement hereunder (just unnecessary) the said article (unnecessary) Any conclusion reached in the aforementioned negotiations shall be made retroactive to (three unnecessary words) the said anniversary date of the said termination date 2
  5. 5. It is sometimes thought that legalese makes things "precise" or "legal". In fact it does neither. Legalese can be dangerously ambiguous, leading to unnecessary litigation. For example, the word "hereunder" might mean • anywhere in the whole agreement - yes, sometimes it is used to mean "anywhere in this agreement"(3) • anything in the agreement after the word is used • anything in the clause in which the word appears. The word is probably used unnecessarily - but if not, make the meaning plain by saying "in this agreement", "in this clause", or "in clause 3(2)(b)", whichever is appropriate. Foggy phrases Having purged the legalese, look for the phrases that can be replaced by a word or two: instead of Try by means of by by virtue of by, under in the event that if subsequent to after prior to before for the period of for period of time period, time by reason of because of in order to to set forth in in during the term of during 3
  6. 6. in liew of instead of, in place of is authorized may is empowered may is binding on binds the manner in which how Notice how the meaning of the alternative word is immediately clear, compared to the foggy phrase, in these examples: 1. In the event that employees are required to work overtime Better: If employees are required to work overtime 2. During the term of this agreement Better: During this agreement (or while this agreement lasts) 3. In order to qualify for payment... Better: To qualify for payment 4. Prior to being appointed... Better: Before being appointed... The Canadian Bar Association Report on Plain Language Documentation(4) said: The following couplets or "twins" have also been referred to as "freight trains". One will usually do the job. Don’t use them blindly: authorize and empower in and for 4
  7. 7. bind and obligate known and described by and between over and above deemed and considered power and authority due and owing save and except final and conclusive sole and exclusive finish and complete suffer or permit for and during supersede and displace full and complete tried and true full force and effect true and correct furnish and supply type and kind have and hold understood and agreed if and when when and as Clarifying cross-references If your legal documents are full of cross-references from one clause to another, this signals that the document is poorly organized. Good organization can help reduce cross- references, although you may still need them from time to time. Try and make the cross-reference helpful by giving an indication of the contents of the clause referred to. For example, a clause saying If there is a difference over . . . clause 4.2, then the following matters . . . shall be considered . . . makes readers look back to clause 4.2 to see what it means. If the clause is redrafted to say If there is a difference over . . . the overtime provisions in clause 4.2, then . . . the reader is given a helpful clue to the cross-reference and may not need to go back to check what clause 4.2 is all about. And those antiquated cross-references like clause (b) of subclause (2) of clause 14 can be changed to: clause 14(2)(b). 5
  8. 8. Another way of explaining cross references is to add a few words after each cross reference. For example: If there is a difference over . . . clause 4.2 [overtime provisions] then the following matters . . . II. Break up the text Numbering system Legal language has a peculiar habit of using long sentences. Long sentences are strung together to make long paragraphs - soon the page is chock full of text. Repulsive to look at, difficult to read, awkward to untangle, time wasting to understand. Want to make improvements? First take a look at the numbering system. What rules are there for breaking up the text? None? Probably some somewhere, but you don't really know what they are? For a guide to a decimal numbering system, take a look at the Building Standards Code. The Code incorporates a description of the system it uses. If you don't like that system, take a look at the system used for dividing up the text of legislation. Any Act or regulation shows how it is done. Decide what you want to call the main divisions of the document. Some legal documents call them "clauses", and others call them "sections". And what about the divisions of each clause or section? Are they subclauses, subarticles, subsections, paragraphs? Choose a system for numbering and breaking up the text and stick to it. How breaking up text removes ambiguity Breaking up the text not only makes documents easier to read but also removes ambiguity. Take this clause: The Company has the exclusive right to operate and manage the business, to control production, to maintain order and efficiency, and to hire, classify, promote, transfer, demote, layoff and discipline or discharge employees for just cause. Quite a mixture of thoughts here. But what do the words "just cause" refer to? No doubt to discipline and discharge, but also to demotions, layoffs, and transfers? A reformatting would remove the ambiguity. For example: The Company has the exclusive right to (a) operate and manage the business; 6
  9. 9. (b) control production; (c) maintain order and efficiency; (d) hire, classify, promote, transfer . . .?; and (e) . . .(?) discipline and discharge for just cause. Be careful with commas Should a comma be used after the word "safety" in this example? The Company must report on the performance of the work, health, safety and welfare of employees. Does the clause require a a report on report on 1 work 1 work 2 health 2 health or 3 safety 3 safety and welfare 4 welfare A lot can turn on that last comma - or its absence. To avoid ambiguity, include the comma after "safety" so that the obligation of the company is clear (assuming the intention is to have four reports). To omit the comma can confuse, to insert it will clarify. The power of a comma was forcefully illustrated by Richard Wydick(5) Maligned though it may be, punctuation can affect the meaning of an English sentence. Consider, for example, the (U.S. Constitution’s) fifth amendment’s due process clause. As punctuated by its drafters, it reads: "[No person shall] be deprived of life, liberty, or property, without due process of law . . ." Guided by the punctuation, our eyes quickly tell us that the phrase "due process of law" modifies the verb "be deprived". Thus, the fifth amendment requires due process if one is to be deprived of life, liberty, or property. But suppose the drafters had omitted the comma after "property". That would permit a lawyer to argue (in defiance of the provision’s long history) that "without due process" modifies only "property". Thus, the fifth amendment would forbid deprivation of property without due process and would absolutely forbid both incarceration and the death penalty. Such is the power of a comma. 7
  10. 10. Making lists When using a list, make it clear whether the list is cumulative (by using "and") or whether the list is a series of alternatives by using "or" [or make the meaning clear by the lead-in words]. In this extract, does the employee have to meet both conditions before leave is granted or just one of them? An employee may be allowed up to a thirty day leave of absence without pay for personal reasons if (a) The employee requests it in writing at least 7 days in advance. (b) The leave is for a good reason and does not interfere with operations, except in emergency situations when leave shall be granted regardless. Should there be an "and" or an "or" at the end of clause (a)? III. Problem words Problems with time Be careful with "from/to", "from/until" and "between" with dates and times (i) If a right extends from 1 April to 8 May - does the right start on 1 April? Is it available on 8 May? (ii) If a right extends from 1 April until 8 May - does the right start on 1 April? Is it available on 8 May? (iii) If something must be done between 1 April and 8 May - must it be done on 1 April? Can it still be done on 8 May? Instead of from/to; from/until; or between - use "after/before". The right is available after 1 April and before 8 May, or say The right starts on 1 April and must be exercised on or before 8 May. The issue each time is: are the dates and times at the beginning and end of the time frame excluded or included - is it clear? 8
  11. 11. Problems with numbers Does a clause saying "A Safety Committee consisting of from 3 to 6 employees" mean that 6 employees can be appointed to the Committee? What does a clause saying "A joint committee of up to 4 members from management" mean? Does "up to 4" also include 4? Although "to 6" and "up to 4" probably include "6" and "4" respectively, the meaning can be put beyond doubt by saying: A safety committee consisting of at least 3 but not more than 6 employees. A joint committee of not more than 4 members. "Provided that", "providing", "provided however" Provided that, providing, and provided however pop up in so many documents that they must be really precise legal words having well understood meanings. Right? Wrong. They are sloppy, antiquated, imprecise and sometimes ambiguous words. The origins of provided that go back to the 13th century when the words provided that meant it is provided that this is our agreement or it is provided that this is the law.(6) Nowadays, the words are used variously to mean • an exception • a condition, or • just another provision of the legal document. Here is an example of two different uses of providing in one clause: An employee . . . shall, upon her written request providing at least 2 weeks advance notice, be granted maternity leave . . . providing however that if . . . her ability to carry out her normal work assignments becomes limited . . . 9
  12. 12. The first providing is used as a condition on the employee obtaining maternity leave. The providing however looks like it is an exception. In fact it is quite a separate matter because it permits the employer, unilaterally, to place the employee on maternity leave in certain circumstances – it has nothing to do with the employee’s right to maternity leave. The first 3 lines could be rewritten along these lines: . . . the Employer must grant a pregnant employee maternity leave if she gives the Employer at least 2 weeks written notice . . . Here is another provided that example Provided that the efficiency of . . . shall not in any way be disrupted . . . time off work without pay may be granted . . . for the following purposes . . . This Provided that is used as a condition. It can be replaced with "If". If a document does not make clear which meaning a provided that, provided however, or providing has, a dispute can lead to litigation. The guiding rule is: Don't use "provided that" or "provided however" - use instead "except . . .", "if", or "but". Use "providing" with caution, but not as a condition or exception. and/or(7) A former Justice of the Supreme Court of Canada(8) once said this about "and/or" "And/or" seems to be used by writers whose main concern is to appear erudite. In my opinion, quite the opposite impression is created. Use of this conjunction which is not a conjunction is repugnant to the spirit of the language, English or French. Not only is the expression repugnant – it is ambiguous. It has caused litigation. The words "and" and "or" have quite different meanings. You might think that "and/or" means A or B, or both But several courts in the United States say "and/or" means the court can choose either "and" or "or", whichever the justice of the situation requires.(9) What would you make of this clause: Sick leave means the period of time a permanent employee who comes under the terms of this agreement is absent from work with full pay due to bona fide sickness and/or injury that does not come under the Workers' Compensation Act. 10
  13. 13. Is the "and" in this clause necessary at all? But if every word used in a document is to be given a meaning, what meaning does and have? Here is another example: Time off from work without loss of regular earnings may be provided on the following basis: (a) The Grievor and/or one (1) Union Steward for time spent in discussing grievance with representatives of the Employer as outlined in the Grievance Procedure. (b) ... Does that mean • the Grievor and the Union Steward get time off with pay, or • either the Grievor or a Union Steward get time off with pay, but not both? When there are 3 or more items connected by "and/or" the possible combinations become more complicated and the interpretation more uncertain. The only rule to follow is: never use and/or. Definitions Define words in legal documents only if they are to be used in exactly the same sense more than say, three or four times. Every time you use the defined word you should be able to substitute the definition in place of the defined word. If you cannot, the meaning becomes uncertain. Use definitions only to define words. This sounds obvious, but many definitions in legal documents also deal with substantive matters. Substantive matters should come in clauses later in the document, not in the definitions. Keep testing your defined words - are they always used in their defined sense? If they are not, you are heading for trouble. Consider marking defined words with asterisks each time they are first used in a clause as a reminder to check for problems and to alert readers that the words have special meanings. 11
  14. 14. The shocking misuse of shall(10) Overuse and misuse has given shall a bad name. It has been so abused for so long that its use is now an addiction. The misuse comes from 3 sources: • drafters who write something today knowing it will only be effective in the future, after the agreement is ratified - so they think and write in the future tense • a desire to nail things down so that there can be no mistake that something shall be done or shall mean something, that someone "shall have a right" to something. This stems from an unjustified mistrust of other more suitable words and a misplaced reliance on the magic of shall • precedent and habit, which conspire to persuade writers to use shall when they should not. Let's look at some examples. In definition sections "President" shall mean . . . In the holiday clause The Company shall not be obliged to make payment for a statutory holiday . . . In the confidentiality of records section All employee's records shall remain confidential unless . . . To give rights The Union shall have the right to originate policy grievances and An employee shall have the right to have a union steward present . . . To give jurisdiction The Arbitration Board shall have jurisdiction . . . 12
  15. 15. To impose an obligation The Employer shall give notice and The Employer shall pay . . . To state a future obligation The Legal document shall be printed and the cost shall be shared equally To state an ongoing commitment The LTD benefit . . . shall not be altered except through negotiation To create entitlements During each of the first to the third year of continuous full-time employment an employee shall earn entitlements to vacation calculated on . . . The word shall has spread like a disease. Its improper use has so penetrated legal documents as to make them unreliable. So frustrated was the California Supreme Court with the improper use of shall in statutes, that it said: It is a general rule of construction that the word "shall" when found in a statute is not to be construed as mandatory, unless the intent of the legislature that it shall be so construed is unequivocally evidenced. With so many meanings of shall in legal documents, what to do? The cure is to abstain from using shall. Don't use the word at all. Remove all ambiguity,(11) and improve the language and tone of documents, with this test: For every "shall" replace it with "must".(12) If it does not "read right" - shall is the wrong word to use. Say the sentence aloud - what would you tell someone the words mean? Odds are that you will choose the right replacement word. Let's go through the shall examples and look for cures. Think about legal documents as they work day to day. They are "living documents" applying to today's question, so write them in the present tense. 1. President shall mean . . . Better: President means . . . (notice "must" would not fit) 13
  16. 16. 2. The Company shall not be obliged to make payments for a statutory holiday Better: The Company is not obliged to make payments . . (or The Company need not . . .) 3. All employee's records shall remain confidential . . . Better: All employee's records are confidential . . . (or must remain confidential) 4. The Union shall have the right to originate policy grievances Better: The Union may originate policy grievances 5. The Arbitration Board shall have jurisdiction . . . Better: The Arbitration Board has jurisdiction . . . 6. The Employer shall give notice . . . The Employer shall pay . . . Better: The Employer must give notice . . . The Employer must pay . . . "Must" would fit in these two examples, so shall is correct and could be used here 14
  17. 17. 7. The legal document shall be printed and the cost shall be shared equally . . . Better: The legal document is to be printed (by . .?) and the cost shared equally . . . [The first shall is not incorrect.] 8. The LTD benefit . . . shall not be altered except through negotiation . . . Better: The LTD benefit . . . [may only be altered by agreement] [must not be altered . . .] 9. During each of the first to the third year of continuous full-time employment an employee shall earn entitlements to vacation calculated on . . . Better: During each of the first to the third year of continuous full-time employment an employee earns entitlements to vacation calculated on . . . If you take the trouble to think about alternatives to shall you will find your documents become sharper because you have to think about the specific meaning shall is intended to convey. Try it! Conclusion So what's the point in getting rid of a few shalls, a couple of provided thats, an and/or or two, and breaking up some sentences? Here's why: 1. The rewriting improvements pay for themselves if they prevent just one lawsuit, or one claim of negligent or unprofessional drafting 2. Rewriting legal documents in plain language virtually guarantees the document will become shorter. Think of the efficiency in not having to read extra words - not just once but every time anyone reads the document.(13) 3. Instead of reading like a law journal, or worse, your legal documents will be as easy to read as a current affairs magazine. 15
  18. 18. 4. People are more likely to read the document, understand it, comply with it, and respect the result. 16
  19. 19. End Notes 1. A judge of the Manitoba Court of Queen's Bench decided that a limitation of liability clause in a courier contract was "legal gobbledygook" that didn't protect the courier when the courier lost its customer's parcel. The judge determined that the customer did not have reasonable notice of the limitation clause. The judge stated in his decision that "Notice cannot be said to be reasonable, in my view, when the clause is neither legible or capable of comprehension". Aurora TV and Radio Ltd. v. Gelco Express Ltd. An unreported decision of Judge Oliphant in the Manitoba Court of Queen's Bench (Small Claims Practices Act) dated May 10, 1990. 2. Legalese is defined by the Canadian Bar Association and Canadian Banker's Association Joint Committee Report, The Decline and Fall of Gobbledygook: Report on Plain Language Documentation (1990) as a style of writing used by lawyers that is incomprehensible to ordinary readers. 3. In one agreement the words "herein", "hereof", and "hereunder" were defined as follows: (C) "herein", "hereof" or "hereunder" and similar expressions when used in a section shall be construed as referring to the whole of this agreement and not to that section only. See Metis Settlements Act, Schedule 3, Article 103 (c). 4. See endnote 1. 5. Richard C. Wydick: Should Lawyers Punctuate, The Scribes Journal of Legal Writing, Vol 1, 1990, p10 6. See Dr. Elmer Driedger: The Composition of Legislation, (1976) Department of Justice, 93, and Commissioner of Stamp Duties v. Atwill [1973] A.C. 558 (PC) 7. For further discussion on "and/or" see Robert C. Dick, Q.C., Legal Drafting (2d) Carswell, 1985, 104; E.L. Piesse, The Elements of Drafting, (6th) Law Book Company, 1981, 103; David Mellinkoff, The Language of the Law, Little Brown and Co., 1963, 147. 8. Louis-Philippe Pigeon, Drafting and Interpreting Legislation, Carswell, 1988, 44 9. State v Dudley, 1959, La, 871, 879. 10. For further discussion on this topic see 63 Austl LJ 75 (1989); 63 Austl LJ 726 (1989); 63 Austl LJ 860 (1989); 63 Austl LJ 522 (1989); 64 Austl LJ 168 (1990); Joe Kimble, The Scribes Journal (3 Scribes J Legal Writing (1992); with a response from Michele Asprey in 3 Scribes J Legal Writing 79 (1992); Bryan Garner, A Dictionary of Modern Legal Usage (2d) under the heading Words of Authority 939; and Robert C. Dick, Legal Drafting, Carswell (2d), 1985, 89. 11. Professor David Mellinkoff, Dictionary of American Legal Usage says: may and shall in legal writings are so frequently treated as synonyms that the grammatical 17
  20. 20. standard (may = permitted; shall = required) cannot be considered the legal standard. Context and interpretation so easily overwhelm either word. 12. One Court made these comments about the use of the word "must" The word is a common imperative. It is hard to think of a commoner. There is no dictionary of stature of which I am aware that accords to the word any other connotation. In its present or future tense it expresses command, obligation, duty, necessity and inevitability. In contrast the word "shall" is an equivocal word that can either express a command or a simple futurity. Since "must" bears only one meaning, an imperative one, it is inappropriate and unnecessary to search in the context for something that strengthens it. There may however be a provision in the collective agreement that weakens its effect, in the sense that relief may be granted from an omission to obey. That would not change the word's meaning only its effect. UAW and Massey-Ferguson Industries (1979), 23 or 2d 56 (Div Ct). 13. Plain language documents do not necessarily mean shorter documents – sometimes a longer explanation is needed to explain a complex subject. However, most legal documents have so many wasted words most would be significantly reduced by a plain language rewriting, usually by more than 20%. 18