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Plain Language Legal Writing: Part III – Mastering Modern Legal Correspondence
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Plain Language Legal Writing: Part III – Mastering Modern Legal Correspondence

By Cheryl M. Stephens

Plain Language Legal Writing
This is the third in a series adapted from Cheryl Stephens’ Plain Language Legal Writing that explains how plain language can improve client relations, inspire confidence and make your practice more cost-efficient.

Part I – Writing as a Process > 
Part II – Writing to Be Understood > 

Also see, Speaking Plainly from a past issue of National Magazine.

Modern communications technologies provide speed and efficiency, but they can’t write an effective business letter. Each piece of legal correspondence needs fresh thought and effort. Plain language techniques can help you get your message through efficiently and effectively. The communication speed available through fax and e-mail should not preclude the application of thought and analysis to your letters.

Your letters, more than any other piece of writing, express your style and personality. Write in a tone and style similar to the way you speak; don’t undergo a Jekyll and Hyde transformation when you set about writing legal correspondence. Tone is very important in to keeping clients satisfied with your services.

This article provides a checklist for better writing, and details topics in the checklist:

1. Clarify your purpose.
2. Consider your reader.
3. Write complete and accurate business letters.
4. Organize the letter for highest impact.
5. Choose your words thoughtfully.
6. Use modern formats.
7. Present good news and bad news keeping the psychology of readers
 in mind.

1. Clarify your purpose

When beginning a writing task, you first need to settle on your exact purpose for writing, then on your reader. Of course, you also need to know your subject well. These three factors will control the content, tone, and style of your letter.

Legal letters are specialized business letters. You write business letters to:

  • question 
  • inform 
  • persuade
  • acknowledge facts 
  • record processes 
  • record agreements

2. Consider your reader

Once you are clear about your purpose, your next step is to determine your reader’s concerns. Put yourself in the reader’s place and figure out how you’d want to be addressed in that situation. The skills, interests, vocabulary, and knowledge level of your reader will determine your tone (generally professional but considerate), vocabulary (familiar), and the amount of detail and explanation required.

Traditional Language
The statement for professional services which you will find enclosed herewith is, in all likelihood, somewhat in excess of your expectations. In the circumstances, I believe it is appropriate for me to avail myself of this opportunity to provide you with an explanation of the causes therefor.

Plain Language
The bill I am sending you with this letter is probably higher than you expected, and I would like to explain why.

Traditional Language
This is to acknowledge your letter of recent date, the contents of which have been duly noted. In the third paragraph thereof...

Plain Language
I have received and carefully considered your letter of June 13. In its third paragraph...

Show respect for your reader
If you are writing to your own client, be considerate about the client’s state of mind, knowledge of the area of law, familiarity with legal terminology, and level of interest in the legal issues.

To earn the reader’s full attention:

  • Write to the correct person.
  • Get that person’s name and position right.
  • Use an appropriate salutation and closing.
  • Be consistent with earlier correspondence to the same person.
  • Be courteous and diplomatic.
  • Use non-sexist language.
  • Adjust your tone to suit the reader’s sensibilities.

3. Write complete and accurate letters

The content and format of your letter will depend on your purpose and the reader’s interests. Each letter you write should be complete in itself. Your reader should not have to read a legal file to understand your letter – if  they must, it will result in delays.

Use file reference numbers
Use both your own and the reader’s file reference numbers. File reference numbers help because you or the reader (a senior lawyer, for example) may represent the client in more than one legal matter. In a large firm, you may even have two clients with the same name.

Give a clear notice
Use the subject line to identify your client, the reader’s client, and the specific reason for writing. The subject or reference line should also include a mention of the specific topic of the letter, for example, “Smith v. Harvey - Scheduling of Discoveries”, is better than a general reference to “Smith v. Harvey - Personal Injury Matter”.

Simplify your reference line
Modernize the style of the reference line. You don’t need to include “Re:” or “Subject:” in your reference line. The reference line is conceptually part of the body of the letter and should be closer to it than to the address. Use one technique to highlight the subject line, but don’t combine bold type or capitals with underlines.

Introduce yourself and your topic
Your opening paragraph should introduce you or your purpose in writing. This provides a context for the issue being discussed. Be specific enough to catch the reader’s attention, and don‚t repeat information stated in the reference line.

It is usually not necessary to identify the last letter you received from your correspondent. When you are responding to a specific settlement offer or statement of terms, however, it does become necessary to identify previous correspondence because you want to make clear what you are agreeing with.

Identify the letter you are answering by its date or summarize its contents. For example:

I write to accept the terms of settlement proposed by you in a letter dated
January 16, 2006.

With letters being sent electronically, it may not be enough to identify the letter by date alone: You may need to state the gist of the letter to which you are replying:

We write to clarify the terms of settlement proposed in our January 18 letter, which you appeared to accept by way of a restatement of the terms in a letter also dated January 18, 2006. Our client has not offered to...

If there has been much delay between receiving a letter and sending a reply, it helps to summarize the letter to which you are responding. If necessary, you can itemize the points agreed to at a later point in the letter.

In April, you wrote proposing that the Delaney Estate might be brought to an early conclusion by means of an agreement between the potential beneficiaries to a compromise. We can now respond to your suggestions....

Fully set out all the relevant facts
Give the reader all the information needed to deal with your letter. If information is missing, the reader must obtain the client file in order to review earlier letters and reports, telephone messages and so on. If your letter is complete in itself, the reader is likely to respond sooner.

If you are replying to an earlier letter, show how the new information you are providing relates back to that letter. You can refer to the questions you are answering:

You ask whether our client has obtained an estimate....
You question why the employer should be responsible for...

Answer the questions: Who, What, When, Where, Why, And How?
Sometimes the best way to organize your letter is to answer the “Five W” questions: who, what, when, where and why (the questions that journalists are trained to answer). If you consider all these questions, you will probably produce a more complete letter than you would otherwise. This method works particularly well when your letter is the first letter in the matter. After you have described what is to be done, be sure to explain how. Make certain that you have made it clear who is to do what.

We will now ________. When we have had your reply, we can then _______.
We assume that you will proceed to ________. All that will then remain is for
us to ___________.

Close with care
The closing paragraph should not be a stock phrase but a genuine expression of courtesy. Choose your tone carefully: The final words of your letter will echo in the reader’s mind and leave a general impression.

Stay away from phrases like these:

Thank you in advance for...
We look forward to hearing from you at your earliest convenience...
Hoping for the favour of an early reply...

Give a call to action
In closing, give a call to action to focus the reader on what you expect next. Restate briefly what you want or expect the reader to do. Or indicate what course of action you are going to take next. Try:

  • a direct specific statement:
    Promptly after hearing from you, we will...

  • a courteous request or instruction:
    Will you please notify us when...Please mail the signed release to...

  • a question:
    Please let us know when it will be convenient for you to...
    Considering all this, should we revoke the offer?

4. Organize the letter for highest impact

Organize by topic. Put the topics in an order which suits your audience and purpose. Keep paragraphs short. If your letter is long, use the second paragraph as a prose table of contents:

In this letter, I’ll explain the incorporation documents that are enclosed. I’ll review the organizing resolutions of the company. Then I’ll discuss the annual duties of the secretary of the company to look after its legal affairs.

Use topic headings to break up a long letter; use tabulation and lists whenever possible to break up the dense text in a long letter. Use parallel forms of grammar for ideas of equivalent impact or application.

Lawyers often ask that a duplicate copy of a letter be signed and returned to confirm the client’s agreement to a retainer or terms of settlement. It is preferable to write a cover letter explaining what you are doing and enclosing two copies of a letter of agreement, with one to be signed and returned. Many overly-long letters can be converted to a short cover letter with a number of schedules or lists attached.

5. Choose your words thoughtfully

Use everyday words
The simpler your words, the clearer your message. There is no excuse for using legal jargon in letters to clients or business associates. If you must use legal terms of art then provide a brief explanation or definition and apply it to the circumstances.

Avoid jargon, wordiness and repetition.
Ensure, indemnify, and save harmless have similar or overlapping meanings. Your client will not understand these words or the distinctions between them. Try to express your meaning in the simple, clear language that you might use to explain the term to your client orally.

One word that is widely used in situations where it is unnecessary is execution. To execute is to do what is necessary to make a document valid, and this can include all these steps: signing, sealing, delivering, and carrying out performance of the obligations. When you want a client to come to your office to sign a document, say just that – don’t ask the client to execute anything unless you mean something more.

Use ordinary, familiar words
Everyone, even a business professional, appreciates language that is easy to understand. When you write to other lawyers, you know that the letter will also be read by a layperson – either your client or the other lawyer’s client, so don’t write in legalese. Remember Benson’s definition of a necessary term of art: A genuine, technical, term of art has an uncontroversial core meaning that cannot be conveyed succinctly in any other way.

How many of your correspondents keep Black’s Law Dictionary in their offices? Not too many. So ask your word processing clerk to return your draft with all legalisms highlighted. You can do this by using the spell-checker and not activating any special legal dictionary. Any word not found in a conventional dictionary will come back marked. You can then replace each one with a more common word. Not only does this show consideration for your reader, it ensures real communication.

Trite phrases
Drop the old clichés and clusters of unnecessary words: write as you speak. Those formalisms that make legal correspondence stuffy have to go.

Cross-out phrases like:

We are in receipt of...
This is to acknowledge your letter...
Confirming our telephone conversation...
This is in reply to your letter of...
It is important to add that...
In this regard, it is of significance that...
It is interesting to point out that...
I should further point out...
It is my considered opinion...
Let me take this opportunity to...

Substitute less-stuffy phrases like these:

Traditional Language

Plain Language

at this point in time  now
in the event of   if
pursuant to the terms of  under
under date of  on, dated
meets with our approval We approve
move for a continuance  ask the court to postpone the case
Attached please find  Attached is
I am of the opinion that I think
I am not in a position to I cannot
I should appreciate your advising me Please tell me
I would ask that you Please
Will you be good enough to Please
Please advise me as to Please tell me
Please furnish me with information Please tell me
In compliance with your request As you asked


Tone
What tone should you choose? It really depends on what is appropriate to your purpose, or what your correspondence is trying to accomplish. Be no more formal than necessary – there is a tendency amongst lawyers to adopt a pompous tone that, far from impressing the reader, is alienating. As Henry Weihofen advised, aim for the simplicity and buoyancy of good conversation (Legal Writing Style, Wests, St. Paul, 1961).

The following real letters adopt an inappropriate tone.

From a lawyer to a legal research consultant (with no previous discussion of this subject)

Dear Sirs:
Please find enclosed herewith a list of publications which are required by the writer. Please advise the writer if any of the enclosed publications are available to you and/or the writer and if so, how do we go about obtaining them?
Your prompt attention to this matter is greatly appreciated,

From a lawyer to a legal writing consultant

Dear (Sir)
RE: ANALYSIS OF SIGNED AND UNSIGNED CORRESPONDENCE
Reference is made to your discussions of even date with our Mr. ().
Enclosed please find photocopies (the reduction is of our making) of the material submitted for comparative analysis.
We look forward to your advice pursuant to the preliminary analysis mentioned in your discussion with Mr. ().

6. Use modern formats

If your firm does not have a required style, the block letter form is modern and efficient: Do not justify text at the right margin and do keep the date, headings, and signature lines aligned at the left margin.

Legal correspondence is top-heavy, with data and forms which don’t tell the reader anything of substance or clarify the content of the letter: Take a look at the first page of some letters and you see no room for text. The letterhead takes up a major chunk of space, the full address needs a few lines, and, of course, several lines are devoted to codes about method of delivery, file reference numbers, date, attention lines, salutation, subject lines, and so on. Often a one-page letter is forced to stretch to two pages just to accommodate such information and the complementary close and signature lines.

Modern business formats condense the space required by eliminating the salutation
and closing. Some legal correspondents who have adopted this condensed form, report no one has ever commented on this absence. Eliminating the salutation and the closing also solves the problems described below.

Salutations
Putting aside such traditional problems as needing to know a woman’s marital status when the letter is addressed to a woman, salutations continue to pose problems. These are problems in using salutations: when writing to another firm or to an organization, you often do not know who will be the recipient of the letter, for example. And sometimes keeping the salutation and closing complementary is a task in itself.

Eliminate the salutation
You don’t have to use a salutation. If you don’t know the individual’s name and you are writing to the holder of a particular job, use the position title, placing it directly above the address:

Managing Partner
Litigation Department
Holmes, Henrik and Hoben
456 Suisse Place
Zurich, Switzerland

When you are using an attention line to identify an individual, don’t use a salutation. A salutation is repetitious here anyway:

Smith, Hobkirk and Smitt
124 Horten Boulevard
Denton, Alberta A3T 1W3
Attention: Ms. Doris Elton
Corporate Legal Assistant

When you don’t use a salutation, you don‚t need to use a complementary close unless it seems more polite to do so. A general rule: both the salutation and the close should be similar in tone and formality.

If you use a salutation, choose a neutral form

  • If you know a woman’s name, you can include it in the attention line
    without referring to marital status:
    Attention: Barbara Ward, Personnel Administrator,

    Or you can use her full name in the salutation:
     Dear Barbara Ward:

    Or use “Ms”.  Business people created it for just this purpose.

  • Instead of the “Dear Sirs,” use:
      Ladies and Gentlemen:

  • Use the name of the department.
      Dear Litigation Department:

Once you’ve begun corresponding with someone, adopt their chosen position title and any other designation. Putting a question on your client-intake form to find out the client’s preferred form of address is a good idea.

Parallelism in Closing phrases
Keep your salutations and closing parallel and harmonious
The closing phrase in a letter is called the complimentary close because it is supposed to be parallel in tone and style with the salutation. Here are some parallel pairs:

Most formal tone:
Sir or Madam:
Madam: 


Yours respectfully,
Respectfully,

The judicial formal:
The Honourable Allan Harney
Chief Justice of British Columbia
Dear Chief Justice Harney:




Yours respectfully,
Formal tone:
Dear Ms. Sampson: 
Dear Sir or Madam: 

Very truly yours,
Yours truly,
Business-like tone:
Dear Mr. Thompson, 
Dear Miss Smith, 

Yours sincerely,
Sincerely,
Familiar tone:
Dear Mallory,  
Dear Tom Johnson, 

Most sincerely,
Best regards,

7. Psychology for good news or bad news

Set the scene to make the reader comfortable
The structure of a letter sometimes causes information anxiety in the reader. You can help the reader focus on your message by setting up the scene in your introductory paragraph itself. Then isolate points of difference, and identify areas of agreement.  This way you narrow the actual issues in dispute and avoid an argumentative tone.

Many clients or lawyers (reading other lawyers’ letters) have learned to flip to the last page of a document. They know that they will find the answers to their questions and the context for the letter in the final paragraph or two. Then they go back and read the letter from the beginning to get the detail or follow the argument. Such letters don‚t reveal the best organization.

Your answer or conclusion always goes in the beginning. Fix the questions in the reader’s mind as a framework for the rest of the letter. The body of the letter answers questions and explains how you reached your conclusion.

Give positive news early
If you have something positive to report, don’t keep the reader in suspense. A long introduction produces apprehension. Say “yes” quickly, then supply the necessary details and close your letter in a friendly or upbeat way.

Give bad news in a neutral or positive tone
Remember that nobody likes rejection. A “no” letter is best written in a neutral, constructive tone. At least say thank you for the request, complaint, or offer. Speaking in the first person will give your remarks a human touch. Try to be understanding and sympathetic. Be careful to reject the request, not the person who made it. Begin neutrally with something that lets you get easily into the subject.

Ideas

  • Find something important you can agree on.
  • Concede what you can’t win.
  • If you have made a mistake, admit it.

When you are reporting a decision you have made, set out the context for your decision so the reader is receptive. If you can, give the reasons you rejected the request.

Deliver the unwelcome message later and be gracious. Try to say “no” indirectly rather than directly. Let the reader infer the “no”.

Provide an out for the recipient – suggest a positive alternative to what he or she originally sought, or some other solution to the problem. Close with a positive statement, even if it is only an offer to consider any future requests.

How to say Yes and No
The following guides are appropriate for letters which have to answer a question with a basic yes or no.

The YES Letter

Don’t make the reader anxious. Say “yes” and elaborate.

  1. Say “Yes” in opening.
  2. Supply the necessary details.
  3. Close in a friendly way.

The NO Letter

Even if your message is negative, try to keep “no” letters positive or matter-of-fact in tone; speak in the first person, add the human touch. Reject the request, not the person.

  1. Say “thank you” for the request.
  2. State the context for the decision so you can prepare the reader.

    Unfortunately, the courts have not addressed this question before...
  3. Say “no” graciously (or by inference).

    To take this case would be to mislead you as to the likelihood of     eventual success...
  4. Provide an out (a positive alternative).
      
    If other supportive facts come to light, do not hesitate to contact me again.
  5. Close with a positive statement.
      
    I appreciate your consulting me about this matter and would be pleased to discuss other matters with you in future.

Adapted from "Plain Language Legal Writing" by Cheryl M. Stephens, ASAP Legal Publishing 1999.

Comments/Discussion

Thank you for your practical suggestions and examples. However, the traditional style seems to remain the preference for business letters, at least in the British world. The precision and beauty of British style of writing simply has no match.

By: Mmayenudo
Posted: 05-24-06
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Great article! I am always trying to improve my plain language communication. I also have an articling student who will find this helpful.

By: Holly Ann Knott
Posted: 02-03-06
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