Plain Language Legal Writing: Part II – Writing to Be Understood
By Cheryl M. Stephens
The actual writing phase begins when you prepare a first draft. At that point you are merely trying to record your ideas.
Always reshape your draft to match the needs and abilities of your target audience; a competent writer is one who can do this quickly and efficiently. With experience, a writer can anticipate the reader’s concerns, and addresses them early in the process of composition.
The goal is to express simple ideas clearly, and complex ideas as precisely and simply as possible. Writing expert Joseph Williams describes the problem you face in trying to improve your mode of expression:
Whether we are readers or writers, teacher or editors, all of us in professional communities must understand three things about complex writing:
• it may precisely reflect complex ideas,
• it may gratuitously complicate complex ideas,
• it may gratuitously complicate simple ideas.
(Style: Toward Clarity and Grace, Chicago: University of Chicago Press, 1990)
The information that follows shows how to simplify language and expression. Many writing checklists exist that can facilitate a quick editorial review to improve the style of your first draft. The clarifying effect on your writing will be cumulative.
The rules set out here should not become clichés of style, but guidelines for improvement. The essential ingredient is thoughtful consideration of your reader.
Choose Your Words Wisely
Which words speak directly to your readers?
“Don’t be afraid to sound like a lawyer, but try not to sound like the popular stereotype of a lawyer.”
(Henry Weihofen, Legal Writing Style, West Publishing Co., St. Paul, Minn. 1961)
Readers prefer familiar and concrete words. They prefer simplicity and consistency. They prefer genuineness to pretension, modern expressions to archaic words.
Style must be clear, as is proved by the fact that speech which fails to convey a plain meaning will fail to do just what speech has to do. Clearness is secured by using the words... that are current and ordinary.
(Aristotle, Rhetoric, The Words of Aristotle, W. Ross, ed. 1946)
While you struggle to clarify your meaning, keep in mind the level of simplicity and formality that is appropriate to the particular document and for the particular reader. The last refuge of a sloppy writer is the excuse, “But my clients prefer formality” by which is meant pompous, inflated language.
Try this plain language:
a) James Jones covenants
b) He is against it.
Traditional language:Replace, for example, “terminate” with end, stop, finish, or close, and “accede to”
a) And the said covenantor doth hereby, for himself, his heirs, executors, and administrators, covenant, promise and agree with and to the said covenantee, his heirs, executors, administrators and assigns, in manner following..
b) He has taken a negative posture.
with agree to, give in, or comply.
Resist the lawyerly urge to convert Pope’s statement from
“To err is human, to forgive, divine.”
“To err, whether willfully or through negligence, is human, whereas, to forgive is divine” or an approximation thereof.
Use word pictures
Scenarios, analogies, metaphors, and similies paint a better picture in fewer words – a picture with vitality and color. Just be sure your comparisons compare, that you avoid clichés and platitudes, and that the words clarify meaning for your reader.
Example - scenario
A scenario offers an account of a projected course of action or event. Use scenarios when explaining transactions or events to clients. Here is a scenario used in the 1990 Federal Tax Guide:
If Box 14 (or Box C) of your T4 slip includes your WCB benefits, subtract
the benefits you received from the amount in Box 14. Enter the result on
Steve was injured at work in 1990. He received $3,000 through his employer as workers’ compensation. The amount shown in Box 14 (or Box C) of Steve’s T4 slip is $15,000. There is also a note on the slip stating “$3,000 paid as WCB is included in Box 14.” Steve enters $12,000 ($15,000 - $3,000) on line 101 of his return.
Sometimes visual aids, not words, are the best tools to convey information. Visual presentations can complement, even replace, word descriptions.
Photographs, drawings, and illustrations not only show what you mean to say, but
shorten the number of words needed to say it. Tables and graphs are useful to present numerical relationships and statistical data. Formulas easily explain mathematical relations and processes.
Diagrams and maps can describe locations, routes and geographic regions better than words. Diagrams can also be used to convey concepts. A corporate lawyer might use a diagram of related companies to explore conflict issues.
This example gives a graphic representation of the fees agreed to in a retainer:
It is agreed that the fees I will be charged are based on the schedule set
||Member of Firm
||He has taken a negative posture.|
Avoid unnecessary repetition
Legalese, that special dialect of legal language, has a preference for using more than one word where one will do. This results from tradition or laziness. Many legal writers think that phrases such as the following have gained special meaning that represents an improvement over any one word. Most often, they are wrong.
With phrases like these you repeat yourself:
act and deed
goods and chattels
fit and proper
contract or agreement
null and void
fair and equitable
Such combinations are usually tautologies: needless repetition of the same idea. Tautologies should be eliminated: they make your writing wordy and tiresome:
represents, warrants and covenants
representations, understandings and agreements
right, title and interest
in truth and in fact
referred to as and called
Sometimes the two - or three - word phrase does have a different meaning but usually any one word is enough for what you intend to say. Take the time to check the dictionary or legal reference works before you replace two- and three-word sets with one word in documents that regulate relations between people.
Latin was the language of law before the Norman Conquest of England in 1066. After the Normans arrived, French became the dominant language of education, culture, and law. But English survived amongst the population and later prevailed. In 1362, the Crown decreed that oral pleadings in court should be in English. In the next century, English was required in statutes; in 1731 in written pleadings. This is how lawyers developed the habit of combining Latin, French and English words to express their meanings with greater certainty – a habit that is clearly out-of-date.
Don't use problematic vocabulary
Even for the courts, the first rule of interpretation is to look for the plain meaning of the words – That means looking first in a conventional dictionary, not a legal dictionary, or a compendium of words and phrases that have been judicially considered. And if the dictionary provides a definition that is sufficient to answer the legal questions, the court will not turn to the legal lexicons.
Some writers are using the following disclaimer to ensure that the plain meaning of the words is binding, although it should not really be necessary:
“This [document] is written in plain English, in an effort to make it understandable to persons who are not lawyers. Legal terms of art are used where necessary, but unnecessary legal jargon is omitted. This is an attempt to make the [document] clearer, not to change its effect.”
Linguists consider legalese a separate dialect or class of language. Indeed, legalese is a kind of a group slang, easily replaced with more modern vocabulary and form. Law does not need a separate language or a different dialect.
This dictionary definition of jargon applies to legalese, as well:
1.Confused unintelligible language
2.The technical terminology or characteristic idiom of a special activity or group
3.Obscure and often pretentious language marked by circumlocutions and long 0.words
(Webster’s New Collegiate Dictionary)
A simple test for distinguishing necessary technical language from unnecessary jargon is to try to express the idea in language you might use with an intelligent listener in polite company at dinner. If you can say it in plain English during a conversation, why not write the same way.
For example, why not revise this:
For value received, the undersigned hereby promises to pay...
To repay my loan, I promise to pay...
In Klingspon v. Ramsay (1985), 65 B.C.L.R. 132 (S.C.), a woman sued her solicitor for bad investment advice. The client had signed a document stating that she had received no advice from her solicitor except as to the good standing of the company. The solicitor meant the phrase to refer to the status of the company’s statutory filings with the Registrar of Companies, but the client understood it to mean something more, including a positive description of the company’s financial condition. The court held the solicitor to be 25% liable for the client’s investments losses, stating (at page 135):
The phrase “have not offered me any advice other than as to the good standing of the company” ...would, of course, be most unlikely to convey
to a lay person the meaning which would be understood by a lawyer.
Some specialized terms are used because they have always been used, even though the necessity no longer exists. Take, for example, the phrase “lands and premises”. In British Columbia, Section 29 of the Interpretation Act provides that the word “land” alone includes any interest in land, including any right, title or estate in it or any tenure with all buildings and houses, unless there are words in the document that specifically exclude buildings and houses, or words that otherwise restrict the meaning. And Butterworth’s Words & Phrases indicates that “lands" includes premises and “premises” includes lands. So, in most instances, it is unnecessary to use the phrase “lands and premises” when one word alone will do.
Legal terms of art
Various legal terms that cause problems to the client are defended as terms of art when they are really legal jargon. The challenge to you as a writer is to determine whether a particular word is jargon or a legal term of art, words like: fee simple, tort, injunction, master and servant, and execution.
Is a particular word a legitimate term of art? Legal scholar Robert Benson has a test:
“A genuine, technical term of art has an uncontroversial core meaning that cannot be conveyed succinctly in any other way”.
Some words that Benson accepted as terms of art have since been replaced statutorily in many jurisdictions:
plaintiff = claimant, applicant
defendant = respondent
injunction = order of prohibition
There are a few genuine terms of art among the trade jargon. Some of Benson’s examples of genuine terms of art:
dictum eminent domain
rule in Shelley’s Case
last clear chance
Words and phrases are discussed in litigation, but few are litigated themselves. Case law shows that the meaning of the word always changes to reflect the particular circumstances of the case. David Mellinkoff suggests these questions be asked when deciding whether a word is a genuine technical term of art:
Is it a term of art?
Did I ever learn “law" about this expression?
Is that the only way it can be used?
Is it used in this instance as a term of art?
Are there other words that can serve as well?
Will even slight variation change its legal effect?
Is this the traditional way of saying it?
Did it ever have a definite meaning?
Does it have a definite meaning now?
Does this make the meaning more exact than ordinary English?
Does precedent support this usage?
Is it decision or dictum?
Is the precedent decisive or persuasive in this jurisdiction?
How fresh is this precedent? Would it be followed today?
Are there precedents going the other way?
Does it make sense?
Is there some requirement that it be said this way?
What sort of requirement is it?
What are the consequences of departure from rote?
(The Language of Law, Little, Brown and Company, Boston, Mass., 1963)
Archaic words and old formalisms
Falling back on archaic words and old formalisms shows a laziness in writing style. In a standard form retainer agreement, the person signing the document is made to say the following, which can be put more simply:
I hereby acknowledge receiving a copy of this retainer.
I received a copy of this retainer. (or) I have a copy of this retainer.
Here is a list of archaic words that are no longer considered part of common language:
Stay away from this type of archaic pronoun:
Substitute modern, familiar words for the following obsolete formalisms:
Here is an example from a traditional court order of foreclosure:
THIS COURT FURTHER ORDERS that the Petitioner be granted liberty to apply to this Court for a further summary accounting of any amounts which become due to the Petitioner for interest, taxes, insurance premiums, costs, charges, expenses or otherwise since the date of pronouncement of this Order.
This Court Orders that the Petitioner may apply to this Court for an accounting of any additional amounts which become due to the Petitioner from the date of this Order.
Don’t use Latin and French words for which English equivalents are readily available.
Here are sample substitutions:
||among other things|
||at first appearance, on the face of it|
||with things changed that must be changed|
||in reality, in effect, actual|
|ex post facto
||after the event, retrospectively|
||completely, as a whole, entirely|
||by the fact itself, therefore|
Compound prepositions add many extra words and make your writing overly formal.
Use the simpler forms below:
Copyright/Droit d'auteur © The Canadian Bar Association/L'Association du Barreau canadien