Legal Writing & Drafting Module 2: Language and style

The complex sentences, wordiness, and redundancy that characterize traditional legal
writing often inhibit comprehension and become barriers to understanding. Plain
language facilitates comprehension by using shorter, less complex sentences; active
voice; and common words. All these elements aid in processing and understanding
information, especially unfamiliar concepts.
Sub-Topics:
1. Introduction to plain language
Plain language is language that is clear and understandable and as simple as the situation
allows. Plain legal language is language that is effective for its purpose and clear to the
intended reader. It requires good organization and format combined with elimination of
excess words, Latin phrases, and unnecessary legal terms and jargon.
As a writer of plain legal language, your aim is always to be understood. Sometimes, you
will aim to be understood by the ordinary reader, but not always. At times, you know you
need only reach those who are familiar with the context and understand the terminology.
Benefits:
-Confidence of reader & writer.
-Cost efficiency in teaching, training of others in language used
- Advance planning for new legal requirements

2. Legal writing and client literacy

Communication is not a one-way activity. You write in order to convey information to
others. If your readers do not receive the message you intended to transmit, you have
failed to communicate.
Plain language legal writing refers to legal writing that is well thought out, well organized,
and understandable to the client without interpretation: the language is clear, the legal
concepts are explained and the technical terms are defined.
It is important to identify readers and be aware of their characteristics, needs, and
expectations. But audience awareness becomes complicated when you are writing for
more than one group.
Good lawyers learn to assess their clients’ needs, abilities, comprehension levels, and
psychology. Plain language writing requires you to apply such skills of assessment to
determine what approach would work best for each communication project, and what
types of documents are required to service readers.
You have already learned how to tailor your message to your audience when talking face-
to-face. You need to apply this type of analysis and responsive style of delivery when you
are writing.
While most people do not fit the old definition of illiteracy, many people are challenged
by the task of reading. And they are unnecessarily challenged by legalese.
It is good practice to write as simply and clearly as possible. And design your page and
organize your document well, to make reading it as easy as possible. This will help you
communicate effectively with your readers.
Audience characteristics
You need to know the characteristics of the significant audience for your document.
Gather information about your readers:
• age range
• gender identification
• marital status
• first language
• professional interest
• familiarity with law
• sensitivities
• familiarity with subject matter
• desire to participate
• attitude in the circumstances
• education and reading levels
• physical, mental or emotional problems
• profession or occupation
Client Literacy
You have a business client. This client trusts others to handle all her legal documents and
accounting. She expresses frustration over the paperwork. She asks to take an annual
report home to study before she can sign it. Another client is at risk of losing his income
because he is refusing job training, a promotion, or reassignment. Such behavior may
indicate a literacy problem.
If you give your client a legal document to read, does she read slowly and laboriously?
Can she summarize what the document says? Has she filled in a form with the wrong
information, or made mistakes in spelling or grammar? The problem may be that the
client can’t read well enough to understand the questions, or can’t write well enough to
answer.
One in five adults cannot read English. One in four can, but only simple material that is
well laid-out. And one in three, though they have adequate reading skills for most tasks
in day-to-day life, cannot cope with unfamiliar or complex information.
Law is a technical field. This means that many of your clients find legal writing difficult
and, because it is important to them, frustrating. Only one in four adults can deal with
your complex opinion letters or legal documents, and even they need the legalese
explained.
Literacy is a law practice issue.
You can prepare for these situations by:
• identifying clients who may have trouble reading,
• adopting techniques that help these clients.
Some of your clients who usually perform at a higher literacy level will demonstrate
situational limited literacy. Many factors can temporarily affect literacy:
• stress or psychology
• stage in life
• lack of practice or neglect
• pressure or stress over a legal matter
• intimidation by a situation
• legalese
Literacy is relative
To help clients who have reading difficulties, you need to be observant and aware. And
cautious: adults with literacy problems can be embarrassed by people who make a big
deal of their problem, or who talk about it in front of other people. It is likely that such
clients didn’t receive much support in the past when they revealed their low literacy
skills.
They may have hidden this inability to read and write well because of the stigma attached
to illiteracy—shielding their embarrassment behind anger or defensiveness.
But there are clues that you can pick up when you suspect that a client is not able to read
the legal documents you want read and understood.
Low literacy can be invisible. Low literacy is a problem that knows no age, education,
economic boundaries or national origins.
How to help with the legal literacy problem
When you talk about the legal problem, repeat yourself. People who can’t read pick up
compensatory skills. They have well-developed memories and may use mnemonics—
memory aids. They may ask you to repeat something so they can memorize it.
You can also help by finding new ways to convey information. Use plain language. People
with lower literacy skills can only cope with written information that is simple and clearly
laid out, in language that is familiar and well organized.Review your communication
practices.
3. The mechanics of language
You need to select language forms (grammar and vocabulary) which not only make the
meaning clear as rapidly and straightforwardly as possible but which do so with an
appropriate degree of formality.
We suggest you adopt the Three Cs as your starting paint. Be:
(a) clear;
(b) concise;
(c) correct.
This means:
(a) Use frequently used words and phrases instead of infrequently used ones.
(b) Avoid clumsy and inelegant words and phrases.
(c) Use verbs in preference to nouns.
(d) Use active verbs instead of passive.
(e) Omit redundant words and phrases.
(I) Use specific words in preference to vague words and phrases.
(g) Avoid using jargon and technical terms unless there is no alternative and the reader
will understand them.
(h) Avoid long and complex sentences.
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
This can be achieved by:
i. Use word pictures
ii. Avoid unnecessary repetition
Using phrases like these, you repeat yourself:
act and deed
goods and chattels
fit and proper
contract or agreement
null and void
fair and equitable
represents, warrants and covenants
right, title and interest
in truth and in fact
iii. Don't Use Problematic Vocabulary
iv. Avoiding Unnecessary jargon
v. Ditching Foreign words, archaic words, and old formalisms
Principles of Tone
Tone, in writing, means the writer's attitude toward the reader, the subject matter, or a
combination of the two. You, as writer, are able to control the tone you use to get the
result you want. Your tone will be as varied as the writing you do. A demand letter will
have a very assertive tone. A brief to the court will contain a persuasive tone, and a letter
to your client will usually reflect a friendly, yet professional tone.

4. Clarity and Conciseness

There are many problems with legalese. This part looks at four particular problems:
• lack of clarity from ambiguity or wordiness,
• multiple negatives and overuse of qualifiers,
• nominalization and loss of agency,
• bias and stereotypes.
Lack of Clarity
Vague, ambiguous and abstract words
Abstract words express concepts that are not concrete, concepts like equitable.
Ambiguity
An ambiguous statement is one that can be understood in two or more possible senses.
Ambiguity is to be avoided. Ambiguous words have more than one interpretation. If you
have to assume the meaning, the statement is probably ambiguous. If you have to go back
over a sentence and think about its meaning, it is definitely ambiguous.
General wordiness
Using too many words to say something can be as confusing as using misleading or vague
words. Remember, it is never a compliment to say that someone is verbose.
• at a later date (later);
• until such time as (until);
• in the event that (if);
• prior to (before);
• subsequent to (after);
• on a regular basis (regularly);
• as a consequence of (because);
• due to the fact that (as, because);
• in the vicinity of (near);
• for the purpose of (to).
Use more precise words
Depending on the circumstance, choose the most precise word available. Follow these
guidelines to avoid ambiguity:
• Choose the word that accurately describes what you want to say.
• Define terms.
• Use words consistently.
• Repeat the right word (don’t use different words).
• Use a thesaurus or dictionary when you write.
Use short sentences for complicated thoughts.
Too often, legal writers include several important ideas in one long, complex sentence.
The result is confusion and misunderstanding on the part of the reader. At the very least,
the reader may be forced to reread the sentence.
Negativism
Multiple negatives
Try to construct your sentences with positive words. In spite of grammar school warnings
about using double negatives, lawyers continue to use them. This example may not be
grammatically wrong but it takes too much effort to balance:
“There must be sufficient proximity between the parties that it would not be unjust or unfair
to impose a duty of care.”
Negative
This policy shall not be valid unless countersigned by our authorized representative.
Positive
This policy becomes valid when signed by our representative.
Use active instead of passive voice
Verbs with active voice express action. Active voice is easier to read, uses fewer words
than passive voice, and makes your writing stronger, clearer and briefer. Active voice
moves the action toward the object of the sentence.
A passive verb directs the action back from the object to the subject. If the subject is
performing the action in the verb, you are using active voice.
Active voice
Provincial court judges decide the traffic cases.
Passive voice
Traffic cases are decided by provincial court judges.
Loss of agency
The passive voice hides the roles and responsibilities of people. This produces a loss of
agency and you don’t know who is acting.
When is the passive voice preferable?
In some situations, the passive voice is useful:
• If you want to put the emphasis on the receiver of the action, you can make it the subject:
My client was severely injured as a result of your negligence.
• If the doer of the action is unimportant or unknown:
This conclusion is based on a careful analysis of the case law.
• If you want to avoid mentioning the doer of the action:
The decision was made without consulting the senior partners.
• If passive voice will let you maintain a consistent topic string in your paragraph:
Jill testified that.... Jill’s testimony is contradicted by John’s guarantee of indebtedness.
• If passive voice allows you to keep your subject short:
Active
John’s absolute and unconditional guarantee of Smith’s mortgage and express promises to
Chris contradict this testimony.
Passive
This testimony is contradicted by John’s absolute and unconditional guarantee of Smith’s
mortgage and John’s express promises to Chris.
• If you want to use a detached tone or express an abstraction:
All people are created equal.
Keep sentences short or simple
Sentences should generally contain only one thought. Long or complicated sentences
create anxiety as the reader tries to break down and absorb the thoughts. They can be
broken into shorter units by dissecting the different ideas.
Prefer verbs to nouns
A common feature of officialese and 'legalese' is the use of nouns instead of verbs when
expressing actions. Generally, you will find that what you write comes over with much
more simplicity and power if you use verbs. Furthermore, verbs bring vitality to your
writing. Verbs convey actions, events, people doing things: living, breathing, eating, etc.
Use specific words and phrases
It is unhelpful to clients to give them information which is vague or unclear.
Inelegant writing
Some formerly infrequent usages have now become commonly used in both speech and
writing. Writers pad out their communications with additional words to avoid using a
single word. The following are common examples:
• at a later date (later);
• until such time as (until);
• in the event that (if);
• prior to (before);
• subsequent to (after);
• on a regular basis (regularly);
• as a consequence of (because);
• due to the fact that (as, because);
• in the vicinity of (near);
• for the purpose of (to).

5. Grammar and syntax

Using 'correct' grammar
The word 'grammar' has many meanings, some popular, some technical. For linguists and
others who understand language, the main meaning of 'grammar' is a description of the
rules that underlie a user's ability to understand, speak and (possibly) write a given
language. In its popular sense, 'grammar' is a set of rules which prescribe how users
should speak and write. Thus we have the distinction between 'correct' and 'incorrect'
English. The written form is expected to be usable by all speakers of English no matter
which variety they learned as children.
(a) The traditional rule is that pronouns ('they') or determiners ('their') which refer
back to a singular indefinite pronoun ('anyone') must be singular: therefore 'they'
and 'their' must be replaced with 'he' and 'his'.
(b) The reflexive pronouns ('-self', '-selves') may be used to give emphasis, as in:
“Are you sure he received the letter? Yes, l took it round there myself.”
The traditional rule prohibits their use as a substitute for the object pronouns ‘you', ‘me',
'him', 'her', 'us', 'them', though this usage is now quite common in both spoken and
written English and is often found in solicitors' letters.
Nouns
A noun is a word used to name a person, place, thing, or condition. Nouns are also
classified as common or proper.
A common noun signifies one of a class: city, woman, office
A proper noun is a special name given to individualize a person, place, or thing. Proper
nouns are always capitalized: Kampala, Barack Obama, Crested Towers
Nouns may have many different functions.
As the subject of a sentence: The desk is dusty again.
As the object of a verb: The hunter shot the tiger after it attacked the child.
The sentence
Failure to write complete sentences is a common feature of poor writing. Here are three
examples in letter-writing:
• Thanking you for your kind attention.
• Assuring you of our best attention at all times.
• With reference to your letter of 16th May.
In general, all written sentences should contain at least a subject and a verb.
The Subject
This usually appears before the main verb in statements and after the main verb in
questions. It is the person or thing doing the action. For example:
“The Court ordered her to pay a UG.X. 5,000,000/= fine.”
The Verb
A verb is a word or group of words that asserts action, condition, or state of being. The
verb is a 'doing' word which describes actions and events.
Punctuation
Punctuation helps the reader understand written language by breaking it up into smaller
units. See how this sentence can have its meaning altered by punctuation:
The judge said the accused was the most heinous villain he had ever met.
The judge, said the accused, was the most heinous villain he had ever met.
How well do you think you know the rules of punctuation? When would you use:
(a) a full stop;
(b) a comma;
(c) a colon;
(d) a semicolon; or
(e) an apostrophe?
Spelling
Mark Twain remarked that he could not respect a man who could only spell words one
way. English spelling is difficult because words are not always spelt as they are
pronounced.
Some people see poor spelling as a sign of intellectual incompetence. Since there are so
few rules, however, learning to spell involves memorising rather than exercising your
intellectual skills of judgement, discernment and reflection.
Nevertheless, you have to recognise that poor spelling may make your reader think you
are uneducated, incompetent or unprofessional. Be sure to use a dictionary or spell
checker.
Principles of Diction
Diction refers to the choice and use of words in speaking and writing. Lawyers (and other
legal writers) have a lexicon replete with both useful technical terms, called terms of art,
and useless terms: jargon, redundancies, wordy phrases, and obsolete words.
Principles of Syntax
The term syntax refers to the pattern of word order in a sentence. Well-constructed
sentences should reveal unity, coherence, and emphasis.
Unity A sentence must display oneness of thought in order to be comprehensible to the
reader. Unrelated ideas in a sentence destroy the rule of unity.
Coherence In any well-constructed sentence, the proper relationship of words should be
unmistakably clear.
Emphasis Emphasis, as it applies to sentence structure, means an arrangement of words
that gives distinction to the main ideas and subordinates the less important details. To
emphasize important words, place them at either the beginning or end of the sentence.
6. Legalese, obfuscatory, bureaucratic and impersonal writing
The Legal Writing Institute, an international association of legal writing teachers and
other writing experts, adopted this statement of support for plain language legal writing:
“The way lawyers write has been a source of complaint about lawyers for more than four
centuries. The language used by lawyers should agree with common speech, unless there are
reasons for a difference. Legalese is unnecessary and no more precise than plain language…”
Plain language is the opposite of legalese, and you know it when you see it.
Here is a list of terms lawyers are in the habit of using which you can safely exclude from
your vocabulary:
• aforementioned;
• aforesaid;
• hereby;
• heretofore;
• herewith;
• inter alia;
• forthwith;
• pursuant to.

7. The writing process.

The writing process should have three steps:
1. prewriting
2. writing
3. editing and proofing
The idea is to start with an outline, then a written document and a revision of the written
document.
Using plain language is desirable, but how is it done? These seven steps are all you need
to take to write effectively:
1. Think about your reader and your purpose in writing. This may require research but
will lead you to audience awareness.
2. Plan how best to convey your message. This is your organizational phase.
3. Prepare your first draft. This is the creation.
4. Review your draft for common communication roadblocks. This is a general edit or
revision.
5. Prepare your edited version with care for technical factors. This is the technical edit.
6. Use readers or other resources to evaluate your draft. This is testing.
7. Reconsider your purpose, and the input you’ve received from other people, and revise
your product again.

8. Reviewing and editing your work

In the law office, preparation of legal documents is often accomplished through
teamwork. A team consists of senior counsel, associates, students, and paralegals, along
with the senior counsel who is expected to do major editing. When you have the chance,
it is better to allow your peers or supervisors to edit your writing; you can do the same
for others—and present the senior counsel with more impressive drafts.
The law firm benefits from having someone other than the author review a draft for
continuity and uniformity, as well as to tighten and streamline. A colleague’s review will
improve legal accuracy as well.
A Caution on Precedents
It is a mistake to use wording from a precedent if you do not understand the meaning and
effect of the wording. You should never assume that a precedent is adequate for your
needs, even if that precedent is commonly used in the legal community or in your office.
An effective way to edit a precedent written in out-dated legalese is to follow this two-
step process:
First, rewrite the material in your own words to confirm that you understand its meaning
and effect.
Second, edit and revise your version for clarity and conformity with the firm’s official
style.
When you are drafting fresh material, it helps to look at a precedent after your first
draft—to check if you have missed any common components.
Test a Document on Your Client
Some types of documents are for distribution to people other than your client. Go over
the document with your client. Not only will your client appreciate the collaborative
effort, you can ensure that you have fulfilled the client’s instructions.
If the client can’t understand words or concepts in the document, these ought to be
changed or defined. If you can’t explain words or concepts satisfactorily, perhaps you will
remember not to put anything in a document when you don’t know what it means!
Testing the document will disclose whether it is:
• comprehensible to the intended readers,
• user-friendly for the person who will fill it out or sign it,
• user-friendly for the people who will process it,
• legible, efficiently laid-out,
• complete for its purposes,
• simple to read,
• attractive to potential users, and
• capable of achieving the desired effect.
Self-editing checklist
Purpose:
(a) What is the purpose of the communication?
(b) Who is/are my intended reader(s)?
(c) Have I adapted style and content to suit the reader's needs?
(d) Have I dealt with the issues?
(e) Have I answered all the questions?
(f) Have I answered them in enough/too much depth?
Content:
(a) Is the information accurate?
(b) Is it relevant?
Humanity:
(a) Will my tone produce the desired response?
(b) Is it friendly, courteous, helpful, frank, or is it curt, distant, patronising, vague?
Layout:
(a) Is the layout appropriate for the purpose and content?
(b) Is it set out in manageable blocks?
Structure:
(a) Do I get to the point quickly and make it clearly?
(b) Are the sentences short enough?
(c) Does the order of sentences and paragraphs make sense?
(d) Does each paragraph contain just one main idea?
(e) Is there a link between each paragraph and the next?
(f) Are there links between sentences in each paragraph?
Language:
(a) Have I used plain language i.e., clear, concise, correct language that can be easily
understood by the reader?
(b) Have I omitted words and phrases which are:
(i) infrequently used;
(ii) inelegant;
(iii) redundant;
(iv) unnecessarily technical;
(v) verbose; or
(vi) vague.
(c) Are punctuation and spelling correct?
Exercises:
- Analysis of language and style in a legal document.
- Before-and-After Comparisons of writing styles.
- Concise writing based on provided text

Text Books (Module 1)

1. Carol M. Bast and Margie A. Hawkins, Foundations of Legal Research and

Writing (5th Edition, Delmar Cengage Learning, 2012)
2. Christina L. Kunz, The Process of Legal Research (7th ed., Aspen 2008)
3. Laurel C. Oates, Anne Enquist, The Legal Writing Handbook (Aspen
Publishers, 5th ed. 2010)
4. Michael D. Murray & Christy H. DeSanctis, Legal Research Methods
(Foundation Press; 1st edition, 2010)
5. Cheryl Stephens, Plain Language Wizardry: Plain Language Legal Writing
, www.plainlanguage.com
6. Halsbury’s Laws of England, 5th Ed., 2016.
7. Australian Guide to Legal Citation, 3rd Edition (Melbourne University Review
Association Inc & Melbourne Journal of International Law Inc Melbourne, 2010).
8. Oxford Standard for Citation of Legal Authorities (OSCOLA- 4th Edition),
https://www.law.ox.ac.uk/sites/default/files/migrated/oscola_4th_edn_hart_20
12.pdf.
Text Books (Module 2)

1. Anne Enquist and Laurel C. Oates, Just Writing: Grammar, Punctuation, and
Style for the Legal Writer (Aspen Publishers)
2. Bryan A. Garner, Legal Writing in Plain English, A Text with Exercises
(Second Edition: University of Chicago Press, 2013)
3. Richard C. Wydick, Plain English for Lawyers (Carolina Academic Press, 5th
ed. 2005) Robert Turner, J. I. Winegarten, His Honour Judge Michael Kershaw
(Editors).
4. Veda R. Charrow, Myra K. Erhardt, and Robert P. Charrow, Clear and
Effective Legal Writing (Aspen Publishers, 4th ed., 2007).
5. William Strunk, Jr. and E.B. White, Elements of Style (fourth edition, Longman,
1999).
6. Cheryl Stephens, Plain Language Wizardry: Plain Language Legal Writing,
www.plainlanguage.com