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Advanced Legal Writing: Making Legal Documents Readable
Advanced Legal Writing: Making Legal Documents Readable
LEGAL DOCUMENTS
READABLE
[And at the same time removing unnecessary
uncertainty and ambiguity]
by
David C. Elliott
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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.
(just unnecessary)
(unnecessary)
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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
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
by means of
by virtue of
in the event that
subsequent to
prior to
for the period of
period of time
by reason of
in order to
set forth in
during the term of
in liew of
is authorized
is empowered
is binding on
the manner in which
Try
by
by, under
if
after
before
for
period, time
because of
to
in
during
instead of, in place
of
may
may
binds
how
Notice how the meaning of the alternative word is immediately clear, compared to the
foggy phrase, in these examples:
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in and for
by and between
suffer or permit
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 crossreferences, although you may still need them from time to time.
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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).
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 . . .
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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)
(b)
control production;
(c)
(d)
(e)
a report on
1 work
1 work
2 health
3 safety
or
2 health
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. Constitutions) fifth amendments 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
provisions 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.
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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)
(b)
The leave is for a good reason and does not interfere with operations,
except in emergency situations when leave shall be granted regardless.
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)
a condition, or
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 employees 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 . . .
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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.
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)
...
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.
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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 . . .
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To impose an obligation
The Employer shall give notice
and
The Employer shall pay . . .
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)
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 . . .)
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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.]
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.
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4. People are more likely to read the document, understand it, comply with it, and
respect the result.
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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.
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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
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%.
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