Article on Legal Language and Legal Writing

Introduction:

Legal writing involves the analysis of fact patterns and presentation of arguments
in documents such as legal memoranda and briefs[1]. One form of legal writing
involves drafting a balanced analysis of a legal problem or issue. Another form of
legal writing is persuasive, and advocates in favor of a legal position. Another form
legal writing involves drafting legal instruments, such as contracts and wills

Legal English is the type of English as used in legal writing. In general, a legal
language is a formalized language based on logic rules which differs from the
ordinary natural language in vocabulary, morphology, syntax, and semantics,
as well as other linguistic features,[1] aimed to achieve consistency, validity,
completeness and soundness, while keeping the benefits of a human-like
language such as intuitive execution, complete meaning and open upgrade.
However, Legal English has been referred to as a "sublanguage",[2] as legal
English differs from ordinary English. A specialized use of certain terms and
linguistic patterns governs the teaching of legal language. Thus, "we study legal
language as a kind of second language, a specialized use of vocabulary, phrases,
and syntax that helps us to communicate more easily with each other".[3]
The term legalese, on the other hand, is a pejorative term associated with a
traditional style of legal writing that is part of this specialized discourse of lawyers:
communication that "lay readers cannot readily comprehend".[4] This term
describes poor legal writing that is cluttered, wordy, indirect, and that includes
unnecessary technical words or phrases.[5] Historically, legalese is language a
lawyer might use in drafting a contract or a pleading but would not use in
ordinary conversation.[6] For this reason, the traditional style of legal writing has
been labeled reader-unfriendly.[5] Proponents of plain language argue that legal
"writing style should not vary from task to task or audience to audience...;
whatever lawyers write must be Clear, Correct, Concise, and Complete".[7]
 Principles of Legal Writing

Difference between legal English and General English for communication

We need to understand the difference between plain English and Legal English .
Plain or General English writing is used for communicating thoughts , observation
, Stories , description etc but Legal writing is slightly different . Legal Writing
defines rights and Liabilities . It defines the statutory position , Legal obligation ,
Legal provisions , statute , factual description etc. Legal Writing is intended for
interpretation . Interpretation of the Court will effect overall result . That’s why
Legal Writing should be in such manner that no other interpretation can be taken
out of sentences other than what is intended by the writer.

Understanding the objective of writing

Objective of writing will set the language of the document . First, we have to see
what is the objective?

To whom it is being addressed

‘Addressing ’ indicates the person for whom the document is written for .It is know
your audience rule . Legal documents is used before Judges , judicial staff , other
Lawyers , clients , Parties to the agreement ,common public information and so on.
If a document is written for a judge then certainly Legalese would be easily
understood . If it is written for a Lawyer or some other authority then even the
Legal Jargon can be understood. But, if it is written for the common public or
client then the tough Legal language would do nothing but annoy the reader.

Use of reference Material and Document design

Every Legal Documents have a unique design . A design of an agreement would be
different from a plaint or design of legal notice to an individual would be different
from public notice .
Introduction of context
The introduction of a document is very important in legal writing. In the
introduction the writer should mention what is coming up . Introduction gives a
clear understanding as to what is the whole matter all about . The following rules
should be kept in mind for Introduction.
Putting the significant facts upfront : Ask yourself , whether a reader would
understand the matter by introductory material . The facts should be presented in a
way that even an average person can understand by bare reading . Using short ,
simple and easily understandable language so that the reader can go through it
quickly .
Description of facts in chronological order
Ideally the facts should be presented in a chronological order .It gives clarity to
the reader .

Understanding with legal terminology

The legal terms should be used very carefully with an understanding the
interpretation before court.
Use of Legal Jargons and Latin
Legal Jargons are words which only a professional can understand . Words like
‘thereon’ ‘therewith’ ‘whereas’ ‘hereinafter’ are not generally used in general
English but these words are heavily used by legal professionals . It can be
acceptable when you are writing for consideration of court of legal fraternity who
are accustomed to read and understand. But these latin legal terms are reasonably
difficult for a layman to understand in the first go.

A drafting reminder: remember the recitals

It is often the case that where commercial contracts include a recitals section
preceding the operative provisions, the recitals will be among those sections of the
contract that have been afforded the least consideration by the contracting parties
during the drafting stages. There is a widely-held perception that the recitals are
legally inconsequential, since their role is fundamentally ‘scene-setting’ in nature
and they do not automatically form part of the operative, legally binding agreement
between the contracting parties. However, when a dispute arises over contractual
interpretation and a court or arbitrator is tasked with deciphering an ambiguous
provision, the recitals may be brought into play as an aid to interpretation. They
are, after all, clearly a part of the written contract in some way or other.
Recitals could be legally binding upon the contracting parties in certain
circumstances, and that they could also play an important role in enabling a third
party (crucially, a court of law or an arbitrator) to refer to relevant background
information in order to discover the true intention of the contracting parties.

What are the Recitals?

Recitals are not compulsory, but are frequently included in commercial contracts to
set out the background to the contract. There is no prescribed format for drafting
the recitals, but they typically contain concise statements of fact, describing key
circumstances and details relevant to the establishment of the contract. Expressions
of intent and references to any related contracts may also be included. In some
contracts, the advent of the recitals is helpfully indicated by introductory text
which states “RECITALS”. Contractual obligations should not be included in the
recitals, but are more appropriately placed in the legally binding operative
provisions. The same principle applies to key definitions.

The recitals can play a valuable role in helping third parties entering into, or
reviewing, the contract later in time to understand the intention of the original
contracting parties. The reality is that the commercial intent behind a written
contract is not always readily apparent from the substantive provisions. Parties to a
contract may be surprised to find that their carefully drafted provisions, which may
have appeared unequivocal at the time of drafting, are in fact ill-equipped to
address unforeseen issues which arise once the contract has taken effect. This is
because the contract is likely to have been subject to protracted negotiations (as is
often the case with complex commercial contracts), with the final wording
representing a compromise reached between opposing commercial standpoints.
In contrast, the recitals section is fundamentally explanatory in nature and is,
therefore, likely to be one of the few (comparatively) neutral sections of the
contract, containing the clearest and most frank statements made by the parties in
the course of their negotiations.

When are the recitals likely to be admissible?

Crucially, the recitals are subordinate to the operative provisions of a contract if

there is no doubt as to the meaning of the express words of a contract. In this
circumstance, the parties are governed entirely by the operative part of the contract
and the recitals cannot be resorted to. However, where there is ambiguity in the
contract, a court may look to the recitals for evidence of the true intention of the
parties, as well as for guidance as to how a disputed provision should be construed.

For this reason, the importance of careful drafting of the recitals should not be
dismissed. A well-drafted recital could influence a court or an arbitrator to favour
one party’s argument over that of the other. For example, consideration of whether
a term should or should not be implied into a contract may be influenced by
evidence in the recitals as to the intentions of the parties. In addition, if a court
views a recital as manifesting a clear intention to act in a prescribed way, it may
infer a covenant to so act. The recitals should accurately reflect the factual matrix
as they have been known to represent “agreed statements”. Therefore, even if a
statement in the recitals contains the acknowledgement of an established fact
which both parties know at the time to be untrue, such statement could
nevertheless be binding on the parties in the event that the recitals are relied upon.

Is it possible to exclude the effectiveness of the recitals completely?

As stated earlier, in the absence of any provision to the contrary, the recitals will
not have legal effect where the contract is clear, but where there is ambiguity in the
contract a court or an arbitrator may look to them to aid its interpretation as to the
parties’ intentions. The best way for contracting parties to ensure that the recitals
will not need to be relied upon in a dispute is to use clear and unequivocal
language in the operative provisions, and to ensure that the rights and obligations
set out are capable of a single interpretation (and that such interpretation is the one
intended). The parties can choose to expressly exclude the recitals from being
legally binding and effective upon them, but this does not guarantee that they will
be disregarded completely in certain disputes.
Conclusion:

Whether the recitals may or may not have legal effect will depend on the
construction of the particular contract, taken as a whole. The most significant
effect attaching to the recitals is the potential for a court or an arbitrator to look to
their content where a dispute arises over contractual interpretation as a result of
ambiguity in the main body of the contract. Given their capacity to influence a
court, contracting parties should think carefully about their reasons for including
specific information in the recitals, the desired purpose to be served by each
statement or representation and ultimately, whether these will have legally
beneficial effects for either or both of the parties. Where included, the recitals
should be viewed as legal provisions as opposed to merely introductory prose, and
therefore drafted with the same level of thought and precision as the operative
provisions of the contract.

Ten principles of clear legal writing

Legal writing has often had a problem with being long-winded and
difficult to read. Current legal writing is moving towards plain language
and being easier to understand. Many of the following principles apply
to good writing in general,.
Use short sentences for complicated thoughts. Do not put too many
important ideas in one sentence. The sentence will become too long and
difficult to read (and understand). State one important idea per sentence.
Use active voice verbs. Active voice verbs carry stronger meaning and
impact than passive voice verbs. Writing in the active voice helps to
shorten sentences. Make the doer of the action the subject of the verb.
Passive: The proposal to promote the organization through social media
was developed by our marketing department.
Active: Our marketing department made the proposal to promote the
organization through social media.
Make verbs do the work. Use a verb in place of a verb + noun
combination to make your sentence more powerful.
Verb + noun: Please make your recommendation for a new insurance
provider.
Verb: Please recommend a new insurance provider.
Remove unnecessary or extra words. Replace phrases with single
words where possible (e.g., "if" instead of "in the event that"). Also
remove unnecessary adjectives and adverbs to streamline your writing.
Remove redundant (legal) phrases. Certain phrases pervade legal
writing. Replace these phrases with one word (where possible) or
remove them completely. There are too many to list here, but you can
easily find a list of them online.
Use everyday language. Avoid jargon, latin phrases and antiquated
phrases where possible. Do not try to impress the reader. The goal is to
ensure understanding.
Choose specific and concrete words. Avoid abstract statements. Be
as direct and clear as possible.
Abstract: One of the things we are trying to accomplish is to increase the
understanding of laws that affect new immigrants.
Concrete: We would like to clarify legislation that affects new
immigrants.
Use modifiers carefully. Make sure that your reader understands the
meaning of your sentences. Ambiguity often occurs when the subject of
a particular statement is unclear.
Avoid the use of too many subordinate clauses in one sentence. This
makes the sentence too long and difficult to follow. Using too many
subordinating conjunctions (e.g., that, which) in one sentence can
confuse the reader.
Use conventional punctuation marks properly. There are two key rules
here:
a) Use commas only when necessary.
b) Use semicolons to separate two independent clauses (unless joined by
"and," "or," "but," etc.).