Sveučilište u Rijeci

Pravni fakultet u Rijeci

NASTAVNI MATERIJAL ZA KOLEGIJE:

ENGLESKI U PRAVNOJ STRUCI I

ENGLESKI JEZIK I

Pripremila: dr.sc. Katja Dobrić Basaneže

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 LAW

Law is a polysemous word, which means that it has more than one meaning. It can denote
“the regime that orders human activities and relations through systematic application of the
force of politically organized society”1. The phrase to obey the law best illustrates this
meaning of the word law. Another meaning of the word law is “the set of rules or principles
dealing with a specific area of legal system”2, e.g. family law or land law.

Law can also refer to a statute, i.e. a law passed by a legislative body. The proper use of this
meaning of the word law is well seen in the sentence: “Congress passed a law imposing
penalties for displaying "indecent" material online where children could see it”.

The word law can also refer to the legal system as a whole, e.g. common law or civil law. The
latter is influential in continental Europe, Latin America, Scotland and Louisiana. It is not to
be confused with the other meaning of the noun phrase civil law, which denotes the law of
civil rights. When we refer to civil-law countries, we are referring primarily to countries that
have inherited the Romano-Germanic traditions and within the civil law tradition we can
distinguish between the French legal tradition and the German one. As opposed to civil law,
which has developed from Roman law and is derived from statutes or constitutions, common
law is based on judicial decisions, which is why it is also referred to as judge-made law or
case law. The decisions of higher courts are binding on lower courts, and much of the law is
left to the courts to develop.

The legal order has a systemic character and there are various ways in which a law may be
classified. According to the type, law can be classified as follows:

1) Substantive and procedural law

2) national and international law

3) public international law

4) public law: constitutional law, administrative law, criminal law

1
Black's Law Dictionary, p. 900
2
Black's Law Dictionary, p. 900
2
 5) private law: law of contract, law of torts, law of property, family law, law of
succession, company law, employment law

While civil law (area of law) regulates relations between private persons or bodies and is
usually invoked only by the parties seeking to protect their private rights or interests, a
criminal offence is a wrong against the community. The state has no interest in pursuing
your civil claim, but if you are the victim of a crime, the state may prosecute the offender,
whether or not you wish to take action against them.

I Match sentence examples with the correct meaning of the word law.

1 statute a One of the guiding principles of Islam is that Muslims have a

duty to abide by the laws of a country they are living in.
2 area of legal system b The judge has to divide the property according to the will.

3 legal system c EU piles pressure on Croatia over extradition law.

4 regime d Scandinavian countries are not regarded as civil law
jurisdictions.

II Match the sentence example with the correct area of law.

1 family law a I want to put my money into a fund for the benefit of my son,
which he will have when he reaches 21.

2 land law b I slipped on a spilled drink in a canteen and broke my leg.

3 employment law c I will sue my boss for unfair dismissal.

4 company law d The US Supreme Court has the power to review the
constitutionality of acts of Congress

5 constitutional law e I will sue them for a breach of contract.

6 contract law f The company must have articles of association.

7 tort law g I want to divorce my husband.

8 equity and trusts h Santa Rosa bookkeeper was arrested in $262,000

embezzlement case.

9 criminal law i I want to sell my house.

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III Fill in the gaps with the missing words.

A) developed from Roman codified law B) compromise

C) concerned with non-criminal matters D) law E) custom F) case law

G) decisions H) binding by I) legally binding J) disputes K) courses

L) written law M) bound by N) provisions O) directives P) obiter dicta

R) ratio decidendi S) precedents T) criminal law U) legislation

More individuals in the world solve their legal problems in the framework of what is called
the civil-law legal system than in the Anglo-Saxon ……………………….. system. A civil-
law system is a system …………………………………. . It is a system based on a superiority
of………………………….. . Legal ……………………….. are settled by reference to this
code, which has been arrived through ………………………………… . Judges are
……………………………. the written law and its …………………………………. .
Common law, on the other hand, has developed through ……….......... .

It is based on ……………………….. created by judicial ………………………………. .

IV Translate the above paragraph into Croatian.

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V Fill in the gaps with the following words: academic, authority, judgment, judicial,
legal, opinions, precedents, reports

The nature of ___________ in French law could not be further from its English counterpart.
Whereas some of the leading English _______ decisions contain the reasoned ________ of
judges, distinguishing and applying a long list of _________ and stretching through over 100

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pages in the law ___________, the French judgments rarely amount to two pages. They are in
the form of a syllogism: they set out the facts, the _______ issue and the conclusion, usually
without citing any previous case __________ . Because judgments are so short, they are
normally published accompanied by __________ commentary.

VI Fill in the gaps with the correct word.

While _______ law regulates areas of human activity, ____________ law sets down the rules
for the manner of enforcing that law in relation to that activity. While the first refers to the
body of rules of law which ____________ the rights, duties and liabilities among __________
and governments, the latter lays down ________ governing the manner in which a right is
________ under civil law, or a __________ is prosecuted under criminal law.
Within national law there is usually a clear distinction between public and private law. Pubic
law involves the _______ or government in some way, while private law is concerned with
__________ between private individuals or businesses. Public international law, on the other
hand, governs the relationships between states and other entities on the international plane and
is contained in _________ and treaties.

VII The phrase to obey the law was mentioned in the text. There are some other verbs
that express the same meaning e.g. to comply with, to respect, to abide by, to adhere to, to
conform to, to keep to etc. Try to complete the following gaps with the correct verbs or
prepositions these verbs collocate with.

a All second-hand furniture must __________ with the new regulations.

b You have to conform __________ the rules.

c Croatia has to adhere _________ the rules of the European Union.

d I had to ____________ by the judge’s decision.

e You should keep ________ these simple rules.

Sources:

Sočanac, L. et al. (2017), English for the Legal Professions. Zagreb: Narodne novine

Krois-Lindner, A., Firth Matt (2008), Introduction to International Legal English.

Cambridge: CUP

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 LEGAL ENGLISH

The concept of Languages for Specific Purposes (LSP) emerged during the post-Second
World War development of science and technology, as an answer to the needs of students and
specialists to learn language related to their fields of study or work. Legal language is also a
language for specific purposes, but unlike other specialized languages, legal language is very
old and its use is very widespread. Since law is a social science and since it regulates human
conduct, it can absorb terms from other specialized languages.

Like all specialized languages, legal English also uses many technical terms, which are not
familiar to laymen (e.g. tort, consideration, etc.). Since it has a very long tradition, some of
the words used in legal English are archaic (e.g. herein, hereinafter, said). Legal English is
also characterized by borrowings from other languages, such as Latin and French (e.g. actus
reus, judgment). It also uses very specific collocations (words that occur together more than
expected). Words from general language are in legal English sometimes used differently (e.g.
action means lawsuit). Binomial expressions are also very frequent in legal English (e.g. last
will and testament) and tend to be more specific of legal English than of other national legal
languages. Legal English also uses unusual pro-forms (e.g. the same, the said), which are used
as adjectives (e.g. the said Jane Smith). In terms of syntax, legal English uses subordination,
nominalisation, passivization and multiple negation. Finally, it also uses modal verbs in a very
specific way (e.g. shall is used to express obligation).

Latin words and expressions

The text below uses some Latin expressions such as e.g., etc., i.e. Latin expressions are
also common for legal texts, which is why a future layer should be acquainted with
them.

Read the following text. Underline Latin words and phrases in the text. Try to guess
their meaning.

The claim for the breach of contract fails inter alia to state facts sufficient to constitute a cause
of action, is uncertain as to what contracts plaintiffs are suing on, and is uncertain in that it
cannot be determined whether the contract sued on is written, oral or implied by conduct. The
complaint alleges breach of contract as follows: “At all times herein mentioned, plaintiffs
were a part [sic] to the Construction Contract, as well as intended beneficiaries to each sub
contract for the construction of the house. In light of the facts set out above, defendants, and
each of them, have breached the Construction Contract”.

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On its face, the claim alleges only that defendants „breached the Construction Contract“. But
LongCo is not a party to the Construction Contract. Therefore LongCo cannot be liable for its
breach. See e.g. GSI Enterprises, Inc. v. Warner (1993).

1 Match Latin words and expressions with the explanation.

a ad hoc 1 against

b et alii (et al.) 2 for example

3 et cetera (etc.) 3 by itself

4 exempli gratia (e.g.) 4 and the rest; and so on

5 id est (i.e.) 5 and others

6 per se 6 for this purpose

7 sic3 7 that is

8 versus4 8 the other way round

9 circa (c.) 9 approximately

10 vice versa 10 thus

2 Fill in the gaps with the missing Latin expressions.

a An ___________________ committee was set up to oversee the matter.

b The will consists of ____________ 30 pages.

c We urgently have to look into summons, decisions, warrants ___________ .

d There were many cases in the history of the US Supreme Court dealing with judicial review
________________ Marbury _______ Madison (1803).

e The witness has to make an affidavit, _____________ a sworn statement.

f These facts _______________ are not important.

g I am here to help my client and not ________________ .

h He paid me no more then _______________ $100,00.

3
Used after a word to indicate the original, usually incorrect, spelling or grammar in a text
4
Versus is abbreviated v. only in case citations, but to vs. In all other cases.
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i Several authors have written about equity and trusts such as Bray, Hudson, Virgo
____________ .

3 Match Latin words and expressions with the explanation.

1 de facto a among other things

2 ipso facto b per year

3 inter alia c number of shareholders or directors who have to be

present at a board meeting so that it can be validly
conducted

4 per annum d in fact

5 pro forma e of one’s own right

6 pro rata f proportionally

7 quorum g by that very fact itself

8 sui juris h as a matter of form

9 ultra vires i as follows

10 videlicet (viz.) j beyond the legal powers of a person or a body

4 Fill in the gaps with the missing Latin expressions.

a Although the Emperor was the head of state, the ____________ ruler of Japan was the
Shogun.

b The report covers, ________________, computers, telecommunications and air travel.

c The profit is increasing by about 2% __________________.

d The car rental charge is $50 per day and then ______________ for part of a day.

g Then the kids stared at me, as if a man wearing a necktie was ______________ cause for
suspicion. (William G Tapply)

h Therefore, companies seeking debt financing usually draw up a set of _________________

income statements and balance sheets.

i The _____________ is ten, we don’t have it.

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j The Government said it was obliged to revoke the regulations because they were
_________________ .

k The meaning of the Constitution is determined by one—and only one—body,

________________, the U.S. Supreme Court.

l If a lawyer was so instructed by a _________________ client they would be obliged not to

call.

Sources:

Sočanac, L. et al. (2017), English for the Legal Professions. Zagreb: Narodne novine

Krois-Lindner, A., Firth Matt (2008), Introduction to International Legal English.

Cambridge: CUP

VI Additional reading.

Gissing v Gissing [1971] AC 886 HL

Facts

Mrs Gissing had been married to Mr Gissing for 16 years, and had paid a substantial sum
towards furniture and the laying of a lawn, but the house had been conveyed into the name of
Mr Gissing alone, and Mrs Gissing had made no direct contributions towards its purchase. On
their divorce, she claimed a beneficial interest.

Held

The House of Lords held that she had no interest.

Notes

1. Lord Diplock drew a distinction between express agreement and inferred intention, which
is essentially the same as that drawn by Lord Bridge in Lloyds Bank v Rosset between the first
and second categories.

2. The interests of the parties were determined on the basis of their inferred intentions at the
time of acquisition of the property, and not by their subsequent conduct. In the absence of
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express agreement, only conduct relevant to the acquisition of the property will generally be
relevant. However, subsequent conduct may be evidence of intention at the time of
acquisition.

3. As in Pettitt v Pettitt the fact that the parties were married made no difference.

4. The MCA 1973, ss. 24-25 were a reaction to the decision in Gissing v Gissing. These
provisions only applied to breakdown of marriage, however, general equitable principles
continuing to apply otherwise, as in e.g., Burns v Burns.

Extract from Lord Diplock's speech in Gissing v Gissing:

Any claim to a beneficial interest in land by a person, whether spouse or stranger, in whom
the legal estate in the land is not vested must be based on the proposition that the person in
whom the legal estate is vested holds it as trustee on trust to give effect to the beneficial
interest of the claimant as cestui que trust. The legal principles applicable to the claim are
those of the English law of trusts and in particular, in the kind of dispute between spouses that
comes before the courts, the law relating to the creation and operation of `resulting, implied or
constructive trusts'. Where the trust is expressly declared in the instrument by which the legal
estate is transferred to the trustee or by a written declaration of trust by the trustee, the court
must give effect to it. But to constitute a valid declaration of trust by way of gift of a
beneficial interest in land to a cestui que trust the declaration is required by s. 53(1) of the
Law of Property Act 1925, to be in writing. If it is not in writing it can only take effect as a
resulting, implied or constructive trust to which that section has no application.

A resulting, implied or constructive trust - and it is unnecessary for present purposes to

distinguish between these three classes of trust - is created by a transaction between the
trustee and the cestui que trust in connection with the acquisition by the trustee of a legal
estate in land, whenever the trustee has so conducted himself that it would be inequitable to
allow him to deny to the cestui que trust a beneficial interest in the land acquired. And he will
be held so to have conducted himself if by his words or conduct he has induced the cestui que
trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a
beneficial interest in the land.

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Retrieved September 22, 2013, from
http://pntodd.users.netlink.co.uk/cases/cases_g/gissing.htm

1 Answer the following questions using the context of the above case.

1) What is equity?

2) What is a trust?

3) How does equity affect trusts?

4) Who are parties to a trust?

Case citations are unique citing references given to each case referring to where the case is
published in a book.

2 Note the citation in the following case:

Gissing v Gissing [1971] AC 886 HL

The first name in the case stands for claimant (American English: plaintiff), whereas the
second name stands for defendant. The number in brackets refers to the volume of the report
in which the case was published, whereas AC stands for the name of the Law Reports,
namely, “Appeals Cases” (AC). The case can be found on page 886. It was decided by the UK
House of Lords (HL).

Explain the citation of the following cases.

 Brown v. Board of Education, 347 U.S. 483 (1954)

 Miranda v. Arizona, 384 U.S. 436 (1966)

Cite the case.

 The case was decided by the UK House of Lords (HL), it involved a claimant called
Donoghue and a defendant called Stevenson. It can be found in the 1932 volume of
the series of the Law Reports called “Appeals Cases” at page 562.

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3 Note that...

...those by or against whom a legal suit is brought are referred to as parties. All others who
may be affected by the suit, are persons interested.

Civil actions

claimant (UK)5 – person who initiates a civil lawsuit

______________ - person who is sued in a civil lawsuit

Criminal actions

Prosecutor – prosecutes another for a crime in the name of the government

Defendant - ________________________________________

The process of starting a _______________ in the civil court is also referred to as starting

proceedings. We do not use the verb to _____________ in civil proceedings because that

verb is only used in criminal proceedings.

Appeals actions

__________________6 -person who appeals a decision to a higher court

Defendant/ respondent - ______________________________________

5
(US) plaintiff
6
(US) also petitioner
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VII Documents used in court

Read the following sentences and then try to guess the meaning of the words in italics.

A sworn affidavit was submitted to a federal court in one of the lawsuits against the

fallen cyclist.

AMR Corporation filed its answer to the US Department of Justice's amended antitrust

complaint.

While I was working as a trainee solicitor my job was writing briefs, whereupon I would

consult a barrister for his opinion about the case.

Rihanna has won a permanent injunction against High Street chain Topshop, with the

store now banned from ever using her image again.

The judge denied Los Angeles motion to dismiss Ontario airport suit.

The Supreme Court isued notice to National Highway Authority in the case relating to

Margalla Hills tunnel project.

The judge refused to allow them to alter their pleadings and to include these in the case.

The company has been served with a writ for a breach of contract.

Match these documents with their definitions.

1 affidavit a document containing the summary of the case

2 notice b a sworn written statement that can be used as evidence

3 injunction c an official order from a court to stop doing something

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4 complaint d in civil actions, the initial pleading filed on behalf of a plaintiff

5 brief e the principal pleading by the defendant in response to a

complaint

6 motion f an application made to a court for purpose of obtaining a

rule or order directing some act to
be made in favour of the applicant

7 pleading g a document from a court telling somebody to do or not to

do something

8 answer h a formal written statement made by a defendant setting

forth the grounds of his defence

9 writ i a document providing notification of a fact, claim or

proceeding

Sources:

Krois-Lindner, A., Firth Matt (2008), Introduction to International Legal English.

Cambridge: CUP

14
VIII Grammar

Relative clauses

A relative pronoun is a pronoun that introduces a relative clause. It is called a "relative"

pronoun because it "relates" to the word that it modifies.

As opposed to civil law, which has developed from Roman law and is derived from statutes or
constitutions, common law is based on judicial decisions.

There are five relative pronouns: who, whom, whose, which, that.

We use who (subject) and whom (object) to talk about people, whose for possession, which
and that for things. In defining relative clauses (clauses that are essential to the sentence and
do not simply add extra information) that can be used for things and people.

1 Complete the sentences using the correct relative pronoun.

a Common law would not recognise the rights of someone __________ did not own the
property at law.

b Common law was very inflexible in the types of remedies __________ it could provide.

c The North German Confederation _______________ constitution granted legislative power

over the protection of intellectual property to the confederation.

d The client ____________ I represented died last week.

e This category includes all American lawyers _____________ have practiced the United
States federal government.

f My lawyer, _________________ is American, has good speaking skills.

2 Make one sentence from two. Use the sentence in brackets to make a relative clause.
You also need to use who, which or whose.

a We went to a one-day seminar in London. (We enjoyed it very much).

____________________________________________________________________

b My lawyer always represents me in court. (He is also my friend.)

____________________________________________________________________

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c My lawyer is away from home a lot. (His job involves a lot of travelling.)

_________________________________________________________________

d The new courtroom will be ready to hold hearings next week. (It has been renovated since
two months.)

___________________________________________________________________________

e The strike on the streets is now over. (It lasted ten days.)

___________________________________________________________________________

3 In some of these sentences you can use which or that, in others only which is possible.
Cross out that if only which is possible. Put commas, where necessary.

a Mark works for a law firm which/that provides advice on many different legal areas.

b My friend is working in commercial litigation which/that he is enjoying very much.

c My office which/that is on the second floor of the building is very small.

d The office which/that I'm using at the moment is very small.

e There are some legal terms which/that are difficult to translate.

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 LEGAL CAREER IN ENGLAND

One of the key decisions to make when considering a legal career in England is what type of
lawyer you want to qualify as: a barrister or a solicitor.

Both barristers and solicitors have to complete a bachelor degree in law (LLB). Solicitors,
after gaining a law degree, have to pass a one-year Legal Practice Course (LPC). After
passing the course they have to work for two years as trainee solicitors with a firm of
solicitors or in a large company. Barristers, on the other hand, after gaining a degree in law,
have to join one of the four Inns of Court: Grey's Inn, Lincoln's Inn, Inner Temple, and
Middle Temple. These are professional associations for barristers in England and Wales.
After joining one of the four Inns, barristers have to complete the next part of training after
the academic stage, which is called Bar Professional Training Course (BPTC) 7. The main
areas of knowledge taught on the course are civil litigation and remedies, criminal litigation
and sentencing, evidence and professional ethics. Once students have completed the course,
they are eligible to be called to the Bar, which is a kind of graduation ceremony held at one's
Inn of Court. The final stage is one-year pupillage, which is usually undertaken in a set of
barristers' chambers, although it can also be undertaken with certain other organisations.

Most solicitors work in practices in the so called “High Street firms”. These firms usually
consist of a small group of solicitors working together on the major streets of English cities. A
solicitor usually specialises in a particular area of law e.g. commercial or family law.
Solicitors are allowed to represent their clients in court, though only in the inferior courts,
such as Magistrates' Courts, County Courts and in certain cases in the Crown Court as well.
Their work includes family matters, company formation, conveyancing etc.

Unlike solicitors, barristers are not allowed to work with partners. Nevertheless, they usually
share offices also known as chambers. Barristers are usually specialists in a very particular
area of law and they advise solicitors on difficult cases or when the case is to be tried in the
superior courts. They have the right of audience in all courts of the land. Their work includes
the settling of pleadings, the drafting of opinions on difficult points of law, advice on
evidence etc.

Both barristers and solicitors can, after several years of work experience, apply to sit as a
judge. There is no exam they can take to become one; they have to wait to get appointed.

I Explain the following words containing the word bar.

Barrister

Bar Vocational Course

Call to the Bar

Bar Council

Bar examination

7
Before the academic year 2010/2011 it was called Bar Vocational Course (BVC)
17
To be admitted to the Bar

To disbar

II Find words in the text that mean the same as the following.

To get

A lawsuit

Punishment

Suited

To represent in court

III Explain the following words or phrases.

Brief

Conveyancing

To sit as a judge

Chambers

Pleading

IV Order the stages of the legal career of a:

a solicitor b barrister

LPC pupillage
LLB joining the Inn
trainee solicitor being Called to the Bar
LLB
BPTC

V Comprehension check.

1 Compare the duration of the education path of a solicitor with that of a barrister.

2 What is the task of a solicitor?

3 What is the task of a barrister?

4 Do solicitors and barrister cooperate? Explain.

5 What are “High Street firms”?

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VI Write a short composition in which you will describe the legal career in Croatia
(include information on education, requirements for taking the bar examination,
branches within the legal profession etc.)

___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

Sources:

Sočanac, L. et al. (2017), English for the Legal Professions. Zagreb: Narodne novine

Mason, Atkins (2007), The Lawyer’s English Language Coursebook. Cambridge: CUP

19
VII Grammar

Prepositions.

Certain words collocate with certain prepositions e.g. a bachelor degree in law, to qualify
as a solicitor etc.

One word
about - The lawyer was about to go into court when the telephone rang.

Two words
out of – Payment was made out of the company’s account.

Three words
on behalf of – The lawyer appeared on behalf of her client at the pre-trial review.

Fill in the gaps with the missing prepositions.

 The company began trademark infringement proceedings …………. one of its

competitors.

 The client did not go ………….. with the advice given by the lawyer.

 A copy of the plan of the property was found …………… the papers in the file.

 The lawyer appeared ……………. the judge in court and argued her client’s case.

 It is important not to go …………….. what was agreed without discussing the matter
with the client first.

 The invoice must be paid by the client …………. 3 May.

 The lawyer advised her client to turn …………. the offer made by the defendant.

 Payment ………….. the goods shall be made ………… delivery.

 Certain discussions took place between the lawyers …………… the record.

 The new law …….. employment contracts comes ………. force tomorrow.

 A dispute arose between the landowners …….. the positioning of the boundary.

 There have been a number of significant developments in the case …………. the
previous court hearing.

 Delivery shall be made ……….. an address notified by the purchaser to the vendor.

 The company changed its name ………… ……….. the new legislation on company
names.
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  Payment shall be made …… …… …….. direct bank transfer.

 The employee shall receive time off ….. lieu ……. payment.

 The lawyer appeared ……. behalf …… her client at the pre-trial review.

 ……. regard ……. the question of costs, we consider that the sum of €35,000 should
be adequate.

 We will need to study the documents carefully in order to get …… top …… the case.

Source: http://forum-legal.blogspot.com

VII Additional reading

No Win No Fee

Consideration has been given for the editing and publishing of this post

When the unthinkable happens and you are injured in an accident which is not your fault, then
what is the next step? Most people will then go for a solicitor specialized in Personal Injury
Claims. The next question to ask is whether that specialized solicitor in Personal Injury
Claims should be a No Win No Fee one?

What is No Win No Fee?

Simply it means that it is an agreement that you pay nothing to your specialized solicitor in
Personal Injury Claims unless your claim is won. If you lose then you pay nothing. In many
cases even when you win your fees and costs may be taken care of by the losing side. The
advantages are that pressure is put on the specialized no win no fee solicitor in Personal Injury
Claims to win as if he does not then he will be out of pocket. At the beginning of its
introduction, it was considered to be a positive move for everyone as it can bring justice and
compensation for personal injury within the reach of everyone and not just those who have
deep pockets.

Are all Personal Injury Claims covered by a No Win No Fee Agreements?

Most injuries resulting from road traffic accidents, involving cars, lorries, bikes, pedestrians
etc. slips and falls, work injuries and accidents are normally considered for this product.

21
However, it is most unusual for Medical negligence cases to be included as this is due to the
heavy costs of taking on such a case.

What are the disadvantages of such an agreement?

In filing a personal injury claim, it can be relatively easy to obtain free personal injury
solicitors’ advice as most solicitors offer the initial consultation free of charge, but sometimes,
personal injury solicitors are reluctant to take the more difficult cases using this kind of
agreements because of the possibility them failing in the case and consequently of them not
being paid. It should be considered in these circumstances that you may have to underwrite
the personal injury solicitor’s costs unless you take out suitable insurance to cover the risk of
the opponent winning.

It should be seriously emphasized that it is absolutely crucial for you to understand everything
you can about solicitors’ fees and other costs involved in an eventual person injury claim.
Under these kinds of agreements for personal injury claims, you may be liable for the
opponent’s costs if the claim, in a worst-case scenario, is lost. To cover the other side’s costs,
it is essential that you take an insurance policy, to cover your situation in a worst-case
scenario. Such insurance is often called as “after the event” insurance. Most personal injury
solicitors will recommend that it is put in place even before a claim starts. However, not
everyone has the financial resources and can take out “after the event” insurance. Insurance
companies will evaluate the risk of winning and may not be so willing to insure claimants
especially if chances of winning the personal injury claim are low.

BabyBarista. http://www.babybarista.com/2017/08/01/no-win-no-fee/ (Accessed 30

September 2017)

1 Comprehension check

a What is a No Win No Fee Agreement?

b Do they cover all types of negligence cases?

c Are there any disadvantages of such an agreement?

22
 LEGALESE AND PLAIN ENGLISH

By means of written language, national constitutions come into existence, laws and statutes
are enacted, and contractual agreements between private individuals take effect. Spoken
language is just as indispensable to the legal process. One need look no further than the
courtroom, whether it be the interrogation of plaintiffs and defendants, the testimony of
witnesses, the pleadings by attorneys, or the instructions from a judge to a jury. The legal
implications of language continue to extend far beyond the courtroom – to interactions
between police and suspects, to conversations between lawyers and their clients, to law
enforcement's use of surreptitious recordings, and to such unlawful speech acts as offering a
bribe, or issuing a threat, or making a defamatory statement.

The mention of legal language tends to conjure up in the mind of the layperson “legalese” , a
term referring to the incomprehensible language found in legal documents as well as to an
arcane jargon used among attorneys. Legal language is difficult to comprehend because it is
full of wordiness, redundancy, specialized vocabulary and archaic words and it often contains
lengthy, complex and unusual sentence structure.

In order to counteract the negative effects of legalese, there has developed a trend towards
“plain English”, the aim of which is to simplify the language of the law so that the public can
understand documents that they may be required to sign.

The plain-English movement has also has a salutary effect within the legal process since
jurors do not always understand fully the instructions given to them by judges. Thus in
California the old “legalese” instruction was replaced by a new one written in “plain English”.

Old California instruction:

Evidence is either direct or circumstantial. Direct evidence is evidence that directly proves a
fact. It is evidence which by itself, if found to be true, establishes that fact.

Circumstantial evidence is evidence that, if found to be true, proves a fact from which an
inference of the existence of another fact may be drawn. A factual inference is a deduction
that may logically and reasonably be drawn from one or more facts established by the
evidence.

23
New instruction:

Some evidence proves a fact directly, such as testimony of a witness who saw a jet plane
flying across the sky. Some evidence proves a fact indirectly, such as testimony of a witness
who saw only the white trail that jet planes often leave. This indirect evidence is sometimes
referred to as „circumstantial evidence“.

Source: Schane, Sanford, Language and the Law, Continuum, London / New York, 2006

EXERCISES

I Answer the following questions:

1) Which language skills must be acquired in order to successfully deal with law?

2) Name some written forms of law.

3) Name some spoken forms of law.

4) Which are the characteristics of the “legalese” movement?

5) How would you describe “plain English” movement?

6) Read the following instruction and transform it into “plain English” but keep the meaning
the same:

“Evidence consists of testimony, writings, material objects or other things presented to the
senses and offered to prove whether a fact exists or does not exist.” (Old California
instruction)

II Explain the meaning of the following noun and verb phrases:

the interrogation of plaintiffs and defendants

the pleadings by attorneys

to extend far beyond the courtroom

to be enacted

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arcane

implication

III Read the text again and then say which verb and which adjective collocates with the
following nouns:

statement threat bribe agreements

IV Provide synonyms for the following words:

secret

to be essential for sth

to evoke sth

beyond one's comprehension

V Fill in the gaps with the missing prepositions:

The constitution comes ........................... existence .......................... means of written

language. If we look at the pleadings ..................... attorneys and the instructions ................ a
judge .............. a jury we can conclude that spoken language is also
indispensable ...................... the legal process. The scope of the legal language
expands ....................... the courtroom. It extends .............. interactions ...................... police
and suspects, to conversations ......................... lawyers and their clients and to such unlawful
speech acts ................. offering a bribe.

25
VI The language of contracts

The legalese style is best seen in contracts. Although lawyers are encouraged to write more
simply, we often find arcane jargon in contracts, full of archaic words, that is difficult to
decipher by an ordinary man.

Look at the following example of a traditional legalese style contract:

Agreement for Building a House.

MEMORANDUM OF AGREEMENT, made and entered into this second day of May,
1994, between John Smith of the one part, and Mary Jones of the other part, as follows, viz.
THE SAID Mary Jones, for the consideration hereinafter mentioned, doth agree with the said
John Smith that she, the said Mary Jones, or her assigns, will, within the space of three
calender months next following day of the date hereof, find and provide all fit and proper
materials and things, and erect, build and finish, in a good, sound, substantial, and
workmanlike manner, one brick house or building on a certain piece or parcel of ground,
situate in 41 Matipo Ave, Rotorua, according to the plan thereof hereunto annexed. AND
THE SAID John Smith for the consideration aforesaid, doth agree with the said Mary Jones
well and truly to pay or cause to be paid unto the said Mary Jones, the sum of 60,000 dollars
of lawful money of New Zealand, in manner following; that is to say, 20,000 dollars, part
thereof, as soon as the foundation of the said house shall be laid, 20,000 dollars other part
thereof, when the brick work of the said house shall be carried up and covered in, and 20,000
dollars, being the remainder thereof, in full payment of and for building the said house, when
the same shall be completed inside and out fit for occupation, subject to the approbation of Jill
Black, as surveyor of the said John Smith: AND LASTLY, THE SAID John Smith and Mary
Jones do further to agree to perform for each other, with all convenient speed, this
memorandum of agreement, in penalty of 500 dollars for each individual week, for any failure
by more than one week, of the true performance of the erecting, building and finishing, in a
good, sound, substantial, and workmanlike manner the aforesaid house, or failure to pay, or
failure to pay part thereof, for building the said house. AS WITNESS, &c.

John Smith.

Mary Jones.

[Contract is based on a precedent contained in Woolaston, F L Woodfall’s Law of Landlord

and Tenant (1840)].

1 Comprehension check

1 How many sentences are there in the above contract?

2 What does the word said refer to?

3 What do the words thereof and hereunto refer to?

26
4 Who are parties to the contract?

5 What did Mary Jones agree to do under the contract?

6 What did John Smith agree to do under the contract?

7 What will occur if Mary Jones does not meet contract obligations?

8 What will occur if John Smith fails to meet contract obligations?

2 Try to complete the following plain English version of the above contract.

Contract for Building a House:

Date: ________________________________________

Between:
___________________________________________________________________________

To: ________________________________________________________________________

Conditions of the contract:

1. Mary Jones agrees to build a house for John Smith by August 2, 1994.

2. _________________________________________________________________________

3._________________________________________________________________________

a. The payment will be in three instalments of 20,000 dollars.

i. John Smith will pay the first instalment when the foundations have been laid.

ii. _________________________________________________________________________

iii. ________________________________________________________________________

4. If John Smith does not pay an instalment within one week from the day it is due
___________________________________________________________________________
___________________________________________________________________________

5. If Mary Jones does not complete the house within one week from August 2, 1994
___________________________________________________________________________
___________________________________________________________________________

Signed: _________________________

__________________________

27
As you’ve seen above, the English of contracts is different from general English. Some
characteristics are:

- Very long sentences

- No punctuation
- Unusual sentence structure
- Many synonyms
- Archaic words
- Technical words
- Formal expressions
- Passive voice

Long sentences

AND WHEREAS We have consented to the said period being so brought to an end and to the
exercise of such right of presentation NOW WE HEREBY DECLARE that the said period
shall come to an end on the date hereof and that the said vacancy in the said Benefice of
Ansdell and Fairhaven Saint Paul in Our said Diocese of Blackburn may thereupon be filled.

Try to build more sentences from the following one:

___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

No punctuation

Add punctuation where necessary.

Subject to the termination provisions of [the Agreement] [the Agreement] shall be effective
from the date it is made and shall continue in force for a period of five (5) years from the date
it is made and thereafter for successive five (5) year terms unless and until terminated by one
(1) year prior notice in writing by either party.

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Unusual sentence structure

Formulate the first part of the sentence by adhering to the ordinary sentence structure.

As used herein, the following terms shall have the following meanings:

(a) “Affiliate” means any entity that directly or indirectly Owns, is Owned by or is
under common Ownership, with a party to this Contract, where “Owns” or “Ownership”
means direct or indirect possession of at least fifty percent of the outstanding voting securities
of a corporation or a comparable equity interest in any other type of entity.

Many synonyms

Delete unnecessary words in the following sentences.

Smith shall purchase from Jones, and Jones shall sell, assign, convey, transfer, and deliver to
Smith, the Shares on the Closing Date.

I give, devise and bequeath the remainder of my estate to my son.

Archaic words

Archaic words are not part of the modern English usage. Some lawyers believe using these
archaic words make a document sound more serious. An important group of archaic words
are those that begin with “here” e.g. herein, hereinafter, and those that begin with “there” e.g.
thereon, therein.

Underline archaic words in the following contract and then try to decipher their
meaning.

In consideration of the sum stated in paragraph 1 of the Schedule hereto to be paid by the
Hirer to the Owner, the Hirer is hereby authorised to enter upon and use for the purpose
only of holding a private social function between the hours and on the date set out in
paragraph 2 of the Schedule hereto, the following rooms of the London Bridge Hotel
together with the right of access thereto by the usual routes. The said rooms are
hereinafter known as “the “Hired Premises”.

The above extract from a contract uses the word consideration, which is one of the
fundamental principles of English contract law, and it refers to the promise one party has
given to the other party. Both parties need to provide consideration to make a contract valid.
In other words, consideration refers to what parties exchange under the contract. An example
of this would be receiving money for tidying someone’s garden.

29
What does consideration in the above paragraph refer to?

“Here” words refer to “in this document”…

Hereby – by means of this document

e.g. I hereby accept your offer.

Herein – in this document

e.g. The price named herein is final.

Hereinafter – later in this document

e.g. Parsons Ltd, hereinafter known as “the Company”.

Heretofore - earlier in this document/previously

e.g. The property heretofore known as Downing House is renamed Appleby House.

Hereunder – under the term of this agreement/ in a later part of this document.

e.g. What did the parties agree to do hereunder?

Fill in the gaps with the missing archaic words.

a Royal Airlines Limited, __________________ referred to as RAL.

b The Author guarantees to the Publisher that the Work is ____________________

unpublished by any other company or individual.

c In consideration of the sum of 10,000 dollars, the Hirer ___________________

promises to use the said rooms on the agreed date.

d The price listed ___________________ is final.

e All expenses incurred __________________ by the bank shall be recoverable.

…whereas “there” words refer to something that was mentioned before.

Thereby – as a result of this or that action

e.g. You signed the contract and thereby entered into a binding agreement.

Therein – in or into a particular place or thing/in that/in there

e.g. The rented property and the furniture contained therein.

30
Thereon – on it/on there/on what I have just mentioned

e.g. The amount borrowed and the interest due thereon must be repaid by 10 May 2015.

Thereinafter – later in that place or thing/later in what I have just mentioned.

e.g. We were defined in that contract as the Company and we were known as the Company
thereinafter.

Thereto – to it, to the thing that I have just mentioned

e.g. At the meeting we will discuss Mrs Jones’ will and all matters related thereto.

Fill in the gaps with the missing archaic words.

a He sold the company and _________________ became a millionaire.

b I enclose a copy of the contract. Please return it to me together with all the amendments
_________________ .

c The owner of the land and any person who wishes to claim an interest
__________________ should contact a solicitor.

d The defamatory story in the newspaper refers to my client in the first paragraph and refers
to her ______________________ another four times in total.

e The Buyer agrees to insure the painting and to pay any import tax due _______________
upon delivery to the UK.

Formal expressions

Sometimes there are very formal expressions in contracts and they can be replaced with
words from everyday English. Here are some examples:

In the near future means soon

At the present time means ___________

In the event of means if

During such time as means _____________

Until such time as means _____________

31
On the part of means by

Due to the fact that means _______________

Not less than means at least

Replace formal expressions with more modern words in the following sentences.

a During such time as the contract is in effect the parties agree to the following terms.

_____________________________________________________________________

b In the event of breach the party in breach must provide a remedy within seven days.

_____________________________________________________________________

c The meeting cannot take place on Wednesday but it is important that we have it in the near
future.

_____________________________________________________________________

d We cannot employ any more people at the present time.

_____________________________________________________________________

e Some very hard work was accomplished on the part of employees.

_____________________________________________________________________

f A party who wishes to terminate the agreement must give not less than four weeks’ notice
in writing.

_____________________________________________________________________

g I cancelled the meeting due to the fact that we didn’t have a quorum.

_____________________________________________________________________

h This contract will continue until such time as one of the parties terminates it.

_____________________________________________________________________

Source:
Mason, Atkins, The Lawyer’s English Language Coursebook, CUP, 2007

32
 Passive voice

Study the following example and then underline two examples of passive voice:

No additions, changes or modifications to any of Statement of Work by either party (each

“Changes”) will be considered by the other party unless such proposed Changes are first
submitted in writing to the other party.

Can you transform this sentence into a sentence with an active verb?

Why do we use passive voice?

How do we form passive?

Usage

We use an active verb to say what the subject does.

e.g. The client has finally signed the contract.

When we use a passive verb, who or what causes the action is often unknown or unimportant.

e.g. The contract has finally been signed.

How do we build passive?

We use the verb be (in the tense in which it is used in the active sentence) and past
participle.

Rewrite the sentences by using a passive verb.

a The client has paid for the attorney’s fees.

b The court shall resolve any additional legal fees later in the course of the proceedings.

c He expended personal funds for the healthcare of decedent’s daughter.

d They had relieved the bank of any liability.

e Surrogate courts enforce wills.

33
Rewrite the sentence by using an active verb.

a This contract may be executed in counterparts with the same effect as if only a single
contract had been executed.

b No will was found by my grandfather’s executors.

c Remainder of my estate shall be disposed of as provided in article 3 hereof.

d The sum will be distributed as provided in article 6.

e The sum has so far been paid as a cash bequest.

VII Additional reading

Wills

Read the following extract from a will drafted in the US and then underline all
characteristics of legalese.

“The situs of any trust created hereunder may be maintained in any jurisdiction, in the
Trustees’ absolute discretion, and thereafter transferred at any time or times to any
jurisdiction selected by the Trustees. Upon any such transfer of situs, the trust estate may
thereafter, at the election of the Trustees of said trust, be administered exclusively under the
laws of (and subject, as required, to the exclusive supervision of the courts of) the jurisdiction
to which it has been transferred.”

Comprehension check

1 Which characteristics of legalese style did you find?

2 Are there any archaic words in the paragraph? To which words do they refer?

3 What is a trust? Is there an equivalent in Croatian for this term?

4 Who is a trustee? Why is the word Trustee capitalized in the above paragraph?

Black’s Law Dictionary defines trust as “the right, enforceable solely in equity, to the
beneficial enjoyment of property to which another person holds the legal title” or “a property
interest held by one person (trustee) at the request of another (settlor) for the benefit of a third
party (beneficiary)”.
34
 The English-Croatian Dictionary of Law by Milica Gačić lists several equivalents for the
term trust e.g. fond, prijenos imovine na povjerenika, imovina pod starateljstvom, fiducijarni
odnos, povjereno upravljanje u korist drugoga, zaklada, pravni odnos u kojem neka osoba
ima interes u imovini koja nominalno pripada drugoj osobi etc.

Which of the above equivalents would you choose if you had to translate the above paragraph
into Croatian? Is there a one word equivalent for the term trust in Croatian?

Trust is a very specific common law term, which is why it is difficult to translate it into
Croatian. Nevertheless, judges sometimes have to assign property on the account of a will that
contains such terms. Read the following paragraph and then say what is so specific about
trust:

“Any trust created hereunder, shall be perpetual to the fullest extent permitted by
____________ law or the law of the state determined by the Trustees to be the situs of such
trust. If any trust created hereunder is deemed to be subject to the law of a jurisdiction which
has a rule against perpetuities8 or similar rule which limits the period during which property
may be held in trust, then such trust shall terminate in all events upon the expiration of the
longest period that property may be held in trust under this Will under the law of such
jurisdiction (including any applicable period in gross, such as 21 years, 90 years or 110
years). If under the law of such jurisdiction the longest period that property may be held in
trust may be determined with reference to the death of the last survivor of a group of
individuals who are in being on the date that the applicable period with respect to the
application of the rule against perpetuities or similar rule commenced, those individuals shall
consist of all the descendants of my parents who were in being on the date such rule against
perpetuities period or similar rule commenced.”

Comprehension check

1 How would you explain Rule against Perpetuities to a lawyer practicing in a civil law
system?

2 How would you translate the term into Croatian?

8
Black's law Dictionary defines it as “the common-law rule prohibiting a grant of an estate unless the interest
must vest, if at all, no later than 21 years (plus a period of gestation to cover a posthumous birth) after the
death of some person alive when the interest was created”.
35