Legal Langauge

8/10/2019 Legal Langauge

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Module II

"I know you lawyers can with easeTwist words and meanings as you please;That language, by your skill made pliant,

Will bend to favour every client."(John Gay)

Legal English (Legalese) is the style of English used by lawyers andother legal professionals in the course of their work. It has particularrelevance when applied to legal writing and the drafting of written

material, including: legal documents: contracts, licences, etc. court pleadings: summonses, briefs, judgments, etc. laws: Acts of Parliament and subordinate legislation, case

reports legal correspondence

What Exactly is Legalese?

Many experts believe that legalese has its roots in the the Battle ofHastings in 1066, which lead to the Norman conquest of England.After the conquest, Norman French found its way into Englishcourts. English lawyers were unsure as to whether a French word hadthe same meaning in English, and thus began to include both words incontracts to be on the safe side. This lead to phrases still in use today,such as right, title, and interest, where right and title are

English, and interest is French, and breaking and entering, inwhich the English word breaking is paired with the French wordentering. This cross -channel linguistic mash up begat ever moreconvoluted phraseology as it was passed from generation togeneration of lawyers.

Legalese is the writing style used by attorneys and legal scholarswhen communicating about legal matters in documents ranging from

contracts to scholarly papers. It is an example of technical writing, atype of writing used by people in a specific profession to
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communicate with other members of the profession. Like othertechnical writing, legalese can be difficult for laypeople to understand

because it assumes a certain level of knowledge with legal conceptsand the legal system. This is criticized by some people in the case ofcommunications that members of the public will have to interact with,like sales contracts.

It is surprisingly easy to use a large number of words to say almostnothing. Legalese is the practice of using legal jargon and wordinessto communicate information It is crucial to know what legalese whennavigating a legal situation is. The confusion resulting from legaleseis not entirely on purpose and technical writings fond in other

industries often have the same obscure terminology. There is also a practical reason for using wordiness.

Several features can be seen in legalese. The first is the very carefulword use. In law, words have very specific and clearly definedmeanings, and lawyers are careful when drafting legal documents tosay precisely what they mean, even if the meaning is only apparent toother lawyers. Some of the word use may appear unusual to people

who aren't familiar with the law, as ordinary words can have adifferent meaning in a legal context. For example, seeminglyredundant phrasing actually isn't, when the legal meanings of the

phrase are considered.

Legalese also includes a number of professional terms, includingLatin terms, although there has been a push in some areas of the legalcommunity to replace Latin with plain language for clarity. Legaldocuments also rely heavily on sourcing and citation, showing a legal

basis for all of the statements being made. Precedent, the establishedand accepted component of legal practice, is an important part of lawand legal documents that do break precedent must still includesubstantial supporting arguments for the break with tradition.

This form of writing also tends to be highly formal. The formality isin part a result of the meticulous word choices and phrasing used, andin part a convention of the legal profession. Other technical writing

also tends to formality, as people tend to be taken less seriously when
http://www.wisegeek.com/what-are-the-different-careers-in-the-legal-profession.htmhttp://www.wisegeek.com/what-are-the-different-careers-in-the-legal-profession.htm


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they write informally or colloquially. Members of the legal professiondo occasionally break with tradition; several Supreme Court justices,for example, have written opinions incorporating rhyming coupletsand other whimsical inclusions.

In some regions, consumer advocacy organizations have argued forthe replacement of legalese with plain text in documents read bymembers of the public. This is in response to concerns about peoplewho sign contracts and other legal documents without fullyunderstanding their meaning. A legalese to plain text translation of asort is recommended in some settings, allowing lawyers to draft alegally enforceable contract while including a clear explanationunderstandable to laypeople so they know what they are agreeing to

by signing the contract

Legal writing has long been criticized for being almost unintelligibleto laypersons and on occasion, to lawyers. In his article, "The End ofLegalese: The Game is Over," Robert W. Benson quoted a doctor's, alawyer's and a judge's reactions to legalese. In reply to an insurancecompany, the doctor wrote:

I am certain that you put a lot of thought into the letter but as far as Iam concerned it is not understandable. This was not written for thecommon man to understand; it was presented in a smoke of confusionand "double talk." I want you to rewrite the letter so that I knowsimply and plainly what was on your mind.

The lawyer wrote:

I have in my time read millions of words from the pens of judges and,despite my professional interest in them, I have rarely failed toexperience a sense of defeat or even pain. Sometimes it is as though Isaw people walking on stilts; sometimes I seem to be trying to seethrough dense fog; and always there is the feeling of being belaboredwith words. I have known moments when I felt actual physical shock,as though the words were bats or bricks.

The judge wrote:


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I read briefs prepared by very prominent law firms. I bang my headagainst the wall, I dash my face with cold water, I parse, I excerpt, Idiagram and still the message does not come through. In addition thestructural content is most often mystifying.

These quotes are typical of those advocating use of plain language(also referred to as "plain English") in legal writing and theabandonment of "legalese" means words other than "terms of art"which are typical in legal documents but not in ordinary English.Terms of art are those terms whose meaning is fairly well agreed toamong lawyers and whose use eliminates a more lengthy phrasewritten in ordinary English. An example of a term of art is "stare

decisis."

The criticism of impenetrable legal writing is well founded, especiallyconcerning "functional documents." "Functional documents" aredocuments such as contracts, jury instructions, and legislation writtento be acted upon. Legal documents, especially functional documents,should be written in plain language because a reader cannot act on adocument the reader cannot understand.

This article will first explore the trend toward plain language. Thearticle will then review plain language rules and compare the ruleswith linguistic studies of two types of function documents--juryinstructions and appellate briefs--and the revisions necessary torewrite them in plain language.

THE PLAIN LANGUAGE TREND--LEGISLATION

Some believe that plain English should be mandated. Others urgelegal writers to voluntarily use plain language. They claim lawyersshould use plain language and eliminate legalese simply because itmakes sense that writing be readable and understandable, not becauseof legislative mandate.

State and Federal Legislation requires that certain types of legaldocuments be written in plain language. For example, state statutes of

Connecticut, Hawaii, Maine, Minnesota, Montana, New jersey, NewYork, Oregon, Pennsylvania, and West Virginia require that certain


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types of consumer contracts to be written in plain language. Thus far,the Florida Legislature has not mandated plain language for consumercontracts, but does require "readable language" in insurance policiesand "clear and unambiguous language" on voting ballots. In their

book, Writing Contracts in Plain English, Carl Felsenfeld and AlanSiegal review the history of the plain language trend, beginning withthe start of the consumer movement earlier in this century andcontinuaing through the enactment of plain language legislation by anumber of states and the federal government.

Plain language legislation generally uses one of two standards--an"objective" or a "subjective" standard. the famous Flesch test or other

tests based on sentence length have been the basis of the objectivestandard. The theory behind this standard is that a sentence containingfewer words or syllables is more readable and understandable. Thestandard has been rightly criticized. Just because a sentence containsfewer words or syllables does not mean that it is more readable orunderstandable than a longer sentence.

The "subjective" standard requires clear communication, not just a

maximum number of words per sentence or paragraph. A Canadian barrister and solicitor, David C. Elliot, has proposed "A model Plain-Language Act" using a subjective standard. The act would requirelegal documents to "be written as understandably as the subject matterallows" and "be designed in a way that helps readers understand thedocument." The act creates penalties for noncompliance by:

Imposing fines for archaic language.

Creating a statutory claim for non-compliance.

Empowering courts to prohibit publication, use, or sale of adocument, to order an offender to rewrite or redesign a document, andrequire an offender to take writing courses or participate incommunity service.

Authorizing nonprofit corporations to bring actions for a declaration

of noncompliance. Such actions would publicly embarrass those whohave not been persuaded to improve their documents.


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Plain language legislation has forced some to rewrite their consumercontracts in plain English--but at what cost? How can legislativemandate be balanced against free speech, intellectual creativity?Education and peer pressure may accomplish as much as legislation inthe long run.

THE PLAIN LANGUAGE TREND--PEER PRESSURE

Two well respected legal writing organizations, The Legal WritingInstitute and and Scribes--The American Society of Writers on legalsubjects, have advocated an improvement in legal writing. The Legalwriting Institute, with over 900 members worldwide, adopted the

following plain language resolution at its 1992 conference:1. The way lawyers write has been a source of complaint aboutlawyers for more than four centuries.

2. The language used by lawyers should agree with the commonspeech, unless there are reasons for a difference.

3. Legalese is unnecessary and no more precise than plain language.

4. Plain language is an important part of good legal writing.

5. Plain language means language that is clear and readilyunderstandable to the intended readers.

6. To encourage the use of plain language, The Legal Writing Instituteshould try to identify members who would be willing to work withtheir bar associations to establish plain language committees likethose in Michigan and Texas..

The American Society of Writers on legal Subjects, whose membersinclude "lawyers, judges, academicians, writing instructors, and awide range of others interested in the improvement of legal writing,"

publishes The Scribes Journal of Legal Writing. The inscription onthe back cover of the journal states:

The scribes Journal of Legal Writing seeks to promote better writingwithin the legal community. Because the field is so broad, the


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Journal's contents are purposely eclectic. We hope to appeal to allwith an interest in improving legal writing, whether in the courthouse,the law office, the publishing house, or the law school.

The writing in the Journal should exemplify the qualities weadvocate: lucidity, concision, and felicitous expression. Meanwhile,we hope to spread the growing concern for whatever is turgid,obscure, and needlessly dull.

On the lighter side, there are contests both for excellence in legalwriting and for the most atrocious legalese. For example: "TheLanguage of the Law" column of the Florida bar News has run several

excellence in legal writing contests. The goal of the contests is "toshake loose the shackles of legalese." Award winning passages are printed in the Florida Bar News.

The Plain Language Committee of the State Bar of Texas solicitsnominations for its annual "Legaldegook Awards." The passageswinning the 1991 and 1992 Legaldegook Awards were reprinted inthe 1992 issue of The Scribes Journal of Legal Writing. Notsurprisingly, the 1991 awards went to:

1. a provision from the Code of Federal regulations;

2. a passage from an unidentified law review article;

3. a typographical error in an appellant brief (using "copulation"instead of "compilation");

4. a response of an unidentified politician;

5. a provision from the Employment retirement Security Act of 1974;

6. a passage from a brief to the Supreme Court of Texas;

7. a passage from an Illinois Appellate Court case (Parens Patriaecannot be ad fundandam jurisdictionem. The zoning question is resinter alios acta.); and

8. a provision of the Internal revenue Code.


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In 1992, the second year of the Legaldegook Awards, the committeeestablished a plain English Hall of Fame and inducted six lawyers:Charles Beardsley, Jeremy Bentham, Thomas Jefferson, AbrahamLincoln, Fred Rodell, and Timothy Walker.

John A Bell, a former legislative attorney, founded The League forLiterate Laws, a "mythical militant organization" campaigning "toimprove the way our federal statutes are written." The campaign "islinked to the efforts in and out of law schools to train lawyers to write

plain language prose." The league publishes the Dispatch, a newsletter"working for better laws though better English." The lead article ofthe January 1995 issue profiled Jeremy Bentham, the great nineteenth

century utilitarian, who urged that "legislation be written in such away that discourages dissembling and concealment, requires electedlegislators to bear honestly their responsibilities for legislating, andmakes the words of law more intelligible to ordinary people."

IN SEARCH OF PLAIN LANGUAGE

Legalese is like Justice Potter Stewart's definition of pornography.You know legalese when you see it, but it is difficult to define. Whatany person considers to be plain language may be legalese to another.How do you know when you are using plain language?

You are probably on your way to using plain language if you followthe rules. Many legal writing books, including Plain English forLawyers by Richard C. Wydick and Legal Writing: Sense and

Nonsense by David Mellinkoff, contain rules for using plain English.The rules are designed to guide the legal writer to produce readableand understandable documents.

A natural question is whether Wydick's and Mellinkoff's plainlanguage rules do increase the readability and understandability oflegal documents. A few studies have been done to test the readabilityand understandability of legal documents. A comparison of Wydick'sand Mellinkoff's plain language rules and studies of jury instructionsand appellate briefs is instructive. Although some of the plain

language rules overlap with findings from the studies, adherence tosome of the plain language rules was not necessary for increased


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comprehensibility of jury instructions or appellate briefs. Let's firstlook at the two sets of rules and then at the results of the studies.

IN SEARCH OF PLAIN LANGUAGE--PLAIN LANGUAGERULES

Wydick's and Mellinkoff's plain language rules are similar in severalways. They clearly state the "do's" and "don'ts" of plain language anduse humor to enliven what otherwise could be a very dry subject.While the two sets of rules include several that are similar, the focusof the two sets of rules is different. Wydick's focus is at the sentencelevel, while Mellinkoff's focus in on the legal document as a whole.

In his book, Plain English for Lawyers, Richard C. Wydick suggests:

1, Omit surplus words;

2, Use base verbs, not nominalizations;

3, Prefer the active voice;

4, Use short sentences;

5, Arrange your words with care;

6, use familiar concrete words;

7, Avoid language quirks; and

8, Punctuate carefully.

In legal writing: Sense and Nonsense David Mellinkoff states hisseven rules:

Rule 1: The Language of the Law Is More Peculiar Than Precise.Don't Confuse Peculiarity With Precision.

Precision is sometimes peculiarly expressed, but don't be taken in bythe peculiar expression of nonsense.


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Rule 2: Don't Ignore Even the Limited Possibilities of precision. ThePrice of Sloppy Writing is Misunderstanding and CreativeMisinterpretation.

Some Day someone will read what you have written, trying to findsomething wrong with it. This is the special burden of legal writing,and the special incentive to be as precise as you can.

Rule 3: Follow the Rules of English Composition.

If it's bad writing by the standards of ordinary English, it is bad legalwriting. If it's good writing by the standards of ordinary English, it is

more likely to be good legal writing.Rule 4: Usually You Have Choice of how to Say It. Choose Clarity.

Lack of clarity is a common but not necessary feature of legal writing.It is not an inevitable by-product of precision. Clarity depends moreon how you say it than on what you have to say. As you write, keepasking, "Clear to Whom?"

Rule 5: Write Law Simply. Do not Puff, Mangle or Hide.The only thing about legal writing that is both unique and necessary islaw. To simplify legal writing, first get the law right. You can'tsimplify by omitting what the law requires or including what the lawforbids. The better you know the law the easier to decide what lawought to go in, and what is overkill or window dressing.

Rule 6: Before you Write, Plan.

in the quiet time before you become excited with your own words-on- paper, plan. Talk over goals with those who know more law. Mull, jot, fret, read, outline. Then write. If you start from a plan, the writingwill help your thinking and writing. Unplanned, the flow of words

becomes a distraction.

Rule 7: Cut it in Half!


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The two most notable differences concerned wordiness and passivevoice. A rule for both Wydick and Mellinkoff was cut excess words.Interestingly enough, the Charrows found that "sentence length hasvirtually no effect on subject's performance." Wydick suggests usingactive rather than passive voice. Wydick encouraged the writer to

prefer active over passive voice. In contrast, the Charrows found that passive voice "created serious comprehension problems only whenlocated in a subordinate clause."

The Charrows study did bolster the trend toward plain language. Thestudy showed that jury instructions and other legal documentsintended for the law-person should be written in plain language to

eliminate the difficulties discovered in the study. "The inability of jurors to comprehend the [judge's] charge adequately has obviousimplications concerning the soundness of the jury system: If many

jurors do not properly understand the laws that they are required touse in reaching their verdicts, it is possible that many verdicts arereached either without regard to the law or by using improper law."

IN SEARCH OF PLAIN LANGUAGE--APPELLATE BRIEFS

In his study, Stratman had appellate judges think out loud whilereading appellate briefs for a real-life case. Stratman calls this"concurrent reader protocols." using concurrent reader protocols, thestudy isolated three significant problems with the briefs: "missinginformation," "miscues," and "too much information at once" and anoverall problem of organization. Stratman found that missinginformation about the procedural history of the case slowed down thereader. In the study, "miscues" included contradictions, ambiguity,failure to make a crucial point, and "ill-constructed" arguments. Thesemiscues caused judges to draw "erroneous inferences." As Stratman

points out, even though the judges eventually understand theargument being made, "these errors reduce the credibility of the

judge's belief in the credibility of the appellant's argument." Givingtoo much information at once was the third problem. Stratman foundthat giving too much information at once, some of which informationmay not be relevant, makes reading much more difficult. An overall

problem identified through use of reader protocols was organization.


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When information was presented in an order other than that in whichthe reader needed to use it, the reader was forced to spend timementally reorganizing it.

The results of Stratman's study also bolster the use of plain language.Although Stratman used slightly different words to describe thecomprehension problems encountered by the appellate judges, the

judges would not have faced these problems had the writers of theappellate briefs followed Wydick's and Mellinkoff's plain languagerules. Wydick emphasized that words should be arranged with care.Mellinkoff urged the writer to plan before writing and make writing

precise and clear.

IN SEARCH OF PLAIN LANGUAGE--LEGAL DOCUMENTS,A NEWSPAPER, AND A TEXTBOOK

Benson cloze tested 90 law students and 100 nonlawyers to determinehow well they understood:

1, A plain English jury instruction;

2, Two standard California jury instructions;

3, A "widely used" surgery consent form;

4, A provision of the federal Ethic in Government Act of 1978;

5, A Los Angeles Times article; and

6, Ecology text "from a sixth grade reading textbook used in the Los

Angeles City schools."

The 90 law students scored the "rough equivalent" of B+ to A+ whilethe 100 nonlawyers scored the "rough equivalent" of D to A+ and 10nonlawyers with only a high school education scored the equivalentof F to A. All three groups scored A or A+ on the plain language juryinstruction. The law students also scored A+ on the standard juryinstructions while the nonlawyers scored a C. The law school students

scored a B+ on the surgery consent form while the nonlawyers scoreda C and the high school students scored a D. The law school students


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scored an A on the statute while the nonlawyers scored a D and thehigh school graduates scored an F. The law school students scored anA on the newspaper article while the nonlawyers scored a C and thehigh school graduates scored a D. The Law school students scored anA on the school text while the nonlawyers scored a B+ and the highschool graduates scored a C.

The results of the cloze test are disturbing for nonlayers consideringthat "the median number of years of education for the Nation's

population as a whole is 12.5." Especially disturbing are the lowgrades on the standard jury instructions and the surgery consent form.

Neither jurors nor individuals being prepared for surgery are

accompanied by lawyers, yet misinterpretation of a jury instruction orthe consent form can have serious and even life threateningconsequences.

Florida jury instructions are fairly well written in comparison to theCalifornia jury instructions studies by the Charrows and Benson and

jury instructions challenged in a 1994 U.S. Supreme Court case.Victor v. Nebraska,______U.S._______, 127 L. Ed. 2d 583 (1994),

involved the challenge to the definition of "reasonable doubt" in Nebraska and California jury instructions. The language of thechallenged California jury instruction was taken from an 1850 casewritten by chief justice Shaw of the Massachusetts Supreme Court:

Reasonable doubt is defined as follows: It is not a mere possibledoubt; because everything relating to human affairs, and dependingon moral evidence, is open to some possible or imaginary doubt. It isthe state of the case which, after the entire comparison andconsideration of all the evidence, leaves the minds of the jurors in thatcondition that they cannot say they feel an abiding conviction, to amoral certainty, of the truth of the charge.

The court reluctantly held that the challenged instructions did notviolate the Due process Clause. Concerning the California instruction,Justice O'Connor wrote "we do not condone the use of the phrase[moral certainty] but we have no supervisory power over the statecourts...." In his concurrence, justice Kennedy stated:


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It was commendable for Chief Justice Shaw to pen an instruction thatsurvived more than a century, but, as the Court makes clear, whatonce made sense to jurors has long since become archaic. In Fact,some of the phrases here in question confuse far more than theyclarify.

Justice Ginsburg, concurring, suggests that Nebraska and Californiause the definition of reasonable doubt proposed by the FederalJudicial Center:

Proof beyond a reasonable doubt is proof that leaves you firmlyconvinced of the defendant's guilt. There are very few things in this

world that we know with absolute certainty, and in criminal cases thelaw does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convincedthat the defendant is guilty of the crime charged, you must find himguilty. If on the other hand, you think there is a real possibility that heis not guilty, you must give him the benefit of the doubt and find himnot guilty. The Florida Standard Jury instructions in Criminal Casescontains the following definition of reasonable doubt:

A reasonable doubt is not a possible doubt, a speculative, imaginaryor forced doubt. Such a doubt must not influence you to return averdict of not guilty if you have an abiding conviction of guilt. On theother hand, if, after carefully considering, comparing and weighing allof the evidence, there is not an abiding conviction of guilt, or, if,having a conviction, it is one which is not stable but one whichwavers and vacillates, then the charge is not proved beyond everyreasonable doubt and you must find the defendant not guilty becausethe doubt is reasonable.

Although differently worded, the Florida definition is the same insubstance as that preferred by justice Ginsburg and it would probablydo well if tested by the Charrows or by Benson. Wydick andMellinkoff would suggest that the definition be revised to deleteexcess words. The adjective string "speculative, imaginary or forced,"the gerund string "considering, comparing and weighing," and theverb pair, "wavers and vacillates," contain a number of words of


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similar meaning. If there is not a good reason for including them, theexcess words should be eliminated. Each string and the pair should bereplaced with one of the existing words, or perhaps a new one

The history and the Rise of Plain English: Although legalese is alanguage unto itself, it was still widely used in contracts until the mid1970 s. Plain English gained momentum in U.S in the 1970 s, its

profile raised through the double speak awards of the nationalcouncil for the teachers of English. Then, in 1975, attorneys forCitibank created the first reader -friendly consumer loan agreem ent

by eliminating legalese and replacing it with shorter, more preciselanguage, while at the same time adding numbered paragraphs andother aids to understanding. President Carter took up cause and in1978 ordered that all the government documents should be written in

plain English In the same year law Reform commission of Canada began reviewed all federal laws and recommending Plain Englishimprovements. In Britain , the Plain English campaign took off in1979, with the much publicized shredding of unreadable official

forms in the houses of Parliament. By 1982, the British governmenthad officially embraced it, obliging bureaucracies to review andrevise their documentation, with changes to over 21 000 form. TheAustralian government endorsed Plain English in Legislation in1984,the fact that the Plain English is enshrined in legislation helps toexplain the initial capial letter, as well as its quasi proper name status. Some paraphrase it as plain language.

Apart from the challenging bureaucratese the Plain Englishmovement has put the spotlight on impenetrable legal prose. Inlegislation as --------------------------------------------------------according to the law reform research commission of Victoria(Australia) published in 1987 Yet the warning that the legal

provision may be altered by Plain English revision still needs sto beheeded. Collaborative work between the lawyers and the PlainEnglish writers is the obvious answer. In the ensuing decades,contract law professo rs began to adopt the Plain English conceptand taught it to their students. By the time the 90 s rolled around,


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Plain English was even adopted as a requirement for certain consumeragreements in some states.

Despite the name, Plain English is only partly about language. It alsoemphasizes the importance of document design. Any document needsclear layout, in sections and paragraphs that expresses the structure ofthe information and with the effective heading and subheadings toidentify local content. Adequate white space between the sectionsand in lists also makes the information more accessible. Wherelanguage comes in, it is broadly a matter of seeking simple everydayword whenever possible and speaking more directly to the reader.Sentence need be shorter and less intricate with punctuation that

ensures reliable reading. An average of 20 words recommended,though individual sentences will of course vary around that. Themost important principle of Plain English is to keep the reader inmind as you write. Think of yourself as communicating to someoneacross the table and how each sentences sounds. Your writer s earshould react whenever sentences leave the reader grasping the breath.

The benefit of using plain English is abundantly clear. When

contracts are written in pure legalese, the parties that actually need to perform them may not understand their obligations. This results in anambiguity in which one party to a contract interprets a confusing termdifferently then the other party, which in turn results in contractualdisputes and litigation. So why do many lawyers still continue toincorporate legalese in contracts, despite the rise of plain English?There are basically three reasons why this practice continues:

There is a movement for plain language in legal writing that is veryimportant. Its goal is to eliminate unnecessarily complex language inlaw, government and business. The improvement of writing clarityshould be supported. However, it cannot be expected that a lay personwill be able to read and converse freely about the technical aspects ofany profession. A physics paper submitted for publication to anacademic journal is not reading accessible to the lay reader.

In the law, some writing should be directed at the reader's lay level. Agood example is warning labels. It is imperative that a warning label


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affixed to a dangerous machine be clear and easily understood. Whatis not so clear is that legal documents intended to govern complexrelationships and transactions need be or can be written with samereader in mind. For attorneys the use of traditional legal writing ismore efficient because it is most commonly used; therefore, mostcommonly understood.

Some accuse lawyers of being obscure writers on purpose. Perhapssome lawyers are like that, but many accusations against lawyers forwriting "legalese" are unfounded.

If you read a surgeon's textbook giving precise instructions on how to

perform a cholecystectomy and you did not understand it, would youthink it was a bad textbook? Or would you think that you had a badsurgeon? No, of course not.

Similarly, if your lawyer drafts a will or trust for you and you do notunderstand all of the provisions, does that mean it's a bad document,or that your lawyer is being an obscurantist? No, of course not.

"Boilerplate" provisions in a contract, will or other legal documentsare sections of routine, standard language. The term comes from anold method of printing.

In the late 1800s and early 1900s, "boilerplate" or ready to printmaterial was supplied to newspapers. Advertisements or syndicatedcolumns were supplied to newspapers in ready-to-use form as heavyiron, prefabricated printing plates that were not (and, indeed, couldnot) be modified before printing. These never-changed plates came to

be known in the late 19th century as "boilerplates" from theirresemblance to the plates used to construct boilers.

The term "boilerplate" later was adopted by lawyers to describe those parts of a legal document that are considered "standard language,"although any good lawyer will tell you to always read the"boilerplate" in any document you plan to sign. Today, "boilerplate"is commonly stored in computer memory to be retrieved and copied

when needed.


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In a will or trust, sections of boilerplate are often maligned as"legalese." In fact, the choice of boilerplate is crucial. Let me giveyou a few examples.

Wills should contain a tax clause. A tax clause is a provision that sayswhere the executor should get the money to pay federal and statedeath taxes. A common boilerplate provision could provide that alltaxes are to be paid from the residue of the probate estate. Maybeyour will says that.

Boilerplate is often used in a will or trust to provide definitions. Forexample, the will may refer to children, grandchildren, descendants or

issue. Who is included? Is a stepchild included in the class? Is anadopted child included in the class? Are children born of unmarried parents included? If there is a definition in the boilerplate, it mayexclude stepchildren as beneficiaries. Is this intended? Perhaps, thenagain, perhaps not. This is a case where the definition in the

boilerplate goes to the heart of the matter - who is a beneficiary andwho gets a share of the estate.

If you name an individual or a bank or trust company as a trustee, canthe beneficiaries ever remove that trustee? Thirty years later when thetrustee's fees are high, investment performance is poor, and there isinadequate customer service, can the trust be moved? It depends onwhat it says in the boilerplate.

All boilerplate is not equal. The choice of the boilerplate that isappropriate to the circumstances and is in accordance with theintentions of the parties is very important. There is no standard,across-the-board language for anything. It is all written by someone,the words have meaning, and they are binding.

Language Element of Plain English what to avoid: wordy phrases .Many formulaic phrases in official phrase can be paraphrased moresimply in the event of of ten amounts to just plain if, and in respectof to about . High density phrases such as new employees healthand welfare committee are ambiguous and hard to decode and can

be accessed more easily if unpacked as the committee on thehealth and welfare of new employees Note that Plain English


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doesn t necessarily mean restricting teh number of words especiallywhen expressing something complex passive construction thatmake for roundabout expression. The motion was supported by allmembers of the committee voted unanimously for the motion. Themotion was supported by all the members of the committeecommunicates more directly and succinctly as the committee votedunanimously for the motion Passive construction may still be usefulfrom time to time in maintaining topical progression at the start ofsentences. Plain English movement is sometimes criticized asattempting to provide a one size fits all answer the communication

problems. Its most committed practitioners never suggest that andtake care to say that Plain English intervention will vary with thecontext. Technical jargon is alright for specialist readers, but not tothe general public. The average paragraph length will probably belonger in a discussion document than, say, in business letters.Imperative verbs can be effective in household or technicalinstruction, but in advisory documents they sound rather too curt. Theuse of the second person may make advice clearer, but too muchdirect address can suggest heavy handed control. Plain Englishrevisions often affect the tenor of the text and so revisers must alwaysconsider whether this is intended. Is the revision meant to befriendlier than the original, or to keep the same distance from thereader?

The benefits of Plain English

In the end Plain English can do more than clarify communication-though that itself is substantial benefit. It also reduces reading errors,

as well as complaints and law suits relating to official documents.Apart from saving time and energy and money on all those fronts, ithelps citizens to better understanding of government procedures and

policies and of their own rights.

Tradition: The legal profession has a long and colourful history.Legalese is as much a tradition as the wigs and robes still used in

English courts, and, like English lawyers, American attorneys arereluctant to abandon their treasured traditions.


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Laziness: When drafting contracts, many lawyers simply copy thelanguage of earlier contracts. This practice has been undertaken byattorneys from the year 1066 to the present day, which means thatsome elements of legalese are simply passed on.

Self-importance: It s important for an attorney to appear moreeducated and intelligent than the clients who hire them. Manycontinue to include legalese to impress their clients and justify high

bills.

The Importance of Legal Precision

One of the biggest concerns within the legal profession is precision.Using imprecise language can lead to misinterpretations. Forexample, if a lawyer drafts a contract and then the contract is ever inquestion, a judge may interpret the contract in a manner that isdifferent than what the lawyer originally intended. By using highlydetailed verbiage, the lawyer can avoid ambiguity and can also avoidsaying things that could later be used against the client.

Using Common Terminology

A lack of precision can lead to miscommunication. For example, in alawsuit, the individual filing the lawsuit is referred to as the plaintiffand the individual being sued is referred to as the defendant. As aresult, it is very easy to identify the correct individual during thecourtroom discourse. Two additional common terms are amisdemeanour and a felon. If someone were to say I have unpaid

parking tickets, this would not raise many eyebrows. However, if an

individual were to say I committed armed robbery, this would beconsidered much more shocking. In legal terminology, a minor crimeis considered a misdemeanour, while a serious crime is called a felon.By calling a crime by its proper name, it is easier to communicate thegravity of the crime.

The Downsides of Legalese

However, legalese can also work to the disadvantage of a third party.In many cases, an individual may agree to sign a contract that


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contains details that the individual would normally not agree to.However, the terms are obscured by the legalese. For this reason, it isalways a good idea to have important contracts read by a lawyer toclarify the meaning of the legalese.

A successful legal practice depends on three critical skills: sales, goodwriting and effective speaking (arguing). Because most of a lawyer's

job involves communication, it's no surprise that skilled legal writingcan make the difference between winning and losing a case. Whilespeaking can bring the point home to a judge and jury and sales bringin the clients, it's the legal filings and summary of research thatultimately wins a case.

Four Tools for Effective Legal WritingA successful legal practice depends on three critical skills: sales, goodwriting and effective speaking (arguing). Because most of a lawyer's

job involves communication, it's no surprise that skilled legal writingcan make the difference between winning and losing a case. Whilespeaking can bring the point home to a judge and jury and sales bringin the clients, it's the legal filings and summary of research thatultimately wins a case

Good Research Capability

The basis of legal writing involves research. Lawyers and their staffmust understand as much of the applicable statutory law, case law

and facts of a case as possible within a certain amount of time. Thisinformation must then be condensed in such a manner that thelawyer can manipulate it to point flaws in the opposing party'sargument and strengths in his own argument. Insufficient researchwill ultimately become apparent if a lawyer can't quote the law orfacts effectively when writing. An opposing lawyer can then jump onthis weakness in court to make her own argument appear the betterone to a judge and jury.


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Copies of Local Rules

Many court jurisdictions involve what are called local rules ofprocedure. While the law is the same from court to court, differentcourts have nuances or criteria on how they want to see motions andpleadings come across their desks. The lawyer who ignores this willquickly find his writing ignored, delayed or even rejected by a courtfor not following the specified rules. Every court has their local rulesavailable for use, so a smart lawyer always keeps a copy available forevery jurisdiction he works in.

StructureA legal pleading or motion should always have a structure. A basicmethod taught in law school involves Issue-Rule-Application-Conclusion or IRAC. This approach explains the issue at hand for thereader, spells out the rule of law involved, how the rule applies orshould be interpreted then closes the document showing the readerhow to decide the case or motion. Rambling documents are quicklyrejected by judges who don't have the time to be interpreting whatthey might mean.

Editing

Editing provides a chance to catch both minor and significant errors inlegal writing, especially when the first submission of a document isthe only chance to make a legal argument. Attorneys and their staffare well served by always re-reading their documents and having a

second person do so as well to catch problems. This can help avoid problems with a legal citation mistake, misspellings, logic errors,grammatical problems or even erroneous omissions of detail .

The written word is one of the most important tools of the legal profession. Words are used to advocate, inform, persuade and instruct.Although mastering legal writing skills takes time and practice,superior writing skills are essential to success. Polish your legalwriting skills through the simple tips below .


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1. Remember Your Audience

Every word you write should be tailored to the needs of the reader.Documents that embody the same research and message may varygreatly in content and tone based on the document s intendedaudience. For example, a brief submitted to the court must advocateand persuade. A memorandum to a client must analyze the issues,report the state of the law and recommend an appropriate course ofaction. Always keep your audience in mind when crafting any pieceof writing.

2. Organize Your Writing

Organization is the key to successful legal writing. Create a roadmapfor your writing by using visual clues to guide the reader. Introduceyour subject in an introductory paragraph, use transitional phrases(moreover, furthermore, however, in addition, etc.) betweeneach paragraph, introduce each paragraph with a topic sentence anduse headings and subheadings to break up blocks of text. Limit each

paragraph to one topic and sum up your message with a concludingsentence or paragraph. Organizational structure guides the readerthrough your text and promotes readability.

3. Ditch The Legalese

Legalese - specialized legal phrases and jargon - can make yourwriting abstract, stilted and archaic. Examples of legalese includewords such as aforementioned, herewith, heretofore and wherein.Ditch unnecessary legalese and other jargon in favor of the clear and

simple. To avoid legalese and promote clarity, try reading yoursentence to a colleague or substituting abstract words with simple,concrete terms. For example, instead of I am in receipt of yourcorrespondence, I received your letter is c learer and more succinct.

4. Be Concise

Every word you write should contribute to your message. Omitextraneous words, shorten complex sentences, eliminate redundanciesand keep it simple.
http://www.leap.org.za/CONA17.htmhttp://www.leap.org.za/CONA17.htm


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Consider the following sentence:

Due to the fact that the defen dant has not attempted to pay back themoney owed to our client in the amount of $3,000 it has becomeabsolutely essential that we take appropriate legal action in order toobtain payment of the aforesaid amount.

A more concise version reads: Since the defendant has not paid the$3,000 owed our client, we will file a lawsuit seekingreimbursement. The latter sentence conveys the same information in18 words versus 44. Omitting unnecessary words helps clarify themeaning of the sentence and adds impact.

5. Use Action Words

Action words make your legal prose more powerful, dynamic andvivid. Add punch to your writing with verbs that bring your prose tolife. Here are a few examples:

Weak: The defendant was not truthful. Better: The defendant lied.

Weak: The witness quickly came into the courtroom. Better: Thewitness bolted into the courtroom.

Weak: The judge was very angry. Better: The judge was enraged.

6. Avoid Passive Voice

Passive voice disguises responsibility for an act by eliminating thesubject of the verb. Active voice, on the other hand, tells the reader

who is doing the acting and clarifies your message. For example,instead of the filing deadline was missed, say plaintiff s counselmisse d the filing deadline. Instead of a crime was committed, saythe defendant committed the crime.

7. Edit Ruthlessly

Edit your writing ruthlessly, omitting unnecessary words andrewriting for clarity. Careful proofreading is particularly important inlegal writing. Spelling, punctuation or grammatical errors in a


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document submitted to the court, opposing counsel or a client canundermine your credibility as a legal professional.

How to write legal brief effectively

A legal brief is a document used to submit an argument to a court.Briefs are generally written by lawyers and are intended to persuadethe court to rule in your favor on a particular issue. Here are a few tipsto help you write an effective legal brief.

Prepare a caption. Court rules state that every pleading should containa caption including the name of the court, the title of the action, the ilenumber and names of the parties

Begin with a preliminary statement. This should identify the partysubmitting the brief and inform the court of the relief requested.Generally, a preliminary statement should be kept short and providethe court with enough information to understand the issues to beaddressed in the brief.

State the facts relevant to the brief. Facts should not bemisrepresented, but can be presented in a way that is favorable to yourargument. Be sure to cite to the record to support these facts.

Make your argument. This is the part of the brief where you presentyour case. Analyze why the law supports the relief you are requesting.Apply the law to your set of facts and cite to cases that support your

position. Generally, you should make your strongest arguments first,followed by secondary relevant arguments.

Acknowledge the counter-argument. It won't help your case to ignoreany valid arguments that can be made by the other side. Address these

arguments and explain to the court why your case is different.Distinguish any relevant cases that do not support your argument on


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their facts. Conclude your brief. Tell the court what relief you areseeking and ask for that relief

Legal writing is different than other types of writing. Legal writing isvery concise, very dry and leaves little room for creative flair. Legalwriting can take many forms including legal briefs, memoranda,scholarly articles, pleadings and motions. Regardless of what type oflegal document you are creating, the same rules apply and the sametools prove useful. All legal documents must conform to the Bluebooksystem of citation, must be expertly stylized and formatted, must becompletely free of grammatical and spelling errors and must adhere to

the local rules of the courthouse within which it will be filed

Bluebook System of Citation

As with any high-quality writing, all legal documents must be cited toinclude source material for any statement in the document that is notthe original thought of the author. Many times, a legal brief will referto past case law and precedent within the jurisdiction, either state or

federal. These cases must be cited precisely and accurately inaccordance with the Bluebook. The Bluebook is a wire-bound bookthat details nearly every type of citation and exactly how to type it.Whether you are citing a case, a statute, the US constitution, amagazine, a newspaper or the Bible, the Bluebook has a chapter tohelp guide you through the process.

The Redbook Style Manual

The Redbook is a cousin of the Bluebook and it provides readers withguidance as to legal style. While legal writing is not meant to beflowery and verbose, it must possess some sort of style. The Redbook

provides guidelines as to how to format footnotes, complicatedgrammatical conundrums, editing, spelling and capitalization. Theseare all concepts a well-written lawyer must be accustomed to andcomfortable with. Proper style is just as important as proper citationsand the court of law will be critiquing the style of the filed legaldocument with the utmost of precision.


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Punctuation Rules

Punctuation is a very important aspect of writing; good writing presupposescorrect punctuation. Incorrect punctuation is the sign of weak writing, or

carelessness. But this sort of thing is eminently avoidable, because punctuationis quite simple to master. Here are some basic rules to keep in mind:

1. Every sentence must end with a full stop.2. Proper nouns (names of people, places, brands, etc, i.e. unique instances

of a class) must always be capitalised.3. When you use opening quotation marks, do not forget to use closing

quotation marks at the end of the quoted word or phrase.4. Quotation marks are when quoting or sometimes to convey irony, not for

emphasis; emphasis is conveyed by emboldening or italicisation,followed by an exclamation mark.

5. Do not use an apostrophe when you are pluralising a word. The plural oftoy is toys, not toy s. Apostrophes are used to form contractions (it is =it s) and indicate possession.

6. The ellipsis, used to indicate variously the intentional omission of asection of text, an unfinished thought, and a trailing off into silence,consists of only 3 dots. It is pointless to add more dots to an ellipsis. Thisis excessive punctuation, which is in other words incorrect punctuation.

7. As per the rules of British English, any punctuation mark that is not partof a quoted section of text must be placed outside the quotation marks.However, in the case of direct speech, punctuation marks must beenclosed within the quotation marks.

8. Do not link independent clauses with commas. Independent clauses aregroupings of words that can stand alone as sentences. For example, in Heknew how to drive, that he didn t do it very often was a matter morenerves, not inability both the parts before and after the comma are fullsentences. In such cases, the comma is not the correct punctuation markof connection. In needs to be replaced with a semi- colon (; ). The

sentence becomes: He knew how to drive; that he didn t do it very oftenwas matter of nerves, not inability.

9. Use a comma after the introductory element of a sentence. Theintroductory element is a word or a phrase that begins a sentence by

providing background, or simply modifies it. For example, Honestly Idon t know how I managed to escape is wrong, because the wordhonestly modifies the sentence. Hence, it should be Honestly, I don tknow how I managed to escape.

Legal Langauge

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