Modern Legal Drafting: A Guide to Using Clearer Language

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This book reveals how and why traditional legal language has developed some of the peculiar characteristics that sometimes make legal documents inaccessible to users. It examines recent reforms in the United Kingdom, Australia, New Zealand and North America, and provides a step-by-step guide to drafting in a modern style. Readers of the book will be able to make their writing clearer and their legal documents more useful to clients and colleagues.
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Modern Legal Drafting: A Guide to Using Clearer Language

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Overview

This book reveals how and why traditional legal language has developed some of the peculiar characteristics that sometimes make legal documents inaccessible to users. It examines recent reforms in the United Kingdom, Australia, New Zealand and North America, and provides a step-by-step guide to drafting in a modern style. Readers of the book will be able to make their writing clearer and their legal documents more useful to clients and colleagues.
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"...[An] admirable monograph...The book is short enough to read on a train journey and entertaining enough to read on the beach." New Law Journal
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Product Details

  • ISBN-13: 9780521001861
  • Publisher: Cambridge University Press
  • Publication date: 6/28/2001
  • Pages: 208
  • Product dimensions: 5.98 (w) x 8.98 (h) x 0.67 (d)

Meet the Author

Peter Butt is a Professor of Law and founding director of the Centre for Plain Legal Language at the University of Sydney.

Richard Castle is a solicitor currently working in New Zealand.

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Cambridge University Press
9780521674522- Modern Legal Drafting - A Guide to Using Clearer Language Second Edition - Edited by Peter Butt and Richard Castle
excerpt



INTRODUCTION




Traditional legal language

The English language of today is still recognisably the language of Chaucer and Shakespeare, of Abraham Lincoln and Winston Churchill, of the Book of Common Prayer and the Authorised Version of the Bible. It is also the language of lawyers in many countries: the United Kingdom, the United States, Canada, Australia, New Zealand and India, to name but a few. In English, lawyers draft documents and compose letters; in English, lawyers formulate statutes and propagate regulations; in English, lawyers prepare pleadings and argue their cases.

   Legal English, however, has traditionally been a special variety of English. Mysterious in form and expression, it is larded with law Latin and Norman French, heavily dependent on the past, and unashamedly archaic. Antiquated words flourish, such as aforementioned, herein, therein, whereas – words now rarely heard in everyday language. Habitual jargon and stilted formalism conjure a spurious sense of precision: the said, aforesaid, the same. Oddities abound: oath-swearers do not believe something, they verily believe it; parties do not wish something, they are desirous of it; the clearest photocopy onlypurports to be a copy; and so on. All this – and much more – from a profession that regards itself as learned.

   Some infelicities of expression, some overlooked nuances, some grammatical slips, can be forgiven. Lawyers are only human, and in the day-to-day practice of law they face an overwhelming weight of words. But what cannot be forgiven is the legal profession’s systematic mangling of the English language, perpetrated in the name of tradition and precision. This abuse of language cannot be justified, legally or professionally. Nor, increasingly, do clients accept it, showing a mounting dissatisfaction with vague excuses such as ‘That’s the way we always put it’ or ‘That’s how we say it in legal jargon’.

   Speaking generally, today’s legal English evolved over the 300-year period that spanned the setting up of the first printing press in England (1476) and the American Declaration of Independence. Its terminology and style remain largely frozen in the form they had reached by the early years of the nineteenth century. Nothing much has changed since then, despite sporadic efforts at reform. The lack of change is evident in Panel 1, taken from the charges register of an English land title: notice the similarity of language in documents over 200 years apart.

   In more recent times, typewriters, word processors and computers have brought changes in the format, layout and length of legal documents. The language, however, has remained largely unchanged. How odd it must seem to non-lawyers that the law’s antique language lingers on, harking back to another age, so numbing and relentless that even lawyers themselves sometimes fail to read it (or fail to understand it if they do). How odd that legal gobbledegook lies dormant in office files, precedent books, computers and word processors, ready to be recycled at a moment’s notice in documents produced in the early twenty-first century.

Pressures for reform


All areas of human endeavour have their advocates for reform. But reformers, including legal reformers, are often disappointed.1 Radical thinkers such as Jeremy Bentham, Lord Brougham and Lord Denning – all of whom urged reforms not only in the substance of the law but also in its language – in the end have had relatively little impact. Lawyers have a vested interest in preserving their mystique, and part of that mystique is enshrined in

1See,forexample,the hopelessly optimistic predictions following the 1845 Englishl and law reforms, in ‘Conveyancing Reform'(1845)2 Law Review, p. 405.

Image not available in HTML version

Panel 1  Charges register extract

traditional legal language. But today there are clear signs that the need for traditional legal language is being questioned.

   This questioning has been fuelled largely by the consumer movement of the second half of the twentieth century. Non-lawyers now expect to be able to understand what they sign. Consumer groups urge customers to seek answers and explanations. Some lawyers see this as a threat. Others, however, see it as a challenge. They recognise that a clearer, crisper style relieves them from the drudgery of acting as interpreter, of having to translate the antique into the contemporary. They also perceive the advertising advantage their documents provide for marketing their expertise. Even those lawyers whose prime concern is to avoid negligence claims can see that ‘plainness’ might prove an advantage over gobbledegook: when a document is drawn in straightforward, up-to-date, no-nonsense English, clients are hard-pressed to assert afterwards that they did not understand it.

   Yet the advocates of standard, modern English – or, to use the term now becoming widespread, plain English – should not be complacent. Among lawyers, proponents of plain English are in a minority. Many lawyers have difficulty in accepting anything other than traditional legal terminology; the ancient sonorous language of the law embodies all they stand for. But improvements are appearing, notably in commercial documents. Commercial lawyers appear more likely than (for example) conveyancing lawyers to use standard, modern English. Perhaps this is because commercial work often involves putting new ideas and new methods into a legal setting; in contrast, conveyancing often harks back to the Middle Ages.

   Change in legal English will come, but it will be slow. There will be no storming of the citadel, no victory parade, no triumphal march through the streets. Traditional legal language will be a long time dying. But die it will, under the weight of the reality that change is inevitable. Wittgenstein once wrote of language, ‘Everything that can be put into words can be put clearly’.2Legal language is no different.

What this book tries to do

Our purpose in this book is to encourage legal drafters to write in modern, standard English. We do so by illustrating why modern, standard English is preferable to traditional legal English. We start in Chapter 1 by considering the influences that affect today’s legal drafter. We also examine the factors that help perpetuate traditional styles of legal drafting, factors such as the fear of negligence claims and the familiarity that comes from using a conventional style. Chapter 2 deals with the interpretation of legal documents, and explains why drafters in the modern style can be assured that their efforts will not fall foul of the so-called rules of interpretation. Chapter 3 traces the move towards modern English in legal drafting in various countries. In Chapter 4 we consider some of the benefits of drafting in plain language, showing how it can improve the image of lawyers and help avoid negligence

2Ludwig Wittgenstein,Tractatus Logico-Philosophicus,trans D.F.Pearsand B.F.Mc Guinness(London:Rout ledge&KeganPaul,1961),p.51.

claims. This leads us, in Chapter 5, to discuss what to avoid when drafting modern documents. Chapter 6 explains how to draft documents in modern, standard English, covering not only obvious points such as language and punctuation but also important factors such as structure and layout. Lastly, Chapter 7 puts the principles to the test by analysing some traditional legal clauses and rewriting them in modern, standard English.





Chapter one

WHAT INFLUENCES THE LEGAL
DRAFTER




Introduction




The traditional style of legal writing is the product of many influences. Some influences are constant, some are sporadic. They rarely exist in isolation; usually, many operate together. This chapter reviews the main influences on traditional legal drafting:

• familiarity and habit – the security that comes from adopting forms and words that have been used before and seen to be effective

conservatism in the legal profession, allied to the common law tradition of precedent

• fear of negligence claims

• the means of production

• pressures to conform to professional norms

• the desire to avoid ambiguity

• the mixture of languages from which the law derives its vocabulary

• payment by length of document

• payment by time

• the litigious environment of legal practice.

Some of these influences, such as the mixture of languages and payment by length of document, are largely historical, with little direct effect today. Others, however, remain relevant.

The stylistic hallmarks of traditional legal drafting are apparent in many types of documents. Some of the best (or worst) examples are leases, their dense prose and ‘torrential’ style intimidating even the hardiest reader.1 But other documents exhibit a similar style: conveyances, wills, trust deeds, insurance policies, mortgages, and shipping documents, to name but a few. The common thread pervading them all is tradition, going back hundreds of years. This tradition is so powerful that it has been impervious to reform through the centuries and continues to resist reform even today, when change might be thought an easy option. A tradition so persistent merits detailed scrutiny.

Familiarity and habit


Lawyers prefer to use documents that have been tested in operation. They prefer the established to the novel, the familiar to the new. In a sense, this should not be surprising: all human beings share the same trait. For lawyers, however, the trait creates particular problems, because eventually they come to write legal documents in a style that is peculiarly time-warped. It is traditional; it is inculcated in law schools; it is used by judges and legislators; it is how they always write. Knowing no other style, they never pause to question it. What incentive is there to do so? All the pressures are the other way.

To illustrate, consider the following extract from a contemporary conveyance. The conveyance is of a parcel of land in a subdivision, and the drafter’s aim is to create an easement to permit owners of other lots in the subdivision to tap into the drains under the land being conveyed. The document comes from England, but it could have come from any country where English is the language of the law:

AND excepting and reserving also in fee simple unto the Company their successors in title owners or owner for the time being of the parts not herein comprised of the said Building Estate the right to connect with any drain or

1Law Com No 162, Land lord and Tenant: Reform of the Law (1987), paras 3.6,3.7. HoffmannJ,in Norwich Union Life Insurance Society v British RailwaysBoard[1987] 2 EGLR1 37 at 138, found the flood of words in a lease so ‘torrential' that he thought there might be ‘some justification' in counsel's argument that he should depart from the normal principle of construction that requires effect to be given to every word in a clause.

drains made or to be made in through or under the said pieces or parcels of land thereby conveyed any drain or drains belonging to any adjoining or adjacent site or sites on the said Building Estate for the purpose of forming one or more general drain or drains or otherwise.

This drafting is the product of habit, not design. Written from scratch, it could have looked more like this:

Reserving in fee simple the right to connect any drain in any part of the rest of the estate with any drain in the conveyed land.

Compared to the earlier version, this reduced version seems disarmingly simple. In fact, though, it assumes a high degree of expertise – so high that few lawyers would be bold enough to attempt it. Let us explore some of the technical knowledge required for the reduced version.

First, since new rights are created (whether to use existing drains or drains to be built), it is sufficient to use ‘reserving’ in place of ‘excepting and reserving’. Most drafters, however, would instinctively play safe with the arcane distinctions between exceptions and reservations (see p. 29) and would retain the conventional ‘excepting and reserving’.

Second, what of the phrase ‘in fee simple’? This term has come down from medieval times. It harks back to the distinctions that English law draws between ownership of the land and ownership of rights in the land. In many jurisdictions that have inherited the English common law, a person cannot in legal theory ‘own’ land in any absolute sense. Only the Crown (now, the State) owns the land; land ‘owners’ in fact merely ‘hold’ the land ‘of [that is, from] the Crown’. But, also in legal theory, a person can own an interest in the land, and the largest possible of these interests is the ‘fee simple’. The word ‘fee’ denotes an interest that can be sold or passed on to descendants; the word ‘simple’ denotes that the interest is not curtailed in the way that some other interests are. But the medieval theory is just that: theory. For all practical purposes we can safely describe a person who owns the fee simple as ‘owning’ the land or (if we wish to retain an echo of the medieval theory) owning the ‘freehold’. No misunderstanding or ambiguity arises from calling a person the ‘owner’ of the land or the owner of the ‘freehold’. So ‘fee simple’ can be discarded in favour of a more modern term. Indeed, this change has statutory blessing. For example, in England and Wales, s 1(2) of the Law of Property Act 1925 provides:

The only interests or charges in or over land which are capable of subsisting or of being conveyed or created at law are –

(a) an easement, right, or privilege in or over land for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute . . .


In the light of this provision, it would be possible to say:

    Reserving for the equivalent of a freehold the right to connect . . .



Indeed, it would be possible to go further, and simply say:

    Reserving the right to connect . . .



Given its context in the conveyance, the parties must have intended the easement to be a perpetual right (as distinct from an easement intended to last for a specified number of years). This intention is implemented without the need for formalistic phrases, under s 60 of the English Law of Property Act 1925, which provides that a ‘conveyance’ of land passes the fee simple, read with s 205 of the same Act, which defines ‘conveyance’ to include every assurance of property ‘or of an interest therein’. In practice, however, simplified usage of this kind is not seen. Lawyers retain the technical ‘in fee simple’, on the illusory justification that it is legally essential. They ignore as irrelevant the mystification it causes to non-lawyers.

The point of this example is that drafting a reservation of an easement requires expertise. So, too, does drafting many other legal documents. Few lawyers risk changes in terminology, for it puts their expertise on the line. It is easier and safer to stick with the familiar.

Conservatism

The common law traditionally looks backwards, seeking authority from things past. A clear example is the principle of stare decisis (to stand by things decided): lawyers defer to past judicial decisions, moving from them only reluctantly.

However, reliance on past judicial decisions – ‘precedents’, as lawyers call them – can curb innovation. The pattern of the present is fixed by reference to the past, giving rise to reluctance to alter the law in general to deal with a problem in particular. This reluctance is reflected in the well-known saying: ‘Hard cases make bad law’. When confronted by a manifest injustice, it is easy to lose sight of principle; there is a fear of setting a precedent for the future.

Of course, some lawyers do not allow themselves to be fettered by precedent. For them, rigid adherence to principle can inhibit justice. Among judges, perhaps the best-known example in modern times is Lord Denning. His 1979 book, The Discipline of Law, contains a chapter called ‘The doctrine of precedent’, which he concludes in his customary clear and forthright style:

Let it not be thought from this discourse that I am against the doctrine of precedent. I am not. It is the foundation of our system of case law. This has evolved by broadening down from precedent to precedent. By standing by previous decisions, we have kept the common law on a good course. All that I am against is its too rigid application – a rigidity which insists that a bad precedent must necessarily be followed. I would treat it as you would a path through the woods. You must follow it certainly so as to reach your end. But you must not let the path become too overgrown. You must cut out the dead wood and trim off the side branches, else you will find yourself lost in thickets and brambles. My plea is simply to keep the path to justice clear of obstructions which would impede it.2

Lord Denning had earlier dealt with a similar theme, but with particular emphasis on lawyers’ language. In his Romanes Lecture at Oxford in 1959, entitled ‘From Precedent to Precedent’, he said:

You will have noticed how progressive the House of Lords has been when the lay peers have had their say, or at any rate, their vote on the decisions. They have insisted on the true principles and have not allowed the conservatism of lawyers to be carried too far. Even more so when we come to the meaning of words. Lawyers are here the most offending souls alive. They will so often stick to the letter and miss the substance. The reason is plain enough. Most of them spend their working lives drafting some kind of document or another – trying to see whether it covers this contingency or that. They dwell upon words until they become mere precisians in the use of them. They would rather be accurate than be clear. They would sooner be long than short. They seek to avoid two meanings, and end – on occasions – by having no meaning. And the worst of it all is that they claim to be the masters of the subject. The meaning of words, they say, is a matter of law for them and not a matter for the ordinary man.3







© Cambridge University Press
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Table of Contents

List of Cases
List of Statutes and Subsidiary Legislation
List of Panels and Tables
Acknowledgements
Introduction 1
1 What Influence the Legal Drafter 5
Familiarity and habit 6
Conservatism 7
Fear of negligence claims 12
Means of production 14
Professional pressures 17
Straining to avoid ambiguity 18
The mixture of languages 19
Payment by length 26
Payment by time 30
The litigious environment 30
2 How Legal Documents are Interpreted 32
What judges have said about traditional legal drafting 32
The principles of legal interpretation 38
The two golden rules of interpretation and drafting 48
Commercial or purposive interpretation 50
Importance of context 51
Modern restatement 53
Dangers in using precedent as an aid to interpretation 57
3 The Move towards Modern English in Legal Drafting 58
The United Kingdom 59
Australia 71
The United States of America 77
Canada 81
What judges have said about plain English 83
4 Some Benefits of Drafting in Plain English 85
The meaning of 'plain English' 85
Increased efficiency 86
Fewer errors 89
Image of the legal profession 90
Marketing 91
Compliance with statutory requirements 91
Conclusion 95
5 What to Avoid when Drafting Modern Documents 96
Wordiness and redundancy 97
Overuse of 'shall' 99
Obscure language 104
Unusual word order 105
Constantly litigated words and phrases 106
Foreign words and phrases 108
Long sense-bites 108
Legalese and jargon 109
Peculiar linguistic conventions 115
Nouns instead of verbs 117
Overuse of the passive 117
Deeming 117
Definitions 118
Overuse of capitals 122
Provisos 125
Conclusion 127
6 How to Draft Modern Documents 129
Modern, standard English 129
Document structure 131
Layout and design 133
Short sense-bites 137
Punctuation 139
Definitions 142
Tables, plans and formulas 144
Notes and examples 149
'Shall' and the modern document 150
Handling generality and vagueness 152
Pronouns 155
Inclusive language 157
Problems with 'and', 'or' 158
Drafting in the present tense 161
Deeds 161
Amending documents 163
Standard forms 164
Conclusion 165
7 Using the Modern Style 166
Lease: how to bring it to an end if the property is damaged Company memorandum of association: subsidiary objects clause 168
Will: attestation clause 169
Will: distribution in unequal shares 170
New land obligations: buyer's restrictive covenant 172
Conclusion 174
Further Reading 175
Index 177
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