Embed Size (px)
Citation preview
Some thoughts on…
EFFECTIVE COMMUNICATION and LEGAL
WRITING - “CLEAR THINKING on PAPER”
2
TABLE of CONTENTS
Introduction
SECTION I – GENERAL
1. LEGAL WRITING AND LEGAL DRAFTING
2. THE IMPORTANCE OF COMMUNICATING
3. WHAT IS “EFFECTIVE COMMUNICATION”?
4. KNOW YOUR READER
5. ANOTHER VARIABLE – YOU
6. THREE THINGS BEFORE YOU START TO WRITE
7 PREPARING
8. READABILITY – THE “CORE COMMUNICATION STANDARDS”,
THE Cs
9. PLAIN ENGLISH
10. BE HUMAN and BE POSITIVE
11. POINTS FOR NON NATIVE SPEAKERS
12. WRITE, REVIEW, EDIT and SEND - “CLEAR THINKING on
PAPER”
SECTION II – SPECIFIC
1. SENTENCES
2. SUBJECT / VERB / OBJECT
3. THE GOLDEN RULE
4. LAYOUT
5. CONSISTENCY
6. USE THE CORRECT TONE and LANGUAGE
7. DEFINITIONS
8. ACTIVE or PASSIVE?
9. RELATIVE CLAUSES – DESCRIBING or IDENTIFYING?
10. ARE YOUR “MODIFIERS” MODIFYING THE RIGHT WORDS OR
PHRASES?
11. HIDDEN VERBS
12. ABSTRACT NOUNS
13. DOUBLE NEGATIVES
14. OVER-ELABORATION
15. DOES EVERY WORD EARN ITS PASSAGE?
16. AND FINALLY, CLICHÉ and JARGON
3
INTRODUCTION
I first wrote this paper in May 2009 and based it on two talks I’d recently given to two
very different groups of students - one native speaker, one not. A year later I’ve
revised it a bit after a Drafting Skills course I’ve run for some Dutch lawyers recently.
I’ve tried to make it interesting and informative for people who weren’t at the talks or
on the course. If, as I hope, I hold your interest until the end, please tell me whether
I’ve succeeded (email to [email protected]) and how it could be improved.
SECTION I – GENERAL
1. LEGAL WRITING AND LEGAL DRAFTING.
The difference – in simple terms, drafting is contracts, writing is the rest such as
letters / memos / emails of advice and “everyday” emails.
Although there are of course differences between LW and LD, there are also
a lot of similarities and many of the things I say in relation to LW will also apply to LD
and vice versa.
I’m not going to tell you how to do it. I want to get you thinking and for you to
work it out for yourselves although you may well already know a lot of it. If so, it’s no
bad thing to revise / validate / confirm.
I’m looking at a bit more than LW and LD. I’m also looking at Effective
Communication.
2. THE IMPORTANCE OF COMMUNICATING
Your value as a lawyer is based on your knowledge and experience. As a
lawyer, you’re expected to produce ideas, advice, opinions and recommendations.
But it doesn’t matter how much legal knowledge you have or how good your
ideas are if you don’t communicate.
AS A KNOWLEDGE PROFESSIONAL, A FAILURE TO COMMUNICATE
MEANS FAILURE, FULL STOP.
3. WHAT IS “EFFECTIVE COMMUNICATION”?
It’s fully conveying your meaning to the receiver. Yes, it’s receiver –driven and
there are different types of receiver.
4
Another way of thinking about this is….
4. …...KNOW YOUR READER(S)
4.1 When writing
Lawyer or not? If not, what level of knowledge of the law can you reasonably
assume?
Are you writing just to the addressee or to the addressee and colleagues / a
team?
Whenever I wrote some advice to Mr X of the Legal Dept of a Japanese
multinational, I was very conscious that I was writing not just to Mr X but to
the whole of the team working on the transaction. In addition, there was a
good chance that my advice would be translated into Japanese. I knew that if I
tried to convey some advice with subtle language, Mr X’s English might not
be good enough to spot the subtlety. Even if it was, there was a very good
chance that it would be “lost in translation”.
The lesson from this is that with non native speakers you have to take special
care to write clearly and simply. As I said to each of my 24 trainees before
they started working with Japanese clients, “Speak slowly and clearly, eschew
idiom and words like “eschew” and avoid Latin”. (“Eschew” is a rather old-
fashioned and formal word which many English people don’t know – it means
“to avoid”. I used it deliberately to “make my point”.)
What does your reader want? It’s much more likely that he’ll want some
advice than a detailed description of the law. Often he’ll want you to steer
him in the direction you think is best.
4.2 When drafting
Who are you writing for? Law students are told that “as a general rule you should give
effect to your client’s instructions by ensuring that your document is …. accurate;
complete; precise; clear; contemporary and short and simple.”
I agree with those words which are taken from a book on Legal Writing and Drafting
by Paul Rylance. Although parts of it will probably be too basic for you, it has some
useful hints and I’m not going to repeat what’s in the book.
5
I’ll just make a few observations and set you thinking with a couple of questions.
a) Who’s likely to read your document?
- Your client, of course,
- The lawyers on the other side,
- The other side itself,
- Possibly (although you sincerely hope not) a judge or arbitrator, and
- “History”.
By “history” I mean the people on the commercial side who have to do whatever the
agreement says they have to do. This can be people at the operational level who may
have to look at and “operate” the agreement every day or people who may have to
look at the agreement when a dispute has arisen and work out what it means. (This
may be many years in the future when nobody involved with setting up the deal and
drafting and negotiating the agreement is around. The only thing which the “new”
people have to help them to understand the document is the words themselves).
In addition, I’ll mention a business-related point on “the other side”. I’ve known of a
number of cases where “the other side” has been impressed with a lawyer on a
transaction and instructed that lawyer in the future. If you want “the other side” to
instruct you in the future, impress “the other side” by writing well.
b) “complete”.
Who decides when an agreement is complete? Who decides how far you go with the
“what ifs”? Often it depends on whether the client wants a Rolls Royce agreement or a
Ford.
(As an aside, I did lots of 50/50 joint venture agreements between Japanese and
European companies who were of approximately equal bargaining power and financial
strength. In most cases, a few years later I had to act for the same client in ending the
JV. I always found that the less we had said in the JVA about bringing the JV to an end,
the easier it was to do so on terms satisfactory to both parties.
Putting it another way, because we hadn’t spent hours and pages dealing with “what
ifs”, the parties had to come to an agreement as to termination based on the facts and
position at the time, not what years previously somebody had guessed – almost
certainly wrongly - would be the facts and position. )
6
c) “precise”.
Yes but occasionally you need to be vague. E.g. the parties want to sign tomorrow but
there’s one outstanding point. As long as this point doesn’t go to the heart of the deal,
the parties will often want you to draft something which appears to deal with the
outstanding point but in fact leaves it to be dealt with in the future. People will talk of
this being a “fudge” from the expression “to fudge an issue”.
d) Different approaches for different clients and different types of
documents.
Looking again at the points I make in b) and c), I think they owe a lot to my experience
as a commercial lawyer.
Some clients will want you to deal with all the “what ifs” and to avoid “fudges”. This is
particularly so in the case of financial institutions who in general want their documents
to be as comprehensive and certain as possible.
They want clear answers to certain key questions such as “is the Borrower permitted
to do this?” and “does this amount to an Event of Default?” For this reason, financial
institutions in particular value certainty and are very unlikely to accept “a fudge”.
5. ANOTHER VARIABLE – YOU.
In the same way as your reader can vary, so can you. There are things which
influence you as a writer which will mean that you have changed or will change.
5.1 General
Move towards Plain English. (Of course, this only applies if you started your
career writing “Unplain” English).
Changes in language – words and phrases which are new or become used in
different ways. E.G. ten years ago, we only used focus when talking about
cameras or binoculars. Now, the word is everywhere as is “(in)appropriate”.
This word has become popular as a result of President Clinton using it to
describe what happened (or didn’t happen) between him and Miss Lewinsky.
5.2 Organisational
House style
Internal guidelines
7
5.3 Personal
Your writing style will change, hopefully for the better, with experience.
(Yes, all the time, until you’re as old as the hills.)
You will be influenced by different bosses and you should also try to learn
from good writing you come across.
Following on logically from the two above points, if you don’t do so already,
think of making your own “Bank” of useful words and phrases which you
come across.
6. THREE THINGS BEFORE YOU START TO WRITE
6.1 Is writing the best way to communicate?
Different cultures place different amounts of importance on verbal and written
communication. Taking this into account, by picking up the pen are you making the
right choice?
What about talking – on the phone or face to face which could be a “proper”
meeting or popping in to a colleague’s office?
6.2 Best form?
Having decided that writing is the most effective way of communicating, are you
using the most effective form? Memo, letter, email? Diagram? Information in a
separate document?
6.3 Ready?
Are you sure you’re ready to start the writing process? Are the following clear
in your mind
why you’re writing,
what you want to achieve, and
how you’re going to achieve it?
7 PREPARING
7.1 Think and plan
Your aim should be to make sure that the reader
8
a) can understand your message at the first attempt and without too much effort,
and
b) accepts and acts upon your writing.
To do this you need to be READABLE (see 8 and Section II below). (If the reader
doesn’t understand you on first reading there’s a danger that he’ll give up and / or find
a new lawyer.)
7.2 Identify your points
If you’re answering questions, make sure you understand them and the context
in which they’ve been asked. If you don’t, clarify.
7.3 Word processor – friend or foe?
Since the introduction of word processors, there is a temptation to take
“something I wrote last week or month” and adapt it by means of cutting and pasting.
If done properly, this is fine and can save time.
However, guard against saying too much by including in your letter to B things
which were of interest to A but are of no interest to B.
7.4 Templates and precedents – friend or foe?
When drafting, definitely “friend” but …… don’t become a slave to your
template or precedent. Recognise that sometimes you’ll have to do some “white
paper” drafting.
(In passing, a precedent is a signed agreement. A template is a form of agreement
which you can use to help you produce a first draft. It’ll have gaps and blanks and
places where you as the author have to choose alternatives.
The danger with precedents is that they probably contain concessions and special
features which are a result of negotiation in a particular deal or situation. In most
cases, your first draft shouldn’t include those concessions and special features.)
Let me come back to my point about not being a slave to your template. Imagine your
client has just signed a Heads of Terms to buy some shares and asked you to draft the
Share Purchase Agreement (“SPA”). If your inclination is just to take your firm’s
template SPA and make as few changes as possible you’re probably making a mistake.
Let me explain why by asking some questions.
9
Do you know every line of the template and why it’s there?
Do you know your client’s deal very well? To be able to answer “yes”, the Heads of
Terms will need to be very well written and you’ll need to know your client’s view on
certain other areas to be covered in the SPA.
In my experience, it’s unlikely that the deal documented in the template and the deal
your client has done will be the same.
For this reason, you’ll need to THINK HARD. Once you know your client’s deal very
well, you’ll need to work out what needs to be deleted from the template and what
needs to be added to it.
So far, I’ve been talking about drafting an agreement. However, pretty much all I’ve
said applies just as much when you’re writing a memo of advice. Instead of comparing
your client’s deal with the template SPA, you have to compare the facts in your client’s
request for advice with the facts assumed by the author of the template memo of
advice.
Think of this in terms of your washing machine. You don’t always use the same
programme (the template). You have to know what your clothes (the client) need and
tailor the way you use the washing machine or draft the agreement / advice.
7.5 Structure
Structure your writing logically so that the reader can follow the flow of your
thinking.
Is the conclusion easy to find?
Do you need an Executive Summary?
This applies less when you’re using a template as a good template will give you a good
structure to work with. That’s one of the advantages of a good template.
10
8. READABILITY – THE “CORE COMMUNICATION STANDARDS”,
THE Cs
How many Cs are there and what are they?
It depends who you listen to. I’ve come across twelve although not at the same
time. I’ll list them all even though there is some duplication because some of the Cs
deal with pretty much the same thing.
The handout I gave you referred to “core communication standards”. It’s not
my term and I don’t like it. I prefer to think of most of the Cs as qualities which good
writing will have. A few describe what you achieve if your writing displays most if not
all of the other qualities.
8.1 Clear
It’s easy to understand on first reading.
8.2 Cogent
The reader agrees with what you say and does what you want him to do.
8.3 Coherent
It’s internally consistent (i.e. there are no contradictions of fact or opinion and
it’s written in the same style throughout). It’s easily understandable. You follow “the
Golden Rule”. (If you’re describing the same thing, use the same word. Only change
word when you want to change meaning. There’s more on this in Part 3 of Section II.)
8.4 Cohesive
It flows smoothly. Ideas are presented logically. You make good use of
connecting words and phrases.
8.5 Complete
You tell your reader everything he wants to know but no more.
8.6 Concise
Short words, short sentences, short paragraphs. KISS (keep it short and simple).
Every word needs to be there and there are no extra words.
11
Don’t tell your reader anything he doesn’t need to know. Look at what I say
about editing in Part 12 of this Section.
8.7 Confident
I’m not certain this should be included. It depends on what you’re writing. If
you’re trying to convince somebody of something, confidence can help. In addition, if
you’re giving an opinion and the law is such that you’re able to be confident, clients like
receiving confident opinions. But …. don’t be arrogant and don’t pretend the law’s
clear when it isn’t. However, if it’s not clear, try to solve the client’s problems not just
tell him that he’s got a problem.
8.8 Consistent
In layout, in how you present information (lists, numbering, bullet points etc), in
spelling (British or American), definitely.
You also need to be consistent in “register”. Formal (“contact”) or less formal
(“get in touch”)? Personal (“I / we believe”) or impersonal (“it is believed that…”)?
In passing, although you occasionally need to use the impersonal, most of the time you
should avoid it.
8.9 Contemporary
Avoid old-fashioned words and phrases. However, at the other extreme, don’t
use clichés and jargon. I discuss what these are in Part 16 of Section II.
8.10 Correct
No typos (and remember the limitations of spell-checkers). Grammatically
correct. If you have an “in computer” grammar guru, don’t always accept the changes
suggested. Sometimes, they’re nonsense.
In letters, follow the accepted conventions with addressing the reader and with
salutations and valedictions (“hello” and “goodbye”). I suppose the same applies to
emails if it can be said that accepted conventions exist. After 10-15 years of emails,
I’m not sure they do. The conventions with letters took much longer to become
accepted.
12
8.11 Courteous
Of course. It costs nothing to be courteous and, as my first boss told me,
“Remember you’re in a service industry just like a hairdresser with one important
difference. When the hairdresser puts up the closed sign at 5.30, everybody accepts it.
When you’re charging £60 an hour (then the rate for partners in London), nobody
does”. Clients expect and deserve courtesy.
What about “the other side”? Although some litigation departments may
disagree, you should always be courteous.
(Incidentally, “the other side” is something else my first boss taught me. He said that
you should never give your competitors free publicity by mentioning their names. He
wanted you to say “the other side’s lawyers”, “the bank’s solicitors” etc)
8.12 Commercial
Some of these points in 8 are to do with more than writing and “readability”.
They are what a lawyer should do and how he should behave if he wants to do a good
job and keep his client happy. This is particularly the case with “commercial” which is
shorthand for giving “commercial” advice.
What does this mean? Different people will interpret it differently. To me, it's about
telling the client more than just what the law is and that what the client wants to do is
(or isn’t) legal. It's about telling him how he can do his transaction/business within the
law and in a way which puts him in a strong position if the deal goes wrong. This may
involve changing the originally intended way of doing something (i.e. the structure of
the deal) so that it falls within the law, avoids a legal problem or gives the client a
stronger position.
As for telling the client what the law is, remember that you are almost certainly going
to be more interested in the law than the client. After all, you became a lawyer, the
client didn’t. Indeed, in my experience, it’s true to say that most clients have no
interest in the law EXCEPT when, in the client’s eyes, the law “interferes” with their
business. For this reason,
keep your descriptions and discussions of the law to a minimum,
if you have to advise the client that what he wants to do doesn’t work
from a legal perspective, try to give him not just “the problem” but also
“the solution”, and
on the question of advice (noun, the verb is “to advise”), remember that
your client has come to you for advice. Clients like clear advice resulting
13
in a clear conclusion such as “you can do A or B but there’s a risk of going
to jail if you do C”. Uncertainty in the law may not allow you always to be
so clear but if you can be clear and steer / guide your client in a certain
direction, do so.
9. PLAIN ENGLISH
9.1 Background
Historically, lawyers in England have had a reputation for writing long, complex
sentences. The reasons for this are apparent if you study English legal history and how
the legal system developed in a variety of languages (Latin, Norman French, Old English
etc). Over the last 25 to 30 years, that reputation has become much less deserved.
Indeed, good modern legal writing is so simple as to be unrecognisable from the
“heavy” style of the past.
Why? There are a number of reasons for this. I feel these are the most
important.
1) The Plain English Campaign. This started over 30 years ago. Originally, it
was aimed at government. Some time ago, its influence reached the law. See
http://www.plainenglish.co.uk/
2) The changes in the legal profession. It has become less of a profession
and more of a business, the business of providing legal services. With this change,
lawyers have started to compete for work and, as a result, there has been a growth in
marketing. Being “readable” is one of the most effective marketing tools there is.
3) The demands of clients, many of whom are not native speakers. They do
not read lawyers’ writing for pleasure but because they have to. They want the writing
to be as simple and easy to read as possible.
4) Because of computers and the internet and the increased complexity of
transactions and length of documents, there is just so much more to read these days.
Now –ping! - emails arrive all the time and – ping!- even if the clients have the
inclination to read long, complex advice and documents, often – ping! - they simply
don’t have the time.
In order to be read, what you write has to be easy to read and understand. If it isn’t,
in this tough world the client is likely to press the “DELETE” button and look for
another lawyer.
14
9.2 What is the Plain English Campaign?
9.2.1 In the words of the campaigners - “The fight against gobbledygook”.
This is a dictionary entry for “gobbledygook” - “complicated language, especially in an
official or technical document, that is impossible or difficult to understand - used to
show disapproval. (British English, informal)”.
9.2.2 In the words of Rule 421 (d) of the Securities and Exchange Commission
(SEC):
“Rule 421(d) – The New Plain English Rule
Issuers must use plain English writing principles in the organisation, language,
and design of the front and back cover pages, the summary, and the risk factors section.
Also, when drafting the language in these parts of the prospectus, issuers must
substantially comply with these plain English principles:
short sentences;
definite, concrete everyday language;
active voice;
tabular presentation of complex information;
no legal jargon; and
no multiple negatives.
In designing these and other parts of the prospectus, issuers may include
pictures, logos, charts, graphs, or other design elements so long as the design is not
misleading and the required information is clear.”
9.3 What do leading law firms say about Plain English?.
Here’s an extract from the Drafting Style Guideline of one of the leading firms in
London.
“The firm therefore supports the use of plainer English.
We recognise that moving away from a traditional drafting style will not always be
straightforward. For example, much of our work is extremely complex and it can be
difficult to express legal obligations simply. Many legal phrases have been interpreted by
the courts word for word, so it may not be wise to try to modernise them. As a leading
law firm, we should, however, try in all cases to use plain, readily understood English.”
15
10. BE HUMAN and BE POSITIVE
Even if you’re writing to the Deputy Assistant Manager of Division 3, Operations
Department, Middle Eastern Group, Megacorp, never lose sight of the fact that you’re
writing to an individual. Be human in the language you use and the approach you take.
Think to yourself – “How would I feel if someone wrote this to me? Would I mind?”
As an example, you’ll usually do better to be positive as opposed to negative.
10.1 Compare “You can do this so long as….” and “You can’t do this
unless…”
Which gives the better impression, the impression that you as a lawyer are
working with your client to help him do what he wants to do?
10.2 Consider the following
“Unfortunately, we cannot process piecemeal comments in the manner
requested and at the same time work on the programme documents in the timeframe
you have provided us”.
This is polite but, in essence, negative. The following approach might go down
better with the client.
“We are doing all we can to follow the timetable you’ve set. As you know, we
also need to work on the programme documents. Because of this and because the
timetable is so tight, please send us your comments on the OC in one batch after
you’ve reviewed and agreed them internally and not send them through piecemeal.”
I know the second version is twice as long. However, it’s probably worth
writing the extra words.
11 POINTS for NON NATIVE SPEAKERS
11.1 Nobody likes a “show -off”
A show-off is defined as “someone who always tries to show how clever or
skilled they are so that other people will admire them (often used to show
disapproval)”.
16
I sometimes find that students write sentences which are full of complex
phrases, complicated constructions and obscure words. In addition their sentences
will be too long and they will “hide” verbs and use the passive too much. It’ll be really
difficult to work out what they mean. No matter how good their English is, they’ll
make mistakes.
I advise them to write more simply, to write in a Plain English style.
If they come from a country where there is no equivalent of Plain English, they’ll
often say that they have to write in this complex, old-fashioned way because that’s
how, as lawyers, they’re expected to write in their native tongue. They’ll often go on
to say that it’s what clients expect and that their clients will respect them less (and
perhaps be less inclined to pay them) if they write more simply.
I’m not going to try to tell you how to write in your native tongue. That’s up to
you. However, when you write in English, you should use Plain English. If you do,
you’ll make fewer mistakes and your writing will be much easier to understand.
Back to students who write sentences which are full of complex phrases, complicated
constructions and obscure words. Often, when I ask them what they mean, they tell
me what they mean very successfully by using simple, clear language. I end up advising
them not to be frightened of writing like they talk. i.e. more simply.
11.2 Writer or reader responsible?
According to research carried out by linguistics academics, some languages are
“writer responsible”, others are “reader responsible”. I feel it’s worth mentioning this
research as it may mean that you need to change your style when writing in English.
English is a “writer responsible” language.
“Reader responsible” languages include Chinese, Finnish, German, Korean,
Japanese and (to a certain extent) Spanish. Some languages have features of both.
In a “writer responsible” language, the writer is responsible for explaining
everything to the reader. However, in a “reader responsible” language, the reader
would be insulted if everything was explained to him as the reader expects to have to
make some effort to work out what the writer means.
Think about this. What sort of language is yours? If it’s not a “writer
responsible” language, it is possible that, when writing in English, you will have to make
some changes to your writing style.
17
You may have to use “signposts” more than you do when writing in your native
tongue. You may also have to think more about organising the text more clearly and
use some or all of the following:
Sequencing points. These can be words (first, secondly etc) or the way in
which the writing is laid out.
Connecting ideas with words such as “however”, “therefore”, “on the other
hand” etc.
Showing what you, the writer, are going to do (e.g. a good introductory
sentence or paragraph telling the reader what to expect) AND what you
are doing (“to summarise”, “for example”).
Reviewing and previewing parts of the text e.g. “having dealt with …, I will
now look at …...”
And ………….. some of the things to which I refer elsewhere can be seen as
examples of the “writer responsible” nature of English.
Having said all that, you also have to use your common sense. Consider a) your
first piece of advice to a new client and b) writing to the lawyer on the other side in a
transaction when you’ve already been working together for weeks. Clearly, you will
need fewer “signposts” in b) because they will be unnecessary as a result of the
correspondence which has already passed between you. This is an example of the
“know your reader” rule which I mention above.
12. WRITE, REVIEW, EDIT and SEND – “CLEAR THINKING on
PAPER”
So, at last, you’re ready to start writing.
Some points.
The 80/20 rule. The best writers spend only 20% of the time putting pen to
paper / fingers to keyboard. The rest of the time is spent in the thinking
and planning process so that, when pen is first put to paper, you know
exactly what you’re going to write. You “download” what you’ve decided
to write and produce “clear thinking on paper”, which is a good definition
of effective writing.
When editing, be ruthless.* If a word or phrase adds nothing (or, worse, adds
confusion), delete it.
If time allows, sleep on it.
18
If it’s particularly complex or important or if you think you may “not be
seeing the wood for the trees”, a second pair of eyes?
*(When editing my writing, I think of what I’ve written as a ship which has to be made lighter
to prevent it sinking. In the same way that everything which is unnecessary should be thrown
off the ship to make it lighter, every word which is unnecessary should be deleted to make
your writing easier to read).
SECTION II - SPECIFIC
In this section, I deal mainly with some specific points on readability which I was asked
to cover in a session I did with some lawyers.
I don’t cover all the points you need to keep in mind in order to be “readable”. For
one thing, time doesn’t allow. For another, you already know most if not all of them.
However, I hope that what follows will be a useful reminder.
In the session I did with these lawyers, some of the examples we looked at were fairly
long. I don’t use these here. For some things, I don’t use examples at all. I want you
to find your own examples. When you come across a sentence or passage which
doesn’t read well, try to work out why this is. Often, it’ll be because the writer has
broken one of the rules I mention.
1. SENTENCES
One thought, one sentence. Two thoughts, two sentences. If a sentence is
more than 25 words, it’s probably too long.
2. SUBJECT / VERB / OBJECT
Both in life generally and as lawyers, we’re usually most interested in who’s
doing what - “The Buyer must do this….”, “You must send the notice to …by…”,
“Celebrity X has recovered from her illness”, “Partner Y went mad” etc. Who they’re
doing it to is also interesting but first we need to know who’s doing something and
what he’s doing. (This ties in with what I say below about the active and the passive.)
So ……. keep the classic order of SUBJECT, VERB and, if there is one, OBJECT
with a direct object usually coming before an indirect one.
These are the key words in a sentence. Don’t weaken their effect by making
them difficult to find by putting “other words” between them. Putting it another way,
don’t just follow the S/V/O order, keep them close to each other.
19
(So you can understand why this is necessary, I’ll explain in simple terms why this is so
important in English.
There are certain features which are common in other languages but not in English.
Examples
no masculine, feminine or neuter;
the endings of adjectives don’t change to agree with the nouns to which
they’re referring; and
(except for the “s” in the 3rd person singular) nouns don’t conjugate i.e.
change.
People sometimes think that, because English doesn’t have these features, it’s a simple
language and, in many ways, they’re right. A learner can make a lot of progress quickly
because there’s no need to learn gender, agreements and conjugations. However,
there’s a price to pay and the price is the importance of keeping the S/V/O order.
In languages which have these features, you can tell how words relate to each other
because of these features. E.g. a feminine adjective with a feminine noun, a plural noun
with a verb in the plural etc.
In English, you don’t have these features and how words relate to each other is shown
by the order of the words in the sentence. That’s why it’s so important to maintain the
S/V/O order and to keep the S/V/O close together.)
3. THE GOLDEN RULE
At school, your teacher wanted you to win the Nobel Prize for Literature not
become a lawyer. That’s why when you wrote an essay on “What I did in the summer
holidays”, the teacher wanted you to write “the yellow ball”, “the celestial orb”, “the
giver of daily light”, “Phoebus” etc and not simply “the sun”.
As a lawyer, “all” I have to do is use the same word when I mean the same
thing: the sun, the sun, the sun, the sun - OK change of meaning and thus change of
word – the moon, the moon, the moon etc
So, never write “the bank”, “the debt provider”, “the source of funds”, “the
mortgagee”, “the lender”, “the financial institution” and “the financier” when, all the
time, you mean the same thing. Indeed, if you’re going to refer to it seven times, you
should probably have defined it.
20
Example. “The clients are keen to sign the concession agreement as soon as possible
and it’s currently planned that the documents will be signed on Thursday.”
Are “the concession agreement” and “the documents” the same thing? Because
the writer hasn’t followed the Golden Rule, I don’t know.
4. LAYOUT
There’s a lot to this topic and it’s addressed in your “house style” and internal
guidelines.
I’ll just make one point - don’t crowd your reader with words and
Use
Plenty
Of
White
Space
The
Way
I do.
Which of the two versions of the same clause set out below do you prefer?
You don’t need to read them to see that one is much more “readable”.
If at the end of the year, the Target has not been achieved, the Supplier
shall be entitled, unless the Distributor shows that it cannot be held
responsible for such non-achievement, subject to giving one month’s
notice, at its choice, to terminate this contract, or to cancel the
Distributor’s exclusivity, or to reduce the extent of the Territory; such
right must be exercised in writing not later than two months after the
end of the year in which the Target has not been achieved.
1.1 The Distributor must achieve the Target by the end of the year.
1.2 If the Distributor fails to achieve the Target in accordance with
clause 1.1, the Supplier is entitled to:
1.2.1 terminate this contract; or
21
1.2.2 reduce the Distributor’s Territory; or
1.2.3 cancel the exclusivity granted under this contract.
1.3 The Supplier may exercise the rights set out in clause 1.2.1 - 1.2.3
only by serving one month’s notice to the Distributor within two
months of the end of the year when the Target has not been achieved.
1.4 The provisions of clauses 1.2.1 - 1.2.3 shall not apply if the
Distributor demonstrates that it could not prevent the failure to achieve
the Target.
5. CONSISTENCY
You have to be consistent with lists, clauses and sub-clauses. This is fairly basic
stuff. Here are two examples of how NOT to do it.
5.1 “The following steps must be taken in order to complete the Transfer:
a) deliver a request for approval to the Regional Governor,
b) the sending of a notice to the Central Bank,
c) having received back a letter of consent from the Minority Shareholder,
d) executed the share transfer form,
e) the Purchaser must have signed the Deed of Adherence, and
f) The main customer will have approved the change of control under the
Supply Agreement.”
As you can see, there’s poor drafting in the sense that it’s not clear who is to do
what by when. I.e. where are the subject, verb and object? Leaving this major point
aside, you also have inconsistency in terms of i) what sort of word (noun or verb)
starts each sub-clause and ii) the tense of each sub-clause. This leads to a very
unsatisfactory piece of drafting. If you’re lucky, that’ll be all. If you’re unlucky, there
may be a dispute over what the provision means.
5.2 “1.2 If the Distributor fails to achieve the Target in accordance with clause 1.1,
the Supplier is entitled to:
1.2.1 to terminate the contract; or
1.2.2 reduce the Distributor’s Territory; or
22
1.2.3 the Supplier has the option to cancel the exclusivity granted
under this contract.”
Although the extra words in this clause (the ones I’ve marked in bold) don’t really
change the meaning of the clause, they look unprofessional.
6. USE THE CORRECT TONE and LANGUAGE
I can’t really teach this to you, certainly not in a few lines, without looking at
examples of your writing. I’ll just say that it’s very important that you use the correct
level of politeness and formality.
I’ll mention one specific point. In formal writing, you shouldn’t use “ellipsis” which is
the word used to describe what I’ve marked in yellow in this Part. However, in
anything except formal writing, use ellipsis. In particular, ellipsis will be fine in most
emails.
Native speakers get this right without thinking about it. Many non native speakers
don’t.
7. DEFINITIONS
One of my former colleagues wrote some good advice on the use of definitions
and he’s kindly allowed me to set it out here.
“Remember that definitions are supposed to help the reader. Therefore:
a) do not use definitions that are too abstract, such as, "Company A" or
"Obligor 2". Consider using personalised definitions for parties if their function under
the document is not clear or more than one party has the same function. (e.g. if TPSA
is one of several sellers, use "TPSA" instead of "Third Seller");
b) if the definition appears in only one clause, define it within the clause, not
at the beginning of the document;
c) avoid including obligations within a definition (e.g. "Financial Statements"
means the balance, profit and loss account and cash flow statement of …, which must
always be verified by an authorised signatory of the Borrower). The obligation is better
dealt with in the body of the document;
d) try to avoid definitions that refer to other definitions. This is not always
possible, but (perhaps) the most absurd example of multiple definitions is the definition
23
of "Euro" in some of the firm's finance documents. One must refer to a second
definition, which in turn, refers to a third definition. Arguably, it is not even necessary
to define "Euro"; and
e) think about whether you really need the definition. For example, if the
Minimum Rent is always paid on the 3rd day of the month, there is no need for a
definition of "Minimum Rent Payment Date". It is much quicker and clearer to write
"the 3rd day of the month" each time.”
8. ACTIVE or PASSIVE?
8.1 Active
“Companies borrow money” – active.
“Money is borrowed by companies” – passive.
The active is clearer. It’s how people speak in normal life. It’s two words fewer than
the passive. So …… most of the time, use the active.
When should you use the passive?
8.2 Passive
There are times when the passive can be useful or indeed sensible. Often it’s a matter
of the context and the point you want to emphasise. It can also be useful when you
want to soften a message or avoid criticising somebody directly.
The goods were stolen in transit.
Fine if the point you are making is that the goods have been stolen and you
don’t know or care who stole them. Keeping to the active by saying that “a thief stole
the goods” is going too far in avoiding the passive.
You will pay £X if the contract is terminated before 2012.
Here you don’t want to deal with who terminates the contract. You
deliberately avoid the active and don’t say “if you terminate” because that wouldn’t
cover the situation where “I terminate” or “Party Y terminates”.
Notice must be given to the debtor to make an assignment legal as opposed to equitable.
24
Fine if you’re writing a textbook or learned article. If you’re advising a client,
the active is better – “You must give notice to the debtor as otherwise you won’t be
able to sue him directly”.
The Notice of Drawdown was given on Monday but the Agent didn’t tell the syndicate until
Wednesday by which time it was too late for them to fund.
In the context of a single borrower facility, it’s obvious who gave the N of D.
The point you’re making is when it was given and that the agent did nothing.
The Termination Notice was served this morning and the contract will terminate on June 30th.
The client doesn’t care who served the notice or how it was done. All he cares
about is that it has been done.
An error was made in calculating the amount due.
Less contentious than saying “The incompetent so-called Accounts Dept
showed again that they can’t count.”
The failure in supervision which gave rise to the losses should not be allowed to happen again.
Less contentious than saying “The Board were asleep and should resign.”
In summary, the active should be your normal choice or, to use computer jargon, your
“default position”. The passive can sometimes be useful depending on the point you’re
making and what you want to emphasise.
9. RELATIVE CLAUSES – DESCRIBING or IDENTIFYING?
Look at the difference to meaning a pair of commas can make. When the relative
clause is describing, you can delete it without changing the meaning of the sentence. If
it’s identifying, you can’t.
The shareholder who lives in London has sold. IDENTIFYING … the one who lives in
Birmingham hasn’t sold
The shareholder, who lives in London, has sold. DESCRIBING ... it just tells you
where the shareholder lives.
The staff who were successful received a bonus. IDENTIFYING … the ones who
weren’t successful received no bonus.
The staff, who were successful, received a bonus. DESCRIBING
25
Lectures which are boring put students to sleep. IDENTIFYING … ones which are
interesting don’t.
Lectures, which are boring, put students to sleep. DESCRIBING … The writer thinks
all lectures are boring and put students to sleep.
The defendant who pleaded guilty showed no remorse. IDENTIFYING … what
about the defendant who pleaded “not guilty” but who was found guilty? Did he show
remorse (that he’s sorry for having committed the crime)? We don’t know.
The defendant, who pleaded guilty, showed no remorse. DESCRIBING
10. ARE YOUR “MODIFIERS” MODIFYING THE RIGHT WORDS OR
PHRASES?
We have arranged a conference with Counsel to discuss the implications of your
residence in the UK with Counsel.
If “with Counsel” is at the end of the sentence, it means that the client is going to live with
Counsel!
Being incompetent, we believe a dismissal is justified because you (the court) are not
competent to hear the case / don’t have jurisdiction to hear the case.
As drafted, it means that “we” (the lawyers writing to the court) are incompetent!
A trustee who steals trust funds often cannot be punished.
As drafted, it’s not clear whether “often” refers to the stealing or “cannot be punished”. To
get the first meaning, put “often” after “who…”. To get the second meaning, put it at the
beginning, before “A trustee…”.
You can usually avoid ambiguity by placing the modifier as close as you can to the
word or phrase to which you want it to refer. However, this doesn’t always work
when the modifier is placed between two phrases. Take particular care with
“frequently”, “often”, “only” and “or”.
11. HIDDEN VERBS
Verbs have “zip”. They put life into writing. Don’t hide them.
When you negotiate the contract, we suggest you try to secure the agreement of get
the other side that an obligation to make payment will be imposed you on it if early
termination takes place.
26
The decision saw the reversaled of the rule established in the case of A v B.
In our discussions with the executives of XXX, we were informed told us that...
The parties reached an agreement to make a settlementd OR, depending what you mean,
The parties agreed to settle.
12. ABSTRACT NOUNS
This is almost the same point as the previous one.
Often but not always, abstract nouns end in “ion”. In the same way as you sometimes
need the vagueness of the passive, you sometimes need the vagueness of the abstract
noun. Most of the time you don’t and it’s best to avoid it because it makes writing
“heavier” and less easy to read.
The most common way of hiding a verb is by using an abstract noun. You’ll see
examples in the section on Hidden Verbs and elsewhere.
13. DOUBLE NEGATIVES
I hope the examples below will show that it’s better to avoid double negatives when
possible.
Remember that words with certain prefixes (“non”, “un” and “il”) are also negative
and that other words can operate in a negative way – “fail”, “terminate”, “void”,
“cancel”, “except”, “unless”, “without” and “other than”.
The shareholder may not only transfer shares to persons who are not shareholders
unless if the transfer has been approved.
A shareholder is eligible to participate in the Scheme if he or she is not under 23 years
or older and is not domiciled outside within the United Kingdom
No employees may only take a breaks other than at stated times
Payment of funds shall not be made by the Purchaser shall pay if the Vendors fail to
provide notification of the discharge of the mortgage.
The Operator shall not only be liable to the User in respect of any failure by the
Operator to perform any of the Services unless if the User has given to the Operator
27
written notice of the failure in question and the Operator has failed within a
reasonable time to remedy it.
The Landlord undertakes not only to perform changes, modifyications and repairs of
the Common Areas without the prior written consent of the Tenant, such consent not
to be unreasonably withheld. (Note also how I revealed the hidden verbs “change”,
“modify” and “repair”.)
An issuer may only issue a debenture The whose face value of a debenture should not
exceeds the issuer’s existing capital of the issuer as stated in the its latest certified
balance sheet unless if the [issuer]…………
14. OVER-ELABORATION
It is said that one man’s elaboration is another’s literary style and that what to one
man is pure frill and frippery is to another the apogee of learning and the sine qua non
of any journey by the metaphorical quill across parchment. That may well be but, dear
reader, I beseech you to confine such joyful outpourings of literary creation to your
correspondence with other members of the Dickens Appreciation Society.
When writing as an international lawyer these days you must write short sentences
that your client can understand, follow the subject / verb / object order and, for the
most part, eschew ( i.e. avoid) the passive.
15. DOES EVERY WORD EARN ITS PASSAGE?
That’s for you to judge, a key part of the editing process, something I discuss in Part 12
of Section 1. I’ll just mention one thing which we used to get told off for as young
lawyers - “We enclose herewith the latest draft”.
No – you either “enclose” or “send herewith”. (These days, of course, it’s “attach”
but the same point applies.)
16. AND FINALLY, CLICHÉ and JARGON
A cliché is an idea or phrase that has been used so much that it is no longer effective
or doesn't have any meaning.
I’ll also say a few words about "jargon". It's not the same as a cliché but most people
who teach writing skills advise their students to avoid both cliché and jargon. When it
comes to jargon, I don't always agree with this.
28
“Jargon” means words and expressions used in a particular profession which are
difficult for other people to understand.
You will therefore have things such as technical / scientific / legal / medical etc jargon.
Sometimes, jargon is useful as, within the particular profession, it enables people to
communicate quickly and efficiently.
However, usually people use the term "jargon" to show disapproval. For example,
people will talk disapprovingly of "documents full of legal jargon" or "legalese". This is
because jargon is difficult for ordinary people to understand.
The sort of jargon which I don't like is "management jargon". These are words and
expressions usually first used in business schools. Businessmen then started using
them and, before long, even non-businessmen used them. What do they mean?
Sometimes the meaning is clear or, by virtue of wide use of the term, has become
clear. For example, I imagine you will all understand "upskilling" [to become more
skilful] and "downsizing" [to become smaller, often a euphemism for laying people off /
letting people go / making people redundant].
However, there's a lot of management jargon which is pretty meaningless.
Incidentally, a "euphemism" is a word or phrase which is used to avoid having to clearly
say what you mean. There is much use of euphemism in many areas. Talking about
death, having sex and making people redundant are amongst the areas in which you’ll
find euphemisms most often.
Enjoy using this wonderful language. If you have any comments, good or bad, on this
paper, I’d be delighted to hear them.
Alan December 2010
