What is wrong with legal
writing?*
People identify lawyers witb convoluted language almost as mucb as
with wigs. The British National Consumer Council moved to do
something about the language barrier and published a booklet Plain
English/or lawyers. A condensed version of the bookJet appeared in
1985 Law institute Journal 665-669.
"Lawyers have Iwo common failings. One is thaI they do not write
well and the other is that they think they do." (Felsenfeld "The plain
English movement in the United States" (1981-1982) Canadian
Business Law Journal.)
.. Be shorl. be simple. be human." (Sir Ernest Gowers The complele
plain words.)
The truth is that very few lawyers receive any formal instruction in
legal writing. Nor are there many courses specifically for lawyers, in
any I'orm of communication. The trainee solicitor may learn how to
use the precedent books and, unfortunately, is almost certain to get
t he message that you cannot go far wrong if you repeat what has gone
before. The problem only seems to be getting worse as lawyers make
more use of word processors and ot her new technology.
And as Lord Denning said, when presenting the 1982 Plain English
Awards, "Lawyers try to cover every contingency but in so doing
they get lost in obscurity." The wordy, repetitive phrases of legal
documents in 1984 still conjure up a musty Dickensian image and
make them unintelligible to most non-lawyers, the very people who
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are the ultimate users of many of these documents. Consumer
contracts, in particular, are incomprehensible to the consumers who
sign them.
But legal writing does not have to be like this. Enlightened lawyers
have recognized that good professional writing does not read as
though it has been written by a lawyer. There is nothing clever about
sounding clever. The result is usually pompous and obscure.
The result of bad writing may also be professionally calamitous. A
firrn of solicitors was recently ordered to pay 95 000 damages for
giving "disastrous" advice to a client. A badly worded letter from the
solicitors misled a property company client into thinking that a lease
could not be terrninated and that existing tenants could stay on at the
same rent until 1986. Part of t he letter was phrased in "very obscure"
English, according to Mr Justice Jupp; it was not surprising that the
r.;:cipient, who was not a lawyer, misunderstood it.
1t would be foolish to pretend that writing in plain English is easy. It
is usually more difficult to write simply and to the point than it is to
warne. Many lawyers will have some difficulty, at first, in switching
to a plain English style. It is a skill that takes practice and is time-
consuming.
But it can be done. You might, in fact, find you enjoy deleting every
"herewith", "hereunder", "undersigned" and "aforesaid". It is
certainly easier to use personal pronouns like I, we and you.
The rest of these notes outline sorne of the groundrules and pitfalls,
for lawyers aiming for clarity and cornmon sense in their professional
documents.
Starting off
Clear and simple language and design are vital, but there is an earlier
'Reproduced by kind permission of the British National Consumer
Council, Ed
De Rebus, Februarie 1987
stage, before you write a word. If a document such as a consumer
contract is to be easily understood, you must first identify the needs
and abilities of its potential readers.
Remember that
I many people have a reading age below that needed to read a
newspaper;
2 sixty-five per cent of children leave school at the minimum
leaving age; and
3 you are much more familiar with written documents than most
people. It is wrong to assume that your ability to understand a
document will be matched by the typical reader.
At the outset, therefore, try to put yourself in the reader's shoes and
imagine that you know nothing about the document's subject-
matter.
The commitment to produce working documents for their intended
audience must be shared throughout an organization. It is no use if
you, the writer, concentrate on the real needs of the real reader, if
your senior colleagues then reverse your approach.
The only golden rule, then, is to think first - and to keep thinking-
about the needs of your reader. Writing a plain English document
such as a contract then involves three separate steps:
I What should it say~
2 How should it be said~
3 What should it look like?
Our guidelines concentrate largely on the second step - the use of
clear and simple language. But the first and third stages - substance
and design - are equally important.
The only golden rule is to think/irs! - and to keep
thinking- about the needs o/your reader.
What should it say?
The production of an intelligible document calls for some hard
thinking about its content. Contracts have rarely been designed
specifically for their immediate purpose. Most lawyers start with
precedents, then add what is needed for the particular transaction.
This bad habit is now rnade worse by great helpings of turgid phrases
that have been locked into word processors and can be called up at
the touch of a button. Lawyers are better at addition than
subtraction.
So, first, you must decide on the content. Keep to essentials.
Lawyers, businessmen and consumers should be involved in testing
the necessity of every provision. Is this term really necessary? Has it
ever actually been used? Is it a "just in case" term covering a minor
contingency that has not actually happened for the past twenty-five
years? It is often possible to drop complete sections from an existing
document. The search for clarity involves hard substantive analysis
just as much as good writing. The largest bank in the USA, Citibank,
was able to drop over half the contents of its promissory note when it
came to re-write the note in plain English and believes that
simplification could not have been achieved without this editorial
process.
Simplified documents will rarely be true translations of their
69
 predecessors. Some contingencies apply to so few cases that they
could reasonably be omitted. Do not bafne the majority for the sake
of covering a very few, exceptional situations.
Beware, also, of persisting with irrelevant and obsolete provisions .
Each contractual ingredient that is proposed shouJd be tested
against the needs of the transaction. Many terms in traditional
consumer contracts owe their origins to business transactions. Are
t hey needed in a consumer contract?
Think carefully , too, about any information you intend to ask the
reader to fill in. Many people write little, if at all, from day to day so
keep requests for handwritten information to a minimum. Decide
whether you really need the information your document has
traditionally asked for.
Once the substance of the document has been broadly agreed , you
can begin to simplify the language.
How should it be said?
There are no firm rules for good, clear writing. Instinct and common
sense will get rid of much needless repetition and vagueness. George
Orwell Politics and the English language (1946) laid down the basic
principles which will "cover most cases":
"(i) Never use a metaphor. simile or other figure of speech which you
are used to seeing in print.
(ii) Never use a long word where a short one will do.
(iii) If it is possible to cut out a word, always cut it out.
(iv) Never use the passive where you can use the active.
(v) Never use a foreign phrase, a scientific word or ajargon word if you
can think of an everyday English equivalent.
(vi) Break any of these rules sooner than say anything outright
barbarous,"
Orwell's principles apply to legal, as to any, writing. The use of clear
and simple language extends to words, to phrases. to sentences, to
paragraphs and, indeed, to the structure of the entire document.
Apart from aiming to meet the needs of your readers, there are no
firm rules. But here are some guidelines:
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Use a logical order
The structure of a contract, or any other document, should follow the
order that the reader expects and finds natural. For example, people
expect to fill in their name and address at the beginning. Do not move
it elsewhere just for the sake of change. Try to deal with the essence
of the contract as early as possible, leaving less important or
contingency terms for later. But do not hide away unusual or
unexpected terms at the end of the document.
And are all those recitals ("whereas ... " clauses) really necessary?
Use familiar forms of address
People are used to being addressed in the second person (you) . The
third person (he , she. they , the hirer) normally means someone else.
Try to follow this familiar practice with the written word . For
example, "the company will pay the insured the agreed value of',
forces the reader to take two steps. First he has to work out the
meaning of "the insured ". Then that "the insured" refers to him . By
contrast, "we will pay you the agreed value of', does not call for any
deduction and addresses the reader in the way that he expects . The
use of the first person (I, we) for the writer corresponds with daily
life .
Lea~e out surplus words
You can often shorten and clarify a long sentence by using fewer
words.
Compare this: "If money is received from a body of which a legally
aided person is a member by way of financial help towards the costs
of his case, such money must be paid to the law society in addition to
any contribution already required" with this: "You might receive
some money to help you with this case from an organization to which
you belong. If so, you must pay it to the law society on top of anything
you have already been asked to pay."
Clumsy construction often produces unnecessary words. So instead
70
of "a trial by jury was requested by the defendant" , say "the
defendant requested a jury trial " .
Instead of "issues which are vital " try "vital issues".
Instead of "for the reason that" use "because" .
Here is a selection of compound prepositions with simpler
equivalents which can generally be used instead : by means of "by";
as a consequence of " because of'; by virtue of "by, under"; for the
purpose of "to"; for the reason that "because"; in accordance with
"by, under"; in connection with "with, about, concerning"; in favour
of " for"; in order to "to"; in relation to "about , concerning"; in the
event that "if'; in the nature of "like"; on the basis of "by, from";
prior to "before"; subsequent to "after"; with a view to "to"; with
reference to "about, concerning"; with regard to "about,
concerning"; with respect to "on, about".
Once surplus words start to disappear, you may be able to topple
entire phrases: the fact that she had died "her death " ; he was aware
of the fact that "he knew that"; despite the fact that "although, even
though"; because of the fact that "because"; in some instances the
parties can "sometimes the parties can"; in many cases it will be
found "often you will find"; that was an instance in which the court
"there (or here) the court"; in the majority of instances the landlord
has "usually the landlord has"; there is nodoubt but that "doubtless
(no dOUbt)"; until such time as "until".
Sometimes it hurts to be kind. There are many redundant legal
phrases which can be dropped. Why do lawyers say null and void
when either null or void by itselfwould do?Tosome lawyers even null
and void looks naked ; they prefer totally null and void or even totally
null void and of no further force or effect whatsoever. Here are other
examples of common phrases where the words in them have the
same, or nearly the same, meaning: alter or change; cease and desist;
for and during the period; force and effect; full and complete; good
and sufficient; last will and testament; made and entered into; order
and direct; perform and discharge; save and except; true and correct;
undertake and agree; unless and until.
"Attestation clauses" of will, confirming the signatures of the
testator and two witnesses, typically teem with surplus words:
"Signed by the abovenamed as his last will in the presence of us
present at the same time who at his request in his presence and in the
presence of each other have hereunto subscribed our names as
witnesses. "
This is an important part of a will, but it could be said much more
simply: "Signed by the abovenamed in our presence and then by us in
his ."
This very simple form is approved and welcomed by the (English)
Probate Registry.
Use familiar, concrete words
For lawyers, the lure of airy, abstract words is strong. Abstract words
are seductively vague. But they often do little more than shroud your
meaning: "In our present circumstances, the budgetary aspect is a
factor which must be taken into consideration to a greater degree ."
Is he simply saying: "We should think more about money now."?
The written word in working documents should be as close as
possible to the spoken word . Where there is a choice between a
familiar word and one which is less familiar but which demonstrates
t he superior knowledge of the writer -stick to the familiar. The needs
of t he reader must prevail over the cleverness of the wri ter. Aristot Ie
recognized this:
"Style to be good must be clear. Clearness is secured by using the words ...
that are current and ordinary."
So, when tempted by "termination", "expedite", "elucidate" or
"utilize", you might instead try "end", "hurry", "explain" or "use".
There are many words and phrases which are standard non-legal
English but which are not widely known. Try to avoid uncommon
words and phrases like "livelihood", "undertake", "disclose" and so
on . Be careful, also, about ambiguous words and phrases, especially
words that have both an everyday and a technical meaning.
(Determine is an old chestnut which causes difficulties.) If readers
come across an unfamiliar word or phrase which is not understood
they will skip over it or guess. Often, t heir own guess will be wrong. If
De Rebus, Februarie 1987
 you cannot avoid using a technical term, or a difficult word or
phrase, explain them the first time that they appear.
Legalisms - words like "aforementioned", "whereas", "hereafter"
and so on - can be translated into familiar language, or removed
altogether. Words like these may sound vaguely legal, but often add
nothing to the meaning. They baffle and annoy non-lawyers (and can
even irritate in documents addressed exclusively to other lawyers). It
is too easy to claim that a word is crucial when it is merely traditional.
You will find that the more you understand the subject-matter, the
better you will be able to judge what is not needed.
Remember that long words are not necessarily more difficult to
understand than short ones. "Development" or "rhinoceros", for
example, are easier for most readers than "tort" or "lien". Here are
some examples of uncommon words and phrases and suggested
alternatives: accommodation "home"; acquire "get"; adjacent to
"next to"; beneficial "useful, helpful"; the contents thereof "its
contents"; delete "cross out"; demised "rented"; determine "end.
decide"; disclose "tell, show"; emoluments "earnings, income";
expeditiously "as soon as possible, quickly"; implement "carry out";
provided that "if, as long as"; remuneration "pay"; submit "send";
transpire "happen".
H'~re is a short clause from a credit sale agreement with three words
in italics used in an unfamiliar way: "The properly in the goods
delivered pursuant to this agreement shall pass to the buyer on
dtlivery. "
This could have said: "You will own the goods as soon as they are
delivered to you."
Short sentences
The long sentence is the trademark of the English-speaking lawyer.
The reader is presented with one enormous package containing all
the main themes, supporting reasons, details, qualifications,
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exceptions and conclusions.
Long sentences, usually carrying several ideas, are hard to
understand. It is too easy to get lost halfway - or quarterway -
through. The grammar will usually have to be complex and
unfamiliar. Sentence structure can cause as much perplexity as
strange words. The reader often does not know what the sentence is
about until well towards the end. The memory is strained. By the
time the reader arrives, breathless, at the crucial part, he has
forgotten the subject and verb.
The remedy for long sentences is simple:
I Split them into several short sentences.
2 Where possible, use each sentence for one or, at most, two main
ideas.
3 Put the main clause early, and preferably first, in a sentence.
4 Try to keep sentence length below twenty-five words.
A horror - a single sentence of 147 words!
A lot of commas often indicates overcomplexity. But, of course,
these suggestions are not hard and fast rules. Simply remember,
when you write a long sentence, to pause and decide whether it really
is necessary.
Here is a horror - a single sentence of 147 words, originally in minute
print, from a standard-form contract widely used for domestic
furniture removal:
"Arbitration - if any dispute, difference or question shall at any time
hereafter arise between the parties hereto or their respective
representatives in respect of any claim or counterclaim put forward on the
part of the customer against the contractor in connection with or arising
out of this contract or any extension thereof the claim shall be referred to
the arbitration of a single arbitrator to be agreed by the parties or failing
agreement to an abitrator, being a barrister of not less than ten years
calling to be appointed at the request of either party by the president for
the time being of t he British Association of Removers Limited according
to the laws for the lime being governing the resolution of disputes by
arbitration in the state or country within which the contractor's office
concerned with the making of this contract shall be deemed to have been
made."
Three sentences, while not an exact translation, make a big
difference:
"I f there is a dispute arising from t his agreement, the two sides will refer it
to an agreed arbitrator. If they cannot agree on one, the president of the
British Association of Removers at the time of the dispute will appoint a
barrister to arbitrate. The arbitration will take place in accordance with
the law of the country where the contract is made (as set out in clause
22)."
Active verbs
The law is not abstract. It is about the real world where people live,
move and do things to and with other people. Verbs express this life
and motion, but verbs are simple creatures which lose much of their
vitality when they get dressed up into nouns or adjectives. Lawyers
seldom act - they take action; they do not assume - they make
assumptions; they would rather draw conclusions than conclude.
Statements and objections abound.
These two sentences say the same thing, but the second uses verbs to
describe the action while the first uses nouns derived from those
verbs. (The second sentence is still not, of course, ideal from a plain
English point of view.)
"The conclusion which has been reached by my client is that if there is a
continuation of your action in t his manner, the termination of the contract
will be taken into serious consideration by her."
"My client has concluded that if you continue to act in this way, she will
seriously consider terminating the contract."
Those sentences also demonstrate the disadvantages of the passive
71
 voice. It usually takes more words. For example: the ruling was made
by the judge that "the judge ruled that"; our interpretation is
supported by the legislative history "the legislative history supports
our interpretation"; the trust was intended by the settlor to "the
settlor intended the trust to".
The passive voice also suffers from its detached abstraction. It often
leaves unclear who is doing what to whom. Here is a typical example:
"It is feared that adequate steps will not be taken to mitigate the
damage which is being caused."
The active voice usually makes your writing stronger, shorter and
clearer. Next time instead of "This agreement may be terminated by
either party by thirty days' notice being given to the other", try this:
"Either party may terminate this agreement by giving thirty days'
notice to the other."
Arrange words carefully
Most of your sentences should follow the normal word order - first
the subject, then the verb and then any further information. If you
want to emphasize a word, the strongest place for it is at t he end of a
sentence. The next strongest place is at the beginning.
It is not sensible for lawyers to test the agility of their readers by
making them leap wide gaps between the subject and the
information they want to give about it.
Try not to interrupt a flow of words with distracting qualifications
and other detours. Qualifications and points of detail that have to go
in should usually be tackled separately. The best remedy for
excessive gaps is usually separate sentences. Sometimes it may be
possible to reduce gaps by putting the intervening words at the
beginning or end of the sentence:
1 This agreement, unless termination has occurred at an earlier
date, shall expire on I November 1983: "Unless it is terminated
earlier, this agreement will expire on I November 1983."
2 The defendant, in addition to have to pay damages, may be
liable for court fees and the plaintiffs costs: "The defendant may
have to pay court fees and the plaintifrs costs, in addition to
damages."
The problem is the same when the gap comes between the verb and
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the object. Here, there is a seventeen-word gap between the verb
(gives) and the direct object (a cause of action): "The proposed
statute gives to any person who suffers loss by reason of
discrimination based on race, religion or sex a cause of action for
damages."
One remedy is to make two sentences. Another is to move the
intervening words to the end of the sentence: "The proposed statute
gives a cause of action for damages to any person who suffers loss by
reason of discrimination based on race. religion or sex."
Avoid quirks
People usually read legal material because they have to, not because
they want to. So their attention is, in any case, liable to wander. I f you
distract them even more with fanciful writing - or language quirks-
you may lose their attention altogether.
A language quirk is any small distraction which draws your reader's
attention away from your meaning. "Elegant variation", for
example, is often practised by those whose English teachers told
them never to use the same word twice in one sentence. At worst, it
can be absurd. "The first case was settled for 2 000 and the second
When a gamble is not a gamble: the Pepsi-Cola case (Continued from page 68)
It is clear that the Pepsi decision has had far-reaching effects in the
marketplace, hence the large number of similar promotions which
currently abound. At the time of writing, the first cracks in the Pepsi
judgment are emerging: in S v Mbonambi 19863 SA 839 (N) Wilson
J says he disagrees with the judgments in the Pepsi and Boardman
cases in so far as they appear to indicate that something in the nature
of a specific stake is required.
72
piece of litigation was disposed of ou t of court for I 000, whilst the
price of the amicable agreement reached in the third action was
5000."
Elegant variation is particularly troublesome in formal documents.
The reader is entitled to assume that a change of words is intended to
signal a change in meaning. The reader can easily be puzzled by a
phrase such as: "The use fee shall be 10% of the licensee's gross
income. Licence payments shall be made on or before the fil-teenth
day of each month."
Are licence payments something different from the use fee 1 If so,
what are they and when must the use fee be paid?
Do not be afraid to repeat a word if it is the right word and if
repeating it wiil avoid confusion. If repetition sounds clumsy, try two
sentences or restructure the original one.
The salesmen maliciously took advantage of people with little money
or limited intelligence. "The salesmen exploited the poor and
ignorant. "
Where adjectives or adverbs are needed, make sure that they fit. Do
not use a fiery one and then douse it with water: for instance. rather
catastrophic, somewhat terrified, or slightly hysterical.
And do not choose a flaccid term and then try to prop it up with words
like very, much, or quite:
1 She was very. very angry: "She was enraged."
2 There was much confusion in the debate: "The debate was
chaotic."
There are many ot her examples of su perfluous adjectives or adverbs:
"real facts". "honest truth", "dead murder victim", "completely
renounced" and "actual age',
What should it look like?
We come now to the third stage in the preparation of intelligible
documents - good design. Clarity of language must be accompanied
by clarity of design and organization. Simple language is not much
use if it appears in tiny print or is cramped on the page. Avoid designs
which are unnecessarily complicated.
You may need to take specialist skilled advice and assistance. but
here are some suggestions:
1 Use clear type in legible sizes.
2 Use headings liberally. They should accurately and helpfully
describe the document and its different sections.
3 Leave adequate spaces between sections. This will allow
headings to stand out and act as reference points for the eye.
4 Where possible, phrase questions so as to minimize the amount
of writing needed to respond. Ask people to give their answers by
ticking yes/no boxes.
5 Leave plenty of space where information does have to be filled in
in handwriting. People without good writing skills generally need
more space than you do.
6 Do not use long lines of type, It is difficult for the eye to follow
them,
7 Do not use "justified" type - where the lines of text end at
exactly the same place in the right-hand margin. It is harder and
costlier to correct. is often more expensive to produce and may be
harder to read.
8 Avoid too many capital leiters in a sequence. They are difficult
to read. Reading is based, in part, on the recognition of word shapes,
not on the individual letters. To emphasize a word or phrase, use bold
type - but sparingly. 0
Footnotes
I EM Burchell and P M A Hunt vol I General principals of criminal law
2 ed (1983).
2 See definition of "subscription".
J See Davies v Cape Times Umiled 1915 WLD 82: Rex v CO/lerill 1927
CPD 48; and Rex v Morrison 1914 TPD 329. 0
De Rebus, Februarie 1987