Better Drafting

Times Online continues with its well-written series on How to Become a Better Lawyer with a new installment on how to improve your written draftingin the context of litigation.

Highlighting just two sections from the article:

A large part of the war occurs in the correspondence. I give the same level of consideration to drafting letters to the other side as I do to writing formal opinions. “Dear Judge” letters, I call them, because even if they’re written before litigation has commenced, they should always be drafted with the eyes of the judge in mind. They’re your opportunity to show not only that your client has behaved reasonably and sensibly from the beginning, but — and this is crucial for getting your costs if you win — that you’ve grasped the essential legal issues early on and have stuck to them.

These are otherwise known as the “self-serving” letters. Especially useful prior to the commencement of litigation, and even prior to lawyers officially coming on record and issuing letters. Lawyers can assist their client in drafting letters on client letterheads to further strengthen the client’s position in view of imminent litigation. A common example which crops up is that parties tend to not put their complaints down in writing. Or too much negotiation and communication take place verbally and over the phone. A “Dear Judge” letter can help flesh out the breaches of a contract or complaints. It can help solidify the exact terms of the contract, some of which may not be in writing, some may be implied, some may have been negotiated verbally.

Some people love to seem so clever. When I was younger I used to think that I was too stupid to understand those documents where you have to read a paragraph several times in order to understand it. But gradually I realised that the problem was that some people simply have a drafting style that is far too complex. Look at the speeches of the great House of Lords judges of our day: beautifully written but in plain, clear English.

This is the common complaint of ‘legalese’. How many times have we seen the use of double negatives cropping up in a sentence we draft?

It cannot be said that the Defendant is not in breach of his obligations….”

One my pet peeves is seeing the overuse of words such as “herewith” or “therein“. There are too many cover letters which use the phrase “We enclose herewith a copy of the affidavit.” It can simply be abbreviated to “We enclose a copy of the affidavit.”

I would highly recommend that all lawyers pick up these books from Bryan A. Garner, The Winning Brief and Legal Writing in Plain English. The author provides very detailed technical tips in improving the way you draft letters and draft written submissions. It is not merely a case of cutting out the legalese, but the books help you to present your arguments across more effectively, how to make use of headers, effective use of punctuation and how to format your points. You then realise that it takes a lot of effort to write better, and you realise the number of bad habits you have picked up.

Just to highlight some examples from the books:

(i) Use the active voice rather than the passive

A simple way to remember this is that being active, you are doing something. The passive indicates something being done to you. An easy test in spotting the passive voice: if you see a be-verb (eg. is, are, was) followed by a past participle (usually a verb ending in –ed), then you have a passive voice construction. So here is an example on how you convert the passive voice into the active one:

passive: This is the legal question which has to be determined by the court.

active: The court will have to determine this legal question.

The advantages of the active voice is that it usually requires fewer words, and it better reflects a chronologically ordered sequence, active: actor -> action -> recipient of action, rather than passive: recipient of action -> action -> actor.

(ii) Turn -ion words into verbs when you can

This is something which I think a lot of us do without thinking. For instance, instead of “someone was in violation of the law”, we can state that “someone has violated the law.”

The advantages of editing -ion words are that you will avoid inert be-verbs by replacing them with action verbs , and you’ll humanise the text by saying who does what.

Let’s apply both examples to the following sentence (which is the way I may have drafted ordinarily):

“A revocation application will normally receive no consideration by the board unless there have been no sales for two consecutive years.”

Switch it around to:

“The board will normally not consider a revocation application unless there have been no sales for two consecutive years.”

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