Friday, August 1, 2014

Legal Drafting Promotes Bad Writing

Law is all about language. It's not enough to improve your vocabulary and grammar. A lawyer needs to have a flair in weaving words to give meaning. Semantics is everything. A specific word, a single comma, can mean a world of difference between this and that.

But you know what I've come to realise? Legal drafting promotes bad writing. My writing has actually deteriorated since I practiced law. No shit! How can it be? Because legal draftsmanship stems from antiquated rules, templates and jargon. Because law uses language that is opaque, stilted, abstruse, laborious... yes, language like these, which no one ever uses in real life.

Let's take a test, shall we? And as we move along, we'll pick up points where legal drafting goes horribly (and laughably) wrong.

Now, I present you 'Exhibit A' - an all-too-familiar-looking legal letter. Can you draft it better?

That just cost poor Red Riding Hood two hours worth of legal work (at US$ 300 per hour).

1. Stop saying the obvious, omit needless words

Lawyers love to talk. And they also love to write. So much so, they'll even say things that goes without saying, write things that don't need writing.

Perfect example: "We refer to the above matter". Look, the title is already at the top, in BOLD. Everyone can see it. We're not blind. We're not stupid. Seriously? What else can the letter be about? How your dog chase your neighbour's cat round the block last night? The strange stain at the corner of the letter (Is it coffee? Is it tea? Such a mystery!)? WE ALL KNOW WHAT THE LETTER IS ABOUT, OKAY?

Omit needless words, urged William Strunk J. in "Elements Of Style". It's also common sense. If you can express an idea in one sentence, then stick to one sentence. The more words you weave and sentences you spin, the denser your writing becomes. Instead of a garden, you've cultivated a thicket. People look out for flowers. They don't fancy getting lost in the reeds.

2. Drop the passive voice, pick up the active voice

"We are instructed by our clients... It is our client's view that..."

Stop, please stop. It's jarring to read. The writer sounds like he wants to keep some distance between himself and his client. But why? Are you feeling embarrassed by your client's case? The imagery painted is a lawyer whispering into the ear of another lawyer, pointing surreptitiously towards his client and then pointing back to himself while shaking his head, as if to say "It's him, not me."

If you treat your client as a stranger, or worse, a ticking time bomb - hence the distance - then perhaps you should not act for that client. If you write like this all the time, then perhaps you should not be a lawyer. A lawyer is the voice of the client. And no client wants a lawyer to be passive.

Stephen King is famous for his horror stories. He also knows his stuff. In "On Writing", he captures the passive versus active dichotomy perfectly:
"The timid fellow writes The meeting will be held at seven o'clock because that somehow says to him, 'Put it this way and people will believe you really know." Purge this quisling thought! Don't be a muggle! Throw back your shoulders, stick out your chin, and put that meeting in charge! Write The meeting's at seven..."

That's right. Take charge, take control. "Our client rejects... our client believes..." Say it straight, say it proud. Be the active voice.

3. Use simple yet effective language

Big words, long sentences. That's how lawyers like to write, and ought to write. Reason being, you need big words and long sentences to drive a point effectively, cover all the loopholes, avoid ambiguity. Comprehensiveness equals precision.

That's a fallacy. Much of legal language can be stripped down to short words and simple sentences, without sacrificing its essence one bit. The advantage of brevity over density is that brevity makes better writing, and better writing makes better communication. After all, didn't William Shakespeare once said: "Brevity is the soul of wit"?

Now, let's go back to the test. I've managed to cut 45% of the words (from 334 to 181) in 'Exhibit A'. Be honest. Isn't this version, 'Exhibit B', clearer and sharper?

The Force is strong with this one

Points to ponder:
  • Omit irrelevant and inconsequential information (can we all stop picking on the poor postman, please?)  
  • Keep your sentences simple, yet meaningful (Grandma doesn't give a shit whether she's locked inside the closet or buried under the sand, she just wants out!) 
  • Avoid redundancies (repeating "without prejudice" over and again and adding "strictly" in front ain't gonna make a difference, honey)
  • Avoid antiquated expressions ("even date" just sounds odd)
  • Add flair and emotive expressions, where appropriate, to drive a point (Darth Vader, after mercifully releasing a Force choke on some pitiful subordinate, is more likely to say "Be that as it may", rather than "Notwithstanding") 

Still don't believe that legal language can be simplified yet effective?

Oppa Denning Style

Every lawyer knows, and probably loves, Lord Denning. It's not hard to understand why. He spins words like no other. His judgments are bedtime reading material. Put simply, he's got style.

Every lawyer loves Lord Denning

My favourite Lord Denning's judgment - from a literary perspective - is about a man who drives his car into a parking lot. I don't need to explain more to paint you the full picture, because Lord Denning explains it much better than I ever will, even in this brief excerpt:
"None of those cases has any application to a ticket which is issued by an automatic machine. The customer pays his money and gets a ticket. He cannot refuse it. He cannot get his money back. He may protest to the machine, even swear at it. But it will remain unmoved. He is committed beyond recall. He was committed at the very moment when he put his money into the machine. The contract was concluded at that time. It can be translated into offer and acceptance in this way: the offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance takes place when the customer puts his money into the slot. The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money. The customer is bound by those terms as long as they are sufficiently brought to his notice before-hand, but not otherwise. He is not bound by the terms printed on the ticket if they differ from the notice, because the ticket comes too late."  - Thornton v Shoe Lane Parking Ltd. [1971] 2 QB 163

In this judgment, and in many of his other judgments, Lord Denning shows us how legal drafting can be transformed into a beautiful art form. It takes skill, of course. But it also takes the courage to defy conventions.

Legal drafting itself is not bad. It's lawyers who make it bad. And it's up to lawyers to make it better.

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