LAW / Contract Writing / Drafting Techniques - Macdonald - Australian Encyclopedia of Forms and Precedents

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Plain English writing should be just as comprehensive in its scope as traditional legal writing. The difference between the two forms of legal writing is that it is easier to see that plain English writing is comprehensive.

Consistency

The "golden rule" in all interpretation, whether of private legal documents or of statutes, is that to maintain consistency of meaning throughout a document, the same words are to be used to convey that meaning. Therefore, do not change the words unless you wish to change the meaning. This is just as true for plain English writing as it is for the traditional form of legal writing.

The drafter should take care when deciding whether to use words or phrases that have previously been judicially interpreted. Words or phrases that have been interpreted in case law to have a particular meaning may or may not have that meaning in the different circumstances of a client's matter. Every word or phrase that is judicially interpreted is considered in the narrow context of the particular case. To then ascribe a defined meaning to a word or phrase out of that context may be quite dangerous. It is better to think and reflect on the particular circumstances in which one wishes to use particular words, than to resort to hackneyed phrases in a hope that they may "cover the field".

That said, where a phrase or word has been defined in legislation, and the instrument the lawyer prepares relates in some way to that legislation, then obviously the correct approach is to use the words that are used in that legislation. If the words are changed, then the question arises whether the meaning is changed. This leads to uncertainty.

Clarity

Plain English legal writing must be clear. Readers must be able to understand it. The level of understanding will, of course, depend on the depth of legal knowledge of the target audience, but this qualification does not detract from the central need for clarity.

Care

The need for care applies to the physical appearance of the writing on the page and also to the needs of the reader of that writing. An essential element of plain English is the "look" of the writing -- the consistency of style, font and the page layout. It also includes use of the correct grammar and spelling.

In today's world where mistakes in writing can readily be fixed before they reach the printed page, accurate writing still remains elusive. Because plain English writing makes it easier for the reader to see mistakes, the writer must take great care to eliminate them.

The second limb of this objective is care about the reader. A writer will usually know his or her target audience. An able writer understands and focuses on the reader's needs and, by using plain English, is able to convey necessary information to any reader at a level that reader can understand. While the principles remain the same, the content may change in its technicality depending on the audience. However, it must always be in the back of the drafter's mind that the document might become a key document for third parties, such as where there is an assignment of a lease.

[55] Advantages of plain English for practitioners

[Current to January 2010]

There are a number of benefits that follow the use of plain English.

(a)Plain English improves efficiency and reduces costs.

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It is much easier to read and understand a clearly drafted document than one written in "traditional" legal language. Less time is spent explaining documents to clients. Better communication is the result with demonstrable cost savings to the client.

(b)Plain English assists drafters to achieve greater precision in drafting.

As plain English demands that the document be easy to read and understand, it forces the drafter to be more efficient in the use of language. Legalese obscures the meaning; plain English exposes it.

(c)Plain English improves lawyer-client relationships and satisfies client needs.

Trust is a very important element in the lawyer-client relationship. If the lawyer drafts documents for his or her client in plain English, there is less need for detailed explanation. The client can see what he or she is getting from the lawyer. Plain English is therefore a marketing tool, which can be used by enterprising firms with considerable effect. The firm's image is enhanced and the client base is enlarged. The marketing of a culture of plain English writing and precedent drafting is one area where small firms are able to compete with the larger national firms.

(d)Plain English drafting assists in the administration of justice.

Plain English drafting has recently been commended in the Federal Court. In Re Piccolo, McVeigh (Trustee of the Bankrupt Estate of John Peter Piccolo) v National Australia Bank Ltd 1 Heerey J said:

The plain words of the guarantee and mortgage are conclusive against the appellant's argument. The

guarantee appears to be a standard form document. In contrast to much traditional bank security

documentation, it is clear and comprehensible.

1 Re Piccolo, McVeigh (Trustee of the Bankrupt Estate of John Peter Piccolo) v National Australia Bank Ltd [2000] FCA 187; BC200000511 at [18] , Full Court of the Federal Court, 28 February 2000 . The document in question was one drafted in 1990 by Professor Robert Eagleson as a plain English document. See (2000) 45 Clarity 37.

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How to incorporate plain English principles into drafting

[60] Principles

[Current to January 2010]

There are certain principles that drafters can apply that will improve the quality of their work and meet the criteria of plain English drafting. These principles can be grouped under the headings of:

o modernising the language of the law;

o modernising style and drafting technique; o using gender-neutral language; and

o grammar and punctuation.

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[65] Modernising the language of the law

[Current to January 2010]

Many writers on plain English have lamented the way in which lawyers, in their written communication, have held onto quaint turns of phrase that other writers have discarded. Lawyers do not achieve a greater certainty by writing "null and void" than they do by writing "of no legal effect". So one of the obvious ways to modernise the language of the law is by questioning the suitability of words and phrases that are peculiar to legal drafting.

Make a practice of using less formal words in all legal writing

There are a large number of verbs that lend themselves to traditional legal writing, but which could be replaced by verbs that are similar but more easily understood.

To give some examples:

These words are generally not in common usage and some of those that are, take a different meaning in law from the ordinary meaning.

There are more easily understood words we could use -- instead of "elucidate" why not try "clarify" or "explain"; for "construe" use "interpret". "Determine" is an interesting word. Used in a legal context it may mean "decide" or "end" depending on the context -- "to determine the meaning..." or "... determine the lease...". In ordinary speech it means to work something out, in the sense of coming to a conclusion or resolving a problem.

"Demise" is another of those legal words that has a completely different meaning in the legal context from its ordinary meaning. It is not a word used much in ordinary language. The noun "demise" in law means a lease and "to demise" means to grant a lease. Other related legal meanings are now obsolete. In ordinary speech the noun means death. "Attest" means "witness"; "terminate" could be replaced by "end" or "cancel" depending on the legal context;1 "procure" means "obtain" or "get". "Devise" in ordinary speech means to work out a scheme, or a plan; in law it means to give real property under the terms of a will.

Finally, in this very short list there is "effect". When used as a noun, its meaning is well known. Lawyers use it as a verb in idiosyncratic ways -- "to effect [produce] a settlement", "effect [bring about]a recovery".2

Think about the language of drafting

When drafting documents many lawyers use language which may be better avoided.

And/or

This is bad drafting. Contrary to popular belief, it confuses rather than clarifies meaning. If a drafter needs to use "and/or", the passage needs to be re-drafted. Use "either A or B, or both" instead.

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Make an application

"The licensee must make an application...": This is an example of a nominalisation -- turning the verb "to apply" into a noun "application". It is unnecessary and simply lengthens the sentence; rephrase as "The licensee must apply...".

The lessor's prior written consent

There is no need to write this: instead rephrase the clause as -- "the lessor's written consent ...".

In respect of, in relation to, in accordance with

o"...the instalment, to be calculated in accordance with s 4(3)(i) of the Act." -- "the instalment, to be calculated under s 4(3)(i) of the Act."

There are a number of prepositions or prepositional phrases that may be used instead of the formal language --

Shall, such, the same, said

The debate about the use of "shall" and its potential ambiguity is as old as the plain English movement. In short, there is no need to use "shall" in drafting. Replace it by "must" if the actor is obliged to act, "may" if the actor has discretion and "will" when referring to a future action.

"Such" when it comes before a noun as in "such material" is not as clear in meaning as "this material" or "that material".

"Same" when used as a noun, for instance in "...deliver same to the office" should be replaced by the appropriate pronoun -- "it", "him", "her" or "them".

The only time "said" should be used in any legal writing is as the past tense of the verb "to say". If a drafter finds that "the said..." appears on the page in front of him or her, the passage should be redrafted so that "said" is removed.

Archaic words

There should never be a need to use these words in plain English drafting:

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Word pairs

Some words are often seen in pairs. Examples are:

o covenants and agrees; o full force and effect; o use and enjoy;

o observe and perform; o agree and declare;

o full and sufficient.

While there is no doubt that it may sometimes be necessary to use more than one word to express a right or an obligation, more often than not, the usage is simply a matter of tradition and custom. A plain English drafter looks at the words to see if they need to be used to give the meaning intended to the document before using both.

Superfluous words

There are many phrases in private and public documents that, when they roll out of the printer, are simply bad English. Many are tautological. Their use, apart from adding to verbosity, gives the appearance that the writer did not think about the document before writing. A word of caution needs to be inserted here. Statutes may use phrases that appear unnecessarily formal. For instance "proper notice" as defined in a statute should be written as such in the context of that Act, whereas in another context "notice" may be enough.

Some examples:

o"True copy" is a tautologous phrase. How can a copy be a copy if it is not "true"? An adjective should only be used with the word "copy" when it describes a particular type of copy -- a "certified copy" or a "handwritten copy". "True" adds nothing and should not be used.

o"Terms and conditions" -- is there any occasion when a condition of a contract is not also a term? Use simply "terms".

o"Including but not limited to" -- "but not limited to" is a redundant phrase. "Including" means "not limited to".

o "Lawful authority" is again a tautology. If an authority is not lawful it is not an authority.

Latin

Some Latin phrases such as "de facto" and "per annum" have moved into popular vocabulary, but most Latin words

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Style

Style is the way we write. All writers have an individual style. In legal writing, more often than not, style is constrained by the commercial requirements of the firm for which lawyers work or the technical requirements of statutes. However, there are ways in which these aspects of style can be accommodated and at the same time the needs of the reader can be met. Writing in a "traditional style" carries with it the connotations of writing in long, dense sentences, writing in the future tense and writing in the passive voice. This happens in part because the reader has been forgotten. Simply shortening sentence length, using the present tense and the active voice, when coupled with plain English language, will help a drafter meet the objectives of plain English legal drafting.

Use short sentences where appropriate

A short sentence is generally easier to read and understand than a long one. However, it is not always appropriate to use a short sentence, and too many short sentences used together may not read well. It is sometimes more appropriate to use longer sentences in a technical context. It becomes a question of balance, which is dictated by the context and by the target audience.

Use the active voice

Voice is an attribute of a verb. When we talk about "voice" in grammar, we mean the way the action in a sentence is described. The action may be either active as in "the cat sat on the mat" or passive as in "the mat was sat on by the cat". Use of the passive voice can be just as certain as the active voice. However, the active voice is simpler and clearer, whereas use of the passive voice is often an indication of either uncertainty or deliberate withholding of information.

For example, compare these two statements -- "Tom expressed concern at the idea" (active voice) and "concern was expressed at the idea" (passive voice). The active voice is direct. The doer of the action, Tom, is easily identified and the action is clear -- Tom expressed concern. In contrast, the passive voice is indirect, and it means either that the writer did not know who expressed concern, or did not want to name Tom. In this particular case, the passive voice is uncertain.

While occasional use of the passive voice lends texture to writing, the active voice should be used as much as possible in legal drafting. A simple illustration of the improvement possible is:

"A right of termination was effected by the vendor" [passive voice] compared with "The vendor cancelled the sale" [active voice (and plain English)].

The reader tends to be confused, temporarily at least, by the use of the passive voice although sometimes there may be no alternative to using it if the actor is not known.

Use the present tense

In legislation, the rule is that the law is constantly speaking. In private legal documents the same rule applies, so use the present tense. "If the purchaser does not pay the purchase price ..." is much clearer than "If the purchaser shall not have paid the purchase price ..."

Use an appropriate drafting technique

Drafting technique is a more technical matter. A clear drafting technique is one that incorporates all the aspects of plain English that have been looked at so far in this guide and then adds some simple formatting principles to achieve an easy to understand document.

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In the 19th century George Coode wrote a treatise on legislative drafting: The Language of the Written Law, 2nd ed, 1843. For over one hundred years drafters have been applying his principles of legislative drafting to the drafting of private documents. His style is not generally in favour today. However it is helpful to note the way he divided up the parts of a legal sentence.

He wrote that there are four basic elements of a legal sentence in legislative drafting:

o The case -- the circumstances in which or the occasion on which, the sentence operates. o The condition -- what has to be complied with.

o The legal subject -- the performer.

o The legal action -- what is done by the legal subject.

An appreciation of Coode's principles makes drafting easier in that they provide a foundation from which to start the drafting process. Today there are a number of techniques to choose from. Coode promoted placing the case and the condition at the beginning of the clause, which is now seen less often. One way to approach drafting in documents is to state a general principle first and then qualify it in later subclauses.

A suitable system of notation is also important for clear drafting. Paragraphing using the alpha notation system should not be taken below the level of sub-subparagraphing because it becomes confusing and difficult to follow. The notation must be consistent throughout the document.

When using decimal notation, that notation should not go below 1.1.1 for the same reasons, as in "12.1.1".

[75] Use gender-neutral language

[Current to January 2010]

Gender neutral language should be used in all legal documents unless to do so would be inappropriate, for example when the gender of the parties is known, where the document is necessarily limited in its scope to either men or women.

A common problem relating to gender in legal drafting of formal documents is the use of the masculine third person pronoun -- "he", "him" and "his"-- to include the feminine pronoun. One of the factors influencing this is the provision in many property statutes that use of the masculine gender extends, where appropriate, to the feminine and neuter genders. While the statutes make this clear, when using plain English it is preferable to avoid the need for this legal backstop. It was also the case in earlier times that legal transactions were almost exclusively between men. It is now unacceptable to assume that all people in influential positions are male. Lawyers can reduce the need to use gender-specific language by following some simple guidelines. The drafter should:

ouse gender-specific pronouns only to identify a specific person or gender and not use gender specific language where gender is unclear;

o use gender specific language when drafting documents for a specific client;

oif the document refers to an office, rather than the incumbent of the office, use gender neutral references;

oif it does not change the meaning of the sentence, use plural nouns and pronouns to remove gender distinctions, or use "he and she";

o write the sentence without pronouns;

oif possible, try to avoid conditional structures, generally introduced by "if" or "when", which often require the use of pronouns;

ouse a more descriptive or inclusive word, such as "people" or "worker" instead of "men" or "workman";

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oin an appropriate case, write from a first-person perspective ("I") or second person perspective ("you"). Only the third-person singular pronoun is gender-specific.

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Checking your document

[80] Check the document

[Current to January 2010]

A very common fault with documents that cause disputes in court is that they have blanks in them, particularly in the schedules, which make the whole document meaningless. Thus a lease is said in the operative part to commence on the date specified in Item 3 of the Schedule, which is left blank, thereby possibly invalidating the whole lease. A final check of the document should ensure that this does not occur. Also see the comments in [35] about the need for reflection.

[85] Grammar, spelling and punctuation

[Current to January 2010]

In any writing, the incorrect use of grammar, spelling and punctuation is immediately apparent to an educated reader. There are a number of texts available that are useful for dealing with problems with grammar and punctuation;1 it is not proposed to delve into the intricacies of grammar and punctuation here.

The most important aid to plain English legal drafting, after all the principles in this guide have been followed, is reflection. Allowing time for reflection before finalising a document is the best remedy to protect against errors in grammar, spelling and punctuation. Punctuation is a necessity in drafting as a guard against ambiguity in meaning.

1 R W Burchfield, The New Fowler's Modern English Usage, OUP, Oxford, 1996; M Meehan, and G Tulloch, Grammar for Lawyers, Butterworths, Sydney, 2001; R Macdonald and D Clark-Dickson, Clear and Precise: Writing Skills for Today's Lawyer, 2nd ed, Thomson Custom Publishing, Sydney, 2005.

[90] Interpretation of documents

[Current to January 2010]

The people who are most interested in a document are those who will use it in their personal and business affairs. If they can understand the document, ambiguity is less likely to be a problem. However, it is very difficult to draft a document that eliminates opportunities for disagreement. It is equally difficult to draft a document that covers all possible future events. That being the case, principles of construction of documents have been developed by the common law to resolve ambiguity in the text and resolve disputes about interpretation. Although these principles are often called rules, they are rebuttable. When interpreting a document, one should:

o read the document as a whole;

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o give effect to express provisions over implied provisions;

o give effect to every word and provision, and interpret words and provisions in context;

o give words their plain, ordinary meaning unless they appear to be used in a special or technical sense;

opresume that the writer meant the word to be given its most logical meaning, if more than one meaning is possible;

o presume that the same words appearing in different parts of a document have the same meaning;

otake general words in their usual sense, but be aware of combinations of general and particular words, as the particular words may limit the meaning of the general words;

ointerpret a list of some but not all things in a category as excluding the unspecified items in that category;

oif all else fails, interpret a provision to the detriment of the party who proposed it.

[100]Conclusion

[Current to January 2010]

Words are the tools of lawyers. The clearer the words, the easier it is to communicate effectively. There is a great deal to be said for using plain English. It saves time and money in administration but its greatest attribute is that it makes it easier for the community to have access to justice. Plain English can present the law in a way that is easier for the layperson to understand. By applying the plain English drafting suggestions contained in this guide, lawyers will be promoting these outcomes for themselves and their clients.

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Drafting Examples

[105] Drafting Example No 1: Contract of consultancy

[Current to January 2010]

This Research Grant Agreement shows you some tips and traps for drafting a contract of consultancy in plain English. It is an example of clear document construction using a table of contents and subheadings to divide the agreement into background, operative, and execution parts.

This document has been written for illustration purposes only. It is not intended for use as a precedent.