Legal week, Lucid language

Author : em-admin

Posted : 30 / 10 / 08

Plain language need not mean dumbing down. Clear, well-drafted advice makes things easier for clients, raising the chance that they will call on you more frequently.

The moment you become overly reliant on a thesaurus or get carried away with archaic terms is the moment you risk losing your reader. This is not to say you cannot use technical language or clarify your points, it just means thinking of your reader at all times and making sure you communicate difficult or complex topics clearly. It is all about readability, not just the vocabulary you use. That means organising the structure so that it is logical and straightforward.

Complex legal principles are not always easy to convey, but easy reading doesn’t necessarily have to mean extra-hard writing. The truth is that legal documents do not have to be written in language which is full of jargon and difficult for the average person to understand. The tide is turning, as law firms such as Nabarro, SJ Berwin, DLA Piper and CMS Cameron McKenna recognise the value of better writing skills and commission specialist training programmes. In fact, Nabarro recently launched a high-profile, firm-wide campaign ”” ‘Clarity Matters’ ”” to simplify the way its lawyers write.

Here are some of the most common errors made by lawyers when writing ”” and tips on remedying them.

Mistake: adding in unnecessary words, such as therein, herein, forthwith and aforesaid

Poor prose: I herein enclose the contract for the aforesaid book, as requested.
Better prose: I enclose the contract for the book, as requested.

The ‘herein’ and ‘aforesaid’ are unnecessary and make the sentence sound archaic and stilted.

Mistake: verbosity

Poor prose: Pursuant to the recent communication of the improper proposal that the information be falsified, such assertion could only have been ascertained or appreciated from a full, detailed review of the meeting notes.
Better prose: The claim that the information was falsified is wrong. This would have been clear if a detailed review of the meeting notes had been conducted.

The author of the first example is more than a little disgruntled. But the message is hidden behind too much flowery language. The second suggestion gets to the heart of the problem and makes the meaning clear. Note that the passive voice is used in the second example to soften the blow. You don’t always have to use the active voice, just make sure that if you do use it, you do so consciously.

Mistake: using nouns instead of verbs

Poor prose: In the case of X, we believe the company is in possession of a structure that would be acceptable for securitisation.
Better prose: X possesses a structure that is acceptable for securitisation.

Possession is a noun, whereas ‘possesses’ is a verb. Verbs create action in the sentence which moves the pace along and helps keep the reader’s interest. ‘We believe’ has also been taken out as the sentence already asserts the writer’s belief.

Mistake: overuse of the passive voice

Poor prose: The role played by the client in the project has been investigated.
Better prose: X investigated the client’s role in the project.

The first example doesn’t tell us who investigated the role, creating a very impersonal tone. Using the active voice makes the writing easier to read. It also forces you to say who or what is taking the action, as the second example shows, making the sentence more specific and connecting the reader to what is happening. Of course, the passive voice can be useful where the intention is to obfuscate or create distance.

Mistake: long, complex sentences and paragraphs

Poor prose: As per earlier correspondence, I have attached the quotes that we have obtained from three firms (a) Hooke, Lyne and Siennker (contacts David Hooke and Franz Siennker) (This is separate to the law firm but forms part of the same group, and also has a different administrative team) (b) Edna Clouds (contacts Clare Edna and Michael Clouds ”” I note you have already met Michael) and (c) Maybey Knott who are a limited company (the contacts there are Noel Maybey and James Knott).
Better prose: Following our previous correspondence, I have attached quotes from three firms. The contacts for Hooke, Lyne and Siennker are David Hooke and Franz Siennker. Please note that this firm has a separate administration team, even though it is part of the same group. Edna Clouds’ contacts are Clare Edna and Michael Clouds, who you already know. Maybey Knott Ltd’s contacts are Noel Maybey and James Knott.

When a sentence runs past three lines, you know you are in trouble. In the first example, there are also too many brackets and too much information squeezed in one space, which can become confusing. The second example takes out all the brackets and sets everything out much more clearly.

Long sentences are often the result of fuzzy thinking. So, the first step is to ensure that you think before you write. That means never using the writing process to clarify your thoughts. Consider the main subject areas and issues you need to cover first. Questions are a useful prompt. Then use each heading to brainstorm all the points related to that subject. Knowing what you want to say before you write gives you a fighting chance of building a logical structure.

Dealing with technical information

The first step is to think about your audience and avoid a ‘one size fits all’ approach. Use technical language in order to be precise. At each stage pick the best word to communicate your ideas and thoughts. The benchmark test is to think about whether another lawyer or layperson (depending on your audience) would be able to understand instantly what you mean. If not, it is time to go back to the computer and tweak it. It can also help if you try not to think of it as legal writing, but merely writing, which simply aims to communicate effectively.

Punchy prose saves time and money and is far more likely to persuade the reader. It may mean a bit of extra effort, but it could well pay dividends.

Robert Ashton is chief executive of Emphasis, the specialist business writing trainers.