How to become fluent in Legalese

1. How to become fluent in Legalese A typical graduate’s journey

2. Step 1 - Read the law 1. Read statutes, particularly old ones For example try section 2 of the Slave Trade Act 1824:  . . . It shall not be lawful . . . for any persons to deal or trade in, purchase, sell, barter, or transfer, or to contract for the dealing or trading in, purchase, sale, barter, or transfer of slaves, or persons intended to be dealt with as slaves; or to carry away, or remove, or to contract for the carrying away or removing of slaves or other persons, as or in order to their being dealt with as slaves; or to import or bring, or to contract for the importing or bringing into any place whatsoever slaves or other persons, as or in order to their being dealt with as slaves; or to ship, tranship, embark, receive, detain, or confine

3. on board, or to contract for the shipping, transhipping, embarking, receiving, detaining, or confining on board of any ship, vessel, or boat, slaves or other persons, for the purpose of their being carried away or removed, as or in order to their being dealt with as slaves, or to ship, tranship, embark, receive, detain, or confine on board, or to contract for the shipping, transhipping, embarking, receiving, detaining, or confining on board of any ship, vessel, or boat, slaves or other persons, for the purpose of their being imported or brought into any place whatsoever as or in order to their being dealt with as slaves; or to fit out, man, navigate, equip, despatch, use, employ, let, or take to freight or on hire, or to contract for the fitting out, manning, navigating, equipping, despatching, using, employing, letting, or taking to freight or on hire, any ship, vessel, or boat, in order to accomplish any of the objects, or the contracts in relation to the objects, which objects and contracts have

4. herein-before been declared unlawful; or to lend or advance, or become security for the loan or advance, or to contract for the lending or advancing, or becoming security for the loan or advance of money, goods, or effects employed or to be employed in accomplishing any of the objects, or the contracts in relation to the objects, which objects and contracts have herein-before been declared unlawful; or to become guarantee or security, or to contract for the becoming guarantee or security, for agents employed or to be employed in accomplishing any of the objects, or the contracts in relation to the objects, which objects and contracts have herein-before been declared unlawful; or in any other manner to engage or to contract to engage directly or indirectly therein as a partner, agent, or otherwise; or to ship, tranship, lade, receive, or put on board, or to contract, for the shipping, transhipping, lading, receiving, or putting on board of any

5. ship, vessel, or boat, money, goods, or effects to be employed in accomplishing any of the objects, or the contracts in relation to the objects, which objects and contracts have herein-before been declared unlawful; or to take the charge or command, or to navigate or enter and embark on board, or to contract for the taking the charge or command, or for the navigating or entering and embarking on board of any ship, vessel, or boat, as captain, master, mate, petty officer, surgeon, supercargo, seaman, marine, or servant, or in any other capacity, knowing that such ship, vessel, or boat is actually employed, or is in the same voyage, or upon the same occasion, in respect of which they shall so take the charge or command, or navigate or enter and embark, or contract so to do as aforesaid, intended to be employed in accomplishing any of the objects, or the contracts in relation to the objects, which objects and contracts have herein-before been declared unlawful; or to insure or to

6. contract for the insuring of any slaves, or any property, or other subject matter, engaged or employed or intended to be engaged or employed in accomplishing any of the objects, or the contracts in relation to the objects, which objects and contracts have herein-before been declared unlawful. • 668 words in a single sentence. • (Or try section 10 – 684 words!)

7. 2. Read legal documents • For example a lease: • The following was the subject of the decision of the action in Inglewood Investment Co Ltd v Forestry Commission [1989] 1 All ER 1. • The question that arose was whether the successors in title to the Appointers had the exclusive right to shoot deer on the land on question.

8. Subject to the provisions of the Ground Game Act 1880 the Ground Game (Amendment) Act 1906 and the Forestry Act 1919 all game woodcocks snipe and other wild fowl hares rabbits and fish with the exclusive right (but subject as aforesaid) for the Appointers and all persons authorised by them at all times of preserving the same (except rabbits) and of hunting shooting fishing coursing and sporting over and on the appointed hereditaments and premises Provided always that as regards rabbits the Commission shall have an equal right with the Appointers to kill the same and the Appointers shall not keep or permit to be kept any rabbit warren in or in the immediate vicinity of the appointed lands.

9. For example a contract term: • The following was drafted by a lawyer at a City Firm within the last 5 years: • To indemnify and keep safe and harmless the Transferee against any damage howsoever caused directly or indirectly by the Transferor, its servants, employees, agents or any other persons authorised by it to the Railway or structure crash barriers or other protective barriers all measures against any damage by breach of any of the terms of this Transfer or otherwise and in case such damage is caused to the Transferee, its servants agents, visitors or invitees to make good the same upon an indemnity basis to the Transferee and to take all reasonable steps from the date hereof to keep safe and harmless the Railway, and structure from time to time.

10. Step 2 – Associate with lawyers Lawyers don’t talk Legalese in everyday life, but as soon as they start writing to each other, or to clients, they slip into it. You will pick it up very quickly. It will make you feel more like a lawyer. Your writing will start to become more formal. In your effort to become more lawyer-like, the clarity of your writing will degenerate. You will probably begin every letter with the words “Further to…” …and end it with “If I can be of any further assistance please do not hesitate to contact me and I will be more than happy to…”

11. You will start to write words like these: • “The above” instead of “this” • “Please find enclosed” instead of “I enclose” • “A further” instead of “another” • “Omitted to” instead of “did not” • “I am in receipt of” instead of “I have received” • “Be of assistance” instead of “help” • “Documentation” instead of “documents” • “Forthcoming” instead of “next” • “In the event that” instead of “if” • “In the light of the fact that” instead of “since” • “Make payment for” instead of “pay” • “Provide a response” instead of “reply”

12. Step 3 – Join a law firm You will find that Legalese is what sounds natural to those around you. You will perfect your use of it within a few weeks. It will not be corrected by your manager or partner because it sounds perfectly normal to them. Any attempt to write Plain English will be corrected into Legalese by your manager or partner, who will say it sounds too informal, or not businesslike enough. Your use of this new language will be praised and reinforced. Your letters will contain sentences like these (all real):

13. Following a conversation between our John Smith and your Peter Jones we are of the understanding that your clients’ documents for copying will be sent to the printers today. We also confirm that we are of the understanding that you have now received the A1 documents that contained colour markings. • I should be further grateful if you would telephone me in relation to amendments to the Agreement for Lease, Lease, Licence for Alterations and side letter raised by the Tenant’s solicitors, which I have now received, in order to discuss the same. • You have failed to engage yourself in any meaningful negotiation with us.

14. As discussed yesterday, I look forward to receiving a copy of the executed trade confirmation on this so that we can progress with this. • We reserve our rights with regard to objecting to your ability to place reliance on these documents as evidence at trial. • Regarding copies of GR’s papers which you have requested, without prejudice to the position set out in our letter of 11 November, in particular that such documents do not fall within the Claimant’s control, we confirm that we will disclose to you by 7 February any undisclosed documents provided to us in so far as they are relevant to the categories set out in your letter of 29 November 2002.

15. Note how, in your attempt to write Legalese, you have started to write note only obscure English, but bad English as well. • This is a common result of slipping into Legalese. • You have started to use other people’s words rather than your own. • You have stopped giving much thought to what you are actually saying, and just allowed familiar words to suggest themselves to you. • You sound pompous, and your writing is obscure, dense, and often ungrammatical. • Congratulations! You have mastered Legalese and are now qualified to teach it to your juniors.

16. How to cure Legalese Yes, it can be done!

17. Step 1 – Understand Legalese 1. Why did Legalese originate? It has two qualities which are much prized by lawyers: It is very precise It is very concise Except, of course, when it is bad Legalese. It also carries the tone of formality which is sometimes necessary in legal writing. In the old days there were no photocopiers. Documents had to be drafted in such a way that they would retain their meaning if the clerk missed out or misplaced a punctuation mark.

18. Can punctuation make such a difference? • Yes! Consider the following sentences: • Both the prince’s wives are called Camilla. • Both the princes’ wives are called Camilla. • He discovered that the mayor, his brother and his wife were having an affair. • He discovered that the mayor, his brother, and his wife were having an affair. • The vicar’s wife has cast off clothing of all descriptions and now invites offers. • The vicar’s wife has cast-off clothing of all descriptions and now invites offers.

19. 2. Why does Legalese get perpetuated? • Habit and convention. • Lawyers find it safer to follow a tried and trusted precedent rather than create a new one, which may have unforeseen loopholes. • It is difficult to justify to a client the extra expense of redrafting a document in Plain English when it will serve its purpose in its existing form. • And yet – • Adapting an old-fashioned precedent without fully understanding it is far more likely to produce an unintended ambiguity or a loophole than starting afresh. • The expense of redrafting a document may be far outweighed by the expense of resolving a dispute over the meaning of it.

20. 3. Is it possible to write good Legalese? • Actually, yes. Consider the following: • Dear Prime Minister • I must express in the strongest possible terms my profound opposition to the newly instituted practice which imposes severe and intolerable restrictions on the ingress and egress of senior members of the hierarchy and will, in all probability, should the current deplorable innovation be perpetuated, precipitate a progressive constriction of the channels of communication, culminating in a condition of organisational atrophy and administrative paralysis which will render effectively impossible the coherent and coordinated discharge of the functions of government within Her Majesty’s United Kingdom of Great Britain and Northern Ireland. • Your obedient and humble servant, • Humphrey Appleby • Reproduced with kind permission of BBC Enterprises Ltd, London.

21. Step 2 – Look at your own writing Learn to examine your own writing critically. Recognise wherever you have strayed from Plain English. Don’t be ashamed of that. WE ALL DO IT! Ask yourself whether you wrote it because you chose to, or because it more or less wrote itself. Ask yourself where some of the obscure or dense words or phrases you have used came from. And above all, LEARN TO LAUGH at the Legalese you sometimes come up with. Then start to translate what you have written into Plain English.

22. Step 3 – Practise Plain English Learn to enjoy Plain English. Apply the fundamental qualities of Legalese – precision and conciseness – to your writing. Remember that most lawyers think they are writing Plain English when they are not. Discover the beauty and elegance of simplicity. Don’t think Plain English is simplistic – it isn’t! Realise that it can be harder to write with precision in Plain English than in Legalese. Once you have made this mental adjustment, you will find it becomes increasingly easy, and more satisfying.

23. When you are stuck – • This is a common problem. You know that what you have just written isn’t Plain English, but there’s a block in your head that stops you writing anything different or simpler. • Try this: • Look away from your desk or computer. • Imagine the person you are writing to sitting opposite you, or pick up an imaginary phone to that person. • Say whatever it is you are trying to say. • It will come out much more naturally and probably clearer. • Now write it that way. • This almost always works.

24. Step 4 - Adopt a firm-wide policy Plain English is unlikely to be achieved within a firm if only a few individuals are adopting it, while others resist. A concerted effort is required. It is a mistake to decide to roll out a programme of training starting at the bottom and moving upwards. You need to start with the senior partners and roll down. Make the programme enjoyable and worthwhile. Apply the same principles when amending or correcting others’ writing. Keep on laughing, at your own and each other’s Legalese. Don’t be ashamed or offended.

25. Some Practice Exercises Just for fun!

26. Exercise 1 Put this contract term into Plain English: It shall be a breach of the terms of this agreement for any member to fail to post a notice in a prominent place that is in no way obscured from public view listing that member’s retail prices for all items offered for sale, saving only that those items offered at a special sale price for a period not exceeding seven days need not be listed on the said notice. Try understanding it, and then explaining it to your neighbour.

27. Suggested answer Every member must display to the public a clear notice listing all his retail prices, except for those items offered at a special price for no more than seven days.

28. Exercise 2 Put this bye-law into Plain English: It shall be and is hereby declared to be unlawful for any person to expel, discharge, or expectorate any mucus, spittle, saliva or other such substance from the mouth of the said person in or on or onto any public pavement, street, road or highway, or in or on or onto any railway train, bus, taxicab or other public conveyance, or in or on or onto any other public place of whatsoever kind or description, and any person who does so expel, discharge or expectorate any such substance as defined above in any place herein delineated shall be guilty of an offence. Try breaking it down into short component parts.

29. Suggested answer (1) A person who spits in a public place shall be guilty of an offence. (2) A person spits if he discharges any mucus, saliva or other such substance from his mouth. (3) A person spits in a public place if he spits in, on or onto such a place. (4) A public place includes any public conveyance.

30. Exercise 3 Put this contract term into Plain English: In consideration of the performance by the contractor of all the covenants and conditions contained herein and contained in the plans and specifications annexed hereto, the owners agree to pay to the said contractor an amount equal to the cost of all materials furnished by the contractor, and the cost of all labour furnished by the contractor, to include the cost of tax and insurance directly connected to such labour, together with the amounts payable to subcontractors properly employed by the said contractor in completion of his obligations herein set out. Continued on next slide

31. In addition to the amount hereinbefore specified, the owners agree to pay to the contractor a sum equal to 10% of the value of the construction on completion, the total amount payable to fall due only on satisfactory completion of the said construction. It is specifically agreed by the parties hereto that notwithstanding the term the owners shall not be required under the terms of this agreement to pay to the contractor an amount in excess of the sum of Five Million Pounds.

32. Suggested answer In consideration of the performance by the contractor of all his obligations under this contract, the owners agree to pay to the contractor, when the construction has been completed satisfactorily, the following amounts, up to a maximum sum of £5,000,000: (a) 10% of the value of the construction upon completion; and (b) the following expenses incurred by the contractor in the performance of his obligations under the contract:(i) the cost of all materials supplied by him(ii) the cost of all labour supplied by him(iii) the cost of tax and insurance directly connected to that labour(iv) the amounts payable to subcontractors properly employed by him.