Challenges in legal writing

This section covers:

Using precise language

Legal writers must take particular care with instructional language and use of the words shall, must and may, as well as the description of dates and times.

Shall

Prescriptive legal documents – laws, rules, regulations, contracts, wills and formal letters – need to cover both the present and the future.

Shall has often been used to achieve this. However, shall can mean either ‘this will happen in the future’ or ‘this should happen’:

The chairperson shall be elected by the company directors. [Does this mean the chairperson will be elected in the future, or that the chairperson must be elected by the company directors?]

Choose another word to ensure that your meaning is clear. Use does to indicate the present and future, will to indicate the future, and must to indicate that something should happen:

The meeting shall not commence without a quorum of members being present. [Unclear: will not? may not?]

The meeting does not commence without a quorum of members being present. [Clear: now and in the future]

The meeting will not commence without a quorum of members being present. [Clear: future]

The meeting must not commence without a quorum of members being present. [Clear: obligation]

Although some find the use of must too emphatic, that is a stylistic rather than legal objection. It is the best word to use to make clear what needs to be done.

Must and may

Contracts and other legal documents need to distinguish between:

  • legal obligations (this means something that has to occur – in this case, you should say must)
  • options enshrined in laws (this means something that is allowed to happen, but does not have to – in this case, you should use may)

If no quorum of members is present, the meeting may be held as an extraordinary executive meeting. [The members are allowed to hold the meeting but do not have to]

If no quorum of members is present, the meeting must be adjourned to another date. [The members have to adjourn to another date]

Can

This verb is often used in explanatory legal documents, but is sometimes ambiguous.

A Justice of the Peace can authorise your document. [Does this mean that the JP is the only person who is able to do this? Or that they are one kind of legal officer with this power – but there are others unspecified?]

The ambiguity of can is reduced when combined with other modifiers (eg can lawfully perform on Saturdays) or with negatives (eg cannot perform on Sundays).

Time references

Any references to time in legal texts must be clear. Traditional legal words such as hereafter and heretofore, as well as common words such as now, do not do this adequately because the starting point is not clear: does it mean when the document was drafted, signed or read?

Be specific about any references to time by indicating a start or end date (and whether it is inclusive or not), spelling out the name of the month (to prevent possible confusion about the day/month or month/day notation), and specifying the time zone for a reference to a particular time:

Commencing on 13 April 2020

No later than 5 pm, Australian Eastern Standard Time

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Using gender-neutral language

Older legal documents tended to use gender-specific language such as he, she, his and hers. Language has moved away from these forms to be more inclusive. To ensure that your language is gender neutral, rather than choosing a gender-specific pronoun:

  • repeat the noun

When a shareholder misses a meeting, he must review the minutes of the meeting within 2 days.
becomes
When a shareholder misses a meeting, the shareholder must review the minutes of the meeting within 2 days.

A judge should exercise his discretion carefully.
becomes
A judge should exercise their discretion carefully.

  • rewrite the sentence to eliminate the pronoun

An employee will be placed on probation if he misses a shift without explanation.
becomes
Employees who miss a shift without explanation will be placed on probation.

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Writing for users with literacy challenges

Writing for readers who have lower literacy levels can be challenging for any writer. It is particularly a challenge for legal writers, because of both the complexity and the importance of the material.

Writers of legal texts must consider their intended readers’ needs and craft their document to meet those needs, using techniques such as:

  • using simple language, a limited range of vocabulary and short sentences
  • providing a list or callout boxes to explain important terms
  • combining text with images
  • defining specific images to mean particular actions (eg a ‘caution’ sign indicates an area that needs special attention; a pencil image means that a signature is needed)
  • using a layout with generous white space and an easy-to-read, large-sized font
  • providing extra headings
  • sequencing instructions in chronological order (eg Select your choice. Then sign on the dotted line. When you have finished, give your form to the receptionist.).

See Making content accessible and Clear and appropriate language for more information on writing clearly for audiences with special needs.

It may also be useful to supplement clear texts with other communication methods. For example, the Blurred Borders project, run by Legal Aid in Western Australia, explains issues such as family law and the criminal process to Indigenous groups. Indigenous field workers and interpreters use a combination of simple text, visual art and storytelling to foster discussion and understanding about the issues. The example following shows a Blurred Borders story card with a clear image on the front and a plain-language explanation of key information on the back:

Source: Blurred Borders website

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Ensuring that online content is rigorous

Legal writing deals with serious subjects and tends to have a formal tone. However, the use of the internet and email can affect this formality:

  • Online or email text often appears less formal simply because of the medium – the reader will perceive the text to be less formal.
  • Writers often take a less formal approach when creating online or email text – the writer will perceive the text to be less formal.

Reduced formality can be useful when it removes stilted and unapproachable language from legal writing, but can also lead to problems:

  • A reader may not understand the seriousness or potential effect of an online document (eg when signing a document online, users often click ‘I agree’ without reading the document).
  • A writer may be lured by the ease of online writing and distribution to be too casual in both the substance and style of their work.

If writing legal text for electronic distribution, take the same care and do the same checks that you would in a hard-copy document. Printing the document out to read through it before sending it is one way of slowing down the process and spotting errors.

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Sourcing and plagiarism

Professional writers aim to avoid plagiarism, but in legal writing this aim varies somewhat with the document.

For legal documents (eg acts, contracts, agreements), originality is not valued. In many cases, the text that has been used before has proven effective, and a rewrite of the text could create problems that did not exist in the previous version.

As a result, many texts for legal documents are based on ‘boilerplate’ text and templates. Lawyers generally use the standard text and templates available within their organisation or in the public domain, and simply decide where changes are required to suit the client and situation.

For legal analysis and academic writing, the standards for plagiarism are as stringent as they are in other academic fields – the use of both others’ words and ideas must be properly cited. Indeed, legal writing relies on proper attributions not only for ethical reasons but also to give weight to an argument, as the concept of ‘precedent’ is critical in legal analysis. (See Citing other work for more information on the importance and method of citing others’ work.)

The Australian guide to legal citation gives advice about how to cite sources in legal writing, including specific cases (eg how to refer to judges, how to indicate dissenting opinions).

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