Legal writing style

Legal writing has a reputation for being verbose, dense, complicated and technical, with complex grammatical structures and very long sentences. But there is a trend away from this type of unreadable legal writing in favour of plain language.

However, legal language must still be precise. The challenge of much of legal writing is to capture an exact meaning that will be binding in law, while still trying to be as clear and understandable as possible.

Plain English and the law, by the Victorian Law Reform Commission, says that:

The plain English movement does not require that laws always be drafted in such a way as to make them intelligible to the average citizen. However, it does require that every effort be made to make them intelligible to the widest possible audience.

This section covers:

Benefits of plain legal language

It is possible to express legal concepts in plain language, without loss of certainty and precision, even in complex areas of law. This can be shown by the fact that plain-language legal documents are not more prone to litigation than traditional ones. Indeed, the reverse seems to be the case.

The plain-language movement in legal writing has many benefits for both writers and readers:

  • Financial. Plain-language documents can save money by reducing staff time (eg fewer client questions and mistakes in forms, as well as lower page count in many cases).
  • Legal. Plain-language documents can reduce litigation risk by lowering the risk that a counterparty will claim that they did not understand their obligations under a legal document; the courts have ruled in the past that unclear documents are not valid. Additionally, the effort of putting words into plain language often reveals mistaken assumptions and faulty logic that ‘legalese’ might hide.
  • Ethical and access to justice. Plain-language documents help more people, including non-native English speakers and people with limited literacy, to understand their rights and responsibilities under the law, as well as the advice of their legal representation.
  • Reputational and client relationship. Clients appreciate plain-language documents, because clear language makes them more confident in their position and demonstrates that their legal counsel is taking their needs into consideration.

I don’t think it is difficult to justify the need for plain language law. Surely no-one can argue that the laws that bind us ought to be obscure. Surely no-one can argue that the Acts of Parliament that regulate us ought to be incomprehensible. Surely no-one can argue that the documents we sign – like contracts, agreement, wills, and the like – ought to be impossible to understand.

To put it more positively, it surely must be better if the documents we sign are understandable. It must be better if, in a democracy, we could understand the laws that parliament passes.

Peter Butt, Faculty of Law, University of Sydney, Speaking plainly: plain language law for non-lawyers

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The plain legal language movement

The plain legal language movement has a long history. Early publications include Language of the law by David Mellinkoff in 1963 and Plain English for lawyers by Richard Wydick in 1979. In 1983, Clarity was established as an international association promoting plain legal language.

From these beginnings, lawyers and governments have increasingly embraced plain legal language. Many countries and states now have rules and guidelines around the use of plain language in contracts, insurance policies and government regulations. Law courses in universities include instruction on how to achieve plain legal writing.

Tips to achieving plain legal language include the following:

  • Ask yourself whether a technical or archaic term that you are using has a particular meaning that cannot be conveyed with a more common term; if not, use the simpler term (eg due to the fact that can be replaced with because). (See Remove unnecessary words for more information on how to identify and eliminate wordiness.)
  • Replace double negatives with single positives (eg replace not insubstantial with substantial and not unlikely with likely).
  • Do not insert definitions when they are not necessary (eg if the document defines a week as the usual calendar week of 7 days, do not specify this).
  • Pay attention to sentence length and structure and grammar and punctuation, to ensure that your meaning is clear.
  • Carefully check your work. You can take a break from it before reading it again, or ask a colleague to read it to ensure that it is clear and unambiguous. Reading your work aloud is a good way to see if each sentence is as clear as it can be.

David Kelly, a Melbourne lawyer working with the Victorian Law Reform Commission, provides an example of how plain language can improve legal writing in the Takeovers code:

An offeror shall ensure that the consideration specified in the relevant takeover offer is paid or provided not later than the time by which the consideration is required by the terms of that takeover offer to be paid or provided or, if a later time has been fixed under subsection (1), not later than the time so fixed.

An offeror must ensure that the consideration specified in an accepted offer is provided on time.

See Clear and appropriate language for more information on writing clearly, and Sentence length for more tips on breaking up sentences.

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Sentence length and structure

Legal sentences are notoriously long – sometimes as long as paragraphs and even pages – and far longer than the maximum recommended for technical writing (25 words). They are often burdened with subordinate clauses to qualify particular words or clauses, and with sets of alternative words and phrases, so as to leave no stone unturned:

The proposed extension by reason of its design, height, bulk, mass, depth and close proximity to the boundaries of the site would result in an overbearing and unneighbourly form of development, detrimental to the amenities of the occupiers of the nearby properties …

Long legal sentences are often produced by writers who think they must begin with the conditions that apply to the case. This is the reason for the extended recital of the facts at the start of some legal documents, beginning with Whereas:

Whereas the beneficial interest in the Fund is divided into several series of shares, each representing the interest in a particular managed portfolio of securities and other assets, any one or more of which may be made available under this Agreement, as may be revised or supplemented from time to time with notice to all parties hereto (each such series hereinafter referred to as a ‘Portfolio’); and …

The plain-language movement aims to reduce or eliminate long sentences. Each sentence should clearly state the key decision or advice to be communicated. Most importantly, it should make just 1 point or have 1 idea. Qualifications and provisos should be stated separately, instead of being packed into the same sentence.

The same techniques used in any writing to shorten sentences can be used in legal writing:

The principal must ensure the safety of all students, teachers, administrative staff, and parents working in the canteen; and report immediately to the Education authorities the presence of any unauthorised person entering the school grounds or approaching students.
The principal must ensure the safety of all students, teachers, administrative staff, and parents working in the canteen. The principal must report immediately to the Education authorities the presence of any unauthorised person entering the school grounds or approaching students.

Example of a long sentence in a legal contract – 516 words

‘In the event that the Purchaser defaults in the payment of any instalment of purchase price, taxes, insurance, interest, or the annual charge described elsewhere herein, or shall default in the performance of any other obligations set forth in this Contract, the Seller may: at his option: (a) Declare immediately due and payable the entire unpaid balance of purchase price, with accrued interest, taxes, and annual charge, and demand full payment thereof, and enforce conveyance of the land by termination of the contract or according to the terms hereof, in which case the Purchaser shall also be liable to the Seller for reasonable attorney's fees for services rendered by any attorney on behalf of the Seller, or (b) sell said land and premises or any part thereof at public auction, in such manner, at such time and place, upon such terms and conditions, and upon such public notice as the Seller may deem best for the interest of all concerned, consisting of advertisement in a newspaper of general circulation in the county or city in which the security property is located at least once a week for Three (3) successive weeks or for such period as applicable law may require and, in case of default of any purchaser, to re-sell with such postponement of sale or resale and upon such public notice thereof as the Seller may determine, and upon compliance by the Purchaser with the terms of sale, and upon judicial approval as may be required by law, convey said land and premises in fee simple to and at the cost of the Purchaser, who shall not be liable to see to the application of the purchase money; and from the proceeds of the sale: First to pay all proper costs and charges, including but not limited to court costs, advertising expenses, auctioneer's allowance, the expenses, if any required to correct any irregularity in the title, premium for Seller's bond, auditor's fee, attorney's fee, and all other expenses of sale occurred in and about the protection and execution of this contract, and all moneys advanced for taxes, assessments, insurance, and with interest thereon as provided herein, and all taxes due upon said land and premises at time of sale, and to retain as compensation a commission of five percent (5%) on the amount of said sale or sales; SECOND, to pay the whole amount then remaining unpaid of the principal of said contract, and interest thereon to date of payment, whether the same shall be due or not, it being understood and agreed that upon such sale before maturity of the contract the balance thereof shall be immediately due and payable; THIRD, to pay liens of record against the security property according to their priority of lien and to the extent that funds remaining in the hands of the Seller are available; and LAST, to pay the remainder of said proceeds, if any, to the vendor, his heirs, personals representatives, successors or assigns upon the delivery and surrender to the vendee of possession of the land and premises, less costs and excess of obtaining possession.’

Source: Plain English Campaign

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Grammar and punctuation

Proper grammar is a key tool in the effort against ambiguity in legal writing. Sloppy grammar, such as using the pronouns it or they without clearly indicating what they refer to, can have grave consequences – even leading to litigation.

Internal punctuation is essential in the longer sentences often found in legal writing, to help readers digest the information. Punctuation can also be essential to clarify meaning. For example, the clarity required in legal documents makes the serial comma useful wherever there is any doubt about the interpretation of items in a series:

Without a serial comma:
The principal must ensure the safety of all students, teachers, administrative staff and parents working in the canteen. [Unclear: does this refer to the safety only of administrative staff who work in the canteen, or of all administrative staff?]

With a serial comma:
The principal must ensure the safety of all students, teachers, administrative staff, and parents working in the canteen. [Clear: this refers to all administrative staff, and parents who work in the canteen.]

The use of semicolons is more common in legal writing than most other genres, again to help readers digest information. Semicolons also provide a higher level of punctuation for sentences that contain quite a few commas:

Clear exit signs must be displayed in the lobby; each room, including bathrooms; transit areas, including halls and the loading dock; and all stairwells.
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Legal terminology

Plain language is a valuable goal, but some special terms have to be used in legal writing because they have a specific and useful meaning. These may sound like ‘legalese’ to a nonspecialist, but are understood by people with legal training. If you are going to use legal terminology, make sure you include clear definitions to allow a general audience to understand it.

Legal terminology includes the following:

  • Technical terms. They act as shorthand to convey a particular meaning (eg fiduciary duties, interlocutory order, affidavit). In some cases, the reader must learn the meaning of these terms to usefully take in the material. In other cases, the terms can be replaced by straightforward common words.
  • ‘Terms of art’ (or ‘subtechnical terms’). These are words or phrases that are used in everyday English but have a special meaning in law (eg instrument for a legal document, amenity for desirability of a location).
  • Latin terms that are commonly used and understood by legal specialists. These are appropriate in certain contexts in communications between lawyers or in instruments of law; however, they have no place in communications with clients. Use plain-English terms, or at least provide a definition of the term.

Tip. Use roman text for Latin-derived terms that have entered English:
habeas corpus     per se     pro bono     sine die

Italicise Latin terms that have not entered English vocabulary:
cui bono     cur. adv. vult (curia adversari vult)     in praesenti     in propria persona

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Legal writing has many accepted abbreviations. Use them consistently in your writing. Examples are:

  • judges and judicial officers
    • CJ = Chief Justice
    • J = Justice
    • JJ = Justices
    • JR = Judicial Registrar
  • legislative materials from federal and state or territory governments (see also Legislation)
    • Law and Justice Legislation Amendment Act (No 2) 1992 (Cwlth)
    • Evidence Act 1995 (NSW)
  • business corporations and firms
    • Inc = incorporated
    • Pty Ltd = proprietary limited
    • (in prov liq) = (in provisional liquidation)
  • case names and histories
    • Cubillo v Commonwealth [No 2] (2000) 103 FCR 1 (‘Cubillo Trial’)
    • McGinty v Western Australia (1996) 186 CLR 140, 232 (McHugh J) (‘McGinty’)
  • report series
    • CLR = High Court of Australia
    • SALR = South Australia, 1899–1920
    • WAR = Western Australia, 1958–.

Refer to the Australian guide to legal citation for the recommended abbreviations for common usages in legal writing.

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