MAKING LEGAL DOCUMENTS READABLE

by
David C. Elliott

Introduction

Too much time is wasted reading poorly written documents. Poorly written documents
result in uncertainty, ambiguity, and sometimes in litigation to settle the meaning.

Poor writing practices, and the problems and costs created by them, are avoidable.
Lawyers might consider adopting a personal drafting protocol for writing documents to
commit to an understandable document and to avoid needless errors. The protocol might
be based on the following:

Protocol for Writing Legal Documents

This Protocol aims to create the most understandable and efficient document that
circumstances allow. I will use the following as a guide in writing documents:

1. I will try to achieve an average sentence length in the document of 20-25 words. If the
sentences are longer than this I will try to make a list to break up the text.
2. I will use gender neutral language unless a gender specific reference is appropriate.
3. I will use words my readers are likely to understand.
4. I will avoid legalese.
5. I will only use as many words as are really needed.
6. I will write documents in the present tense.
7. I will write in positive rather than negative terms when possible.
8. I will avoid unnecessary cross references and briefly explain to what they refer when I
do use them.
9. When appropriate I will use examples and diagrammatic aids to explain the document.
10. I will prefer the use of must to shall. I will not use and/or.

To reach agreement, parties sometimes deliberately agree on ambiguous wording. But too
often ambiguity and uncertainty is caused by careless writing. This article addresses some
of the more common problems caused by careless writing and how those problems can be
corrected.

I. Purge the Legalese

Legal documents are full of lawyer language: said, aforesaid, wherein, whereof, therein,
thereof, hereinbefore, hereinafter, hereinunder. You have seen it, and wasted time
reading it, hundreds probably thousands of times. Aren't you sick of legalese?

It is sometimes thought that legalese makes things “precise” or “legal”. In fact it does
neither. Legalese can be dangerously ambiguous, leading to unnecessary litigation. For
example, the word “hereunder” might mean

 anywhere in this agreement

 anything in the agreement after the word is used
 anything in the clause in which the word appears.

The word is probably used unnecessarily--but if not, make the meaning plain by saying
“in this agreement,” “in this clause,” or “in clause 3(2)(b),” whichever is appropriate.

Foggy Phrases

Having purged the legalese, look for the phrases that can be replaced by a word or two:

Instead of Try
by means of By
by virtue of by, under
in the event that if
subsequent to after
prior to before
for the period of for
period of time period, time
by reason of because of
in order to to
set forth in in
during the term of during
in liew of instead of, in place of
is authorized may
is empowered may
is binding on binds
the manner in which how

Notice how the meaning of the alternative word is immediately clear, compared to the
foggy phrase, in these examples:

Bad:
In the event that employees are required to work overtime.

Better:
If employees are required to work overtime

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Bad:
During the term of this agreement

Better:
During this agreement (or while this agreement lasts)

Bad:
In order to qualify for payment...

Better:
To qualify for payment

Bad:
Prior to being appointed...

Better:
Before being appointed...
The Canadian Bar Association Report on Plain Language Documentation said:

The following couplets or “twins” have also been referred to as “freight

trains". One will usually do the job. Don’t use them blindly:

authorize and empower in and for

bind and obligate known and described
by and between over and above
deemed and considered power and authority
due and owing save and except
final and conclusive sole and exclusive
finish and complete suffer or permit
for and during supersede and displace
full and complete tried and true
full force and effect true and correct
furnish and supply type and kind
have and hold understood and agreed
if and when when and as

Clarifying Cross-references

If your legal documents are full of cross-references from one clause to another, this
signals that the document is poorly organized. Good organization can help reduce cross-
references, although you may still need them from time to time.

Try and make the cross-reference helpful by giving an indication of the contents of the
clause referred to. For example, a clause saying

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 If there is a difference over... clause 4.2, then the following matters... must be
considered . . .
makes readers look back to clause 4.2 to see what it means. If the clause is redrafted to
say

If there is a difference over …the overtime provisions in clause 4.2, then ....

the reader is given a helpful clue to the cross-reference and may not need to go back to
check what clause 4.2 is all about. And those antiquated cross-references like clause (b)
of subclause (2) of clause 14 can be changed to: clause 14(2)(b).

Another way of explaining cross references is to add a few words after each cross
reference. For example:

If there is a difference over . . . clause 4.2 [overtime provisions] then the following
matters . . .

II. Break up the Text

Numbering system

Legal language has a peculiar habit of using long sentences. Long sentences are strung
together to make long paragraphs--soon the page is chock full of text. Repulsive to look
at, difficult to read, awkward to untangle, time wasting to understand.

Want to make improvements? First, take a look at the numbering system. What rules are
there for breaking up the text? None? Probably some somewhere, but you don't really
know what they are?

For a guide to a decimal numbering system, take a look at the Building Standards Code.
The Code incorporates a description of the system it uses. If you don't like that system,
take a look at the system used for dividing up the text of legislation. Any Act or
regulation shows how it is done. Decide what you want to call the main divisions of the
document. Some legal documents call them "clauses", and others call them "sections".
And what about the divisions of each clause or section? Are they subclauses, subarticles,
subsections, paragraphs? Choose a system for numbering and breaking up the text and
stick to it.

How breaking up text removes ambiguity

Breaking up the text not only makes documents easier to read but also removes
ambiguity. Take this clause:

The Company has the exclusive right to operate and manage the business, to control
production, to maintain order and efficiency, and to hire, classify, promote, transfer,
demote, layoff and discipline or discharge employees for just cause.

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Quite a mixture of thoughts here. But what do the words "just cause" refer to? No doubt
to discipline and discharge, but also to demotions, layoffs, and transfers? A reformatting
would remove the ambiguity. For example:

The Company has the exclusive right to

(a) operate and manage the business;

(b) control production;
(c) maintain order and efficiency;
(d) hire, classify, promote, transfer . . .?; and
(e) . . .discipline and discharge for just cause.

Be careful with commas

Should a comma be used after the word "safety" in this example?

The Company must report on the performance of the work, health, safety and welfare of
employees.

Does the clause require a a report on

report on
1 work 1 work
2 health 2 health
or
3 safety 3 safety and welfare
4 welfare

A lot can turn on that last comma - or its absence. To avoid ambiguity, include the
comma after "safety" so that the obligation of the company is clear (assuming the
intention is to have four reports). To omit the comma can confuse, to insert it will clarify.

The power of a comma was forcefully illustrated by Richard Wydick

Maligned though it may be, punctuation can affect the meaning of an English sentence.
Consider, for example, the (U.S. Constitution’s) fifth amendment’s due process clause.
As punctuated by its drafters, it reads:

"[No person shall] be deprived of life, liberty, or property, without due process of
law . . ."

Guided by the punctuation, our eyes quickly tell us that the phrase "due process of law"
modifies the verb "be deprived". Thus, the fifth amendment requires due process if one is
to be deprived of life, liberty, or property. But suppose the drafters had omitted the
comma after "property". That would permit a lawyer to argue (in defiance of the
provision’s long history) that "without due process" modifies only "property". Thus, the

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fifth amendment would forbid deprivation of property without due process and would
absolutely forbid both incarceration and the death penalty. Such is the power of a comma.

Making lists

When using a list, make it clear whether the list is cumulative (by using "and") or
whether the list is a series of alternatives by using "or" [or make the meaning clear by the
lead-in words]. In this extract, does the employee have to meet both conditions before
leave is granted or just one of them?

An employee may be allowed up to a thirty day leave of absence without pay for personal
reasons if

(a) The employee requests it in writing at least 7 days in advance.

(b) The leave is for a good reason and does not interfere with operations,
except in emergency situations when leave shall be granted regardless.

Should there be an "and" or an "or" at the end of clause (a)?

III. Problem words

Problems with time

Be careful with "from/to", "from/until" and "between" with dates and times

(i) If a right extends from 1 April to 8 May - does the right start on 1 April? Is
it available on 8 May?
(ii) If a right extends from 1 April until 8 May - does the right start on 1
April? Is it available on 8 May?
(iii) If something must be done between 1 April and 8 May - must it be done
on 1 April? Can it still be done on 8 May?

Instead of from/to; from/until; or between - use "after/before".

The right is available after 1 April and before 8 May, or say

The right starts on 1 April and must be exercised on or before 8 May.

The issue each time is: are the dates and times at the beginning and end of the time frame
excluded or included - is it clear?

Problems with numbers

Does a clause saying

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"A Safety Committee consisting of from 3 to 6 employees" mean that 6 employees can be
appointed to the Committee?

What does a clause saying

"A joint committee of up to 4 members from management" mean?

Does "up to 4" also include 4? Although "to 6" and "up to 4" probably include "6" and
"4" respectively, the meaning can be put beyond doubt by saying:

A safety committee consisting of at least 3 but not more than 6 employees.

A joint committee of not more than 4 members.

"Provided that", "providing", "provided however"

Provided that, providing, and provided however pop up in so many documents that they
must be really precise legal words having well understood meanings. Right?
Wrong. They are sloppy, antiquated, imprecise and sometimes ambiguous words. The
origins of provided that go back to the 13th century when the words provided that meant
it is provided that this is our agreement or it is provided that this is the law.

Nowadays, the words are used variously to mean

 an exception
 a condition, or
 just another provision of the legal document.

Here is an example of two different uses of providing in one clause:

An employee . . . shall, upon her written request providing at least 2 weeks advance
notice, be granted maternity leave . . . providing however that if . . . her ability to carry
out her normal work assignments becomes limited . . .

The first providing is used as a condition on the employee obtaining maternity leave. The
providing however looks like it is an exception. In fact it is quite a separate matter
because it permits the employer, unilaterally, to place the employee on maternity leave in
certain circumstances – it has nothing to do with the employee’s right to maternity leave.
The first 3 lines could be rewritten along these lines:

. . . the Employer must grant a pregnant employee maternity leave if she gives the
Employer at least 2 weeks written notice . . .

Here is another provided that example

Provided that the efficiency of . . . shall not in any way be disrupted . . . time off work
without pay may be granted . . . for the following purposes . . .

This Provided that is used as a condition. It can be replaced with "If".

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If a document does not make clear which meaning a provided that, provided however, or
providing has, a dispute can lead to litigation.

The guiding rule is: Don't use "provided that" or "provided however" - use instead
"except . . .", "if", or "but". Use "providing" with caution, but not as a condition or
exception.

and/or

A former Justice of the Supreme Court of Canada once said this about "and/or"

"And/or" seems to be used by writers whose main concern is to appear erudite. In my

opinion, quite the opposite impression is created. Use of this conjunction which is not a
conjunction is repugnant to the spirit of the language, English or French.

Not only is the expression repugnant – it is ambiguous. It has caused litigation. The
words "and" and "or" have quite different meanings. You might think that "and/or" means
A or B, or both
But several courts in the United States say "and/or" means the court can choose either
"and" or "or", whichever the justice of the situation requires. (9) What would you make of
this clause:

Sick leave means the period of time a permanent employee who comes under the terms of
this agreement is absent from work with full pay due to bona fide sickness and/or injury
that does not come under the Workers' Compensation Act.

Is the "and" in this clause necessary at all? But if every word used in a document is to be
given a meaning, what meaning does and have?

Here is another example:

Time off from work without loss of regular earnings may be provided on the following
basis:

(a) The Grievor and/or one (1) Union Steward for time spent in discussing grievance
with representatives of the Employer as outlined in the Grievance Procedure.
(b) ...

Does that mean

 the Grievor and the Union Steward get time off with pay, or
 either the Grievor or a Union Steward get time off with pay, but not both?

When there are three or more items connected by "and/or" the possible combinations
become more complicated and the interpretation more uncertain. The only rule to follow
is: never use and/or.

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Definitions

Define words in legal documents only if they are to be used in exactly the same sense
more than say, three or four times. Every time you use the defined word you should be
able to substitute the definition in place of the defined word. If you cannot, the meaning
becomes uncertain.

Use definitions only to define words. This sounds obvious, but many definitions in legal
documents also deal with substantive matters. Substantive matters should come in clauses
later in the document, not in the definitions. Keep testing your defined words - are they
always used in their defined sense? If they are not, you are heading for trouble. Consider
marking defined words with asterisks each time they are first used in a clause as a
reminder to check for problems and to alert readers that the words have special meanings.

The shocking misuse of shall

Overuse and misuse has given shall a bad name. It has been so abused for so long that its
use is now an addiction. The misuse comes from 3 sources:

 drafters who write something today knowing it will only be effective in the future,
after the agreement is ratified - so they think and write in the future tense
 a desire to nail things down so that there can be no mistake that something shall
be done or shall mean something, that someone "shall have a right" to something.
This stems from an unjustified mistrust of other more suitable words and a
misplaced reliance on the magic of shall
 precedent and habit, which conspire to persuade writers to use shall when they
should not.

Let's look at some examples.

In definition sections
"President" shall mean . . .

In the holiday clause

The Company shall not be obliged to make payment for a statutory holiday . . .

In the confidentiality of records section

All employee's records shall remain confidential unless . . .

To give rights
The Union shall have the right to originate policy grievances
and
An employee shall have the right to have a union steward present . . .

To give jurisdiction

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The Arbitration Board shall have jurisdiction . . .

To impose an obligation
The Employer shall give notice
and
The Employer shall pay . . .

To state a future obligation

The Legal document shall be printed and the cost shall be shared equally

To state an ongoing commitment

The LTD benefit . . . shall not be altered except through negotiation

To create entitlements
During each of the first to the third year of continuous full-time employment an employee shall
earn entitlements to vacation calculated on . . .
The word shall has spread like a disease. Its improper use has so penetrated legal
documents as to make them unreliable. So frustrated was the California Supreme Court
with the improper use of shall in statutes, that it said:

It is a general rule of construction that the word "shall" when found in a statute is not to be
construed as mandatory, unless the intent of the legislature that it shall be so construed is
unequivocally evidenced.

With so many meanings of shall in legal documents, what to do? The cure is to abstain
from using shall. Don't use the word at all. Remove all ambiguity, and improve the
language and tone of documents, with this test:

For every "shall" replace it with "must". If it does not "read right" - shall is the wrong word to
use.

Say the sentence aloud--what would you tell someone the words mean? Odds are that you
will choose the right replacement word. Let's go through the shall examples and look for
cures. Think about legal documents as they work day to day. They are "living
documents" applying to today's question, so write them in the present tense.

1. President shall mean . . .

Better: President means . . . (notice "must" would not fit)

2. The Company shall not be obliged to make payments for a statutory holiday

Better: The Company is not obliged to make payments . . (or The Company need
not . . .)

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3. All employee's records shall remain confidential . . .

Better: All employee's records are confidential . . . (or must remain confidential)

4. The Union shall have the right to originate policy grievances

Better: The Union may originate policy grievances

5. The Arbitration Board shall have jurisdiction . . .

Better: The Arbitration Board has jurisdiction . . .

6. The Employer shall give notice . . .

The Employer shall pay . . .
Better: The Employer must give notice . . .
The Employer must pay . . .
"Must" would fit in these two examples, so shall is correct and could be used
here

7. The legal document shall be printed and the cost shall be shared equally . . .

Better: The legal document is to be printed (by . .?) and the cost shared
equally . . .
[The first shall is not incorrect.]

8. The LTD benefit . . . shall not be altered except through negotiation . . .

Better: The LTD benefit . . . [may only be altered by agreement] [must not be
altered . . .]

9. During each of the first to the third year of continuous full-time employment
an employee shall earn entitlements to vacation calculated on . . .

Better: During each of the first to the third year of continuous full-time
employment an employee earns entitlements to vacation calculated on . . .

If you take the trouble to think about alternatives to shall you will find your documents
become sharper because you have to think about the specific meaning shall is intended to
convey. Try it!

Conclusion

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So what's the point in getting rid of a few shalls, a couple of provided thats, an and/or or
two, and breaking up some sentences? Here's why:

1. The rewriting improvements pay for themselves if they prevent just one lawsuit,
or one claim of negligent or unprofessional drafting
2. Rewriting legal documents in plain language virtually guarantees the document
will become shorter. Think of the efficiency in not having to read extra words -
not just once but every time anyone reads the document.(13)
3. Instead of reading like a law journal, or worse, your legal documents will be as
easy to read as a current affairs magazine.

People are more likely to read the document, understand it, comply with it, and
respect the result.

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