A Crash Course in Plain Language Legal Drafting

November 1999

Cheryl M. Stephens
Legal Editor and Writing Instructor
Author of Plain Language Legal Writing,
available from ASAP Legal Publishing 604-685-2727

http://www.cherylstephens.com [email protected]
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The Laws of Plain Language Legal Drafting

1 Use 1st and 2nd person or simple names.
Use “they” as singular pronoun.

2 Write in the active voice.

3 Don't use nouns made from verbs.

4 Organize short, concise sentences.

5 Use positive words and constructions.

6 Choose words that suit your reader.

7 Don't use shall: use may, will or must.

1 Use 1st or 2nd person pronouns or simple names for participants.

1st person: I or we
2nd person: you

Define “you” and “we” if necessary.

3rd person: they
Smith, James, Henderson
Renter, Owner, Manager
Bank, Borrower, Guarantor

• For value received, the undersigned hereby promises to pay…

To repay my loan, I promise to pay…

• The statement for professional services enclosed herewith is, in all likelihood, somewhat in excess of
normal expectations. In the circumstances, it is appropriate to take this opportunity to provide an
explanation of the causes therefor.

The bill I am sending you with this letter is probably higher than you expected, and I would like to
explain why.

• This is to acknowledge your letter of recent date, the contents of which have been duly noted. In the
third paragraph thereof, it states...

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I have considered your letter of June 13. You say, in your third paragraph,...

1(a) Accept the use of “they” as a singular pronoun where no reasonable alternative exists.

… will provide education to help each child realize their potential…

Be certain that the antecedent for the pronoun is obvious.

Examples of alternatives
…from the BC Commercial Arbitration Act
On an application under subsection (4), the arbitrator may amend the award if the arbitrator considers that
the amendment will clarify it. [Repeats the noun]

Before an arbitration hearing commences, the arbitrator may, on the application of a party, order another
party to produce any documents that the arbitrator considers are relevant to the arbitration. [Repeats the
noun]

…from the BC Interpretation Act

A person reaches a particular age expressed in years at the start of the relevant anniversary of his or her
date of birth.

2 Use active voice instead of passive.

Who is supposed to do what to or for whom?

Passive voice focuses on the object receiving the action rather than on the subject
carrying out the action. It can make the identity of the actor ambiguous.

• When a complaint against you has been received, a file will be opened...

When your client has filed a complaint against you, the Competency Department will open a file …

Passive voice:
Identify the Noun and Verb Phrases.
Classify the Main Verb as Linking or Action: Action Verbs describe an action of the mind or body.
Linking Verbs are forms of verb to be.
Locate the Real Subject of the Sentence: Find the stem or root of the verb. Ask “Who performs this
action?” Bring Performer to front of Sentence.

Passive voice verb

Object Acted Upon by (unnamed actor)
Lawyer was suspended [by a Discipline Committee? by the Benchers?]

Active voice/Legislative sentence

Actor Acts Upon Object
The Committee suspended the lawyer.
• If this note is secured by a motor vehicle, boat or aircraft, property insurance on the collateral is
required.

If a motor vehicle, boat, or aircraft secures this note, the borrower must maintain property insurance on
the collateral.

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3 Don't use nouns made from verbs: turn them back into verbs.
Nominalizations [derived nouns] replace personal nouns plus verbs removing the
participants and the action. They act like passive verbs – needing no subject. Change to
active verbs.

• The refusal of … • Consideration of this matter should include...

If you refuse … Please consider...

• The failure to … • An application may submitted by mail if…

If you fail to … You may apply by mail if…

• Prior to the completion of … • Upon written request by the individual…

Before you complete … When you ask in writing…

Cosmic detachment comes from ignoring Laws 1-2-3

There were in excess of 300 lost employee days.
Our lost employee days were in excess of 300.
Lost employee days exceeded 300.

Active and with a stated actor: Employees missed more than 300 days of work.

4 Organize sentences to be concise; keep sentences short.

Move qualifiers, provisos, or exceptions to the end of the sentence or to separate

sentences.

Avoid wordiness. State the action then list the conditions. Don’t try to cover all the

possibilities.

• Subject to the terms and limitations set out in these Provisions should you become Totally or Partially
Disabled while your Insurance is in force, we will pay you monthly, in arrears, the benefits set out in
this Part.

We will pay benefits to you monthly, in arrears, subject to the provisions of this policy.

Keep to the natural subject-verb-object order.

Intervening phrase separates subject-verb-object:

The decision of Ontario Attorney-General Howard Hampton to prefer an indictment against police
Constable Brian Rapson on a charge of attempted murder, after a judge, in a full and open hearing, found
an entire absence of evidence on which to base such a charge, is utterly reprehensible.

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If different requirements have different conditions, set out a table:

Type of applicant Who must sign

Partnership One of the partners
Corporation Officer
Association Member who is an officer

5 Rewrite negatives as positives. Avoid layered negatives.

Prefixes un- in- mis- il-

Words none, unless, until, fail, exempted, unlawful, invalid, void

limitation prohibition unless until absent
ambiguous avoid contrary delinquent deny
doubt except forbid lack minimum
no less than no more than no smaller than sanction transgression

Concepts testimonial privilege negligence legally blind

constructive (possession, etc.) volenti non fit injuria

Isolate exceptions and conditions.

• Don't do any more than is necessary. Instead: Do only that which is necessary.

• This policy shall not be valid unless countersigned by our authorized representative.
This policy becomes valid when countersigned by our authorized representative.

• Should you fail to receive a billing notice within five days of a premium due date, you should
nevertheless make a conditional payment to the RIA within the Days of Grace not less than the amount
of premium that you were billed on the preceding premium due date.

You must send your premium payment within 31 days of its due date. If you have not received our bill
at least five days before the due date, you must send us a conditional payment equal to the last premium
you paid.

6 Carefully choose words that suit your reader.

Avoid legal jargon.
Use only necessary technical terms.
Speak in the polite language you would use to express yourself at the dinner table.
Robert Benson's definition:
A genuine, technical, term of art has an uncontroversial core meaning that cannot be conveyed
succinctly in any other way.

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Proven problem words in lawyers’ bills

paralegal litigation
entitled parties
legal fees interim application
disbursements examination for discovery
substantial disbursements order
deliveries damages
registry searches settlement
out-of-pocket appeal
enforcing conflict of interest
contingent fee diverge
conduct of a lawsuit heirs, executors, legal representatives, and
issuance of a writ successors

7 Don't use shall: use may or must.

Use "must" to impose a duty.

Interp. Act: “must” is to be construed as imperative
Interp. Act: “shall” is to be construed as imperative

Use "may" to confer a power or a right, or to indicate that there is a choice.

Interp. Act: “may” is to be construed as permissive and empowering

Use “will” to express future action.

Interp. Act: “will” … as defined in the Wills Act

What are the meanings here?

The architect shall make changes to the drawings before May 10, 1997.
The architect must make changes to the drawings before May 10, 1997.
The architect will make changes to the drawings before May 10, 1997.
The architect may make changes to the drawings before May 10, 1997.

Organizing information

Serve the Reader

Tell your reader what to expect.
Organize from the reader’s perspective.
Present ideas and information in an order that is logical for the reader.
If different requirements apply to different users, organize separate sections for each
user.

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Be Obvious

Make the organization easy-to-follow and intuitive.

Make the organization apparent visually by using indents and lists.
Make transitions between ideas and concepts plain and obvious.
Organize the discussion around 3-5 major concepts – reconceptualize when
necessary.
Put the topics in an order that suits your audience and purpose.

Structure

Make sure you have a self-explanatory title, an obvious introduction, a structured

body and a summary conclusion.
Remember the document will be used for reference. Provide access tools.
A series of procedures or duties should be set out in chronological order. Set a logical
pattern for topic development and stick to the sequence.
Use short paragraphs (less than five lines of text) organized by topic.
Use parallel forms of grammar for equivalent ideas.
Break lists down to fewer that 7 related items – reconceptualize if necessary.

Ways of organizing information:

Alphabet Comparisons
Culturally agreed/learned system Location/Perspective
Extensive, diverse information Diverse
Category/Classification Distributed
Kind/Type Grouped
Concepts Partisan
Similar Importance/Priority Continuum
Time/Chronology Magnitude
History Priority
Duration/Length Assigns value or weight
Frequent/Infrequent Comparisons

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Lay-out, design, and typography can be obstructions or aids to

communication.
Here are some basic pointers for making your documents legible:

• Use normal, standard punctuation.

• Use minimal capitalization.
• Use 10 or 12 point type height.
• Use at least 1.25 line spacing.
• Provide adequate margins for note-taking.
• Use a ragged right margin rather than justification.

Headings

Make your main headings stand out from the text but keep them legible.

• Use bold type or set headings into margin (hanging indents).

• Use a different style for each level of heading.
• Don't combine bolding with underlining or italics.
• Don't center headings or titles.

Use "hanging indents" to provide more white-space as a framework for information and
to show categories and hierarchies. This is a hanging indent:

Service of documents
Service by facsimile
Documents may be served by facsimile between the hours of 9:00 a.m. and 4:30
p.m. only.

The Ten Commandments for Plain Language Drafting

From The Decline and Fall of Gobbledegook, 1991 The Canadian Bar Assoc./Canadian Bankers' Assoc.

1. Consider your reader and write with 8. Avoid unnecessary formality.

that reader's point of view in mind. 9. Organize your text:
2. Write short sentences. in a logical sequence,
3. Say what you have to say, and no with informative headings, and
more.
with a table of contents for long
4. Use the active voice. documents.
5. Use simple, "everyday" words. 10. Make the document attractive and
6. Use words consistently. designed for easy reading.
7. Avoid strings of synonyms.

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Lists
1. Composite: Try this simpler word or phrase:

aforementioned these
aforesaid already described
foregoing this; these; or, to give up; waive; abandon
forthwith immediately, as soon as possible, by
furthermore also
hereafter after; afterwards
hereby [not needed]
herein in this agreement, in this clause
hereinafter below, in this agreement
herinbefore above, in this agreement
hereof of this agreement
hereon on this day
hereto to this agreement
hereunder under this agreement
inasmuch as because
insofar as to the extent
notwithstanding despite
thereby by; by the [document]
therefore fore it, of it, so; as a result
therein in; in the [document]
thereinbefore before; previously
thereafter after; afterwards
whereas while
whereupon at; after; then; when

2. Compound: Simpler:

adequate number of enough

as a consequence of because of
as from on; from
as a means of to
as prescribed by under
at that particular time then
at that point in time then
at the time when
at the present time now
at the time when when
by means of by
by virtue of by, under
compared with than
does not operate to does not
due to the fact that due to, since, because
duly incorporated included; incorporated
during such time as while
for a period of for
for the duration of during
for the reason that since, because, for
in accordance with by, under
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Drafting

in an effort to to
in case of if
in many cases often
in order to to
in relation to about, concerning, towards
in respect of for; about; to; of
in some instances sometimes
in the course of in, while, during
in the event that if
in the interest of for
in the majority of instances usually; often
in the nature of like, similar to; about
in the near future soon
in the State of in [name state]
is able to can
is authorised may
is binding upon binds
it is the duty of [x] [x] must
may at all times;
may at any time may
no later than by
notwithstanding the fact that even if, despite
on behalf of for
period of time time
pertaining to about, of, on
prior to before
provided that if
pursuant to under, by, following
read and construed as read
relating to about, on
subject to if, as long as
subsequent to after
such other another
sufficient number of enough
the case at bar this case
the instant case this case
the manner in which how
the said the; that; those
the same [use preposition or pronoun]
to make payment to pay
until such time as until
whether or not whether
wholly or partially in whole; wholy; in part; partially
with a view to to; to try to
with reference to about, concerning
with regard to about, for, on
with respect to on, about, for
with the exception of except for, excepting
without prejudice not meant to be used as evidence
3. Archaic or legalism: Try this:
absolute and unfettered discretion [may]
accordingly so, as a result
annexed attached
antecedent previous

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Drafting

any secruity or any part thereof all or part of a security

applicable should apply; which applies
approximately about
assistance help; aid; support
attempt try
attributable to due; because of
beneficial useful; helpful [not for beneficial ownership]
cease stop; end
commence begin; start
compensate pay; repay; to make up for; offset
consequently so; as a result
considerable important; much; significant
correspondence letter
contiguous to next to
deemed considered as, [X] is ...
demise rent; death; lease; convey
determined decided
divers several, various
effectuate carry out; do
elucidate expand upon; make clear; clarify
estate or interest interest
execution signing/signature; completion
expedite speed-up; hurry; quicken
expiration end
facilitate help; ease; make easier
frequently often
from time to time [may]
he was aware of the fact he knew that
inform tell
indicate show; suggest; prove
inquire ask; question
instrument document
jointly and severally together and separately
last will and testament will
obtain get
of the one/other part [nothing is needed]
parameters limits; guidelines; boundaries
proviso condition
recognizance agreement; promise; bail
retain keep
severally separately
subsequently afterwards; next; later
such that; this; or, other pronoun
terminate end; finish
transmit send
utilize use
visualize see

4. Not English: Try English:

ab initio from the beginning

arguendo for the sake of (or during the course of) argument
carte blanche unconditional authority, full discretion
cestui que trust beneficiary

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circa about
de facto in reality; in effect; actual; existing but unofficial
ex post facto after the event, retrospectively
in pari passu equally; without preference; in equal
in toto completely, as a whole, entirely
instanter instantly
inter alia among other things/people
ipso facto by the fact itself, therefore
mutatis mutandi varied according to the circumstances; the necessary changes being
made; with things changed that must be
per each
per annum by the year, yearly
prima facie at first appearance, on the face of it, at face value
precis summary, outline
prima facie case a case to answer
post hoc after this
pro for; in favour of
pro rata in proportion to; according to a certain rate
pro tem for the time being, temporarily
vice versa conversely, the order reversed, the other way around
vide see

5. Repetition Find a substitute, chose one or use

all and singular
all and every
any and all
bind and obligate
cancel, annul, and set aside
convenant and agree agree
do and perform
give, devise and bequeath give
liens and encumbrances
made and entered into made
null and void no legal effect
pay, satisfy, and discharge
possession, custody, and control
remise, release, and
forever quitclaim release
rest, residue and remainder rest; all other property
right, title and interest interest
signed, sealed and delivered signed by [name] and taking effect on [date]
transfer and assign give; sell
uncontroverted and uncontradicted

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