Clarifying cross-references

MAKING LEGAL DOCUMENTS READABLE

Contents

Introduction

Protocol for Writing Legal document

I. Purge the legalese............................................................................................................ 2

Wasted words
Foggy phrases
Clarifying cross-references

II. Break up the text............................................................................................................ 6

Numbering system
How breaking up text removes ambiguity
Be careful with commas
Making lists

III. Problem words.............................................................................................................. 8

Problems with time
Problems with numbers
"Provided that", "providing", "provided however"
and/or
Definitions
The shocking misuse of shall

Conclusion


 

MAKING LEGAL DOCUMENTS READABLE

Introduction

Too much time is wasted reading poorly written legal documents. Poorly written documents result in uncertainty, ambiguity, and sometimes in litigation to settle the meaning.(1)

Poor writing practices, and the problems and costs created by them, are avoidable. Lawyers might consider adopting a personal drafting protocol for writing legal 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

The purpose of this Protocol is 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 paper addresses some of the more common problems caused by careless writing and how those problems can be corrected.

 

I. Purge the legalese

Wasted words

Legal documents are full of lawyers' cant: 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?(2) Then get rid of it - put a red pencil through the offending words.

 

The aforesaid provisions in this Article . . . March 19 A.D. 1990 the terms of this agreement hereunder the said article Any conclusion reached in the aforementioned negotiations shall be made retroactive to the said anniversary date of the said termination date (just unnecessary) (it could hardly be "BC"!) (just unnecessary) (unnecessary)   (three unnecessary words)

 


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 the whole agreement - yes, sometimes it is used to mean "anywhere in this agreement"(3)
  • 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 virtue of in the event that subsequent to prior to for the period of period of time by reason of in order to set forth in during the term of in liew of is authorized is empowered is binding on the manner in which by by, under if after before for period, time because of to in during instead of, in place of may may binds how

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

1. In the event that employees are required to work overtime Better: If employees are required to work overtime

 

2. During the term of this agreement Better: During this agreement (or while this agreement lasts)

 

3. In order to qualify for payment... Better: To qualify for payment

 

4. Prior to being appointed... Better: Before being appointed...

The Canadian Bar Association Report on Plain Language Documentation(4) 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 bind and obligate by and between deemed and considered due and owing final and conclusive finish and complete for and during full and complete full force and effect furnish and supply have and hold if and when in and for known and described over and above power and authority save and except sole and exclusive suffer or permit supersede and displace tried and true true and correct type and kind understood and agreed 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

If there is a difference over . . . clause 4.2, then the following matters . . . shall 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.