Mark von Dadelszen, Barrister, shares his insight on language lawyers use and the justifiable differences between legal English and plain English so that no other interpretation can be taken out of a sentence other than what was intended by the draftsperson. Mark will also be presenting in March at the upcoming Charities and Not for Profits Update on the topic of Duties of those in Governance of Incorporated Societies and Charities.
Legal language
What is sometimes referred to as “legal language” is the language used by people in the legal profession (lawyers and other legal professionals) or by Judges. It is common for lawyers to be criticised for their use of what is scornfully referred to as “legalese,” particularly in their written language. That criticism is often justified, but is also often misguided. There are justifiable differences between legal English and plain English because legal writing should, preferably, be undertaken in such a manner that no other interpretation can be taken out of a sentence other than what was intended by the draftsperson:
- Plain or general English writing is generally used to communicate thoughts, observations, stories, descriptions etc., but legal writing usually has a distinctly different purpose.
- Legal writing:
- Usually needs to be more precise because it seeks to describe or define people’s legal rights, obligations and liabilities, legal status, statutory positions, factual descriptions, etc., and
- Is undertaken knowing that what is written may later be the subject of interpretation by laypeople, other lawyers, and Judges (interpretation by a Court would provide a definitive and binding interpretation).
Characteristics of legal language
Legal writers usually seek to provide precision, clarity and simplicity in the language they use during the course of their work, but what is precise is often not simple. The language used to write a legal document usually contains a number of unusual features related to terminology, linguistic structure, linguistic conventions, punctuation, and long usage. Due to its rich vocabulary, there are many problems in legal language such as “ambiguity,” “multiple meanings,” and “doubtfulness in its contents,” etc.
The development of legal English is closely connected with the history of Great Britain, the legal traditions of which are based on what is called the “common law,” and those traditions have been adopted and adapted in New Zealand. For several centuries following the Norman Invasion of Britain in 1066, almost all writing in Great Britain was done in French or Latin, and Anglo-Norman French became the official language of England. As a result, modern legal English includes Latin and French words and phrases and technical terminology which are unfamiliar to most laypeople, making much legal English difficult for some people to understand.
The principles for writing documents relating to legal issues are based on each lawyer’s training, personal practical experience, and the observation of legal writing of Judges, eminent lawyers, senior colleagues and books of known legal authors. There are certain fundamental principles for legal writing, and, specifically, relating to the drafting of legal documents and agreements, including the use of reference material and document formats.
Document design
Many legal documents have a unique form or structure evolved over centuries of legal history. The design of an agreement is different from a Court claim, and the design of legal notice to an individual will be different from a public notice in a newspaper. The draftsperson usually seeks to follow the prevailing practice for the design of any particular type of document, and lawyers create their own libraries of template documents upon which most of the documents commonly required for clients are based (including constitutions for societies and trust deeds for charities), and those template documents are commonly subject to regular revision.
Understanding legal terminology
When drafting any legal document a legal draftsperson must:
- Have a good understanding of any relevant law and of the meaning of legal terminology,
- Understand the impact of the legal terms that are used in a document, and
- Be aware of how legal professionals would interpret the words used, but also
- Seek to use language that non-lawyers can understand.
Any legal terms should be used very carefully having regard to the likely interpretation of them by Court, and a legal document commonly includes a section defining some of the words and phrases used in it.
Use of legal “jargon” and Latin
Legal “jargon” refers to language which most legal professionals can understand, but is usually not in common, general usage. Some legal professionals take pride in using legal jargon and Latin, but a good legal draftsperson will aim (within constraints such as the provisions of a statute) to produce a document that can be readily understood by the people for whom it is written.
Words like “thereon,” “therewith,” “whereas,” and “hereinafter” (often referred to as “legalese“) are not in common usage by most people, but these words are commonly used by legal professionals, and Latin words are usually difficult to pronounce and, today, are unlikely to be understood by most people. Such language can be acceptable when a document is written for consideration by a Court or by lawyers who are accustomed to read and understand such documents, but are likely to confuse most laypeople.
Issues legal draftspeople should consider when drafting documents
- Short sentences give a reader space to pause and understand what is written. A paragraph containing three to five short sentences in a sequence is easier to understand than a paragraph containing long sentences with several related phrases.
- A new paragraph should follow the previous paragraph logically. Continuity is important and what is written should have some linkage with the previous text.
- Headings are usually (or should be) descriptive of the content that follows.
- As with any document written in English, a legal document should be grammatically correct. A legal document once written may be used and examined by a number of different people, especially by clients, by other people affected by the document, by lawyers, by civil servants, and by judges, and it may continue to be of relevance for many years after it was written.
- It is good practice for a legal draftsperson to check and revise a document at least five times. Such revision and editing should make the document more readily understood by its users and eliminate every possible mistake in expression, grammar, spelling, commas, parenthesis, chronology etc. That revision process also enables the draftsperson to improve the choice of words, sentence structure, paragraph length, and even the document sequence.
- A lawyer creating a document for a client from a library of precedents must adapt the precedent to fit what the client requires, and that process also means that such precedents are also subject to regular refinement.
Due to the French and Latin influence on its evolution, the English language abounds in synonyms. Legal drafting is complicated by the existence of a number of synonyms referring to the same legal concept, such as “assign” (transfer or convey), “clause” (provision, paragraph, or article), “promise” (assurance or undertaking), and “void” (invalid or ineffective).
Archaic or old words are now used infrequently in most written and spoken language, so they have become rather obscure over the course of time. There are many old words used in legal English, primarily to avoid repeating names or phrases; such as “the parties hereto” instead of “the parties to this contract,” “hereafter” instead of “later referred to in this document,” and “wherein” meaning either “in which” or “in which place, or “in which respect.”
Circumlocution (from the Latin words circum, “circle,” and loqui, “to speak”) is a common characteristic of legal language, and simply means “talking around.” Circumlocution is common in legal documents because many legal draftspeople follow traditional ways of writing or use circumlocution to reduce possible ambiguities. Examples of circumlocution include the “adequate number of” instead of “enough,” “for the duration of” instead of “during,” “in the event that” instead of “if,” “similar to” instead of “like,” and “until such time as” instead of “until.”
It was once common in legal writing for punctuation to be used too little, but now, in modern legal drafting, punctuation is more commonly used to help clarify the meaning of documents.
What are known as “modifiers” (such as “the same,” “the said,” “the aforesaid,” and “the aforementioned”) are used in legal documents, frequently as adjectives to determine a noun or name, but not to replace it; for example, “the said John Smith.”
Legal English includes some words and titles in which the reciprocal and opposite nature of a relationship is indicated by the use of alternative endings, such as “employer” and “employee,” and “lessor” and “lessee.”
Miscellaneous peculiarities in legal English
- The length and complexity of sentences are the most obvious features of many legal documents. Over the last five decades (at least) the plain English movement has challenged the structural complexity in legal writing and promoted the opportunities to shorten sentences.
- What are known as “phrasal verbs” are often used in a quasi-technical sense. For example, people “enter into contracts,” “put down deposits,” “serve upon other parties,” “write off debts,” and so on.
- In legal English, many common, ordinary words which we use in our daily lives have special meanings in the legal context. For example, the familiar word “consideration” refers, in legal English, to contracts, and means the “price” or “cost” associated with a contractual promise.
- Nouns derived from verbs are often used by legal draftspeople instead of verbs, such as: “to give consideration to” instead of “to consider,” “to be in opposition” rather than “to oppose,” “to be in contravention of” instead of “to contravene,” and “to be in agreement with” instead of “to agree.” However, it is hard to eradicate all such nominalisation, for instance because lawyers do not usually say “to arbitrate,” but “to go to arbitration,” because an arbitration is a legally defined procedure and should be referred to as such.
- The use of verbs in the passive voice and the omission of personal pronouns are characteristics of a highly impersonal style of writing, inherent in legal language, but also overused in all types of legal documents. The underlying intent is to create the impression that law is impartial, but such generalisations are vague, and their efficiency and efficacy are often disputable.
- In legal language, capital forms of words were previously used widely and explicitly (but are now far less common). The Preamble of Indian Constitution (1949) is a good example of the use of capital letters and also of bolding the capitalised text, and opens by stating that “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and to secure all its citizens …”
- During the medieval period British lawyers used a mixture of Latin, French and English. The usage of pairs of words from different languages led to the emergence of mixed language doublets in legal language. Among the examples of mixed language doublets are “lands and tenements” (English/French), “Will and testament” (English/Latin), “Breaking and entering” (English/French), and “Fit and proper” (English/French). Examples of English-only doublets include “bag and baggage,” “belt and braces” and “bread and butter,” while examples of triplets include “give, devise and bequeath” and “judge, jury and executioner.”
Textual interpretation
In New Zealand statutes, regulations, Court rules and previous judicial decisions may all be relevant when trying to interpret a legal document. There are three main methods of textual interpretation, “plain meaning” (reliance on the definitions of particular words and phrases, often in the text, to interpret the text), “canons of construction” (reliance on rules of interpretation that draw inferences about the meaning of words or phrases from their textual or legal context), and “intra-textual arguments” (reliance on using one portion of the legal text or document to interpret another portion).
Intention
Another type of interpretation is based on the expressed or assumed intention of the person or people who wrote the text; for example, the original intention of the framers of a constitution or the intention of legislators who drafted a statute. Evidence of intention may be drawn from the text of a document itself, previous versions of the text, the drafting history of the text, and any official or contemporary commentary relating to the text.
Precedent
Another type of legal argument (the one best known to first-year law students) is an argument based on judicial “precedent” (previous Court judgments). Making an argument based on judicial precedent includes analogising or distinguishing a client’s situation from the facts or law of precedent Court judgments, and referring to any binding decision of a superior Court.
Tradition
Tradition is looked to in various areas of law, such as the law of commercial transactions, where Courts have regard to industry customs and traditions. In New Zealand, there is now increasing reference to relevant Māori customs and Māoritanga.
Policy
A policy argument enquires into the underlying purposes of the law, and seeks to determine the meaning of the law based on the values the law is intended to serve. Policy arguments are different from the other four types of argument because they are consequentialist in nature; that is, unlike the other four types of arguments, which look to the past in that they are appeals to previous authority, policy arguments look to the future by arguing that a certain interpretation of the law will bring about a certain state of affairs – and that this state is either desirable or unacceptable in the eyes of the law.
Mark von Dadelszen’s legal experience over the last five decades has included advising corporates, Councils, receivers, liquidators, and company directors on a wide range of issues, including strategic planning, governance, conflicts of interest, resource management, commercial issues, and meeting procedure. He has over 50 years’ experience on committees of societies and boards of charitable trusts, often as chairman. His strategic and change management skills have been utilised to refocus the direction of many organisations to make them more relevant to their constituencies, truer to their purposes, and more effective operationally. In 1995 Mark wrote and self-published a book on meeting procedure, Members’ Meetings, and this caused a number of individuals and community organisations to seek his advice about problems with meetings. Many of those problems proved to relate to the organisation’s constitution or governance, and this advisory work prompted him to write a second book, Law of Societies. 4th Editions of both of those texts are expected to be published by LexisNexis early in 2024. Connect with Mark via LinkedIn
Note
An in depth article, Drafting: Plain English versus Legalese by Stephen Hunt published in the (1995) 3 Waikato Law Review 163, is accessible at https://www.austlii.edu.au/nz/journals/WkoLawRw/1995/9.html.
