You are here:
  1. Home
  2. News
  3. Blog
  4. 7 legal writing mistakes to avoid

7 legal writing mistakes to avoid

02 September 2016

Richard Heinrich looks at the seven deadly sins of writing legal documents.


When it comes to legal writing, the stakes are high. Hard-to-read or understand documents for the court can harm cases and, sometimes, lead to sanctions. It's vital, therefore, that legal writing is as clear and succinct as possible.

Less is more when it comes to good legal writing, especially when it gets right down to business. Legal writers are rewarded for precision, analysis, conciseness and efficient communication.

Here is some insight into common writing mistakes you must avoid if you're not to come across as a rookie.

1) Avoid writing in the passive

In general, prefer the active voice over the passive. Using the passive voice - where an outside force acts on the subject of the sentence - can cause confusion. It's best to have the subject of your sentence do the acting and have it precede the action.

The guru of legal writing in the US, Bryan Garner, says it best in his book, Legal Writing in Plain English:

"Think of it this way: if you're active, you do things; if you're passive, things are done to you. It's the same with subjects of sentences. In an active voice construction, the subject does something ('The court dismissed the appeal'). In a passive-voice construction, something is done to the subject ('The appeal was dismissed by the court')."

This book is aimed at the US market, but contains a host of invaluable tips for the UK legal professional.

2) Beware of ambiguous pronouns

An ambiguous pronoun occurs when a pronoun may refer to more than one antecedent (a prior word in the sentence), leaving readers uncertain as to your intended meaning (hence this error sometimes called an unclear antecedent).

Consider the sentence: "Laura has a letter for Diane, but couldn't deliver it because she was blocking her way." 

Who was blocking whose way? This sentence is confusing for the reader to understand quickly because they have to think carefully about to whom the pronouns refer.

It's best to rephrase sentences containing pronouns like 'her' and 'him' to make it clear which pronoun refers to what. For example: "Laura has a letter for Diane, but couldn't deliver it because Petra was blocking Laura's way".

3) Watch out for unnecessary wordiness

A legal document that can convey its message in as little space as possible is more useful than one that rambles for many pages. When you have something to say, get right to it! Inflating your sentences and paragraphs with unnecessary words or pointless filler only obfuscates what you mean to say.

So, streamline your writing by following a few rules:

• First, use the active voice over the passive

• Second, use concrete rather than abstract language

• Third, cut out all of those word-wasted idioms so beloved of the legal profession (“he was aware of the fact that” instead of “he knew”, for example).

4) Check that you’re using the right homophones

Spellcheckers these days are pretty good at spotting incorrectly-spelled words and the most egregious of grammatical errors. Unfortunately, most still struggle to spot homophones (those annoying words that sound the same, but have different meanings) when they’re spelt entirely correctly but used out of context.

Here are five that are worth paying extra special attention to:

Allude / Elude — “allude” means to make an indirect reference, while “elude” means to evade or escape from.

Ensure / Insure — “ensure” means to confirm that something will happen, while “insure” refers to the monetary insurance of something or someone.

Formerly / Formally — “Formerly” means in the past, previously, or in earlier times, while “formally” means conforming to convention, ceremony, and proper etiquette.

Their / There / They’re — “their” is the possessive case of the pronoun “they”, while “there” is an adverb that means in or at that place, and “they’re” is a contraction of the words “they” and “are.”

Its / It’s — “Its” is the possessive form of “it”, while “it’s” is the contraction of “it” and “is”.

5) Watch out for verbs used as nouns

Verb/noun interchange is very common in legal writing, and is referred to as “nominalisation”. It means a verb used as a noun. For example, “act” becomes “take action” or “assume” becomes “make assumptions.” It’s almost always unnecessary, however. Make your writing more crisp and direct by cutting these nominalisations out wherever possible. For example:

Nominalisation: “The implementation of the plan by the team was successful”

Verb: “The team implemented the plan successfully”

6) Over-using legalese

In The Elements of Legal Style Bryan Garner writes that “In legal writing, jargon consists mostly of stilted words and phrases — blemishes, not graces — such as aforesaid, arguendo, hereinafter… Most hoary legal phrases have little or no substantive purpose. They sometimes mar the substance by suggesting precision where in fact an ambiguity lies.”

One of the simplest ways to cut back on legalese is to refrain from using redundant couplets (or worse, triplets!). Why say “null and void” when just “null” would do? Why write “convey, transfer and set over” when just “convey” would do? A tiny handful of these phrases exist in statute, and so should be retained, but the vast majority serve little or no purpose. Cut them out.

7) Don’t neglect to proofread

Sometimes we all work on a piece of writing for so long that we begin to get sick of the sight of it. We may even consider just submitting it as it is. It’s always a mistake to skip the proofreading stage, however.

It’s often best to have a second person proofread important documents. If you’re not that fortunate, take a short break (at least 30 minutes) and, when you return, either print the document out and proofread it on paper with a pencil or, better still, give it a good dramatic reading (yes, out loud!). If you stumble over a sentence when reading aloud, it’s likely that there are spelling or grammar mistakes you should take care of.

Attend our courses:

• Zero tolerance on punctuation and grammar (14 October)

• Writing and drafting legal documents (1 November)

This article was previously published on the One Legal website, and is reproduced with kind permission. 

Read the original article

Tags: business | brand | communication

About the author

Richard Heinrich is the senior marketing manager at One Legal and an ambassador for the Foundation for Sustainable Development, a San Francisco-based non-profit organisation. He previously worked for the Law Society. Follow Richard on Twitter

  • Share this page:
Authors

Adam Johnson | Adele Edwin-Lamerton | Alex Barr | Alex Heshmaty | Alexandra Cardenas | Amanda Carpenter | Amanda Jardine Viner | Amy Heading | Andrew Kidd | Andy Harris | Anna Drozd | Annaliese Fiehn | Anne Waldron | Asif Afridi and Roseanne Russell | Bansi Desai | Barbara Whitehorne | Barry Wilkinson | Becky Baker | Ben Hollom | Bob Nightingale | Caroline Roddis | Caroline Sorbier | Catherine Dixon | Christina Blacklaws | Ciaran Fenton | David Gilroy | David Yeoward | Douglas McPherson | Dr Sylvie Delacroix | Duncan Wood | Eduardo Reyes | Elizabeth Rimmer | Emily Miller | Emma Maule | Gary Richards | Gary Rycroft | Graham Murphy | Hayley Stewart | Ignasi Guardans | James Castro Edwards | Jayne Willetts | Jeremy Miles | Jerry Garvey | Jessie Barwick | Joe Egan | Jonathan Andrews | Jonathan Fisher | Jonathan Smithers | Julian Hall | Julie Ashdown | Julie Nicholds | Justin Rourke | Karen Jackson | Kate Adam | Kayleigh Leonie | Keiley Ann Broadhead | Kerrie Fuller | Kevin Poulter | Larry Cattle | Laura Devine | Leah Glover and Julie Ashdown | LHS Solicitors | Lucy Parker | Mark Carver | Mark Leiser | Markus Coleman | Martin Barnes | Matthew Still | Meena Toor | Melissa Hardee | Neil Ford | Nick Denys | Nick Podd | Pearl Moses | Penny Owston | Peter Wright | Philippa Southwell | Preetha Gopalan | Rachel Brushfield | Ranjit Uppal | Richard Coulthard | Richard Heinrich | Richard Messingham | Richard Miller | Richard Roberts | Rita Oscar | Rob Cope | Robert Bourns | Robin Charrot | Rosy Rourke | Saida Bello | Sam De Silva | Sara Chandler | Sarah Austin | Sarah Crowe | Sarah Henchoz | Sarah Smith | Shereen Semnani | Sophia Adams Bhatti | Steve Deutsch | Steve Deutsche | Stuart Poole-Robb | Susan Kench | Suzanne Gallagher | Tom Ellen | Tony Roe Solicitors | Vanessa Friend

Tags

access to justice | anti-money laundering | apprenticeships | archive | artificial intelligence | Autumn Statement | bid process | brand | Brexit | British Bill of Rights | Budget | business | careers | centenary | charity | city | communication | Conservatives | conveyancing | court closures | court fees | courts | CPD | criminal legal aid | cyber security | David Cameron | development | Diversity Access Scheme | diversity and inclusion | education and training | elderly people | emotional resilience | employment law | equality | European Union | Excellence Awards | finance | George Osborne | human rights | human trafficking | immigration | in-house | International Womens Day | Investigatory Powers Bill | IT | Jeremy Corbyn | justice | knowledge management | Labour | law management | Law Society | leadership | legal aid | legal professional privilege | LGBT | Liberal Democrats | library | Liz Truss | Magna Carta | mass data retention | mediation | members | mention | mentoring | merger | modern slavery | morale | National Pro Bono Week | Parliament | party conferences | personal injury | Pii | politics | president | pro bono | productivity | professional indemnity insurance | represent | retweet | risk | rule of law | security | social media | social mobility | SRA | staff | strategy | stress | talent | tax | tax credits | team | technology | Theresa May | Time capture | training | Twitter | UKIP | value proposition | website | wellbeing | Westminster weekly update | wills