Legal Writing in Plain English: Importance of Clear Language and Seven Ways to Improve Writing

Legal Writing in Plain English: Importance of Clear Language and Seven Ways to Improve Writing

Introduction

Lawyers are notorious for incomprehensible writing. In Pakistan especially, lawyers and judges frequently use archaic words (legalese), extremely long sentences and poor grammar and style in their writing. This makes it almost impossible for laypersons – and surely even difficult for lawyers themselves – to decipher legal documents. One reason for poor legal writing in Pakistan, other than the fact that English is not our native language, could be that our jurists are stuck in the arcane, early 20th century style of legal writing. “There’s an age-old cycle of poor legal writing,” says Bryan A. Garner, an American lawyer and writer; the new generation of lawyers follows the ‘ingrained [writing] habits’ of the former generation.^[1]

Another reason for poor legal writing could be that lawyers feel that they must use complicated language – why else would legal writing be legal writing? However, legal writing, or any form of writing for that matter, should be simple and easily understandable. The purpose of spoken or written communication is to convey information and ideas to other people. If this communication is made clearly, we would be understood better. Clear legal writing does not only get the point across faster, but it is also more persuasive and effective.^[2] This article will explore how lawyers can easily write without using archaisms and bloated language.

Plain Language Writing and Examples

Unlike Pakistani courts, courts in common law jurisdictions such as the US and Canada emphasise using plain, understandable language.^[3] “Cases involve real people,” said an Ohio judge, “…Shouldn’t they be able to read what is happening to them?”^[4] If you look at recent US Supreme Court judgments, you will notice how easy-to-read they are. Take the recent judgment in Ramos v. Louisiana, for example. The opening to Justice Gorsuch’s opinion reads more like an opening to a novel than to a judgment:

“Accused of a serious crime, Evangelisto Ramos insisted on his innocence and invoked his right to a jury trial. Eventually, 10 jurors found the evidence against him persuasive. But a pair of jurors believed that the State of Louisiana had failed to prove Mr. Ramos’s guilt beyond reasonable doubt; they voted to acquit.”^[5]

It immediately captures the reader’s attention and provides the background to the case in only a few, plainly written lines. Canadian judgments are similarly easy to read. The Canadian Supreme Court also publishes plain-language summaries of its decisions so that they are accessible to anyone interested.

Let’s take an example from the Supreme Court of Pakistan’s recent short order in the Justice Qazi Faez Isa case.^[6] Paragraph 9 of the order reads as follows:

“Within 7 days of the issuance of the order by the Commissioner, the Chairman, Federal Board of Revenue (“FBR”) shall submit a report (to be personally signed by him) to the Council through its Secretary (i.e., the Registrar of the Supreme Court) regarding the proceedings as aforesaid, appending thereto the entire record of the said proceedings. The Secretary shall forthwith place such report before the Chairman of the Council (i.e., the Hon’ble Chief Justice of Pakistan) who shall, in such manner as is deemed appropriate, have the report laid before the Council for such perusal, consideration, action, order or proceedings, if any, in relation to the Petitioner as the Council may determine. The receipt of the report, the laying of it before the Council and the action/proceedings, if any, or orders or directions, if any, as may be taken, made or given by the Council thereon shall be deemed, for purposes of Article 209 of the Constitution, to be in exercise of the suo moto jurisdiction as is conferred by that Article on the Council.”

The paragraph is marred with the usual suspects: long sentences, archaic terms, redundant language (i.e. extra words that can be omitted), and is generally hard to follow. It uses 175 words.

Let’s try making it more comprehensible by breaking it down and identifying the problematic parts of each sentence (which have been underlined):

1st sentence: “Within 7 days of the issuance of the order by the Commissioner, the Chairman, Federal Board of Revenue (“FBR”) shall submit a report (to be personally signed by him) to the Council through its Secretary (i.e., the Registrar of the Supreme Court) regarding the proceedings as aforesaid, appending thereto the entire record of the said proceedings.”

First, ‘Within 7 days of the issuance of the order by the Commissioner’ is wordy writing. It can simply be written like this: ‘Within seven days after the Commissioner issues the order.’ Then, in ‘shall submit a report (to be personally signed by him),’ the word ‘personally’ is redundant: there is no difference between ‘personally signed by him’ and ‘signed by him’. So, we can remove the parentheses and convert the phrase into ‘shall submit a report signed by him.’ Next, in the phrase ‘to the Council through its Secretary’, ‘through its’ is unnecessary. We can rewrite the phrase as ‘to the Council’s Secretary’, which carries the same meaning.

Moving on, ‘regarding the proceedings as aforesaid’ can be converted into plain English by rephrasing it as ‘regarding the proceedings mentioned above.’ Finally, ‘thereto’ is once again redundant, not to say archaic, and the word can safely be removed. The sentence is also too long and I have divided it into two sentences in the final revision (see below) to make it easier to read.

2nd sentence: “The Secretary shall forthwith place such report before the Chairman of the Council (i.e., the Hon’ble Chief Justice of Pakistan) who shall, in such manner as is deemed appropriate, have the report laid before the Council for such perusal, consideration, action, order or proceedings, if any, in relation to the Petitioner as the Council may determine.”

In this sentence, we can replace ‘forthwith’ by its modern equivalent, ‘immediately’ – there is no need to use outdated terms. Next, we can replace ‘such report’ by ‘the report’ because we know which report is being referred to. Further, we can remove the phrase ‘in such manner as is deemed appropriate’ as it adds no meaning to the sentence. This reduces the sentence’s length and makes it easier to follow.

Then, we can convert the phrase ‘have the report laid before the Council’ into active voice so that it reads ‘lay the report before the Council’. This sounds better when read out loud and uses less words. Towards the end of the sentence, there is a list: ‘for such perusal, consideration, action, order or proceedings.’ All these words can be replaced by the single word ‘action’. Thus, it could be rephrased as: ‘The Council may take such action in relation to the Petitioner as it deems appropriate.’

3rd sentence: “The receipt of the report, the laying of it before the Council and the action/proceedings, if any, or orders or directions, if any, as may be taken, made or given by the Council thereon shall be deemed, for purposes of Article 209 of the Constitution, to be in exercise of the suo moto jurisdiction as is conferred by that Article on the Council.”

The final sentence of the paragraph is extremely convoluted. It could be rephrased like this: “The Council’s consideration of the report, and any action that it takes in relation to it, shall be in exercise of its suo moto jurisdiction under Article 209 of the Constitution.” Other than being too long, it contains too many commas that interrupt the flow of the sentence. There is repetition (‘if any’ is repeated twice), redundancy and a heavy use of the passive voice.

The final revision of the paragraph thus reads: “Within seven days after the Commissioner issues the order, the Chairman of the Federal Board of Revenue (FBR) shall submit a report signed by him to the Council’s Secretary (the Registrar of the Supreme Court) regarding the proceedings mentioned above. The report should append the entire record of the proceedings. The Secretary shall immediately present the report to the Council’s Chairman (the Chief Justice of Pakistan), who shall lay the report before the Council. The Council may take such action in relation to the Petitioner as it deems appropriate. The Council’s consideration of the report, and any action that it takes in relation to it, shall be in exercise of its suo moto jurisdiction under Article 209 of the Constitution.”

This revision uses 120 words, reducing the original paragraph’s length by almost a third. It is also more understandable.

Seven Ways To Improve Your Writing

This section lists seven ways to improve your writing. For those interested in learning about the topic in more detail, I would highly recommend Bryan A. Garner’s book, Legal Writing in Plain English (of which this article’s title is part namesake). Many of the tips that I share below are borrowed from this book. It is an invaluable and easy-to-follow resource for legal professionals, law students and even non-lawyers. I would also recommend reading George Orwell’s short essay on writing. Finally, the University of Purdue’s Online Writing Lab is a useful, free-to-use online resource. It contains short guides to topics such as grammar, punctuation, academic writing and subject-specific writing.

What is good writing?

Before proceeding to the techniques, we must understand what good writing is. Good writing is writing that is concise, easy to read and easily understandable. It does not consist of overly long sentences, archaic language, repetition and redundancies. Remember, the goal is to make the reader understand what you write. You also need to focus on getting the basics right: grammar, punctuation and spelling. For grammar and punctuation, there are numerous resources online that you can refer to, such as Purdue’s Online Writing Lab mentioned above. If you want to improve your vocabulary and style, read books by prominent authors and articles by leading publications, such as The Atlantic, Vox, New York Times, etc. The goal overall is to convey our ideas to the reader as clearly and concisely as possible.

1. Avoid pointless legalese

Legalese refers to archaic legal jargon that has modern English equivalents.^[7] Below is a list of some legalisms and their modern equivalents. Most of the list is borrowed from the book Legal Writing in Plain English.^[8]

Legalism	Plain English
herein	in this [agreement, letter, etc.]
pursuant to	under [for example, ‘under this Act’.]
prior to	before
foregoing	above
therein	in it, in them, inside
thereafter	later
subsequent to	after
in this instant case	in this case
aforesaid	mentioned above, previously mentioned

Why should you avoid legalese? Legalese adds nothing to your sentences. Replacing it with plain words will not only make your sentences shorter but will also make your writing much easier to understand. In fact, legalese makes lawyers’ writings so incomprehensible that the US Congress regularly introduces ‘plain language’ Bills to regulate them.^[9] For instance, the Plain Writing Act 2010 requires US federal agencies to use simple English in their documents so that they can be understood by everyone.^[10] For an example of how avoiding legalese can improve writing, refer to the exercise above where I revised a section of the Supreme Court of Pakistan’s short order in the Justice Qazi Faez Isa case.

2. Avoid using ‘the same’ to refer to a previously mentioned item

This is a habit that is perhaps unique to the Pakistani legal community. Many lawyers use the phrase ‘the same’ to refer to a previously mentioned item. For example: ‘I have finished the report and emailed the same to you.’ The reason why using ‘the same’ here is problematic (though grammatically correct) is that pronouns should be used instead. The function of pronouns, such as it, this, that, is to refer to objects or persons that you have mentioned previously. The sentence could simply be written like this: “I have finished the report and emailed it to you.”

You can also repeat the object’s name instead of using a pronoun. In some cases, this would be preferable, especially where using a pronoun would make it unclear what is being referred to. Consider this example, ‘As I waited, Mrs. Smith wrote a letter with a blue pen. She then gave it to me.’ Here, it is unclear whether ‘it’ is referring to the letter or the pen. To remove this ambiguity, we can rewrite the sentence like this, ‘As I waited, Mrs. Smith wrote a letter with a blue pen. She then gave the pen to me.’

In leading publications, you will never come across articles using ‘the same’ to refer to previously mentioned items. You will not see it in the judgments of established common law systems either. The usage is not conventional English. Using ‘the same’ instead of choosing an appropriate pronoun or repeating the item’s name could also indicate laziness. Finally, using ‘the same’ does not sound natural – it is never used in conversational English. If it were used in spoken English, our conversations would sound very awkward. For example:

Mom: ‘Wash the dishes and keep the same in the cupboard.’

Of course, in real life, this sentence would only be spoken like this: ‘Wash the dishes and keep them in the cupboard.’

So, ensure using pronouns such as it, that and them to refer to previously mentioned items, or simply repeat the item’s name when appropriate.

3. Consider using the active voice

First, a disclaimer. Though many writing guides recommend using the active voice instead of the passive voice, this is not a universal rule. There are many situations where the passive voice would be more appropriate than the active voice. Linguist Geoffrey K. Pullum makes persuasive arguments about why using the active voice should not be overemphasised, or even emphasised at all.

That said, conventional advice is still to use the active voice frequently and the passive voice sparingly. Even though I agree with Pullum’s opinion, there certainly are situations where the active voice reads better than the passive voice. One of the advantages of the active voice is that it usually requires fewer words and can make your writing more lively and effective.^[11] However, these advantages are not absolute; you should assess your sentences to see whether an active voice or passive voice construction would read better.

The active voice refers to a sentence construction in which the actor precedes the action. For example, ‘Johnny kicked the ball.’ Here, the actor (i.e. the person performing the action, Johnny) appears first, followed by the action, ‘kicked’. In the passive voice, the action precedes the actor: ‘The ball was kicked by Johnny.’ Similarly, ‘The court reversed the decision’ uses the active voice because the actor (‘the court’) appears before the action (‘reversed’). Converting it to the passive voice, the sentence reads, ‘The decision was reversed by the court.’ A simple way to remember the difference is this: if you’re active, you do things; if you’re passive, things are done to you.^[12]

You can identify passive voice by looking for ‘be’ verbs followed by past participle verbs. ‘Be’ verbs refer to words such as is, are, was and were. Past participle verbs are verbs that end with ‘ed’, such as served, delivered and reversed. In the example in the previous paragraph (‘The ball was kicked by Johnny’), ‘was’ is the ‘be’ verb and ‘kicked’ is the past participle verb.

4. Turn words ending in ‘ion’ into verbs

This is a neat technique that Bryan Garner lists^[13] and an easy way to reduce the length of your sentences. Remember, we want to reduce the amount of words to make our writing concise. Consider this example: ‘After the consideration of your application to our firm, we are pleased to offer you an internship.’ By converting ‘consideration’ to ‘considering’ (i.e. its verb form), the sentence could be rewritten like this: ‘After considering your application to our firm, we are pleased to offer you an internship.’ This simple change has made the sentence less wordy, reducing the three-word phrase ‘the consideration of’ to a single word, ‘considering’.

Some more examples (borrowed from Legal Writing in Plain English):^[14]

• Instead of writing ‘X was in violation of the law’, write ‘X violated the law.’
• Instead of writing ‘X will furnish an indemnification to Y’, write ‘X will indemnify Y.’
• Instead of ‘make accommodation for’, use ‘accommodate.’
• Instead of ‘take into consideration’, write ‘consider.’
• Instead of ‘makes provisions for’, write ‘provides for.’

Not only does eliminating words ending in ‘ion’ for their verb form significantly reduce word length, it also makes your writing easier to understand.

5. Try using ‘of’ less

Another technique that Bryan Garner mentions in his book is using ‘of’ sparingly.^[15] This can help further declutter your writing. Consider this example from the Supreme Court of Pakistan’s short order discussed above: ‘Within 7 days of the issuance of the order by the Commissioner…’ Here, ‘of’ is repeated twice and makes the sentence wordy. In my revision, I simply rephrased it like this: ‘Within seven days after the Commissioner issues the order…’

Of is also often used with words ending in ‘ion’. In the example in the previous subsection, the phrase ‘the consideration of’ was converted to ‘considering’ without changing the meaning of the sentence. Similarly, ‘for the effectuation of’ can be converted into ‘to effectuate’ and ‘for the determination of’ into ‘to determine’. You can use the same technique to convert other phrases that involve words ending in ‘ion’.

Another way of reducing ofs is by removing them from sentences where they are used to show possession. Consider the phrase, ‘the hard disk of the computer’. This could simply be written as ‘the computer’s hard disk’. Removing ‘of’ reduces the sentence’s length and makes it sound more natural. Similarly, consider this example: ‘The decision of Justice Roberts met with significant criticism.’ This could be rephrased like this: ‘Justice Roberts’ decision met with significant criticism.’

According to Bryan Garner, ‘of’ often bloats legal writing.^[16] He claims that eliminating ofs in your writing by 50% can greatly enhance its readability.^[17] A simple way to do this would be to search for ‘ofs’ in your essays or articles (by using Ctrl+F on your keyboard) to see whether they can be removed to make your writing less wordy.

6. Check your paragraph and sentence structures

Structuring your paragraphs is essential to good writing. The way to structure paragraphs is easy. Start with a topic sentence which introduces the reader to what the paragraph will talk about. Next, expand the topic sentence in the body of your paragraph. The paragraph’s body should only contain points relevant to the topic sentence. Finally, write the concluding sentence in such a way that it connects back to the paragraph’s topic sentence, and in turn to your essay or the article’s title. This will help bring it all together to create a coherent paragraph.

Your paragraphs and sentences should not be too long. The recommended average sentence length is around 20 words.^[18] But note that this is only the average length; it is best to have a mix of some longer sentences with shorter sentences for variety.^[19] If your paragraphs are too long, split them into two or more parts. Similarly, break down sentences that are too long into different parts as well.

7. Proofread

You must proofread your writing to ensure that it is error-free. Reading your writing out loud can help spot mistakes and awkward sentence structures. Pay close attention to grammar, punctuation and spelling. When in doubt, a simple Google search can be very helpful. Software and browser plugins are also available for use. Grammarly is a good plugin that assesses your writing in real-time if you are writing within your browser. The built-in suggestions in Microsoft Word and Google Docs are useful as well.

The importance of proofreading cannot be stressed enough. After finishing your writing, you need to review it at least two to three times to eliminate errors.

Conclusion

Through poor legal writing ‘the attorney fails the Court as well as the client’.^[20] Writing is the primary mode of communication for lawyers, yet lawyers are generally poor writers. They should make an effort to write clearly and in plain language. Clear legal writing is more understandable and accessible to any interested party. It attracts clientele and makes the task of judges and fellow lawyers easier. It can also help avoid disputes arising from poor drafting. Deleting unnecessary words, avoiding legalese and using the other techniques listed in this article will help you enhance your writing.

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References

^[1] B. A. Garner, Legal Writing in Plain English: A Text with Exercises (The University of Chicago Press 2001), p. xvii

^[2] L. Chauhaan, ‘Use of Archaic Language in Law’, European Academic Research, Vol. 1 Issue 4, Jul. 2013, p.334, http://euacademic.org/UploadArticle/24.pdf. Accessed 21 Jun. 2020

^[3] See, for example, ’Plain language – essential for real access to justice’, Provincial Court of British Columbia, https://www.provincialcourt.bc.ca/enews/enews-18-07-2017. Accessed 21 Jun. 2020; R. Guberman, ‘Five Ways to Write Like Justice Kagan,’ Legal Writing Pro, https://www.legalwritingpro.com/blog/five-ways-write-like-justice-kagan/. Accessed 21 Jun. 2020.

^[4] M. Niehaus, ‘Judge Champions Plain Language Legal Writing’, University of Cincinnati Magazine, https://magazine.uc.edu/issues/0506/writingC/writing6.html. Accessed 21 Jun. 2020.

^[5] Ramos v. Louisiana, 590 US _ (2020), p.1

^[6] Available at https://www.supremecourt.gov.pk/downloads_judgements/const.p._17_2019_19062020.pdf. Accessed 21 Jun. 2020

^[7] Garner, Legal Writing in Plain English, p.34

^[8] Ibid, p.35

^[9] J. Marciano, ‘How AI Broke the Legalese Code’, Hackernoon, https://hackernoon.com/how-ai-broke-the-legalese-code-207261aaa067. Accessed 21 Jun. 2020.

^[10] See ‘New law bans use of confusing words and sentences in government documents. Read the results,’ Dictionary.com, https://www.dictionary.com/e/plain-words/

^[11] Garner, Legal Writing in Plain English, p.25

^[12] Ibid

^[13] Ibid, p.38

^[14] Ibid

^[15] Ibid, p.40

^[16] Ibid

^[17] Ibid, p.41

^[18] Ibid, p.19

^[19] Ibid

^[20] Kuzmin v. Thermaflo, Inc (2009), WL 1421173, p.2; see also, ‘How Poorly Drafted Pleadings and Bad Writing Can Hurt Your Client and You’, PennState Law. https://pennstatelaw.psu.edu/current-students/online-legal-writing-center/writing-tools/how-poorly-drafted-pleadings-and-bad. Accessed 21 Jun. 2020.

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The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.