WRITING TIPS FOR LAWYERS
1. Use the active rather than the passive voice:
Active: the subject of the sentence performs the action, eg Mary ate the peach.
Passive: the subject is acted on: eg the peach was eaten by Mary
There are three drawbacks to using the passive voice:
1.1 it unnecessarily adds extra words;
1.2 it obscures who the actor is;
1.3 it disrupts the normal subject-verb-object order of the sentence.
In legal prose, the consequences of obscuring who the actor is can be drastic. So always use the active voice unless it is clear that the passive voice represents an improvement.
2. Don't make sentences too long – 20 to 25 words are recommended for general legal writing. If a sentence is too long, break it down into its constituent parts and make separate sentences. The effect is greater clarity and ease of understanding.
3. Keep subject, verb and object closer together:
Before: Acme shall not without the prior written consent of Excelsior which Excelsior may not unreasonably withhold transfer the shares to any person.
After: Acme shall not transfer the shares to any person without the prior written consent of Excelsior which Excelsior may not unreasonably withhold
4. Don't bury verbs:
Using buried verbs is a a description of using abstract nouns or adjectives instead of a verb. This deadens contract prose rather than allowing you to use strong or action verbs rather than weaker verbs.
Before: Immediately following issuance of the notes...
After: Immediately after Acme issues the notes...
5. Include both the number and heading of a clause when you refer to it
Usual cross reference: subject to clause 8...
Preferred cross reference: subject to clause 8 (Indemnity)...
6. Prefer the singular above the plural
In many sentences a plural noun can lead to ambiguity. For instance, it can be unclear as to whether the persons or things constituting the subject are to act individually or collectively.
6.1 the shareholders shall notify Acme;
6.2 each shareholder shall notify Acme;
6.3 the shareholders, acting collectively, shall notify Acme.
B. HEADS OF ARGUMENT
1.1 Try to be as brief as your argument will allow;
1.2 Avoid repetition;
1.3 avoid verbosity - expressed in or using too many words;
1.4 don’t quote long passages from your authorities;
1.5 deal with matters chronologically;
1.6 Start strong and end strong;
1.7 Tell a persuasive story;
1.8 Deal candidly with your case’s weaknesses and answer them;
1.9 Prepare a diagrammatic representation of your argument to
1.9.1 help you control the material;
1.9.2 focus on the important components of your argument.
2. Preparation Process
2.1 Identify the issues;
2.2 Select the evidence relevant to each issue
2.3 Construct the argument relevant to each issue
3. Structure of Heads of Argument
3.1 Ultimate conclusion desired from the court;
3.2 State main submission;
3.3 State main reasons for it;
3.4 State arguments for each reason
Inferior Terminology Suggested Alternative
shall be entitled to .... May
X shall be liable to pay ... X shall pay ...
X is not allowed to .. may not ...
The tenant shall not undertake any alterations The tenant shall not alter
The Tenant agrees to have the carpets cleaned The tenant shall have the carpets cleaned
To provide the landlord with written proof that he has done so, on demand on demand to provide the landlord with written proof that he has done so,
This will be for the account of the tenant and will be payable on demand by the landlord This will be for the account of the tenant who shall pay such account whenever the landlord requires it
The tenant has no pets the tenant may not admit any domestic animals to the premises
Should the premises only be partly damaged Should the premises be partly damaged only
An independent third party will be used to decide an independent third party shall decide
The provisions of clause .... Clause ....
The tenant shall ensure that the premises shall be vacant at the time of such inspection the tenant shall ensure that all his belongings and furnishings have been removed from the premises at the time of such inspection
This acceptance shall not in any way whatsoever affect the landlord's claim for cancellation This acceptance shall not affect the landlord's cancellation claim.
Execute (ambiguous – can mean to perform or complete a contract or duty, ie to carry it out) Sign
All annexures are part of this agreement
Redundant. Any reference to the attachment will suffice to bring it within the scope of the contract.
... as amended Compliance with a statute or contract can only be measured against the current version anyway.
Automatically Can almost always be eliminated without changing the meaning.
Daily basis, pro rata basis, etc Try simply “daily”, “pro rata”.
During the term of this agreement When else ?
For the avoidance of doubt Delete it and nothing will change
Hereby, herein, hereof, hereanent, hereinbefore (above), hereinafter (below) etc Here-words deaden prose
Mutatis mutandis Together with any changes needed for the different circumstances
It’s (it is) & its (belonging to it) Use correctly
“Technique in Litigation”, Morris, 5th edition by Judge H Daniels, Juta, 2003, Chapter 13, Argument.
“Effective Trial Advocacy” Willem H Gravett, 1st edition, Juta 2009, in particular Chapter 7 Final Argument
“Legal Drafting”, Peter van Blerk, 1st edition, Juta 1998, Chapter 15, Heads of Argument. (Good example on page 82)
“Litigation Skills for South African Lawyers”, C G Marnewick, 2nd edition, Lexis Nexis. (In 1st edition: § 25.6 page 513: Preparing Heads of Argument.)
“Preparing an Argument: a Quick and Easy Model”, C G Marnewick, The Advocate magazine, December 2004; www.sabar.co.za/PHP/sabardata.php?page=48
“A Manual of Style for Contract Drafting”, Kenneth A Adams, 2nd edition, American Bar Association section of Business Law, Chicago, Illinois. This book is a major source of the material contained in this paper.
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