Legal literacy – Solicitors Journal

As a solicitor, it’s likely that you’re a skilled oral communicator. But if you’re less than confident when it comes to writing, you’re not alone. Many professionals haven’t received formal writing training and instead rely on copying the style of their predecessors. Unfortunately, traditional legal writing contains many archaic, wordy phrases, which can be a little perplexing for the average person.

Communicating complex legal ideas isn’t always easy. But you’re treading on rocky ground if you don’t pay attention to your reader. If your client finds your written documents vague, hard to understand or confusing, they may call elsewhere next time. Alternatively, they may begin to mistrust you or suspect that you are hiding something.

Keeping it clear and simple

The modern alternative is to opt for plain language – a move that is becoming increasingly popular within the legal profession. For instance, Nabarro recently launched a high-profile, firm-wide ‘Clarity Matters’ campaign to simplify the way it writes. The firm is working towards writing all its contracts in plain English. It’s also provided specialist writing-skills training for all its fee earners and legal secretaries, as well as for many of its support staff. Other firms, such as SJ Berwin, DLA Piper and CMS Cameron McKenna, have also commissioned specialist writing-training programmes.

What is plain language?

Crucially, plain language is not about dumbing down or patronising the reader. Instead, it takes technical, difficult or complex ideas and communicates them in a structured, easy-to-read way.

The first step is to think about your reader and avoid a ‘one size fits all’ approach. Pick the best words to communicate your thoughts, depending on whether your reader is a lawyer or a layperson. At each stage, ask yourself whether they would be able to instantly understand what you mean. Plain language also means including technical language where necessary. It’s about being precise and clarifying your points.

A new legal language

It’s not only laypeople who are reaping the benefits of plain language programmes. An American study by law professor Joseph Kimble asked judges to state whether they preferred legal paragraphs written in plain English or traditional style. The majority of judges preferred the plain language versions.

The message is that it’s worth making the extra effort to gain your reader’s trust by ensuring that your written communication is clear. All you need are the right tools and a little attention to detail.

Here are the five major mistakes solicitors make and ways to fix them.

Mistake one:  unnecessary words, such as therein, herein, forthwith and aforesaid

• Poor prose: I herein enclose the contract for the aforesaid book, as requested Better prose: I enclose the contract for the book, as requested.
• Even better prose: Here is the contract for the book you requested.

The herein and aforesaid in this example are just unnecessary and make the sentence sound archaic and stilted.   Replacing them makes the sentence much more readable. Note that often – as in this case – it also makes it easier to edit the sentence further.

Mistake two: verbosity

• Poor prose: Pursuant to the recent communication of the improper proposal that the information be falsified, such assertion could only have been ascertained or appreciated from a full, detailed review of the meeting notes.
• Better prose: The claim that the information was falsified is wrong.   This would have been clear if a detailed review of the meeting notes had been conducted.

The author of the first example is more than a little disgruntled. But the message is hidden behind too much flowery language. The second suggestion gets to the heart of the problem and makes the meaning clear. Note that the author uses the passive voice in the second example to soften the blow. You don’t always have to use the active voice (see mistake four); just make sure that if you do use it, you do so consciously.

Mistake three: using nouns instead of verbs

• Poor prose: In the case of X, we believe the company is in possession of a structure that would be acceptable for securitisation.
• Better prose: X possesses [or ‘has’] a structure that is acceptable for securitisation.

‘Possession’ is a noun, whereas ‘possesses’ is a verb. Verbs create action in the sentence which moves the pace along and helps keep the reader’s interest. ‘We believe’ has also been taken out as the sentence already asserts the writer’s belief.

Mistake four:  overuse of the passive voice

• Poor prose: The role played by the client in the project has been investigated.
• Better prose: X investigated the client’s role in the project.

The first example doesn’t tell us who investigated the role, creating a very impersonal tone. Using the active voice makes the writing easier to read. It also forces you to say who or what (the agent) is taking the action. The second example is more specific, which makes the reader feel connected to what’s happening. Of course, the passive voice can also be useful when you don’t want to admit responsibility for an action.

Mistake five:  long, complex sentences and paragraphs

• Poor prose: As per earlier correspondence, I have attached the quotes that we have obtained from three firms (a) Hooke, Lyne and Siennker (contacts David Hooke and Franz Siennker) (This is separate from   the law firm but forms part of the same group, and also has a different administrative team)(b) Edna Clouds (contacts Clare Edna and Michael Clouds) and (c) Maybey Knott who are a limited company (the contacts there are Noel Maybey and James Knott).
• Better prose: Following our previous correspondence, I have attached quotes from three firms. The contacts for Hooke, Lyne and Siennker are David Hooke and Franz Siennker. Please note that this firm has a separate administration team, even though it is part of the same group. Edna Clouds’ contacts are Clare Edna and Michael Clouds. Maybey Knott Ltd’s contacts are Noel Maybey and James Knott.

A sentence more than three lines is far too long. In the first example, there are also too many brackets and too much information squeezed in one space, which can become confusing. The second example takes out all the brackets and sets everything out much more clearly.

Remember, writing clearly can save you both time and money. It may mean a bit of extra effort, but it may well pay dividends.

Robert Ashton is Chief Executive of Emphasis, the specialist business writing trainers.

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Author: Rob Ashton

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Rob Ashton is the founder of Emphasis and posts mainly about writing and the brain – a topic he's been researching for seven years. You can read more of his work in Writing Matters – our weekly bulletin of career-building writing advice backed by science.