Some thoughts on EFFECTIVE COMMUNICATION and LEGAL WRITING - CLEAR THINKING on PAPER

TABLE of CONTENTS Introduction SECTION I GENERAL 1. LEGAL WRITING AND LEGAL DRAFTING 2. THE IMPORTANCE OF COMMUNICATING 3. WHAT IS EFFECTIVE COMMUNICATION? 4. KNOW YOUR READER 5. ANOTHER VARIABLE YOU 6. THREE THINGS BEFORE YOU START TO WRITE 7 PREPARING 8. READABILITY THE CORE COMMUNICATION STANDARDS, THE Cs 9. PLAIN ENGLISH 10. BE HUMAN and BE POSITIVE 11. POINTS FOR NON NATIVE SPEAKERS 12. WRITE, REVIEW, EDIT and SEND - CLEAR THINKING on PAPER SECTION II SPECIFIC 1. SENTENCES 2. SUBJECT / VERB / OBJECT 3. THE GOLDEN RULE 4. LAYOUT 5. CONSISTENCY 6. USE THE CORRECT TONE and LANGUAGE 7. DEFINITIONS 8. ACTIVE or PASSIVE? 9. RELATIVE CLAUSES DESCRIBING or IDENTIFYING? 10. ARE YOUR MODIFIERS MODIFYING THE RIGHT WORDS OR PHRASES? 11. HIDDEN VERBS 12. ABSTRACT NOUNS 13. DOUBLE NEGATIVES 14. OVER-ELABORATION 15. DOES EVERY WORD EARN ITS PASSAGE? 16. AND FINALLY, CLICH and JARGON

INTRODUCTION I first wrote this paper in May 2009 and based it on two talks Id recently given to two very different groups of students - one native speaker, one not. A year later Ive revised it a bit after a Drafting Skills course Ive run for some Dutch lawyers rece ntly. Ive tried to make it interesting and informative for people who werent at the talks or on the course. If, as I hope, I hold your interest until the end, please tell me whether Ive succeeded (email to alan@english4lawyers.com) and how it could be improved. SECTION I GENERAL 1. LEGAL WRITING AND LEGAL DRAFTING.

The difference in simple terms, drafting is contracts, writing is the rest such as letters / memos / emails of advice and everyday emails. Although there are of course differences between LW and LD, there are also a lot of similarities and many of the things I say in relation to LW will also apply to LD and vice versa. Im not going to tell you how to do it. I want to get you thinking and for you to work it out for yourselves although you may well already know a lot of it. If so, its no bad thing to revise / validate / confirm. Im looking at a bit more than LW and LD. Im also looking at Effective Communication. 2. THE IMPORTANCE OF COMMUNICATING

Your value as a lawyer is based on your knowledge and experience. As a lawyer, youre expected to produce ideas, advice, opinions and recommendations. But it doesnt matter how much legal knowledge you have or h ow good your ideas are if you dont communicate. AS A KNOWLEDGE PROFESSIONAL, A FAILURE TO COMMUNICATE MEANS FAILURE, FULL STOP. 3. WHAT IS EFFECTIVE COMMUNICATION?

Its fully conveying your meaning to the receiver. Yes, its receiver driven and there are different types of receiver.

Another way of thinking about this is. 4. 4.1 ...KNOW YOUR READER(S) When writing Lawyer or not? If not, what level of knowledge of the law can you reasonably assume? Are you writing just to the addressee or to the addressee and colleagues / a team? Whenever I wrote some advice to Mr X of the Legal Dept of a Japanese multinational, I was very conscious that I was writing not just to Mr X but to the whole of the team working on the transaction. In addition, there was a good chance that my advice would be translated into Japanese. I knew that if I tried to convey some advice with subtle language, Mr Xs English might not be good enough to spot the subtlety. Even if it was, there was a very good chance that it would be lost in translation. The lesson from this is that with non native speakers you have to take special care to write clearly and simply. As I said to each of my 24 trainees before they started working with Japanese clients, Speak slowly and clearly, eschew idiom and words like eschew and avoid Latin. (Eschew is a rather oldfashioned and formal word which many English people dont know it means to avoid. I used it deliberately to make my point.) What does your reader want? Its much more likely that hell want some advice than a detailed description of the law. Often hell want you to steer him in the direction you think is best. 4.2 When drafting

Who are you writing for? Law students are told that as a general rule you should give effect to your clients instructions by ensuring that your document is . accurate; complete; precise; clear; contemporary and short and simple. I agree with those words which are taken from a book on Legal Writing and Drafting by Paul Rylance. Although parts of it will probably be too basic for you, it has some useful hints and Im not going to repeat whats in the book.

Ill just make a few observations and set you thinking with a couple of questions. a) Whos likely to read your document? Your client, of course, The lawyers on the other side, The other side itself, Possibly (although you sincerely hope not) a judge or arbitrator, and History.

By history I mean the people on the commercial side who have to do whatever the agreement says they have to do. This can be people at the operational level who may have to look at and operate the agreement every day or people who may have to look at the agreement when a dispute has arisen and work out what it means. (This may be many years in the future when nobody involved with setting up the deal and drafting and negotiating the agreement is around. The only thing which the new people have to help them to understand the document is the words themselves). In addition, Ill mention a business-related point on the other side. Ive known of a number of cases where the other side has been impressed with a lawyer on a transaction and instructed that lawyer in the future. If you want the other side to instruct you in the future, impress the other side by writing well. b) complete. Who decides when an agreement is complete? Who decides how far you go with the what ifs? Often it depends on whether the client wants a Rolls Royce agreement or a Ford. (As an aside, I did lots of 50/50 joint venture agreements between Japanese and European companies who were of approximately equal bargaining power and financial strength. In most cases, a few years later I had to act for the same client in ending the JV. I always found that the less we had said in the JVA about bringing the JV to an end, the easier it was to do so on terms satisfactory to both parties. Putting it another way, because we hadnt spent hours and pages dealing with what ifs, the parties had to come to an agreement as to termination based on the facts and position at the time, not what years previously somebody had guessed almost certainly wrongly - would be the facts and position. )

c) precise. Yes but occasionally you need to be vague. E.g. the parties want to sign tomorrow but theres one outstanding point. As long as this point doesnt go to the heart of the deal, the parties will often want you to draft something which appears to deal with the outstanding point but in fact leaves it to be dealt with in the future. People will talk of this being a fudge from the expression to fudge an issue. d) Different approaches for different clients and different types of documents. Looking again at the points I make in b) and c), I think they owe a lot to my experience as a commercial lawyer. Some clients will want you to deal with all the what ifs and to avoid fudges. This is particularly so in the case of financial institutions who in general want their documents to be as comprehensive and certain as possible. They want clear answers to certain key questions such as is the Borrower permitted to do this? and does this amount to an Event of Default? For this reason, financial institutions in particular value certainty and are very unlikely to accept a fudge. 5. ANOTHER VARIABLE YOU.

In the same way as your reader can vary, so can you. There are things which influence you as a writer which will mean that you have changed or will change. 5.1 General Move towards Plain English. (Of course, this only applies if you started your career writing Unplain English). Changes in language words and phrases which are new or become used in different ways. E.G. ten years ago, we only used focus when talking about cameras or binoculars. Now, the word is everywhere as is (in)appropriate. This word has become popular as a result of President Clinton using it to describe what happened (or didnt happen) between him and Miss Lewinsky. 5.2 Organisational House style Internal guidelines

5.3

Personal Your writing style will change, hopefully for the better, with experience. (Yes, all the time, until youre as old as the hills.) You will be influenced by different bosses and you should also try to learn from good writing you come across. Following on logically from the two above points, if you dont do so already, think of making your own Bank of useful words and phrases which you come across.

6. 6.1

THREE THINGS BEFORE YOU START TO WRITE Is writing the best way to communicate?

Different cultures place different amounts of importance on verbal and written communication. Taking this into account, by picking up the pen are you making the right choice? What about talking on the phone or face to face which could be a proper meeting or popping in to a colleagues office? 6.2 Best form?

Having decided that writing is the most effective way of communicating, are you using the most effective form? Memo, letter, email? Diagram? Information in a separate document? 6.3 Ready?

Are you sure youre ready to start the writing process? Are the following clear in your mind 7 7.1 why youre writing, what you want to achieve, and how youre going to achieve it?

PREPARING Think and plan Your aim should be to make sure that the reader

a) and b)

can understand your message at the first attempt and without too much effort, accepts and acts upon your writing.

To do this you need to be READABLE (see 8 and Section II below). (If the reader doesnt understand you on first reading theres a danger that hell give up and / or find a new lawyer.) 7.2 Identify your points

If youre answering questions, make sure you understand them and the context in which theyve been asked. If you dont, clarify. 7.3 Word processor friend or foe?

Since the introduction of word processors, there is a temptation to take something I wrote last week or month and adapt it by means of cutting and pasting. If done properly, this is fine and can save time. However, guard against saying too much by including in your letter to B things which were of interest to A but are of no interest to B. 7.4 Templates and precedents friend or foe?

When drafting, definitely friend but dont become a slave to your template or precedent. Recognise that sometimes youll have to do some white paper drafting. (In passing, a precedent is a signed agreement. A template is a form of agreement which you can use to help you produce a first draft. Itll have gaps and blanks and places where you as the author have to choose alternatives. The danger with precedents is that they probably contain concessions and special features which are a result of negotiation in a particular deal or situation. In most cases, your first draft shouldnt include those concessions and special features.) Let me come back to my point about not being a slave to your template. Imagine your client has just signed a Heads of Terms to buy some shares and asked you to draft the Share Purchase Agreement (SPA). If your inclination is just to take your firms template SPA and make as few changes as possible youre probably making a mistake. Let me explain why by asking some questions.

Do you know every line of the template and why its there? Do you know your clients deal very well? To be able to answer yes, the Heads of Terms will need to be very well written and youll need to know your clients view on certain other areas to be covered in the SPA. In my experience, its unlikely that the deal documented in the template and the deal your client has done will be the same. For this reason, youll need to THINK HARD. Once you know your clients deal very well, youll need to work out what needs to be deleted from the template and what needs to be added to it. So far, Ive been talking about drafting an agreement. However, pretty much all Ive said applies just as much when youre writing a memo of advice. Instead of comparing your clients deal with the template SPA, you have to compare the facts in your clients request for advice with the facts assumed by the author of the template memo of advice. Think of this in terms of your washing machine. You dont always use the same programme (the template). You have to know what your clothes (the client) need and tailor the way you use the washing machine or draft the agreement / advice. 7.5 Structure

Structure your writing logically so that the reader can follow the flow of your thinking. Is the conclusion easy to find? Do you need an Executive Summary?

This applies less when youre using a template as a good template will give you a good structure to work with. Thats one of the advantages of a good template.

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8. READABILITY THE CORE COMMUNICATION STANDARDS, THE Cs How many Cs are there and what are they? It depends who you listen to. Ive come across twelve although not at the same time. Ill list them all even though there is some duplication because some of the Cs deal with pretty much the same thing. The handout I gave you referred to core communication standards. Its not my term and I dont like it. I prefer to think of most of the Cs as qualities which good writing will have. A few describe what you achieve if your writing displays most if not all of the other qualities. 8.1 Clear Its easy to understand on first reading. 8.2 Cogent The reader agrees with what you say and does what you want him to do. 8.3 Coherent

Its internally consistent (i.e. there are no contradictions of fact or opinion and its written in the same style throughout). Its easily understandable. You follow the Golden Rule. (If youre describing the same thing, use the same word. Only change word when you want to change meaning. Theres more on this in Part 3 of Section II.) 8.4 Cohesive

It flows smoothly. Ideas are presented logically. You make good use of connecting words and phrases. 8.5 Complete You tell your reader everything he wants to know but no more. 8.6 Concise

Short words, short sentences, short paragraphs. KISS (keep it short and simple). Every word needs to be there and there are no extra words.

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Dont tell your reader anything he doesnt need to know. Look at what I say about editing in Part 12 of this Section. 8.7 Confident

Im not certain this should be included. It depends on what youre writing. If youre trying to convince somebody of something, confidence can help. In addition, if youre giving an opinion and the law is such that youre able to be confident, clients like receiving confident opinions. But . dont be arrogant and dont pretend the laws clear when it isnt. However, if its not clear, try to solve the clients problems not just tell him that hes got a problem. 8.8 Consistent

In layout, in how you present information (lists, numbering, bullet points etc), in spelling (British or American), definitely. You also need to be consistent in register. Formal (contact) or less formal (get in touch)? Personal (I / we believe) or impersonal (it is believed that)? In passing, although you occasionally need to use the impersonal, most of the time you should avoid it. 8.9 Contemporary

Avoid old-fashioned words and phrases. However, at the other extreme, dont use clichs and jargon. I discuss what these are in Part 16 of Section II. 8.10 Correct No typos (and remember the limitations of spell-checkers). Grammatically correct. If you have an in computer grammar guru, dont always accept the changes suggested. Sometimes, theyre nonsense. In letters, follow the accepted conventions with addressing the reader and with salutations and valedictions (hello and goodbye). I suppose the same applies to emails if it can be said that accepted conventions exist. After 10-15 years of emails, Im not sure they do. The conventions with letters took much longer to become accepted.

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8.11 Courteous Of course. It costs nothing to be courteous and, as my first boss told me, Remember youre in a service industry just like a hairdresser with one important difference. When the hairdresser puts up the closed sign at 5.30, everybody accepts it. When youre charging 60 an hour (then the rate for partners in London), nobody does. Clients expect and deserve courtesy. What about the other side? Although some litigation departments may disagree, you should always be courteous. (Incidentally, the other side is something else my first boss taught me. He said that you should never give your competitors free publicity by mentioning their names. He wanted you to say the other sides lawyers, the banks solicitors etc) 8.12 Commercial Some of these points in 8 are to do with more than writing and readability. They are what a lawyer should do and how he should behave if he wants to do a good job and keep his client happy. This is particularly the case with commercial which is shorthand for giving commercial advice. What does this mean? Different people will interpret it differently. To me, it's about telling the client more than just what the law is and that what the client wants to do is (or isnt) legal. It's about telling him how he can do his transaction/business within the law and in a way which puts him in a strong position if the deal goes wrong. This may involve changing the originally intended way of doing something (i.e. the structure of the deal) so that it falls within the law, avoids a legal problem or gives the client a stronger position. As for telling the client what the law is, remember that you are almost certainly going to be more interested in the law than the client. After all, you became a lawyer, the client didnt. Indeed, in my experience, its true to say that most clients have no interest in the law EXCEPT when, in the clients eyes, the law interferes with th eir business. For this reason, keep your descriptions and discussions of the law to a minimum, if you have to advise the client that what he wants to do doesnt work from a legal perspective, try to give him not just the problem but also the solution, and on the question of advice (noun, the verb is to advise), remember that your client has come to you for advice. Clients like clear advice resulting

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in a clear conclusion such as you can do A or B but theres a risk of going to jail if you do C. Uncertainty in the law may not allow you always to be so clear but if you can be clear and steer / guide your client in a certain direction, do so. 9. 9.1 PLAIN ENGLISH Background

Historically, lawyers in England have had a reputation for writing long, complex sentences. The reasons for this are apparent if you study English legal history and how the legal system developed in a variety of languages (Latin, Norman French, Old English etc). Over the last 25 to 30 years, that reputation has become much less deserved. Indeed, good modern legal writing is so simple as to be unrecognisable from the heavy style of the past. Why? There are a number of reasons for this. I feel these are the most important. 1) The Plain English Campaign. This started over 30 years ago. Originally, it was aimed at government. Some time ago, its influence reached the law. See http://www.plainenglish.co.uk/ 2) The changes in the legal profession. It has become less of a profession and more of a business, the business of providing legal services. With this change, lawyers have started to compete for work and, as a result, there has been a growth in marketing. Being readable is one of the most effective marketing tools there is. 3) The demands of clients, many of whom are not native speakers. They do not read lawyers writing for pleasure but because they have to. They want the writing to be as simple and easy to read as possible. 4) Because of computers and the internet and the increased complexity of transactions and length of documents, there is just so much more to read these days. Now ping! - emails arrive all the time and ping!- even if the clients have the inclination to read long, complex advice and documents, often ping! - they simply dont have the time. In order to be read, what you write has to be easy to read and understand. If it isnt, in this tough world the client is likely to press the DELETE button and look for another lawyer.

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9.2

What is the Plain English Campaign? 9.2.1 In the words of the campaigners - The fight against gobbledygook.

This is a dictionary entry for gobbledygook - complicated language, especially in an official or technical document, that is impossible or difficult to understand - used to show disapproval. (British English, informal). 9.2.2 In the words of Rule 421 (d) of the Securities and Exchange Commission (SEC): Rule 421(d) The New Plain English Rule Issuers must use plain English writing principles in the organisation, language, and design of the front and back cover pages, the summary, and the risk factors section. Also, when drafting the language in these parts of the prospectus, issuers must substantially comply with these plain English principles: short sentences; definite, concrete everyday language; active voice; tabular presentation of complex information; no legal jargon; and no multiple negatives.

In designing these and other parts of the prospectus, issuers may include pictures, logos, charts, graphs, or other design elements so long as the design is not misleading and the required information is clear. 9.3 What do leading law firms say about Plain English?.

Heres an extract from the Drafting Style Guideline of one of the leading firms in London. The firm therefore supports the use of plainer English. We recognise that moving away from a traditional drafting style will not always be straightforward. For example, much of our work is extremely complex and it can be difficult to express legal obligations simply. Many legal phrases have been interpreted by the courts word for word, so it may not be wise to try to modernise them. As a leading law firm, we should, however, try in all cases to use plain, readily understood English.

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10.

BE HUMAN and BE POSITIVE

Even if youre writing to the Deputy Assistant Manager of Division 3, Operations Department, Middle Eastern Group, Megacorp, never lose sight of the fact that youre writing to an individual. Be human in the language you use and the approach you take. Think to yourself How would I feel if someone wrote this to me? Would I mind? As an example, youll usually do better to be positive as opposed to negative. 10.1 Compare You can do this so long as. and You cant do this unless Which gives the better impression, the impression that you as a lawyer are working with your client to help him do what he wants to do? 10.2 Consider the following Unfortunately, we cannot process piecemeal comments in the manner requested and at the same time work on the programme documents in the timeframe you have provided us. This is polite but, in essence, negative. The following approach might go down better with the client. We are doing all we can to follow the timetable youve set. As you know, we also need to work on the programme documents. Because of this and because the timetable is so tight, please send us your comments on the OC in one batch after youve reviewed and agreed them internally and not send them through piecemeal. I know the second version is twice as long. However, its probably worth writing the extra words. 11 POINTS for NON NATIVE SPEAKERS

11.1 Nobody likes a show -off A show-off is defined as someone who always tries to show how clever or skilled they are so that other people will admire them (often used to show disapproval).

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I sometimes find that students write sentences which are full of complex phrases, complicated constructions and obscure words. In addition their sentences will be too long and they will hide verbs and use the passive too much. Itll be really difficult to work out what they mean. No matter how good their English is, theyll make mistakes. I advise them to write more simply, to write in a Plain English style. If they come from a country where there is no equivalent of Plain English, theyll often say that they have to write in this complex, old-fashioned way because thats how, as lawyers, theyre expected to write in their native tongue. Theyll often go on to say that its what clients expect and that their clients will respect them less (and perhaps be less inclined to pay them) if they write more simply. Im not going to try to tell you how to write in your native tongue. Thats up to you. However, when you write in English, you should use Plain English. If you do, youll make fewer mistakes and your writing will be much easier to understand. Back to students who write sentences which are full of complex phrases, complicated constructions and obscure words. Often, when I ask them what they mean, they tell me what they mean very successfully by using simple, clear language. I end up advising them not to be frightened of writing like they talk. i.e. more simply. 11.2 Writer or reader responsible? According to research carried out by linguistics academics, some languages are writer responsible, others are reader responsible. I feel its worth mentioning this research as it may mean that you need to change your style when writing in English. English is a writer responsible language. Reader responsible languages include Chinese, Finnish, German, Korean, Japanese and (to a certain extent) Spanish. Some languages have features of both. In a writer responsible language, the writer is responsible for explaining everything to the reader. However, in a reader responsible language, the reader would be insulted if everything was explained to him as the reader expects to have to make some effort to work out what the writer means. Think about this. What sort of language is yours? If its not a writer responsible language, it is possible that, when writing in English, you will have to m ake some changes to your writing style.

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You may have to use signposts more than you do when writing in your native tongue. You may also have to think more about organising the text more clearly and use some or all of the following: Sequencing points. These can be words (first, secondly etc) or the way in which the writing is laid out. Connecting ideas with words such as however, therefore, on the other hand etc. Showing what you, the writer, are going to do (e.g. a good introductory sentence or paragraph telling the reader what to expect) AND what you are doing (to summarise, for example). Reviewing and previewing parts of the text e.g. having dealt with , I will now look at ... And .. some of the things to which I refer elsewhere can be seen as examples of the writer responsible nature of English. Having said all that, you also have to use your common sense. Consider a) your first piece of advice to a new client and b) writing to the lawyer on the other side in a transaction when youve already been working together for weeks. Clearly, you will need fewer signposts in b) because they will be unnecessary as a result of the correspondence which has already passed between you. This is an example of the know your reader rule which I mention above. 12. WRITE, REVIEW, EDIT and SEND CLEAR THINKING on PAPER So, at last, youre ready to start writing. Some points. The 80/20 rule. The best writers spend only 20% of the time putting pen to paper / fingers to keyboard. The rest of the time is spent in the thinking and planning process so that, when pen is first put to paper, you know exactly what youre going to write. You download what youve decided to write and produce clear thinking on paper, which is a good definition of effective writing. When editing, be ruthless.* If a word or phrase adds nothing (or, worse, adds confusion), delete it. If time allows, sleep on it.

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If its particularly complex or important or if you think you may not be seeing the wood for the trees, a second pair of eyes? *(When editing my writing, I think of what Ive written as a ship which has to be made lighter to prevent it sinking. In the same way that everything which is unnecessary should be thrown off the ship to make it lighter, every word which is unnecessary should be deleted to make your writing easier to read). SECTION II - SPECIFIC In this section, I deal mainly with some specific points on readability which I was asked to cover in a session I did with some lawyers. I dont cover all the points you need to keep in mind in order to be readable. For one thing, time doesnt allow. For another, you already know most if not all of them. However, I hope that what follows will be a useful reminder. In the session I did with these lawyers, some of the examples we looked at were fairly long. I dont use these here. For some things, I dont use examples at all. I want you to find your own examples. When you come across a sentence or passage which doesnt read well, try to work out why this is. Often, itll be because the writer has broken one of the rules I mention. 1. SENTENCES

One thought, one sentence. Two thoughts, two sentences. If a sentence is more than 25 words, its probably too long. 2. SUBJECT / VERB / OBJECT

Both in life generally and as lawyers, were usually most interested in whos doing what - The Buyer must do this., You must send the notice to by, Celebrity X has recovered from her illness, Partner Y went mad etc. Who theyre doing it to is also interesting but first we need to know whos doing something and what hes doing. (This ties in with what I say below about the active and the passive.) So . keep the classic order of SUBJECT, VERB and, if there is one, OBJECT with a direct object usually coming before an indirect one. These are the key words in a sentence. Dont weaken their effect by making them difficult to find by putting other words between them. Putting it another way, dont just follow the S/V/O order, keep them close to each other.

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(So you can understand why this is necessary, Ill explain in simple terms why this is so important in English. There are certain features which are common in other languages but not in English. Examples no masculine, feminine or neuter; the endings of adjectives dont change to agree with the nouns to which theyre referring; and (except for the s in the 3rd person singular) nouns dont conjugate i.e. change. People sometimes think that, because English doesnt have these features, its a simple language and, in many ways, theyre right. A learner can make a lot of progress quickly because theres no need to learn gender, agreements and conjugations. However, theres a price to pay and the price is the importance of keeping the S/V/O order. In languages which have these features, you can tell how words relate to each other because of these features. E.g. a feminine adjective with a feminine noun, a plural noun with a verb in the plural etc. In English, you dont have these features and how words relate to each other is shown by the order of the words in the sentence. Thats why its so important to maintain the S/V/O order and to keep the S/V/O close together.) 3. THE GOLDEN RULE

At school, your teacher wanted you to win the Nobel Prize for Literature not become a lawyer. Thats why when you wrote an essay on What I did in the summer holidays, the teacher wanted you to write the yellow ball, the celestial orb, the giver of daily light, Phoebus etc and not simply the sun. As a lawyer, all I have to do is use the same word when I mean the same thing: the sun, the sun, the sun, the sun - OK change of meaning and thus change of word the moon, the moon, the moon etc So, never write the bank, the debt provider, the source of funds, the mortgagee, the lender, the financial institution and the financier when, all the time, you mean the same thing. Indeed, if youre going to refer to it seven times, you should probably have defined it.

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Example. The clients are keen to sign the concession agreement as soon as possible and its currently planned that the documents will be signed on Thursday. Are the concession agreement and the documents the same thing? Because the writer hasnt followed the Golden Rule, I dont know. 4. LAYOUT

Theres a lot to this topic and its addressed in your house style and internal guidelines. Ill just make one point - dont crowd your reader with words and Use Plenty Of White Space The Way I do. Which of the two versions of the same clause set out below do you prefer? You dont need to read them to see that one is much more readable. If at the end of the year, the Target has not been achieved, the Supplier shall be entitled, unless the Distributor shows that it cannot be held responsible for such non-achievement, subject to giving one months notice, at its choice, to terminate this contract, or to cancel the Distributors exclusivity, or to reduce the extent of the Territory; such right must be exercised in writing not later than two months after the end of the year in which the Target has not been achieved.

1.1 1.2

The Distributor must achieve the Target by the end of the year. If the Distributor fails to achieve the Target in accordance with 1.2.1 terminate this contract; or

clause 1.1, the Supplier is entitled to:

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1.2.2 reduce the Distributors Territory; or 1.2.3 cancel the exclusivity granted under this contract. 1.3 The Supplier may exercise the rights set out in clause 1.2.1 - 1.2.3 only by serving one months notice to the Distributor within two months of the end of the year when the Target has not been achieved. 1.4 The provisions of clauses 1.2.1 - 1.2.3 shall not apply if the Distributor demonstrates that it could not prevent the failure to achieve the Target.

5.

CONSISTENCY

You have to be consistent with lists, clauses and sub-clauses. This is fairly basic stuff. Here are two examples of how NOT to do it. 5.1 The following steps must be taken in order to complete the Transfer: a) b) c) d) e) f) deliver a request for approval to the Regional Governor, the sending of a notice to the Central Bank, having received back a letter of consent from the Minority Shareholder, executed the share transfer form, the Purchaser must have signed the Deed of Adherence, and The main customer will have approved the change of control under the Supply Agreement.

As you can see, theres poor drafting in the sense that its not clear who is to do what by when. I.e. where are the subject, verb and object? Leaving this major point aside, you also have inconsistency in terms of i) what sort of word (noun or verb) starts each sub-clause and ii) the tense of each sub-clause. This leads to a very unsatisfactory piece of drafting. If youre lucky, thatll be all. If youre unlucky, there may be a dispute over what the provision means. 5.2 1.2 If the Distributor fails to achieve the Target in accordance with clause 1.1, the Supplier is entitled to: 1.2.1 to terminate the contract; or 1.2.2 reduce the Distributors Territory; or

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1.2.3 the Supplier has the option to cancel the exclusivity granted under this contract. Although the extra words in this clause (the ones Ive marked in bold) dont really change the meaning of the clause, they look unprofessional. 6. USE THE CORRECT TONE and LANGUAGE

I cant really teach this to you, certainly not in a few lines, without looking at examples of your writing. Ill just say that its very important that you use the correct level of politeness and formality. Ill mention one specific point. In formal writing, you shouldnt use ellipsis which is the word used to describe what Ive marked in yellow in this Part. However, in anything except formal writing, use ellipsis. In particular, ellipsis will be fine in most emails. Native speakers get this right without thinking about it. Many non native speakers dont. 7. DEFINITIONS

One of my former colleagues wrote some good advice on the use of definitions and hes kindly allowed me to set it out here. Remember that definitions are supposed to help the reader. Therefore: a) do not use definitions that are too abstract, such as, "Company A" or "Obligor 2". Consider using personalised definitions for parties if their function under the document is not clear or more than one party has the same function. (e.g. if TPSA is one of several sellers, use "TPSA" instead of "Third Seller"); b) if the definition appears in only one clause, define it within the clause, not at the beginning of the document; c) avoid including obligations within a definition (e.g. "Financial Statements" means the balance, profit and loss account and cash flow statement of , which must always be verified by an authorised signatory of the Borrower). The obligation is better dealt with in the body of the document; d) try to avoid definitions that refer to other definitions. This is not always possible, but (perhaps) the most absurd example of multiple definitions is the definition

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of "Euro" in some of the firm's finance documents. One must refer to a second definition, which in turn, refers to a third definition. Arguably, it is not even necessary to define "Euro"; and e) think about whether you really need the definition. For example, if the Minimum Rent is always paid on the 3rd day of the month, there is no need for a definition of "Minimum Rent Payment Date". It is much quicker and clearer to write "the 3rd day of the month" each time. 8. 8.1 ACTIVE or PASSIVE? Active

Companies borrow money active. Money is borrowed by companies passive. The active is clearer. Its how people speak in normal life. Its two words fewer than the passive. So most of the time, use the active. When should you use the passive? 8.2 Passive

There are times when the passive can be useful or indeed sensible. Often its a matter of the context and the point you want to emphasise. It can also be useful when you want to soften a message or avoid criticising somebody directly. The goods were stolen in transit. Fine if the point you are making is that the goods have been stolen and you dont know or care who stole them. Keeping to the active by saying that a thief stole the goods is going too far in avoiding the passive. You will pay X if the contract is terminated before 2012. Here you dont want to deal with who terminates the contract. You deliberately avoid the active and dont say if you terminate because that wouldnt cover the situation where I terminate or Party Y terminates. Notice must be given to the debtor to make an assignment legal as opposed to equitable.

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Fine if youre writing a textbook or learned article. If youre advising a client, the active is better You must give notice to the debtor as otherwise you wont be able to sue him directly. The Notice of Drawdown was given on Monday but the Agent didnt tell the syndicate until Wednesday by which time it was too late for them to fund. In the context of a single borrower facility, its obvious who gave the N of D. The point youre making is when it was given and that the agent did nothing. The Termination Notice was served this morning and the contract will terminate on June 30th. The client doesnt care who served the notice or how it was done. All he c ares about is that it has been done. An error was made in calculating the amount due. Less contentious than saying The incompetent so-called Accounts Dept showed again that they cant count. The failure in supervision which gave rise to the losses should not be allowed to happen again. Less contentious than saying The Board were asleep and should resign. In summary, the active should be your normal choice or, to use computer jargon, your default position. The passive can sometimes be useful depending on the point youre making and what you want to emphasise. 9. RELATIVE CLAUSES DESCRIBING or IDENTIFYING?

Look at the difference to meaning a pair of commas can make. When the relative clause is describing, you can delete it without changing the meaning of the sentence. If its identifying, you cant. The shareholder who lives in London has sold. IDENTIFYING the one who lives in Birmingham hasnt sold The shareholder, who lives in London, has sold. DESCRIBING ... it just tells you where the shareholder lives. The staff who were successful received a bonus. IDENTIFYING the ones who werent successful received no bonus. The staff, who were successful, received a bonus. DESCRIBING

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Lectures which are boring put students to sleep. IDENTIFYING ones which are interesting dont. Lectures, which are boring, put students to sleep. DESCRIBING The writer thinks all lectures are boring and put students to sleep. The defendant who pleaded guilty showed no remorse. IDENTIFYING what about the defendant who pleaded not guilty but who was found guilty? Did he show remorse (that hes sorry for having committed the crime)? We dont know. The defendant, who pleaded guilty, showed no remorse. DESCRIBING 10. ARE YOUR MODIFIERS MODIFYING THE RIGHT WORDS OR PHRASES? We have arranged a conference with Counsel to discuss the implications of your residence in the UK with Counsel. If with Counsel is at the end of the sentence, it means that the client is going to live with Counsel! Being incompetent, we believe a dismissal is justified because you (the court) are not competent to hear the case / dont have jurisdiction to hear the case. As drafted, it means that we (the lawyers writing to the court) are incompetent! A trustee who steals trust funds often cannot be punished. As drafted, its not clear whether often refers to the stealing or cannot be punished. To get the first meaning, put often after who. To get the second meaning, put it at the beginning, before A trustee. You can usually avoid ambiguity by placing the modifier as close as you can to the word or phrase to which you want it to refer. However, this doesnt always work when the modifier is placed between two phrases. Take particular care with frequently, often, only and or. 11. HIDDEN VERBS

Verbs have zip. They put life into writing. Dont hide them. When you negotiate the contract, we suggest you try to secure the agreement of get the other side that an obligation to make payment will be imposed you on it if early termination takes place.

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The decision saw the reversaled of the rule established in the case of A v B. In our discussions with the executives of XXX, we were informed told us that... The parties reached an agreement to make a settlementd OR, depending what you mean, The parties agreed to settle. 12. ABSTRACT NOUNS

This is almost the same point as the previous one. Often but not always, abstract nouns end in ion. In the same way as you sometimes need the vagueness of the passive, you sometimes need the vagueness of the abstract noun. Most of the time you dont and its best to avoid it because it makes writing heavier and less easy to read. The most common way of hiding a verb is by using an abstract noun. Youll see examples in the section on Hidden Verbs and elsewhere. 13. DOUBLE NEGATIVES

I hope the examples below will show that its better to avoid double negatives when possible. Remember that words with certain prefixes (non, un and il) are also negative and that other words can operate in a negative way fail, terminate, void, cancel, except, unless, without and other than. The shareholder may not only transfer shares to persons who are not shareholders unless if the transfer has been approved. A shareholder is eligible to participate in the Scheme if he or she is not under 23 years or older and is not domiciled outside within the United Kingdom No employees may only take a breaks other than at stated times Payment of funds shall not be made by the Purchaser shall pay if the Vendors fail to provide notification of the discharge of the mortgage. The Operator shall not only be liable to the User in respect of any failure by the Operator to perform any of the Services unless if the User has given to the Operator

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written notice of the failure in question and the Operator has failed within a reasonable time to remedy it. The Landlord undertakes not only to perform changes, modifyications and repairs of the Common Areas without the prior written consent of the Tenant, such consent not to be unreasonably withheld. (Note also how I revealed the hidden verbs change, modify and repair.) An issuer may only issue a debenture The whose face value of a debenture should not exceeds the issuers existing capital of the issuer as stated in the its latest certified balance sheet unless if the [issuer] 14. OVER-ELABORATION

It is said that one mans elaboration is anothers literary style and that what to one man is pure frill and frippery is to another the apogee of learning and the sine qua non of any journey by the metaphorical quill across parchment. That may well be but, dear reader, I beseech you to confine such joyful outpourings of literary creation to your correspondence with other members of the Dickens Appreciation Society. When writing as an international lawyer these days you must write short sentences that your client can understand, follow the subject / verb / object order and, for the most part, eschew ( i.e. avoid) the passive. 15. DOES EVERY WORD EARN ITS PASSAGE?

Thats for you to judge, a key part of the editing process, something I discuss in Part 12 of Section 1. Ill just mention one thing which we used to get told off for as young lawyers - We enclose herewith the latest draft. No you either enclose or send herewith. (These days, of course, its attach but the same point applies.) 16. AND FINALLY, CLICH and JARGON

A clich is an idea or phrase that has been used so much that it is no longer effective or doesn't have any meaning. Ill also say a few words about "jargon". It's not the same as a clich but most people who teach writing skills advise their students to avoid both clich and jargon. When it comes to jargon, I don't always agree with this.

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Jargon means words and expressions used in a particular profession which are difficult for other people to understand. You will therefore have things such as technical / scientific / legal / medical etc jargon. Sometimes, jargon is useful as, within the particular profession, it enables people to communicate quickly and efficiently. However, usually people use the term "jargon" to show disapproval. For example, people will talk disapprovingly of "documents full of legal jargon" or "legalese". This is because jargon is difficult for ordinary people to understand. The sort of jargon which I don't like is "management jargon". These are words and expressions usually first used in business schools. Businessmen then started using them and, before long, even non-businessmen used them. What do they mean? Sometimes the meaning is clear or, by virtue of wide use of the term, has become clear. For example, I imagine you will all understand "upskilling" [to become more skilful] and "downsizing" [to become smaller, often a euphemism for laying people off / letting people go / making people redundant]. However, there's a lot of management jargon which is pretty meaningless. Incidentally, a "euphemism" is a word or phrase which is used to avoid having to clearly say what you mean. There is much use of euphemism in many areas. Talking about death, having sex and making people redundant are amongst the areas in which youll find euphemisms most often. Enjoy using this wonderful language. If you have any comments, good or bad, on this paper, Id be delighted to hear them. Alan December 2010