Legalese Vs Plain English


By Seth Heyman

Have you ever seen a contract that has this type of language?

"In the event that the Party of the First Part undertakes any act or effort whatsoever to extend such Party's rights hereunder beyond that reasonably contemplated by the Party of the Second Part under a restrictive interpretation said Party's understanding of their respective rights, duties, and obligations hereunder, the Party of the Second Part shall, upon provision of prior written notice to the Party of the First Part, be excused from any performance obligations hereunder to the extent that such performance obligations may indicate or express an agreement on the part of the Party of the Second Part to accept such extension of rights."

This bizarre, convoluted language has rightfully earned the name "legalese." Like any other language, it is rarely understood by anyone other than its native speakers (and sometimes not even then). Unlike any other language, however, the use of twisted legalese can lead to a costly court battle.

A Brief History of Legalese: How is it that people who are brought up speaking the same language as anyone else in their country come out of law school writing sentences that cannot be understood by anyone other than themselves? Many experts believe that legalese has its roots in the Battle of Hastings in 1066, which lead to the Norman conquest of England. After the conquest, Norman French found its way into English courts. English lawyers were unsure as to whether a French word had the same meaning in English, and thus began to include both words in contracts to be on the safe side. This lead to phrases still in use today, such as "right, title, and interest," where "right" and "title" are English, and "interest" is French, and "breaking and entering," in which the English word "breaking" is paired with the French word "entering." This cross-channel linguistic mashup begat ever more convoluted phraseology as it was passed from generation to generation of lawyers.

The Rise of Plain English: Although legalese is a language unto itself, it was still widely used in contracts until the mid 1970's. Then, in 1975, attorneys for Citibank created the first "reader-friendly" consumer loan agreement by eliminating legalese and replacing it with shorter, more precise language, while at the same time adding numbered paragraphs and other aids to understanding. In the ensuing decades, contract law professors began to adopt the "Plain English" concept and taught it to their students. By the time the 90's rolled around, Plain English was even adopted as a requirement for certain consumer agreements in some states.

The benefit of using plain English is abundantly clear. When contracts are written in pure legalese, the parties that actually need to perform them may not understand their obligations. This results in an ambiguity in which one party to a contract interprets a confusing term differently then the other party, which in turn results in contractual disputes and litigation. So why do many lawyers still continue to incorporate legalese in contracts, despite the rise of plain English? There are basically three reasons why this practice continues:

- Tradition: The legal profession has a long and colorful history. Legalese is as much a tradition as the wigs and robes still used in English courts, and, like English lawyers, American attorneys are reluctant to abandon their treasured traditions.

- Laziness: When drafting contracts, many lawyers simply copy the language of earlier contracts. This practice has been undertaken by attorneys from the year 1066 to the present day, which means that some elements of legalese are simply passed on.

- Self-importance: It's important for an attorney to appear more educated and intelligent than the clients who hire them. Many continue to include legalese to impress their clients and justify high bills.

Here's a parting lesson: Read every contract before you sign it. If your contract includes bizarre and convoluted legalese that you can't easily understand, ask your attorney what it means. If he or she can't readily explain it, don't sign the contract, and hire a new attorney.

Avoiding legalese will not only help you understand your contractual obligations- it may also help you stay out of court. For more guidelines on contract law, visit http://www.bizlawcenter.com.

Article Source: http://EzineArticles.com/?expert=Seth_Heyman

Ten Tips to Legal English Writing For Paralegals

Ten Tips to Torture-Free Legal Writing For Paralegals
By Lisa Newman

Traditionally, the task of legal writing has been assumed by the attorney. Increasingly now, however, paralegals are being asked by their supervising attorneys to prepare a variety of legal documents. Some documents are created for internal purposes, relied upon by the attorney in preparation for litigation or an appeal. Other documents are reviewed by the attorney, revised, and ultimately filed with the court. In law offices of all sizes, it is not uncommon for experienced paralegals to write case briefs, research memoranda, motions, memoranda of points and authorities, and even appellate briefs.

Legal writing can be intimidating for the most seasoned legal professional. Approaching your next legal writing assignment does not need to be a daunting experience if you can remember this pneumonic device:

Every Outstanding Paralegal Knows How to Write Well and Effectively.

The first letter of each word corresponds with a tip to help propel your legal writing skills. If you follow these ten tips, you will be well on your way to torture-free legal writing!

Tip #1 - Establish a G.O.A.L. for your writing project.
Before you put pen to paper or fingertips to keyboard, you must first gather some essential information. This information is the GOAL of your project.

* G stands for the ground rules for your project. Whether you play golf, Monopoly, or checkers, a thorough understanding of the rules of the game is paramount. The same principle holds true in legal writing. Familiarize yourself with the document format that should be followed, the type font and font size that are required, and the margins that are acceptable. If you are writing a document that will be used internally, be certain to follow the format preferred by your attorney. Use samples of previously submitted work as a guide in completing your assignment. If you are preparing an appellate court brief, you should know the procedure for incorporating references to the record and the transcript. If you have any questions about the technical requirements for your document, ask your attorney or consult the local rules of the court where the document will be filed. Or, call the clerk of court. Because failure to follow the court rules may be grounds for the clerk to reject your filing, it is always prudent to ask questions and get it right the first time.

* O stands for the objective of your project. Now that you know the ground rules, you need to know how to "win" the game. What is the purpose of your assignment? Are you writing to inform or to persuade? Are you writing a research memorandum to inform your attorney about the client's viable defenses under state law? Or, are you writing to persuade the court to deny the opposing party's motion for summary judgment? Understanding the objective of your project enables you to better approach the way you conduct your research. Keeping the objective in mind also helps you focus and structure your writing, safeguarding against the likelihood that key information will be overlooked or omitted.

* A stands for your audience. Whether you are writing to your attorney, another paralegal, opposing counsel, the client, or to the court, it is important to tailor your writing style, tone, and formality in a manner appropriate for your intended audience. For example, the use of contractions is generally considered too informal when writing to the court, but may be acceptable when writing a research memorandum to your attorney.

* L stands for the limitations for your project. When your attorney gives you an assignment, you should confirm the due date. If you are preparing a document that will ultimately be filed with the court, you should also know the filing deadline. Depending upon the type of document you are preparing, it will be important to know the applicable statute of limitations for the cause(s) of action being asserted. Additionally, you should consult the court rules for any restrictions on the number of pages your document may include and the number of exhibits that may be appended.

Tip #2 - Organize your research materials.
Hours of research are meaningless if that seminal case you need is buried somewhere under the piles of paper and stacks of folders on your desk. For easy organization and worry-free retrieval, hole-punch your research materials and file them by category in a three-ring binder. Use color-coded tabs and specially marked dividers to separate your materials into primary and secondary authority, mandatory and persuasive authority, and federal and state authority.

In the upper right-hand corner of the first page of each case you pull, note the client-matter number, the date you retrieved the case, and the legal principle(s) for which the case is important. When you file the case and need to pull it later, you won't have to re-read it to recollect why you printed it out in the first place. Create an index or table of contents of your research materials and update it as necessary. Save the document on your PC and place a hard copy in the binder.

Tip #3- Prepare an outline.
After you've completed your research, but before you begin writing, prepare an outline of the information you will include in your document. Use the required format for your document as a tool in creating your outline. For instance, if you are writing an appellate brief, your outline should mirror each section of the brief, including the statement of the issues, statement of the facts, and argument components. In your outline, for each issue you intend to discuss, include an IRAC (Issue-Rule-Analysis-Conclusion) breakdown.

If you are writing a legal memorandum or appellate brief, list the major points you will address in your argument section and the subheadings that will go under these points. Remember that stronger arguments should appear before weaker ones. After you have prepared a preliminary outline, break it down further into paragraph levels. Briefly identify the topic of each paragraph and list the information that will be included in the paragraph along with the applicable references to authority you will cite. This process may sound laborious, but investing significant time to prepare your outline will actually save you time in the long run.

Tip #4 - Keep your writing simple and short.
With apologies to your college English instructor, legal writing ain't about using flowery phrases or melodic prose to convey your ideas. On the contrary, legal writing is about reducing the complex to the simple. The abstract to the concrete. And the superfluous to the necessary. The line in Rudyard Kipling's poem "If", where he writes of walking with kings but not losing the common touch, sums up what should be your approach to legal writing. Even though you may be addressing attorneys and judges with multiple advanced degrees and countless years of legal experience, you should write your document in such a way that the average person can understand your message. Assume the person who will read your document has never attended law school or graduated from a paralegal program. Keep your writing simple, but don't sacrifice precision. State the facts, raise the issues, support your argument with the authority, and end with an appropriate "call to action." In other words...get to the point!

Good legal writing is also short, or concise. Avoid using multisyllabic words when a shorter word choice will prove just as effective. Substitute a single word for a lengthier phrase. "Filed an action against" becomes "sue" and "with regard to" becomes "concerning." Write in short sentences (25 words or less) to heighten your reader's understanding. Likewise, shorter paragraphs help your reader better digest your message. You don't eat a steak all at once. Rather, you take your time, savoring it piece by piece in several bites. Similarly, you don't want to overwhelm the reader with a paragraph that extends three-quarters of the page. Divide longer paragraphs into more palatable two or three short paragraphs.

Tip #5 - Hold the reader's interest.
Good writing captures the reader's interest at the beginning, builds upon that interest throughout the middle, and satiates that interest at the end. Effective legal writing is no different. As you construct your document, remove all barriers and roadblocks to holding your reader's attention. I suggest you include a built-in navigation device. At the beginning of your document, give your reader a roadmap of where you are going and explain how you intend to get there. Throughout your document, insert mile markers to orient your reader as to how the section he or she is reading fits within the bigger picture.

Prevent reading-induced hypnosis by varying the length of your sentences and paragraphs. Use headings and subheadings as appropriate to break up huge blocks of text on the page. Incorporate sufficient white space to give your readers a visual (and mental) resting place. Emphasize key points or phrases with special formatting such as italics and bold, but be careful not to overdo a good thing. Use bulleted lists as appropriate. Strategically placed graphs, charts, and tables add substantive value to your writing and also help further engage your reader.

Tip #6 - Tie it together with topic sentences and transition bridges.
The previous tip discussed the importance of providing your reader with direction at the outset of your document and guideposts along the way. An effective way to accomplish this is to start each paragraph with a topic sentence to introduce the subject you intend to discuss. End each paragraph with a transition bridge to the next paragraph. Words such as "however," "moreover," and "in addition" can help create a seamless transition between independent, but related, thoughts. Using transition language as you move from one point to the next contributes to the overall cohesiveness of your writing.

Tip #7 - Write in active voice.
It is always a good rule of thumb to use active voice in any kind of writing. To do this, arrange your sentence so that the subject performs the action expressed by the verb. In the majority of instances, a sentence written using active voice is more clear and direct than one written using passive voice. Notwithstanding this general principle, there may be times when the facts in your case dictate the use of passive voice. For example, in a criminal case where your attorney represents the accused, you certainly would not want to write, "The defendant assaulted the victim." Instead, you would write, "The victim was assaulted."

Tip #8 - Write in positive voice.
Use a glass half-full approach in your legal writing by using positive voice. Change negative statements into affirmative statements. Compare "The defendant should not be prohibited from asserting a contributory negligence." with "The defendant must be permitted to assert a contributory negligence defense." Notice how the second sentence reads better and is more direct.

Tip #9 - Avoid legalese and legal jargon whenever possible.
As creatures of habit, we often find it challenging to embrace new ways of doing things. We have a tendency to fall back on the familiar. Thankfully, the foothold this kind of resistance has gained in the area of legal writing is going the way of the pet rock. Law school professors and legal practitioners alike are eschewing the use of archaic legal jargon and legalese. So should you. Legalese and jargon only function to obscure the meaning of your message. Include them only if absolutely necessary. (If you come across an "absolutely necessary" instance, let me know.)

Tip #10 - Edit your writing for the 7 Cs.
After you complete your first draft, carefully review your work and edit for the following:

* Clarity - Aim for specificity. Add information if needed to clarify your point. Remove information that makes your point muddy. Rephrase or re-work passages to ensure your point is conveyed clearly and meaningfully.

* Completeness - Use the outline you prepared from Tip #3 as a checklist to determine if your document is complete. Review your document to see if you included the required elements and necessary information.

* Conciseness - Eliminate unnecessary words and fillers. Remove redundancies. Remember to keep your sentences and paragraphs simple, short, and to the point.

* Concreteness - Eliminate lengthy legal phrases and substitute shorter concrete words and phrases. "Apprehended the suspect" becomes "arrested Mrs. Johnson."

* Consistency - Read through your writing to ensure your use of tenses and pronouns is consistent from beginning to end. Check to see that you used the same word or phrase each time you referred to the same concept. For example, if you use the word "terminated" to characterize what happened to your client in the first section of your writing, you'll want to change any references to your client being "dismissed" or "fired" that appear later in your document.

* Continuity - Review your work for organizational continuity. Sentences and paragraphs should flow logically from one to the next. Read the first and last sentences of each paragraph. If you are able to glean the major points by reading these sentences alone, your writing has excellent continuity.

* Correctness - Verify the legal authority you cited is still valid. Double-check your citation format. Review your work to see that you have accurately stated the facts. Finally, carefully proofread your work for spelling, grammar, typographical and other kinds of errors that will detract from your message.

After you have made these revisions, ask a friend or family member who does not have a legal background to read your work. Then, listen to the feedback. Make a second round of revisions as necessary. And then? Breathe easy because you are done. Congratulations.

Copyright © 2009 MARIGOLD CONSULTING. All rights reserved.

Lisa M. Newman is the Founder and CEO/President of Marigold Consulting in Atlanta, GA. The firm offers interactive personal growth classes, professional development workshops, and corporate training seminars on a variety of topics designed to help participants bloom out of proportion.

For additional information on these services or to schedule a session for your group, please visit http://www.marigoldconsulting.com.

Article Source: http://EzineArticles.com/?expert=Lisa_Newman

Business Law - Drafting Legal Contracts


By Rebecca McLellan

The whole point of writing a contract is to offer protection between you and the person that you are making the contract with. It is thus very important that the contract is written well and in effect water tight so you will be fully protected should anything go wrong.

As for small businesses, you may not have the time or money to be able to get a solicitor to draw up a contract for you every time you need one. This article will offer some tips and advice on how to write up a good legal contract.

You should always volunteer to make the first draft of a contract. It will be more cost effective and you will be able to draw up terms which a more preferential to you.

You don't have to make your contract unnecessarily complex. Use terms that you and the person you are making the contract with understand. Your contract will be more enforceable if it is clear what you are trying to say. If your contract is not clear, then it may be used against you if anything were to go wrong.
You need to ensure that you use all the correct business names when drawing up your contract. This means that if you were doing business with another company, you would use the businesses name in the contract as opposed to the individual that you have been dealing with to arrange the deal.

The most important thing when writing a contract is to make it as detailed as you possibly can as to leave no margin for interpretation. You should not leave anything up to assumptions but instead make sure that you have got down in writing what you expect to happen. You should include all the rights and obligations of the parties involved and write down anything that has been agreed on verbally in order to make it official.

If you need to make any changes to the contract you will need to make a separate amendment to attach to the contract, you cannot rewrite the contract from scratch. You will need to make sure that any amendments are initialed by all the parties involved in the deal. You should also make sure that you include all the details surrounding payment and make sure that you use explicit amounts, you must be very clear. You should also include what the method of payment will be, the date of the expected payment and what will happen if the payment is late. You will also need to include clauses in which the contract may be ended. It is also important to include a section on how disputes will be dealt with if they arise.

If the person or company that you are doing business with is based in another country, you will need to decide which countries laws will govern what is written in the contract. This will be the place in which legal action will take place in the event of any problems.

For more legal advice and information, and for free legal resources visit lawontheweb.co.uk

Article Source: http://EzineArticles.com/?expert=Rebecca_McLellan

Legal Drafting in English - 10 Tips

Legal Drafting - 10 Tips
By Michael Carabash

I thought it would be worthwhile to outline some tips when it came to legal drafting that I often educate my clients on. This shows why legal kits aren't as good to protecting your rights and promoting your interests as an experienced lawyer is - particularly when you need to negotiate the terms and conditions of an important agreement. So, without further adieu, here are my 10 big tips:

1. Organize your thoughts. I have a general rule about this: 1 idea per sentence, 1 idea per paragraph. Keep things simple and make sure it flows naturally.

2. Use clear language. I can't say this enough. If you have the option of using lots of words to get your thoughts across, it's likely going to get confused. You'd better cut up your sentence into clauses and then make those clauses separate sentences, each expressing only 1 idea.

3. Know your audience. At the end of the day, your contract - for it to mean anything - must be capable of being enforced through litigation. Therefore, write your contract with a judge in mind.

4. Anticipate concerns. There are lots of things you may not realize could impact the interpretation of your agreement at the time you write it. Try to anticipate those situations by looking for precedents and asking around.

5. Use precise language or wishy-washy language to suit your needs - just realize when to use it! If you're a commercial tenant, you may want to use very loose language when it comes to the types of businesses you can operate in the leased premises (to give you flexibility); you may also want very broad language when it comes to an exclusivity clause which restricts te landlord from leasing out adjacent premises to competing businesses (so more types of businesses are captured).

6. What are the consequences? If your intention is to create an enforceable agreement, then you should spell out the consequences of breaching the agreement or a specific provision therein. Also, you should - when it is to your benefit - indicate WHO is the decision maker when it comes to things like breaching the document. By this, I mean: if there is an alleged breach, then under the agreement, final decision-making authority for making that call is Party X. This puts the power in that party's hands.

7. Less is more. You've heard it before, but it's still worth repeating: use smaller words, smaller sentences, smaller paragraphs, smaller everything to get your message across. Too many words and things get messy. Also, if you have the option of using smaller words to get the message across, use them!

8. Don't use legalese unless you know what it means! Legalese is comprised of archaic words and phrases that only lawyers should be bothered with deciphering. They often have specific meanings which are beyond the knowledge or understanding of the lay person.

9. Leave room for amendments later on. Sure, you might not get everything you wanted down in one shot, so just make a provision in your agreement that things can change through mutually agreed upon (in writing) amendments.

10. Keep learning! There are always new techniques to better legal drafting so research them by reading books, articles, etc.

http://www.DynamicLawyers.com - Need a Lawyer? Make a Post (it's free and anonymous!). Get FREE Quotes!

Article Source: http://EzineArticles.com/?expert=Michael_Carabash