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The most distinctive characteristic of traditional legal drafting is the
construction of absurdly long sentences.
There is not the least merit in this. It does no good, and it does much harm.
No legal or syntactic technicality demands - or even suggests - it. The
requirement that we cover all possibilities to protect our clients is not
a requirement that we cover them all in a single breath. Long sentences do
not aid comprehension or add precision; on the contrary, they work actively
against both, boring and confusing the reader. As they have several serious
disadvantages and nothing in their favour, their use is unjustifiable, and
may amount to professional negligence.
You (and I use this pronoun to point the finger) do not just tack one
thought
at the end of another. That would be too easy. Word order is inverted in
unfamiliar ways (aping Latin, which has a different structure). Often sentences
are nested one in another. Idea A begins, but before the reader can make
sense of it, clause B breaks in, abandoning thought A and starting another;
perhaps clause C interrupts B; finally we reach the end of the sentence,
but its beginning has long been forgotten, and the reader must turn back
and start again.
There are still more ingredients for the linguistic soup. You pour in words
and phrases indiscriminately: words and phrases which add nothing. Most legal
writing could be trimmed to a third of its length with no loss of meaning,
and some gain: as the water level falls - if I may dilute my metaphor -
previously hidden rocks appear.
Even the three-page sentence-paragraph you have built is not difficult enough
to decipher. The last stage is the painstaking removal of all the punctuation
designed to guide the reader through the maze.
Now you have legal language: a skyscraper erected by balancing bricks in
an unstable, uncemented pile.
This foolish custom (or set of customs) is maintained because it is the custom.
The reason for doing it is that you do it. If you did not do it, it would
not be the custom, so you would not "need" to do it. But as it is the way
things are done, you do it, trailing more woolly writers behind you. Anything
that is done, must be done. The Sheeps' Charter. This insipid surrender of
the writer's autonomy is not professionalism.
Several adverse consequences follow from this mutilation of our language:
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Your text (which it is important to understand) is unnecessarily difficult
- and dull - to read.
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Mistakes are easily made and easily overlooked. (This includes mistakes of
interpretation by the reader as well as those of construction by the writer.)
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It is often impossible to tell which words or clauses modify which other
words or clauses, as a result of which the sentence is ambiguous.
Here is a comparatively minor example, taken from the lease of a flat in
a development. (When the draft was first submitted, amendments were discouraged
on the ground that it was a standard lease, not only for that block, but
for many other blocks already let. The extract I quote is typical of the
lease, though it comprised less than 1% of the whole.) I call it a minor
example because it is a short paragraph with comparatively easy syntax. Let
us use footnotes to analyse it.
"The Building" (1) means the building
forming part of the Development comprising (2) several
flats and (3) all (4)
structural parts (5) thereof (6) including (7)
the roofs gutters
rainwater pipes (8) foundations floors all
(4) walls
bounding individual flats (9) therein
(6) and (3) all
external parts (10) of the Building (11) and all
(4) Service Installations
(12) except (13) those
used solely for the purpose of an individual flat
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I prefer small capitals or italics (if word processing permits) to flag defined
terms, to avoid confusion when a capital letter starts a sentence.
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Is it the building or the development which comprises several flats? If it
does not matter, why bother with the phrase?
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"And" suggests that what follows is different from what goes before. We say
"I met Tom and Dick", not "I met Tom and Tom's head including his nose eyes
ears...".
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"All" is not particularly appropriate, since some parts are not included.
Why not "the", which the drafter considered adequate for the roofs and other
items?
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Are non-structural parts to be excluded? It does not say so. And what does
the drafter mean by "structural"? Is it intended to exclude non-load-bearing
walls? They may be part of the structure. Is it not foolish to list so many
inclusions taken for granted, but only hint at one of the few material points
the passage is supposed to make?
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It is impossible to tell whether "there.." refers to the the building, the
development, or the flats.
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All the items included would be taken for granted, as in the example in note
3. And as the list is not exhaustive, the reader is left to wonder why some
items were included and others not, unless it is because the items not mentioned
are not included. A judge might accept the argument of a tenant that
the ambiguity created should be construed against the drafter.
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When a list contains items more than one word long, the affectation of removing
the punctuation creates unnecessary ambiguity. Does the drafter mean "including
the roofs, gutters, rainwater, pipes..." or "including the roofs, gutters,
rainwater pipes...". This example may be fanciful, but in other lists the
problem is real, and traditional drafters do not provide a solution.
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Presumably the intention is to exclude walls which do not bound individual
flats, but the drafter does not say so, and again leaves room for argument.
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Compare `The Tenant' means Tom and his skin (but not the rest of him?).
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This part of the definition is circular.
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"Service Installations" were also defined at inordinate length in the original,
but the gist was that they were the conduits, which would have been a more
convenient name.
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This seems to be the point of the paragraph, since all previous items would
have been taken for granted. But does "except" refer only to "Service
Installations" or to everything in the list? Probably the former, but that
is guess based on common sense.
How should this be written? In three stages.
(A) Ask yourself if the passage is necessary. If not, omit it
altogether.
We need only define "building" to:
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distinguish this building from others;
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specify which of more than one commonly accepted definition we intend; or
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restrict or expand the commonly accepted definition.
The first criterion was not met. The development was a small one, with a
single building containing nine flats, and a short drive through the garden
to the street. There was no other building with which it could have been
confused, but perhaps it would be as well to exclude outhouses which might
be added later.
Perhaps the second criterion was met, though the original draft does not
address the point. A lawyer might ask if the development's boundary walls
and fences were included, although the use of the singular "Building" suggests
they were not.
The third criterion was satisfied, by excluding some service installations,
perhaps some of the internal walls, and perhaps anything not used exclusively
for an individual flat. Again, the original draft does not fulfil its task.
(B) Say what the clause intends, without elaboration.
For example:
"The building" is that edged red on the plan, but excludes:
(1) (which?) internal walls; and (a)
(2) conduits used only by an individual flat.
Or:
"The building" is that edged red on the plan, but excludes those of the
following items which are used only by an individual flat.
(1) (Which?) internal walls.
(2) Conduits.
The slight syntactic difference between these alternatives is not of great
importance, but anyone interested in the technicalities can find a discussion
in Drafting Legal Documents by Barbara Child (b) .
(C) Having said what you need to say, stop.
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(a) "And" is not essential.
(b) West Publishing Co; St Paul, Minnesota; 2nd edition, 1992; pages 346-352.
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