Legal texts are littered with excessive capitalisation, which is: (1) grammatically incorrect; and (2) distracting for the reader.
Capital letters should only be used in the following situations:
(1) At the beginning of a sentence (e.g. ‘Thank you for your letter’).
(2) When writing proper names (e.g. London, Angela Merkel, Fleet Street).
(3) When writing names which derive from proper names (e.g. Christianity, Marxism).
(4) For certain abbreviations (e.g. USA, NATO, WTO).
(5) For a defined term in a legal document where the definition uses a capital letter (e.g. ‘Roggins plc, hereinafter referred to as “the Company”’).
The main difficulty that arises is that writers fail to distinguish clearly between (1) proper names and ordinary nouns; and (2) defined terms and ordinary nouns.
So, the next time you find yourself using capitals for such terms as ‘a group of companies’ or ‘the sales contract’, ask yourself whether the noun in question is either genuinely a proper name or a defined term. If the answer to both these questions is ‘no’, change to lowercase.
See www.legalenglishstore.com for more legal English material.
Tuesday, 1 March 2011
Wednesday, 2 February 2011
When to use a comma (,)
The use of commas in English legal writing is undoubtedly a problematic area. However, it is possible to identify eight main situations in which commas should be used.
1) To separate items in a list of more than two items. For example, ‘cars, trucks, vans, and tractors’. In this sentence, there is a comma after vans to show that the list contains four separate categories of items – cars, trucks, vans, tractors – and that vans and tractors do not make up a single category.
2) To separate coordinated main clauses. For example, ‘Cars should park here, and trucks should continue straight on’. In this sentence, the comma after here marks the separation between the different clauses in the sentence.
3) To mark the beginning and end of a sub-clause in a sentence. For example, ‘James, who is a corporate lawyer, led the seminar.’
Here, the commas after James and lawyer allow the writer to indicate to the reader in passing that James is a corporate lawyer, while at the same time placing the main emphasis on the fact that James led the seminar.
4) After certain kinds of introductory clause. For example, ‘Having finished my work, I left the office.’
5) After certain kinds of introductory words. When a sentence begins with a word which does not form part of the clause which follows it, a comma usually appears after this word. These are usually words – or combinations of two or three words – inserted by the author to indicate to the reader how the rest of the sentence is to be understood and how it relates to the previous sentence. For example, however, therefore, of course, nevertheless.
6) To separate a phrase or sub-clause from the main clause in order to avoid misunderstanding. For example:
I did not go to Paris yesterday, because the meeting was cancelled.
Here, the comma after yesterday makes it clear that the writer did not go to Paris, and the reason he or she did not go to Paris was that the meeting was cancelled. If the comma were to be removed, the sentence would be ambiguous – it would give the impression that the writer did go to Paris but that the reason for going to Paris was not that the meeting was cancelled:
I did not go to Paris yesterday because the meeting was cancelled. I went because I had urgent shopping to do!
7) Following words which introduce direct speech (e.g. said). For example, ‘He said, “my lawyer is a genius!”’
8) Between adjectives which each qualify a noun in the same way. For example, ‘a small, dark room’. Here, a comma is placed after small.
However, where the adjectives qualify the noun in different ways, or when one adjective qualifies another, no comma is used. For example, ‘a distinguished international lawyer’ or ‘a shiny blue suit’.
See www.legalenglishstore.com and www.forum-legal.com for more legal English content.
1) To separate items in a list of more than two items. For example, ‘cars, trucks, vans, and tractors’. In this sentence, there is a comma after vans to show that the list contains four separate categories of items – cars, trucks, vans, tractors – and that vans and tractors do not make up a single category.
2) To separate coordinated main clauses. For example, ‘Cars should park here, and trucks should continue straight on’. In this sentence, the comma after here marks the separation between the different clauses in the sentence.
3) To mark the beginning and end of a sub-clause in a sentence. For example, ‘James, who is a corporate lawyer, led the seminar.’
Here, the commas after James and lawyer allow the writer to indicate to the reader in passing that James is a corporate lawyer, while at the same time placing the main emphasis on the fact that James led the seminar.
4) After certain kinds of introductory clause. For example, ‘Having finished my work, I left the office.’
5) After certain kinds of introductory words. When a sentence begins with a word which does not form part of the clause which follows it, a comma usually appears after this word. These are usually words – or combinations of two or three words – inserted by the author to indicate to the reader how the rest of the sentence is to be understood and how it relates to the previous sentence. For example, however, therefore, of course, nevertheless.
6) To separate a phrase or sub-clause from the main clause in order to avoid misunderstanding. For example:
I did not go to Paris yesterday, because the meeting was cancelled.
Here, the comma after yesterday makes it clear that the writer did not go to Paris, and the reason he or she did not go to Paris was that the meeting was cancelled. If the comma were to be removed, the sentence would be ambiguous – it would give the impression that the writer did go to Paris but that the reason for going to Paris was not that the meeting was cancelled:
I did not go to Paris yesterday because the meeting was cancelled. I went because I had urgent shopping to do!
7) Following words which introduce direct speech (e.g. said). For example, ‘He said, “my lawyer is a genius!”’
8) Between adjectives which each qualify a noun in the same way. For example, ‘a small, dark room’. Here, a comma is placed after small.
However, where the adjectives qualify the noun in different ways, or when one adjective qualifies another, no comma is used. For example, ‘a distinguished international lawyer’ or ‘a shiny blue suit’.
See www.legalenglishstore.com and www.forum-legal.com for more legal English content.
Monday, 17 January 2011
The Origins of Legal English
Legal English reflects the mixture of languages which has produced the English language generally. However, it owes a particular debt to French and Latin.
Following the Norman invasion of England in 1066, French became the official language of England, although most ordinary people still spoke English. For a period of nearly 300 years, French was the language of legal proceedings, with the result that many words in current legal use have their roots in this period. These include property, estate, chattel, lease, executor and tenant. During this period, Latin was the language of formal records and statutes. However, since only the learned were fluent in Latin, it never became the language of legal pleading or debate.
Therefore, for several centuries following the Norman invasion, three languages were used in England. English remained the spoken language of the majority of the population, but almost all writing was done in French or Latin. English was not used in legal matters. In 1356, the Statute of Pleading was enacted (in French). It stated that all legal proceedings should be in English, but recorded in Latin.
As the printed word became more widely used, some writers made an effort to adopt words derived from Latin, in order to make their text more sophisticated. Some legal words taken from Latin in this way are adjacent, frustrate, inferior, legal, quiet and subscribe.
English was adopted for different kinds of legal documents at different times. Wills began to be written in English in about 1400. Statutes were written in Latin until about 1300, in French until 1485, in English and French for a few years, and in English alone from 1489.
The result of this history is that modern legal English contains an unusually high percentage of words and phrases derived from French and Latin as compared to ordinary English. Consider this simple force majeure clause:
Neither party shall be liable to the other for failure to perform or delay in the performance of its obligations caused by any circumstances beyond its reasonable control.
It contains 28 words, of which 17 are Old English, 7 Old French and 4 Latin. Of the Old English words, 9 are articles or prepositions (e.g. the, to, for, in, by). All the important legal terms (e.g. party, liable, obligations, reasonable, perform) are either Old French or Latin.
It follows that Latin-based terminology is essential to legal English. To use a computing analogy, we might say that where legal English is concerned, English is the ‘hardware’ which determines the grammatical construction of the sentences, but the Latin-based terminology is the ‘software’ which provides the legal meaning.
If I tried to draft the same clause relying solely on Germanic-based language, I would fail. The closest I can get is:
It’s not anyone’s fault if they cannot do what they said they would do owing to something they could not do anything about.
Here, we have 23 words, of which 22 are from Old English and Old Norse (an old Scandinavian language) and only one (fault) is from Latin. But it is a painfully unsophisticated text, which lacks the legal precision of the first text and would not work at all without the use of the word fault.
Following the Norman invasion of England in 1066, French became the official language of England, although most ordinary people still spoke English. For a period of nearly 300 years, French was the language of legal proceedings, with the result that many words in current legal use have their roots in this period. These include property, estate, chattel, lease, executor and tenant. During this period, Latin was the language of formal records and statutes. However, since only the learned were fluent in Latin, it never became the language of legal pleading or debate.
Therefore, for several centuries following the Norman invasion, three languages were used in England. English remained the spoken language of the majority of the population, but almost all writing was done in French or Latin. English was not used in legal matters. In 1356, the Statute of Pleading was enacted (in French). It stated that all legal proceedings should be in English, but recorded in Latin.
As the printed word became more widely used, some writers made an effort to adopt words derived from Latin, in order to make their text more sophisticated. Some legal words taken from Latin in this way are adjacent, frustrate, inferior, legal, quiet and subscribe.
English was adopted for different kinds of legal documents at different times. Wills began to be written in English in about 1400. Statutes were written in Latin until about 1300, in French until 1485, in English and French for a few years, and in English alone from 1489.
The result of this history is that modern legal English contains an unusually high percentage of words and phrases derived from French and Latin as compared to ordinary English. Consider this simple force majeure clause:
Neither party shall be liable to the other for failure to perform or delay in the performance of its obligations caused by any circumstances beyond its reasonable control.
It contains 28 words, of which 17 are Old English, 7 Old French and 4 Latin. Of the Old English words, 9 are articles or prepositions (e.g. the, to, for, in, by). All the important legal terms (e.g. party, liable, obligations, reasonable, perform) are either Old French or Latin.
It follows that Latin-based terminology is essential to legal English. To use a computing analogy, we might say that where legal English is concerned, English is the ‘hardware’ which determines the grammatical construction of the sentences, but the Latin-based terminology is the ‘software’ which provides the legal meaning.
If I tried to draft the same clause relying solely on Germanic-based language, I would fail. The closest I can get is:
It’s not anyone’s fault if they cannot do what they said they would do owing to something they could not do anything about.
Here, we have 23 words, of which 22 are from Old English and Old Norse (an old Scandinavian language) and only one (fault) is from Latin. But it is a painfully unsophisticated text, which lacks the legal precision of the first text and would not work at all without the use of the word fault.
Tuesday, 14 December 2010
Beware of Uncountable Nouns
Some nouns in English are uncountable. In other words, they are not used with a or an and do not have plural forms. This is typically the case with abstract or conceptual nouns, such as information, litigation, training, advice.
With the word ‘information’, for instance, you cannot write, ‘we have received an information’; nor can you write, ‘we have received some informations’. You can, however, write:
We have received some information.
OR
We have received several pieces of information.
In other words, you can either use the conceptual word in a general singular sense (‘some information’) or you can pluralise it using an auxiliary word (i.e. ‘pieces’ in ‘pieces of information’).
In legal contexts it is often possible to find an alternative countable word. For instance, while it is wrong to write, ‘the company has been involved in several litigations’, it would be perfectly acceptable to write that the company has been involved in several cases, claims, lawsuits etc.
With the word ‘information’, for instance, you cannot write, ‘we have received an information’; nor can you write, ‘we have received some informations’. You can, however, write:
We have received some information.
OR
We have received several pieces of information.
In other words, you can either use the conceptual word in a general singular sense (‘some information’) or you can pluralise it using an auxiliary word (i.e. ‘pieces’ in ‘pieces of information’).
In legal contexts it is often possible to find an alternative countable word. For instance, while it is wrong to write, ‘the company has been involved in several litigations’, it would be perfectly acceptable to write that the company has been involved in several cases, claims, lawsuits etc.
Wednesday, 17 November 2010
How to Avoid Using Sexist Language
It is inappropriate to use the personal pronouns he or his (or she or her) to refer to a person whose sex might be male or female. English has a number of gender-neutral words such as person, as well as a number of gender-neutral pronouns such as anyone, everyone and no one. However, it does not have gender-neutral singular personal pronouns.
A good workaround is to use the plural possessive form, their. The Oxford English Dictionary 2001 sanctions the use of this form to refer to ‘belonging or associated with a person whose sex is not specified’. In this way, the writer can avoid using sexist language. For example:
Every competent lawyer must ensure that their legal knowledge is kept up to date.
Other methods can also be employed to avoid using he or his. These include:
• Deleting the pronoun reference altogether if possible. For example, ‘the director read the documents as soon as they were delivered to him’: delete to him.’
• Changing the pronoun to an article like a or the. For example, ‘the sales representative assisted the customer with his order’ can be changed to ‘the sales representative assisted the customer with the order’.
• Using who, especially when he follows if. For example, ‘if he does not pay attention to detail, a finance officer is worse than useless’ should read ‘the finance officer who does not pay attention to detail is worse than useless’.
• Repeating the noun instead of using a pronoun. For example, ‘When considering the conduct of negotiations, the delegate should retain an objective view. In particular, he [read the delegate] should…’
• Use the plural form of the noun. For example, instead of writing ‘a lawyer must check that he has all the relevant papers before attending court’, write ‘lawyers must check that they have all the relevant papers before attending court’.
• Use the infinitive form of the verb, including to (e.g. to perform, to draft etc). For example, instead of writing ‘the lawyer agrees that he will draft the contract’, write ‘the lawyer agrees to draft the contract’.
• If all else fails, use the passive form. For example, instead of writing ‘he must deliver the files to X’, write ‘the files must be delivered to X’. This is not a perfect solution, since the passive form makes it unclear who is responsible for delivering the files to X. Therefore, it should only be used if the identity of the parties has already been established in a previous sentence, or if the question of responsibility for undertaking the actions is unimportant.
A good workaround is to use the plural possessive form, their. The Oxford English Dictionary 2001 sanctions the use of this form to refer to ‘belonging or associated with a person whose sex is not specified’. In this way, the writer can avoid using sexist language. For example:
Every competent lawyer must ensure that their legal knowledge is kept up to date.
Other methods can also be employed to avoid using he or his. These include:
• Deleting the pronoun reference altogether if possible. For example, ‘the director read the documents as soon as they were delivered to him’: delete to him.’
• Changing the pronoun to an article like a or the. For example, ‘the sales representative assisted the customer with his order’ can be changed to ‘the sales representative assisted the customer with the order’.
• Using who, especially when he follows if. For example, ‘if he does not pay attention to detail, a finance officer is worse than useless’ should read ‘the finance officer who does not pay attention to detail is worse than useless’.
• Repeating the noun instead of using a pronoun. For example, ‘When considering the conduct of negotiations, the delegate should retain an objective view. In particular, he [read the delegate] should…’
• Use the plural form of the noun. For example, instead of writing ‘a lawyer must check that he has all the relevant papers before attending court’, write ‘lawyers must check that they have all the relevant papers before attending court’.
• Use the infinitive form of the verb, including to (e.g. to perform, to draft etc). For example, instead of writing ‘the lawyer agrees that he will draft the contract’, write ‘the lawyer agrees to draft the contract’.
• If all else fails, use the passive form. For example, instead of writing ‘he must deliver the files to X’, write ‘the files must be delivered to X’. This is not a perfect solution, since the passive form makes it unclear who is responsible for delivering the files to X. Therefore, it should only be used if the identity of the parties has already been established in a previous sentence, or if the question of responsibility for undertaking the actions is unimportant.
Sunday, 3 October 2010
Hyphenation
The question of when to use a hyphen – i.e. a horizontal line connecting two words – often causes problems.
Most writers are comfortable with the idea of using hyphens to connect a prefix to a word. For instance, legal terms beginning with non-, pre-, co- are often hyphenated, and common examples include non-statutory, pre-trial, co-defendant.
However, confusion arises when it comes to connecting separate words together – should a hyphen be used or not?
In brief, the rule is that hyphens are used to connect words that are more closely connected to each other than the surrounding syntax. This is often the case when one word is a noun (e.g. tax) and the other word is an adjective (e.g. exempt) or adverb (e.g. neutrally), and particularly where these words taken together have an adjectival function. For example, take the sentence:
The company made a tax-exempt transfer.
The words tax-exempt are clearly more closely connected than the surrounding words, and taken together they have the role of an adjective in relation to the word transfer – they describe the nature of the transfer. In other words, if you were to ask what kind of transfer was involved, you would get the answer – a tax-exempt transfer. And a hyphen would appear between tax and exempt to emphasise the unity of this term.
However, if both words involved are nouns, they are more likely to stand alone and not require hyphenation. So, while tax-exempt is hyphenated, tax exemption should not be hyphenated.
Most writers are comfortable with the idea of using hyphens to connect a prefix to a word. For instance, legal terms beginning with non-, pre-, co- are often hyphenated, and common examples include non-statutory, pre-trial, co-defendant.
However, confusion arises when it comes to connecting separate words together – should a hyphen be used or not?
In brief, the rule is that hyphens are used to connect words that are more closely connected to each other than the surrounding syntax. This is often the case when one word is a noun (e.g. tax) and the other word is an adjective (e.g. exempt) or adverb (e.g. neutrally), and particularly where these words taken together have an adjectival function. For example, take the sentence:
The company made a tax-exempt transfer.
The words tax-exempt are clearly more closely connected than the surrounding words, and taken together they have the role of an adjective in relation to the word transfer – they describe the nature of the transfer. In other words, if you were to ask what kind of transfer was involved, you would get the answer – a tax-exempt transfer. And a hyphen would appear between tax and exempt to emphasise the unity of this term.
However, if both words involved are nouns, they are more likely to stand alone and not require hyphenation. So, while tax-exempt is hyphenated, tax exemption should not be hyphenated.
Thursday, 9 September 2010
How to Cut Unnecessary Words
Legal documents tend to be long and difficult to read. While this is to a great extent simply the nature of the beast, a number of things can be done to avoid wasting words. Here are a few suggestions.
1) Watch the use of which. This word is frequently used unnecessarily, usually involving further unnecessary verbiage. For example, the sentence:
These situations are governed by agreements which are made between different entities.
may be reduced to:
These situations are governed by agreements between different entities.
2) Use pronouns where possible. The use of pronouns avoids repetition of nouns, which is useful particularly where lengthy noun phrases (such as the names of documents or laws) are involved. For instance, try to avoid writing sentences like this:
The 2010 Terms and Conditions for the Provision of Services within the Metalwork and Woodwork Sectors are now in force. The 2010 Terms and Conditions for the Provision of Services within the Metalwork and Woodwork Sectors replace the large number of different agreements previously used.
Write instead:
The 2010 Terms and Conditions for the Provision of Services within the Metalwork and Woodwork Sectors are now in force. They replace the large number of different agreements previously used.
Or, even better:
The 2010 Terms and Conditions for the Provision of Services within the Metalwork and Woodwork Sectors are now in force, and replace the large number of different agreements previously used.
However, as discussed in an earlier post, one of the most common reasons for ambiguity in a text is where a sentence contains two or more nouns together with one pronoun in such a way that it becomes unclear which noun the pronoun is intended to replace. So only use a pronoun when it is crystal clear to what it relates.
3) Use verbs instead of nouns where possible. It is all too easy to write long and dreary sentences using conceptual nouns. For example:
It is important to effect a reduction of operating costs during the implementation of the agreement.
However, by converting reduction and implementation into verbs, this sentence could be rewritten as follows:
It is important to reduce operating costs when implementing the agreement.
1) Watch the use of which. This word is frequently used unnecessarily, usually involving further unnecessary verbiage. For example, the sentence:
These situations are governed by agreements which are made between different entities.
may be reduced to:
These situations are governed by agreements between different entities.
2) Use pronouns where possible. The use of pronouns avoids repetition of nouns, which is useful particularly where lengthy noun phrases (such as the names of documents or laws) are involved. For instance, try to avoid writing sentences like this:
The 2010 Terms and Conditions for the Provision of Services within the Metalwork and Woodwork Sectors are now in force. The 2010 Terms and Conditions for the Provision of Services within the Metalwork and Woodwork Sectors replace the large number of different agreements previously used.
Write instead:
The 2010 Terms and Conditions for the Provision of Services within the Metalwork and Woodwork Sectors are now in force. They replace the large number of different agreements previously used.
Or, even better:
The 2010 Terms and Conditions for the Provision of Services within the Metalwork and Woodwork Sectors are now in force, and replace the large number of different agreements previously used.
However, as discussed in an earlier post, one of the most common reasons for ambiguity in a text is where a sentence contains two or more nouns together with one pronoun in such a way that it becomes unclear which noun the pronoun is intended to replace. So only use a pronoun when it is crystal clear to what it relates.
3) Use verbs instead of nouns where possible. It is all too easy to write long and dreary sentences using conceptual nouns. For example:
It is important to effect a reduction of operating costs during the implementation of the agreement.
However, by converting reduction and implementation into verbs, this sentence could be rewritten as follows:
It is important to reduce operating costs when implementing the agreement.
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