Topic (in reverse datal order)padpadpadpadpadpadpadpadpadpadpad1padpadpadpadpadpadpadpadChapter
Sentence construction p added 9.11.18 padpdpadpadpadpadpadpadpadpadpadp 17: Sentences
Clichés p added 7.10.18 padpadpadpadpadpadpadpadpadpadpadpadpadpadpadpadpadp 18: Choosing words
Semantic ambiguity p added 7.10.18 padpapadpadpadpadpadpadpadpadpadpadp 24: Ambiguity
Positive or negative thoughts p added 4.9.18 padpadpadpadpadpadpadpadpa 17: Sentences
Misleading expectations p added 23.8.18 padpadpadpadpadpadpadpadpadpa11 27: Misleading expectations
Council of Mortgage Lenders p added 18.7.18 adpadpadpadpadpadpadpadpa1 Appendix C: Lease precedent
Service charge p added 18.7.18 padpadpadpadpadpadpadpadpapadpadpadpadpadpA Appendix C: Lease precedent
Retail Prices Index padpadpa added 11.5.18 padpadpadpadpadpadadpadpadpadpad 9: Be Human
Evolution of legal language p added 7.5.18 padpadpadpadpadpadpadpadpadpa 3: Who says what's right?
Jurors' misunderstanding p added 2.5.18 padpadpadpadpadpadpadpadpadpada 10: Organising your document; 11: Format
Choice of words (shall) padpadpa added 4.4.18 1padpadpadpadadpadpadpadpad 18: Choosing words
Choice of words (incidence) p added 24.2.18 1padpadpadpadadpadpadpadpad 18: Choosing words
Choice of words (vehicle) p added 11.2.18 padpadpadpadpadpadpadpadpadpad 23: Vagueness
Oxford comma p added 11.2.18 padpadpadpadpadpadpadpadpadpadpadpadpadpadp 12: Punctuation
Oversimplifying p added 6.11.17 padpadpadpadpadpadpadpadpadpadpadpadpadpad 5: Oversimplifying
Listening to criticism p added 5.11.17 padpadpadpadpadpadpadpadpadpadpadpai 20: Editing
Context (how it misleads us) p added 30.10.17 padpadpadpadpadpadpadpadp 27: Misleading expectations
Choice of words (exited) p added 6.10.17 padpadpadpadpadpadpadpadpadpadp 18: Choosing words
Choice of words (give, devise and bequeath) p added 22.9.17 padpad 18: Choosing words
Graphics p added 22.9.17 padpadpadpadpadpadpadpadpadpadpadpadpadpadpadpadpa 11: Format
Precedents (dangers of) p added 22.9.17 padpadpadpadpadpadpadpadpadpadpa 1: Why is traditional legal writing a bad thing?
Ambiguity (uses of) p added 12.9.17 padpadpadpadpadpadpadpadpadpadpadpadp 24: Ambiguity
PageTopicWhat we saidUpdate
4 Choice of words
pad(incidence)
pad

Added 24.2.18
Commas are omitted from the first incidence of the Bracknell Road address. Martin Cutts has gently queried "in my pernickety way" the use of 'incidence' when we meant 'instance'. We think, and he has since agreed, that 'incidence' can have this meaning (at a pinch). But 'instance' would have been the better choice and we'd have changed it if we'd thought about it.
15 Precedents
pad(dangers of)


Added 22.9.17
Unfortunately, many solicitors prepare documents, often with onerous clauses, without consulting their clients. They just copy a precedent that they (or someone else) have used in the past. Similarly, many solicitors do not explain the incoming documents to their clients. Often neither party to a contract knows what the solicitors have arranged. The resulting document does not represent the bargain made by the clients and its provisions are innocently ignored – until there is a problem.

Another consequence is that the bargain is not properly thought through.
An example of this problem has recently been reported. Two well-known law firms agreed to extend time for negotiations. Mr Justice Coulson criticised them for using a template standstill contract “without perhaps fully understanding why they were doing so, and serially departing from the template”.

The resulting contract and its 5 extensions were, he said, a “muddle”. Although their main purpose was to extend the time limit, the parties did not agree, and the contract did not make it clear, how that had been done. At the end of the agreed extensions, did the original time limit expire, or did  it start running again from where it had left off?

Russell v Stone [2017]
[EWHC 1555 (TCC), 29 June 2017
35 Correction

Added 6.11.17
Part C The references to part C should have been to part D. We apologise for this mistake, which arose from a late reorganisation and survived what we thought were careful checks. It reinforces the point in chapter 20 that you can never edit enough.
39 The evolution of legal language

Added 7.5.18
[E]ven legal language mutates more than we are taught. A selection of conveyancing documents from 1853 onwards and another of wills from about 1000 CE onwards appear in Mark Adler: Legal style through the ages.
48 Oversimplifying

Added 6.11.17
There remains the danger that a writer who does not know the purpose of a particular form of words might create a problem by omitting them. See our comment under Listening to criticism below.
72 Retail prices index

Added 11.5.18
"On each rent review date the basic rent will change in line with the change in the RPI" The Retail Prices Index has been criticised as giving an unfairly high rate of increase and in a March 2018 report the Office for National Statistics wrote:
Our position on the RPI is clear: we do not think it is a good measure of inflation and discourage its use.
The Commons Treasury Committee's report on student loans has recommended using the Consumer Price Index instead of the RPI (for student loans, but in the context of more general criticisms of the "widely discredited" RPI).
81, 95 Jurors' misunderstanding

Added 2.5.18
In an account of his time on a jury, journalist Trevor Grove explains that it is difficult to remember and assess the evidence without knowing the point that counsel is trying to establish and before being told the law that the jurors are to apply to it. He quotes an unnamed federal judge writing (in an unspecified 1960 article in the American Bar Association Journal):
What manner of mind can go back over a stream of conflicting statements of alleged facts, recall the intonations, the demeanour, or even the existence of the witnesses, and retrospectively fit all these recollections into a pattern of evaluation and judgement given him for the first time after the events?
… [Steps are] increasingly used in English criminal trials to help jurors apply the law to the facts.
A study commissioned by the Scottish government has identified 8 methods of improving jurors' understanding of the legal issues and their memory of the law and evidence:
Trial transcripts, juror note-taking, audio-visual and digital presentation methods, juror questions, pre-instruction, plain language directions, written directions and structured decision aids (also known as routes [or steps] to verdict). …

Juror note-taking refers to the practice of encouraging jurors to take notes during the trial and providing them with materials to do so and there is evidence to suggest that this assists jurors to remember the evidence they have heard, especially if they are given trial-ordered notebooks (structured notebooks that help jurors to organise their notes). The evidence also suggests that juror note-taking is at least as effective — if not more so — than providing jurors with a full transcript of trial evidence. … [T]here is [also] evidence that pre-instruction — the practice of directing jurors on the substantive legal issues in the case before evidence is led — can also improve memory of the evidence. The reason for this may be that it assists jurors in identifying relevant evidence as it is led and provides a framework for organising this. Despite concerns that pre-instruction might cause jurors to reach their verdict decisions prematurely, there is no indication from the relevant studies that this is the case. …

There is also evidence that pre-instruction improves juror memory for legal directions — most likely for the straightforward reason that jurors hear the main points of the directions twice. … There is, however, a far more obvious method of improving recall of judicial directions, which is to provide directions to jurors in writing and, unsurprisingly, empirical research demonstrates that jurors who are provided with written directions are better able to remember and re-state those directions.
Report by Professors James Chalmers and Fiona Leverick, University of Glasgow School of Law, 30 April 2018
93 Graphics

Added 22.9.17
Now that photographs, graphs, and other images can be so easily imported into documents we might as well use them. They will sometimes make the point much more easily and effectively than words. This advice is now supported by a judgment of Mr Justice Carr on ways to shorten trials about registered designs. Instead of requesting written details, he says parties should produce images at an early stage to show the differences or similarities upon which they rely, and in the case of the defendant, those features which are wholly functional or in which design freedom is said to be limited.

Spin Master Ltd v PMS International Group
[2017] EWHC 1477 (Pat), 9 May 2017, paragraph 27
97, 100 Oxford comma

Added 11.2.18
An application for summary judgment in a class action between an employer and 75 of its truck drivers turned on whether an Oxford comma (see p.100) had been omitted from legislation. The amount at stake was estimated at over $10 million. The employer won at first instance but then lost on appeal (O’Connor v. Oakhurst Dairy (2017)). The New York Times reports that, according to "court documents", the drivers' claim has been settled for US$ 5m.

The problem arose because the usual statutory entitlement to overtime pay did not apply to
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of [certain goods].
The question was whether the Act meant "packing (for shipment or distribution)" or "packing (for shipment), or distribution".

Meanwhile, the Maine legislature has amended the ambiguous provision so that it now reads:
The canning; processing; preserving; freezing; drying; marketing; storing; packing for shipment; or distributing of….
New York Times, 9 February 2018

Title 26: Labor and Industry; chapter 7, subchapter 3, §664, cl 3

124 Sentence construction

Added 9.11.18
Most sentences that are suitably succinct will not have room for much more than the subject, verb, and object, preferably in that order….

[In the example replaced here by the ellipsis] subject, verb, and object are close together at the beginning of the sentence, interrupted only by a clause whose position there is essential and which is not long enough to derail the reader. The adverbial clauses at the end supplement, rather than interrupt, the sense, and are therefore easier to slot into our mental parsers as we read.
MA's note:

I've just come across this example of poor construction by a (usually) good writer:
Billy's eye had been drawn to a framed photograph of two men — one of them Edward Gibson, the other his brother — standing on a table near the window.
There is always a tendency — if not a canon of construction — to read phrases with the closest noun. In this case the the digression naming the men and explaining their relationship increases the focus on the word "men" at the expense of "framed photograph". By the time I reached "standing" I'd forgotten about the photograph and continued reading with a misleading impression of inappropriate behaviour.
127 Positive or negative

Added 4.9.18
Using a positive phrase is generally more direct and may be shorter than the negative. In this example the underlying negative connotation of an ostensibly positive word causes confusion:
Few people, including the president himself, are interested in judicial philosophy.
Although those 11 words can stand alone to make the point, they were taken from a longer sentence made clumsier by its opening negative, extra length, and repetive use of the offending "few":
Aside possibly from a few members of the Federalist Society, which helped to put together President Trump’s master list of court nominees, few people, including the president himself, are interested in judicial philosophy.
Is the president one of the few people interested in judicial philosophy?
137 Choice of words
pad(give, devise
padand bequeath
)


Added 22.9.17
(Updated 21.10.18)
We were taught that devise is appropriate for real property and bequeath for everything else .… The distinction may be quaint but it is not useful. The Law Commission, in its consultation on the law of wills, has asked if we need new legislation on interpreting wills. For example, it asks if devise and bequeath should both be interpreted as give unless a contrary intention appears. The consultation (on this and many other questions) ended on 10 November 2017.

The Commission's website says (on 21 October 2018) that they are still analysing the responses.

Making a will
Law Commission Consultation paper 231, 13 July 2017
140 Choice of words
pad(exited)


Added 6.10.17
Here are some common examples [of complex words], with alternatives on the right Exited;padleft.
142 Choice of words
pad(shall)


Added 4.4.18
[P]rovided always that the … hedges to be erected by the Purchaser on the boundaries of the property shall be at least six feet in height.
… It would be difficult to plant a hedge that is already six feet high, even if you could get it back from the garden centre.
MA's note:

Gardening illiterate that I am, I have always thought of a hedge as a long single growth that would be inconveniently flexible if not secured to the ground by its many legs. But having just been asked by my wife to plant a row of six-foot saplings close together to form a hedge, and having checked the dictionary, I realise that we'll have to leave this joke out of the next edition.

A more serious comment about the use of shall in this example is that if it's interpreted in its future sense the hedge would be allowed time to grow to six feet.
146 Clichés
pad(put in place)


Added 7.10.18
MA's note:

My rant against put-in-place in the 2nd (2006) edition was squeezed out of the 3rd edition, but as this verbosity is still widely used I'll make another attempt to discredit it. This was the original text:
It is currently fashionable to refer to something as in place, and when claiming credit for it to say that you have put-in-place whatever it is (retaining this word order even when it is inappropriate): I have put in place arrangements for insurance (rather than the more natural I have put arrangements in place). Whichever the word order, putting in place skews the meaning by emphasising the wrong part of the sentence, in that it suggests that your job has been to move pre-existing arrangements from the wrong place to somewhere more useful. Putting in place is an example of nominalisation [p.132 of the 3rd edition].

Exhuming the buried verb in this example we find first I have placed arrangements for insurance. But this leaves us with the real verb still buried (beneath the verb placed rather than beneath a noun). Digging further we reach I have arranged insurance.
163 Listening to criticism

Added 5.11.17
Look on suggestions and criticism not as a personal attack on your writing skills but as a constructive contribution to a team effort. After 36 years on the appellate bench, but in this case sitting as a trial judge, Judge Richard Posner confidently insisted that his proposed jury instruction was clear enough, and he rejected a joint request by prosecution and defence that he include a sentence they thought necessary.

The defendant was charged with witness tampering under 18 U.S.C. § 1512(b)(3), that is that she

corruptly attempted to persuade another person to hinder, delay, or prevent communication of information to federal criminal investigators.
The statute leaves the definition of “corruptly” to the judge.

Judge Posner instructed the jury that

you can find the defendant guilty only if the government proves the following four things beyond a reasonable doubt:
  1. The defendant attempted to persuade another person to interfere with the government’s investigation or prosecution of illegal activity;

  2. She did this deliberately, knowing what she was doing rather than acting in ignorance or by mistake;

  3. She intended to interfere with, delay, or prevent another person from giving information to a federal law enforcement officer;

  4. That information related to a federal offense that someone had committed, may have committed, or was planning to commit.
He insisted that this contained all the ingredients of corruption, so to add and explain that word would be otiose. But, as counsel had argued, and the Federal Court of Appeals later held, his formulation

could have allowed the jury to convict Edwards of engaging in conduct that, under Arthur Andersen LLP v. United States … did not constitute corrupt persuasion and therefore did not amount to criminal witness tampering.

In Andersen the US Supreme Court had offered examples of interference that was not inherently corrupt:

Consider, for instance, a mother who suggests to her son that he invoke his right against compelled self-incrimination…, or a wife who persuades her husband not to disclose marital confidences….

Nor is it necessarily corrupt for an attorney to [persuade a] client to [withhold] documents from the Government.

 A week after the conviction was overturned on this ground Judge Posner announced his immediate retirement.

USA v Edwards
USCA 7th circuit, 24 August 2017

Arthur Andersen v United States
31 May 2005


We are grateful to John Hightower for drawing our attention to this case.
179 Choice of words
pad(vehicle)
pad


padAdded 11.2.18
Let’s consider H.L.A. Hart’s much discussed (1958) example of what he calls the open texture of language:
No vehicles are allowed in the park.
At the time of Hart’s article, the Shorter Oxford English Dictionary defined vehicle (in more or less the sense intended here) as:
A means of conveyance provided with wheels or runners and used for the carriage of persons or goods; a carriage, cart, wagon, sledge, etc.…A receptacle in which anything is placed in order to be moved.
The press (for example, The Sun, 9 August 2018) has criticised police officers for relying on a bye-law banning "any vehicle drawn or propelled … by mechanical power" to stop a small boy and his father from playing with battery-powered radio-controlled toy cars on a cycle path in London's Battersea Park.

But is a toy car a few centimetres long and incapable of carrying anything a "vehicle", just because it looks something like one? If so, must a fluffy dog-shaped toy be kept on a lead (and perhaps muzzled)?

(The park authority justified the officers' action on the ground that the toys were a dangerous nuisance at a busy junction, particularly as one of the toys could move at 40 mph.)
187 Semantic ambiguity
pad(professional)


Added 7.10.18
Everyone knows that many words have more than one meaning but it takes a dictionary to remind us just how many different meanings a word can have.

For instance, the Shorter Oxford English Dictionary has a column-and-a-half on house, including (among other uses):

• as a noun:
a building for human habitation,

the part of a building occupied by one tenant or family,

a place of worship,

a religious community,

a school or college subdivision (referring either to the building or the members) … .
An insidious form of ambiguity occurs when the difference between alternative meanings is blurred in a way which confuses an argument. For example, a professional can be:
a member of one of the learned or skilled professions; or

an unqualified person working to earn a living.
So someone without a professional qualification can claim to be a professional, truthfully in the second sense, but without the skill, knowledge, or commitment to a code of conduct usually implied by the first sense.
193 Ambiguity
pad(uses of)


Added 12.9.17
Lawyers sometimes create ambiguity deliberately to avoid trouble (at least in the short term). We might have added the obvious point that ambiguity and vagueness can be exploited for less acceptable purposes.

Does the right to charge "up to 15%" justify a standard charge of 15% regardless of circumstances? "No", said His Honour Judge Waksman QC (sitting as a High Court judge). It confers "a discretion [that] … must be exercised in a way which is not arbitrary, capricious or irrational in the public law sense".

BHL v Leumi ABL Ltd
[2017] EWHC 1871 (QB), 28 July 2017
200 Why we are misled

Added 23.8.18
Our brains have to learn how to translate the code of internal electrochemical events into coherent and accurate messages from the outside world. …

In all our perceptions and thoughts we can easily jump to the wrong conclusion, unaware that we have jumped anywhere. We see and hear what isn’t there, and miss or misinterpret what is, baffling and sometimes infuriating those affected by the misunderstanding.
In an entertaining, 17-minute Ted talk, Your brain hallucinates your conscious reality, aimed at non-scientists, neuroscientist Professor Anil Seth explains why
perception — figuring out what's there — has to be a process of informed guesswork in which the brain combines … sensory signals with its prior expectations or beliefs about the way the world is to form its best guess of what caused those signals. …

Instead of perception depending largely on signals coming into the brain from the outside world, it depends as much, if not more, on perceptual predictions flowing in the opposite direction.
We should take special care to minimise the guesswork when exercising professional judgement.
201 Context
pad(how it misleads us)


Added 30.10.17
Figure 27.1 … shows how context primes us to see … either a letter or a number. This excerpt from today's newspaper shows how the meaning of words can shepherd us down the wrong path (in this case about the consequences of Brexit):
11 per cent of global data flows pass through the UK and 75 per cent of that traffic is with the EU.
First we have to realise that flows is not a verb but part of the perhaps unfamiliar compound noun data flows.

But then the that in that traffic suggests that the amount of data business at risk is "only" 75% of 11%, which is 8.25%. It takes some thought for alert readers to realise that the 11% of global data that flows through the UK might represent anything up to 100% of the global data, and that it is three-quarters of that which is at risk.
245 Lease precedent
(Council of Mortgage Lenders)


Added 30.6.18
Insure … against the perils required of borrowers by the Council of Mortgage Lenders The Council of Mortgage Lenders is now UK Finance and this announcement appears on its website:
The Lenders’ Handbook [has been] renamed the "UK Finance Mortgage Lenders’ Handbook"… . All references to the CML Lenders’ Handbook shall be deemed to mean the UK Finance Mortgage Lenders’ Handbook. Any associated documents which refer to the CML shall be deemed to mean UK Finance. A set of FAQs and responses has been prepared to assist users of the Handbook during the transition from the Council of Mortgage Lenders to UK Finance.
246 Lease precedent
pad(Service charge)


Added 30.6.18
In line with the suggestion here that we clarify and extend the landlord company's money-raising powers if the articles of association don't make adequate provision we suggest expanding clause 8 to read:
A. By the end of November each year, the landlord will estimate the service charge for the next year and notify the tenants.

B. As soon as practicable after 31 December, the landlord must produce accounts for the year then ending.

C. The tenant must pay by banker’s order one-fortieth of the landlord’s estimate (adjusted by bringing forward any balance from the previous year) by equal instalments on the 1st of each month.

D. If the landlord needs, or reasonably expects to need, additional funds, it may [on passage of a special resolution] serve demands on the tenants, and the tenant of each flat must pay 1/40th of the amount needed within [28] days.