TopicpadpadpadpadpadpadpadpadpadpadpadpadpadpadpadpadpadpadpadpadpadpadpadChapter
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 padpadpadpadpadpadpadpadpadpadpadpadpadpad 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.
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.
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

137 Choice of words
pad(give, devise
padand bequeath)


Added 22.9.17
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) ends on 10 November 2017.

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.
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.)
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 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
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.