Plain English in ten little words: Difference between revisions

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{{a|plainenglish|}}*[[May]] Avoid redundancy. The parties may, but are not obliged to. “Nothing in the foregoing will prevent parties from —”. Don’t confer entitlements that the parties had in any case. Don’t say a thing more than is necessary. Don’t overcommunicate. ''Less is more''.  
{{a|drafting|}}We all know bad drafting when we see it — it will transport some from a resting state of tranquility to the verge of physical violence, but for legions of others it is a toasty duvet under which they will gladly slip — but all the same it is hard to pin down exactly what is ''wrong'' with it.
*[[By]] [[passive]] tense. Write in the active, with energy, and in a way that clearly assigns and accepts responsibility
 
*[[Of]] nominalisation, adjectivisation
Many of the “tells” are short, small, inoffensive words.
*[[Shall]] — fusty old language. Herewith, hereof, deemed
 
*[[And/or]] You are a professional writer: write like one. Be confident. Avoid nervous laungage, not doubt. [[Unless otherwise agreed]]; write [[For the avoidance of doubt|to ''avoid'' doubt in the first place]].  
In the modern listicle style, then, I offer you the [[JC]]’s guide to turgid drafting, through ten short words.
*[[verb]] complicated sentence constructions (because the simple verb (give, do, be, make, have) is usually accompanied by a noun that could itself have been a verb
 
*[[Including]] — parentheticals that by definition do not add anything. [[Without limation]]
===[[May]]===
*[[Leverage]] — jargon that is designed to make the writer look wise, and not the reader enlightened.
Avoid [[redundancy]]. The law of contract governs what parties must and must not do. Unless qualifying these absolutes, it has no interest in what they may, do not have to do. So don’t confer entitlements that the parties had in any case. Strike constructions like this:
*[[Judge]] — For whom are you writing? Not posterity, not a judge, not to cover your backside,  
{{quote|“Nothing in this contract will prevent parties from —”. }}
*[[Deemed]] — avoid legal tics. Things that, yes, you might be able to justify on tendentious logical or ontological grounds, but which ''don’t make a damn of difference in the real world''. So it might be true that the redemption amount is “[[an amount equal to]] the final price” — yes, it is true the redemption amount isn’t, from a brutalised ontological perspective, the final price; in a conceptual scheme they are different things, but they're identical, and you lose nothing, except a few dead scales of pendatic skin, by saying the “redemption amount ''is'' the final price”. Likewise “this shall be [[deemed]] to be that” what, practically is the difference between “being deemed to be something”, or (worse) “being deemed to be an amount equal to something” and just “''being'' something”? Exception to the rule: “equivalent”. Here there is a real-world difference — at least in that purblind topsy-turvy world occupied by accountants. It all relates to the difference between a title transfer and a pledge. But the principle remains: ''unless there is a legal, accounting or tax distinction that one might draw between the tedious and the plain articulations, use the plain one.
“But what,” I hear you cry, “if something in the contract ''would'', otherwise, prevent the parties from —?”
 
The answer here is to change that other something in the contract so it ''doesn’t''. Otherwise you have a logical contradiction in your document. You are a professional writer. You have one job: forensic clarity. Do it properly.
 
Don’t say more than you need to. Don’t over-communicate. ''Less is more''.
===[[By]]===
The preposition “[[by]]” often signals the [[passive]] voice. {{strike|The passive should be avoided by all good writers wherever it is found to be possible|Good writers avoid the [[passive]] voice when they can}}. It lacks energy. It evades responsibility. Write in the active, with energy, clearly assigning responsibility for action.
===[[Of]]===
The preposition “[[of]]” also often flags [[passive]] constructions:
{{quote|“[[In the event that|in the event]] ''[[of]]'' harm to the interests ''[[of]]'' the client ''[[by]]'' the broker...”}}
:rather than:
{{quote|“if the broker harms the client’s interests...”}}
Likewise, it signposts [[Nominalisation|nominalisations]]:
{{quote|“I shall initiate the termination ''[[of]]'' the scheme”}}
:rather than:
{{quote|“I will terminate the scheme”.}}
===[[Is]]===
Like “[[of]]”, we often hook up the commonest verb to longer [[infinitive|infinitives]] and [[noun]]s, making ugly [[passive]]s and [[nominalisation]]s. It is also a gateway drug to cluttered syntax. We [[legal eagle]]s are so acclimatised to writing this way we barely notice when we do it: I just caught myself writing:
{{quote|“What I want ''is'' a document that ''is'' clear, plain and ''is'' understandable.”}}
Take out the existential verb and you get:
{{quote|“I want a clear, plain, understandable document.”}}
===[[Shall]]===
Fusty, old, imprecise language. Herewith, hereof, heretofore,
===[[Or]]===
while it is ''certainly'' better than [[and/or]] — as to which see below — “or” overuse indicates nervous, underconfident writing.  “Or” generally designates optionality, so a writer who overuses this conjunction may seem non-commital or overly pedantic. ''Lawyerly''. So take for example, the following adapted example from life:
{{quote|“... notice from a governmental ''or'' regulatory authority of a breach of any applicable law, rule, regulation ''or'' order, ''or'' that it is the subject of any injunction, fine, restitution order ''or'' any other sanction or disciplinary action from any government department, court ''or'' regulatory authority, which in either case has ''or'' may have a material adverse impact on its performance... [''continues for pages]''”}}
We can simplify this without difficulty:
{{quote|notice from a {{strike|governmental ''or'' regulatory authority|regulator}} of a {{strike|breach of any applicable law, rule, regulation ''or'' order, ''or'' that it is the subject of any injunction, fine, restitution order ''or'' any other sanction or disciplinary action from any government department, court ''or'' regulatory authority|regulatory sanction}}, which {{strike|in either case has ''or'' may have|may}} a material adverse impact on its performance ... }}
And before long we have got to the nub of the issue:
{{quote|“notice of any regulatory sanction that may materially impair its performance”}}
 
As with of, you might get some site of the innate hesistancy of a document by determining the “or” ratio. [[Neil Postman]]’s {{br|Technopoly}} has an [[or ratio]] of about 0.5% A standard commercial contract will be between 1.3% (the immaculate {{plainlink|https://www.ubs.com/global/en/investment-bank/regulatory-directory/global-financing-services-terms.html|UBS prime brokerage agreement}} drafted by guess who) and 4.5% (the {{isdama}}).
===[[And/or]]===
You are a professional writer: write like one. Be confident. Avoid ''nervous'' language in the first place, not doubt later on. [[Unless otherwise agreed]]; write [[For the avoidance of doubt|to ''avoid'' doubt in the first place]] (though in my cantankerous opinion [[doubt]] is in any case underrated).
===[[Verb]]===
complicated sentence constructions are aided and abetted by boring, colourless verbs: (because such colourless verbs (give, do, be, make, have, and the worst of all, [[effect]]) require colouring, usually an accompanying [[noun]] that could itself have been a verb, or an [[adverb]], whose definition is “a word you use only where you can’t think of a better [[verb]]”
===[[Including]]===
Parentheticals that, by definition, add nothing: [[including]], [[without limitation]], [[for the avoidance of doubt]].
===[[And]]===
Conjunctions are often a tell that you are jamming too many concepts into a single sentence. Or that you are overflowing with ideas that you haven’t pruned down to the necessary. JC does this a lot. Usually, one or other of the alternatives can safely go.
===[[Deemed|Deem]]===
Avoid legal tics and [[Latinism]]s: Things that you might be able to [[Special pleading|justify]] on tendentious logical grounds, but which ''don’t make a damn of difference in the real world''. So it might be true that a redemption amount is “[[an amount equal to]] the final price” — yes, it is true the redemption amount isn’t, from a brutalised [[ontological]] perspective, ''the'' final price; in the conceptual scheme they are different things, but they’re identical, and you lose nothing, except a few dead scales of [[Pedantry|pedantic]] skin, by saying the “redemption amount ''is'' the final price”. Likewise “this shall be [[deemed]] to be that” what, practically is the difference between “being deemed to be something”, or (worse) “being deemed to be an amount equal to something” and just “''being'' something”?<ref>Exception to the rule which proves it: “[[equivalent]]”. Here there is a real-world difference — at least in that purblind topsy-turvy world occupied by accountants. It all relates to the difference between a [[title transfer]] and a [[pledge]]. Note: this might be ''me'' [[special pleading]]. </ref> But the principle remains: ''unless there is a hard-edged legal, accounting or tax distinction between a tedious and a plain articulation, use the plain one.''
{{Sa}}
 
* [[Nominalisation]] and [[adjectivisation]]
* [[Writing for a judge]]
*[[Purpose]]
{{Ref}}{{nld}}

Latest revision as of 13:51, 13 August 2024

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We all know bad drafting when we see it — it will transport some from a resting state of tranquility to the verge of physical violence, but for legions of others it is a toasty duvet under which they will gladly slip — but all the same it is hard to pin down exactly what is wrong with it.

Many of the “tells” are short, small, inoffensive words.

In the modern listicle style, then, I offer you the JC’s guide to turgid drafting, through ten short words.

May

Avoid redundancy. The law of contract governs what parties must and must not do. Unless qualifying these absolutes, it has no interest in what they may, do not have to do. So don’t confer entitlements that the parties had in any case. Strike constructions like this:

“Nothing in this contract will prevent parties from —”.

“But what,” I hear you cry, “if something in the contract would, otherwise, prevent the parties from —?”

The answer here is to change that other something in the contract so it doesn’t. Otherwise you have a logical contradiction in your document. You are a professional writer. You have one job: forensic clarity. Do it properly.

Don’t say more than you need to. Don’t over-communicate. Less is more.

By

The preposition “by” often signals the passive voice. The passive should be avoided by all good writers wherever it is found to be possible Good writers avoid the passive voice when they can. It lacks energy. It evades responsibility. Write in the active, with energy, clearly assigning responsibility for action.

Of

The preposition “of” also often flags passive constructions:

in the event of harm to the interests of the client by the broker...”

rather than:

“if the broker harms the client’s interests...”

Likewise, it signposts nominalisations:

“I shall initiate the termination of the scheme”

rather than:

“I will terminate the scheme”.

Is

Like “of”, we often hook up the commonest verb to longer infinitives and nouns, making ugly passives and nominalisations. It is also a gateway drug to cluttered syntax. We legal eagles are so acclimatised to writing this way we barely notice when we do it: I just caught myself writing:

“What I want is a document that is clear, plain and is understandable.”

Take out the existential verb and you get:

“I want a clear, plain, understandable document.”

Shall

Fusty, old, imprecise language. Herewith, hereof, heretofore,

Or

while it is certainly better than and/or — as to which see below — “or” overuse indicates nervous, underconfident writing. “Or” generally designates optionality, so a writer who overuses this conjunction may seem non-commital or overly pedantic. Lawyerly. So take for example, the following adapted example from life:

“... notice from a governmental or regulatory authority of a breach of any applicable law, rule, regulation or order, or that it is the subject of any injunction, fine, restitution order or any other sanction or disciplinary action from any government department, court or regulatory authority, which in either case has or may have a material adverse impact on its performance... [continues for pages]

We can simplify this without difficulty:

notice from a governmental or regulatory authority regulator of a breach of any applicable law, rule, regulation or order, or that it is the subject of any injunction, fine, restitution order or any other sanction or disciplinary action from any government department, court or regulatory authority regulatory sanction, which in either case has or may have may a material adverse impact on its performance ...

And before long we have got to the nub of the issue:

“notice of any regulatory sanction that may materially impair its performance”

As with of, you might get some site of the innate hesistancy of a document by determining the “or” ratio. Neil Postman’s Technopoly has an or ratio of about 0.5% A standard commercial contract will be between 1.3% (the immaculate UBS prime brokerage agreement drafted by guess who) and 4.5% (the ISDA Master Agreement).

And/or

You are a professional writer: write like one. Be confident. Avoid nervous language in the first place, not doubt later on. Unless otherwise agreed; write to avoid doubt in the first place (though in my cantankerous opinion doubt is in any case underrated).

Verb

complicated sentence constructions are aided and abetted by boring, colourless verbs: (because such colourless verbs (give, do, be, make, have, and the worst of all, effect) require colouring, usually an accompanying noun that could itself have been a verb, or an adverb, whose definition is “a word you use only where you can’t think of a better verb

Including

Parentheticals that, by definition, add nothing: including, without limitation, for the avoidance of doubt.

And

Conjunctions are often a tell that you are jamming too many concepts into a single sentence. Or that you are overflowing with ideas that you haven’t pruned down to the necessary. JC does this a lot. Usually, one or other of the alternatives can safely go.

Deem

Avoid legal tics and Latinisms: Things that you might be able to justify on tendentious logical grounds, but which don’t make a damn of difference in the real world. So it might be true that a redemption amount is “an amount equal to the final price” — yes, it is true the redemption amount isn’t, from a brutalised ontological perspective, the final price; in the conceptual scheme they are different things, but they’re identical, and you lose nothing, except a few dead scales of pedantic skin, by saying the “redemption amount is the final price”. Likewise “this shall be deemed to be that” what, practically is the difference between “being deemed to be something”, or (worse) “being deemed to be an amount equal to something” and just “being something”?[1] But the principle remains: unless there is a hard-edged legal, accounting or tax distinction between a tedious and a plain articulation, use the plain one.

See also

References

  1. Exception to the rule which proves it: “equivalent”. Here there is a real-world difference — at least in that purblind topsy-turvy world occupied by accountants. It all relates to the difference between a title transfer and a pledge. Note: this might be me special pleading.