Plain English in ten little words

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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”? 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

• Nominalisation and adjectivisation
• Writing for a judge
• Purpose