Drafting Legal Documents
Principles of Clear Writing
1. Write in the active voice. The active voice eliminates confusion by forcing you to name the actor in a sentence. This construction makes clear to the reader who is to perform the duty.
The passive voice makes sentences longer and roundabout. Who is responsible is much less obvious. Passive verbs have a form of the verb to be plus the past participle of a main verb.
am | is | are | was | were | be | been |
plus
a main verb usually ending in "en" or "ed". |
Examples of passive verbs:
The passive voice reverses the natural, active order of English sentences. In the following passive example the receiver of the action comes before the actor.
Passive: The regulation [receiver] was written [verb] by the drafter [actor].
Active: The drafter [actor] wrote [verb] the regulation [receiver].
Passive constructions are confusing when used in regulations. Active sentences must have actors, but passive ones are complete without them.
The material will be delivered. | By whom? |
The start date is to be decided. | By whom? |
The figures must be approved. | By whom? |
Putting the actor before the verb forces you to be clear about responsibility.
The passive voice is appropriate when the actor is unknown, unimportant, or obvious. This does not usually apply in regulatory text.
2. Use action verbs.
Avoid words like this:
DON'T SAY | SAY |
---|---|
give consideration to | consider |
is applicable to | applies to |
make payment | pay |
give recognition to | recognize |
is concerned with | concerns |
They are called "nominals" -- nouns with verbs inside. They are hard to read and make sentences longer. Action verbs are shorter and more direct.
3. Use "must" instead of "shall".
shall | imposes an obligation to act, but may be confused with prediction of future action |
will | predicts future action |
must | imposes obligation, indicates a necessity to act |
must not | indicates a prohibition |
should | infers obligation, but not absolute necessity |
may | indicates discretion to act |
To impose a legal obligation, use "must."
To predict future action, use "will."
DON'T SAY: The Governor shall approve it.
SAY: The Governor must approve it. [obligation]
OR: The Governor will approve it. [future action]
4. Be direct. Talk directly to your readers. Use the imperative mood. Regulations lend themselves to this style, especially procedures, how-to instructions, and lists of duties.
Directness avoids the passive voice:
SAY: Sign all copies.
SAY: Attach a copy of your W-2 to your return.
This style results in procedures that are shorter, crisper, and easier to understand.
5. Use the present tense. A regulation of continuing effect speaks as of the time you apply it, not as of the time you draft it or when it becomes effective. For this reason, you should draft regulations in the present tense. By drafting in the present tense, you avoid complicated and awkward verb forms.
DON'T SAY: The fine for driving without a license shall be $10.00.
SAY: The fine for driving without a license is $10.00.
6. Write positively. If you can accurately express an idea either positively or negatively, express it positively.
DON'T SAY: The Governor may not appoint persons other than those qualified by the Personnel Management Agency.
SAY: The Governor must appoint a person qualified by the Personnel Management Agency.
A negative statement can be clear. Use it if you're cautioning the reader.
DON'T WALK
DON'T SMOKE
But avoid several negatives in one sentence.
DON'T SAY: A demonstration project will not be approved unless all application requirements are met.
SAY: A demonstration project will be approved only if the applicant meets all requirements.
It's better to express even a negative in positive form.
DON'T SAY | SAY |
---|---|
not honest | dishonest |
did not remember | forgot |
did not pay any attention to | ignored |
did not remain at the meeting | left the meeting |
did not comply with or failed to comply with |
violated |
7. Avoid use of exceptions. If possible, state a rule or category directly rather than describing that rule or category by stating its exceptions.
DON'T SAY: All persons except those 18 years or older must...
SAY: Each person under 18 years of age must...
However, you may use an exception if it avoids a long and cumbersome list or elaborate description. When you use an exception, state the rule or category first then state its exception.
DON'T SAY: Alabama, Alaska,... and Wyoming (a list of 47 states) must ration...
SAY: Each state except Texas, New Mexico, and Arizona must ration... (Note that the category "each State" is established first and then the exceptions are stated.)
8. Avoid split infinitives. The split infinitive offends many readers, so avoid it if you can.
DON'T SAY: Be sure to promptly reply to the invitation.
SAY: Be sure to reply promptly to the invitation. or SAY: Be sure to reply to the invitation promptly.
9. Use the singular noun rather than the plural noun. To the extent your meaning allows, use a singular noun instead of a plural noun. You will avoid the problem of whether the rule applies separately to each member of a class or jointly to the class as a whole.
DON'T SAY: The guard will issue security badges to the employees who work in Building D and Building E.
SAY: The guard will issue a security badge to each employee who works in Building D and each employee who works in Building E.
unless you mean
The guard will issue a security badge to each employee who works in both Building D and Building E. (There are other possible meanings.)
10. Be consistent. Don't use different words to denote the same things. Variation for the sake of variation has no place in regulation writing. Using a synonym rather than repeating the precise term you intend just confuses the reader.
DON'T SAY: Each motor vehicle owner must register his or her car with the Automobile Division of the Metropolitan Police Department.
SAY: Each automobile owner must register his or her automobile with the Automobile Division of the Metropolitan Police Department.
Don't use the same word to denote different things.
DON'T SAY: The tank had a 200-gallon tank for fuel.
SAY: The tank had a 200-gallon fuel container.
11. Use parallel structure. Arrange sentences so that parallel ideas look parallel. This is important when you use a list.
Nonparallel construction:
The duties of the Executive Secretary of the Administrative Committee are:
Parallel construction:
12. Prefer simple words. Government writing should be dignified, but doesn't have to be pompous. Writing can be dignified when the language is simple, direct, and strong. To make your writing clearer and easier to read -- and thus more effective -- prefer the simple word.
DON'T SAY | SAY |
---|---|
construct, fabricate | make |
initiate, commence | begin |
terminate | end |
utilize | use |
substantial portion | large part |
afforded an opportunity | allow |
13. Omit needless words. Don't use compound prepositions and other wordy expressions when the same meaning can be conveyed with one or two words.
DON'T SAY | SAY |
---|---|
because of the fact that | since (because) |
call your attention to the fact that | remind you |
for the period of | for |
in many cases | often |
in many instances | sometimes |
in the nature of | like |
the fact that he had not succeeded | his failure |
the question as to whether | whether |
14. Avoid redundancies. Don't use word pairs, if the words have the same effect or where the meaning of one included the other.
Examples: Word pairs to avoid
any and all |
authorize and direct |
cease and desist |
each and every |
full and complete |
order and direct |
means and includes |
necessary and desirable |
15. Use concrete words. Government writing often concerns abstract subjects. But abstract words can be vague and open to different interpretations. Put instructions in simple, concrete words.
DON'T SAY | IF YOU MEAN |
---|---|
vehicles | automobiles |
firearms | rifles |
aircraft | helicopters |
16. Don't use words that antagonize. Words can attract or repel readers. It is possible to choose words in our writing that do not make the wrong impression or antagonize our readers. Use words to which people react favorably rather than words that they resent.
USE WORDS LIKE | |||
---|---|---|---|
ability | achieve | benefit | guarantee |
please | reasonable | reliable | service |
useful | you |
RATHER THAN THESE WORDS | |||
---|---|---|---|
alibi | allege | blame | complaint |
impossible | liable | oversight | unfortunate |
waste | wrong |
17. Avoid noun sandwiches. Administrative writing uses too many noun clusters -- groups of nouns "sandwiched" together. Avoid these confusing constructions by using more prepositions.
DON'T SAY: Underground mine worker safety protection procedures development.
SAY: Development of underground procedures for the protection of the safety of mine workers.
OR MORE LIKELY: Development of procedures for the protection of the safety of workers in underground mines.
Which meaning is intended becomes clearer when this four-word sandwich is broken up.
18. Don't use gender-specific terminology. Avoid the gender-specific job title:
DON'T SAY | SAY |
---|---|
Crewman | Crew member |
Draftsman | Drafter |
Enlisted men | Enlisted personnel |
Fireman | Firefighter |
Foreman | Supervisor |
Manhours | Hours worked |
Manpower | Personnel, workforce |
Avoid the gender-specific pronoun when the antecedent could be male or female.
DON'T SAY: The administrator or his designee must complete the evaluation form.
SAY: The administrator or the administrator's designee must complete the evaluation form.
Be careful when you rewrite to avoid the problem. The following examples don't necessarily have the same meaning --
19. Write short sentences. Readable sentences are simple, active, affirmative, and declarative.
The more a sentence deviates from this structure, the harder the sentence is to understand.
Long, run-on sentences are a basic weakness in legal documents.
Legal documents often contain conditions which result in complex sentences with many clauses.
The more complex the sentence, the greater the possibility for difficulty in determining the intended meaning of the sentence.
Solutions
20. Make lists clear and logical in structure. Listing provides white space that separates the various conditions. Listing can help you avoid the problems of ambiguity caused by the words "and" and "or". When you list, use the following rules:
21. Use short paragraphs. A writer may improve the clarity of a regulation by using short, compact paragraphs. Each paragraph should deal with a single, unified topic. Lengthy, complex, or technical discussions should be presented in a series of related paragraphs.
22. Use a checklist and review your draft for each of these principles separately.