EFFECTIVE LEGAL WRITING

GILBERT R. HUFANA
Professor
Practice Court
“The language of the law must not be foreign
to the ears of those who are to obey it.”
~ Learned Hand, judge and legal philosopher

“The lawyer’s greatest weapon is clarity and

its whetstone is succinctness.”
~ Judge Prettyman
 WHAT IS LEGAL WRITING?

• The kind of writing used by lawyers, law professors,

judges, and other workers in the field of law to express
legal rights, obligations and opinions. (Tabucanon)
• The act of a legal professional in convincing others of his
legal stands, position or opinion presented in a form of
writing. (Abad)
• A type of technical writing used by lawyers, judges,
legislators, and others in law to express legal analysis and
legal rights and duties. Legal writing in practice is used to
advocate for or to express the resolution of a client's legal
matter. (https://en.wikipedia.org/wiki/Legal_writing)
 CLASSIC ADVICE ON GOOD WRITING

• The secret of good writing, by Mark Twain (in a letter

to a 12-year-old boy)
I notice that you use plain, simple language, short
words, and brief sentences. That is the way to write
English—it is the modern way and the best way. Stick
to it; and don’t let the fluff and flowers and verbosity
creep in.
 CLASSIC ADVICE ON GOOD WRITING

• George Orwell in “Politics and the English Language”

(1946):
• Never use a metaphor, simile, or other figure of
speech which you are used to seeing in print.
• Never use a long word where a short one will do. If it
is possible to cut a word out, always cut it out.
• Never use the passive where you can use the active.
• Never use a foreign phrase, a scientific word, or a
jargon word if you can think of an everyday English
equivalent.
 INDICATORS OF GOOD WRITING

•Precision - exact and accurate

•Conciseness – brief and complete
•Clarity - clearness or lucidity as to perception
or understanding
•Forcefulness - powerful; vigorous; effective
 ELEMENTS OF LEGAL WRITING

•Simplicity – to write plainly and simply;

concise; easy to understand;
•Clarity – the writer is able to express exactly
what he wants to be reflected in his work
•Persuasiveness – attempts to influence the
deciding authority to favorably decide the
case in favor of one’s client
 SIMPLICITY

“Plain language is, or should be, every bit as

accurate and precise as traditional legal writing.
It is clearer – considerably clearer. It is usually
shorter and faster. It is strongly preferred by
readers. It would greatly improved the image of
lawyers.”

Professor Joseph Kimble

Answering the Critics of Plain Language
 KEEP YOUR TEXT CONCISE

• Thomas Jefferson: “The most valuable of talents is

never using two words when one will do.”
• George Orwell: “Never use a long word where a
short one will do. If it is possible to cut a word out,
always cut it out.”
• “Write clearly and simply if you can, and you’ll be
more likely to be thought of as intelligent.”
 USE SHORT SENTENCES

• “The more complicated your information is, the

shorter your sentences should be.” (from “Writing to
Win: The Legal Writer: The Complete Guide to Writing
Strategies That Will Make Your Case—And Win It” by Steven D.
Stark)

• “Short sentences are a supreme advantage when

communicating with people from a non-English
speaking background. If you want your English to
be understood worldwide—write short sentences.”
(“Global English for Global Business,” page 38, by Rachel
McAlpine)
 LONG SENTENCE: EXAMPLE
BSP CIRCULAR NO. 702, PROTECTION OF CREDIT CARD HOLDERS
PRACTICES (235 WORDS IN ONE SENTENCE)

• Banks/quasi-banks and their subsidiary or affiliate credit card companies shall also provide
the following information to their cardholders:
1. A table of the applicable fees, penalties and interest rates on credit card transactions,
including the period covered by and the manner of and reason for the imposition of such
penalties, fees and interest; fees and applicable conversion reference rates for third
currency transactions, in plain sight and language, on materials for marketing credit cards,
such as brochures, flyers, primers and advertising materials, on credit card application
forms, and on credit card billing statements: Provided, That these disclosures are in
addition to the full disclosure of the fees, charges and interest rates in the terms and
conditions of the credit card agreement found elsewhere on the application form and
billing statement; and
2. A reminder to the card holder in the monthly billing statement, or its equivalent
document, that payment of only the minimum amount due or any amount less than the
total amount due for the billing cycle/period, would mean the imposition of interest
and/or other charges; Provided, That such table of fees, penalties and interest rates and
reminder shall be printed in plain language and in bold black letters against a light or
white background, and using the minimum Arial 12 theme font and size, or its equivalent
in readability, and on the first page, if the applicable document has more than one page.
 LONG SENTENCE: EXAMPLE
SENATE IMPEACHMENT RULES
(106 WORDS IN ONE SENTENCE)

• VI. The President of the Senate or the Chief Justice when

presiding on the trial may rule on all questions of
evidence including, but not limited to, questions of
materiality, relevancy, competency or admissibility of
evidence and incidental questions, which ruling shall
stand as the judgment of the Senate, unless a Member
of the Senate shall ask that a formal vote be taken
thereon, in which case it shall be submitted to the
Senate for decision after one contrary view is expressed;
or the Presiding Officer may at his/her option, in the first
instance, submit any such question to a vote of the
Members of the Senate.
 LONG SENTENCE: EXAMPLE
A NARRATIVE FROM A COMPLAINT

“Respondent who was driving a school bus full of

children who were already late for classes that
morning which rained very hard resulting in flooding
in several areas all over the city suddenly swerved the
vehicle to the left lane fronting the grandstand where
a game was being played and crashed into a lamppost
standing about three meters from the concrete fence
fronting the cafeteria of the second building.”
 THE MODERN ENGLISH

• Ellegard Norm: The modern English sentence has an

average of 17.6 words per sentence. (From 1978 study by
Swedish researcher Alvar Ellegard of 1 million words
corpus of 20th century American English writing called
the Brown Corpus collected by Brown University in 1964)
• From “The Principles of readability” by William DuBay: In
our time, the average is down to 20 words per sentence.
• " ... the average sentence length for Harry Potter author
JK Rowling, who can be considered representative of a
modern English writer with a general audience, is 12
words ..."
 AVOID WORDY EXPRESSIONS

• Simpler construction is preferred than using too many

words to express an idea.
Wordy The cars were brought for the purpose of
starting a taxi business.
Concise The cars were bought to start a taxi
business.
Wordy The brothers succeeded in baking two huge
ice-cream cakes.
Concise The brothers baked two huge ice-cream
cakes.
 SOME WORDY & CONCISE WORDS

WORDY CONCISE
answered in the affirmative said yes
at all times always
in a manner similar to like
in the absence of without
in the near future soon
in view of the fact that because
with the exception of except
there can be no doubt that doubtless
with reference to/with regard to about
 AVOID ELABORATING ON THE OBVIOUS

• This means do not expand or restate the obvious. It bores

the reader.
Wordy: Annie’s two sons, Kenneth and Julio play judo.
Concise: Annie’s sons, Kenneth and Julio play judo.
Wordy: Needless to say, you are your mother’s favorite.
Concise: You are your mother’s favorite.
Wordy: A baby girl was born to Sps. Reyes.
Concise: A girl was born to Sps. Reyes.
 GET TO THE POINT

• Omit unnecessary preliminaries.

Wordy: We are very proud and happy to announce
that our office won the golf championship
this year.
Concise: Our office won the golf championship this year.
Wordy: There is no doubt that some people will
disagree with me, but in my opinion, I firmly
believe that teachers should not anymore run as
board members of the PTA.
Concise: I believe that teachers should not anymore run
as board members of the PTA.
 AVOID TAUTOLOGY

• This means doing away with unnecessary repetition

of an idea in a different word.
Wordy The guest stood up during the flag ceremony.
Concise The guest stood during the flag ceremony.
Wordy The girl voiced out her opinion.
Concise The girl voiced her opinion.
Wordy Concise Wordy Concise
fatal death death actually happened happened
first and foremost First before in the past before
requirements requirements for invited guest guest
needed for
 ELIMINATE CERTAIN PHRASES

• Wordy sentences may be made shorter by eliminating

“there”, “that”, “which”, “who is”, “as to”, “it” or “one”.
Wordy: There were eight members of the faculty who
attended the meeting.
Concise: Eight faculty members attended the meeting.
Wordy: This is a topic that interests me.
Concise: This topic interests me.
Wordy: He is a man who does not like litigation.
Concise: He dislikes litigation.
 CLARITY

• Clarity in writing results when the writer is able to

express exactly what he wants to be reflected on his
work.
• The last thing a writer would want is to confuse his
readers.
• Clear writing involves clarity of expression and
sentence structure.
• The writer must check for ambiguities. What is
unclear for the writer is likewise unclear for the
reader.
 BE CLEAR

• In most instances, place only one thought in a

sentence.
Example:
WRONG: This agreement unless revocation has
taken place at an earlier time shall cease to take
effect on 01 October 2003.
CORRECT: Unless sooner revoked, this agreement
expires on 01 October 2003.
 AVOID WIDE GAPS BETWEEN SUBJECT,
VERB & OBJECT

• With gap between subject and verb:

The plaintiff, distinguished at how it took for the court
to decide such a simple ejectment case, filed for a
motion for early resolution.

• Improved:
The plaintiff filed a motion for early resolution. He
was disgusted at the court’s delay in resolving his
simple ejectment case.
 MINIMIZE THE USE OF CONNECTIVES &
RELATIVE PRONOUNS

• Some writers habitually string together two or more

sentences using connectives and relatives.
• Connectives: “and”, “but”, “as”, “because”, “if”, “that”,
“though”
• Relatives: introduces a qualifying clause; e.g. “who is…”
• Who, whose, whom, which, of which, what of what, that
 ACTIVE VOICE

• A sentence is in the active voice if the subject

performs the action expressed in the verb.
• As a rule, write in the active voice.
• The active voice is more forceful and concise.
• The active voice is more definite.
• The active voice focuses on the actor, the action and
the object of the action.
• First state the actor, then the action and lastly the object
to whom the action is directed.
 USE THE ACTIVE VOICE

Passive The contract was signed by the parties.

Active The parties signed the contract.
Passive The boy was bitten by the dog.
Active The dog bit the boy.
Passive The motion of the complainant was objected by
the respondent.
Active Respondent objected to complainant’s motion.
Passive Interlocutory orders may still be modified by the
courts.
Active Courts can modify its interlocutory orders.
 USES OF THE PASSIVE VOICE

• When the thing is done is more important to know

than the doer.
Example: The subpoena was served on January 4, 2007.

• When the actor is unknown, the passive is the normal

construction.
Example: XY Pawnshop was robbed last week.

• For emphasis, the passive is used at the end of the

sentence.
Example: As Manny Reyes walked past the door, he was
nabbed by journalists.
 AVOID NOMINALIZATION
OR HIDDEN VERBS

• A hidden verb is a verb converted into a noun. It often

needs an extra verb to make sense. So we write, “Please
make an application for a personal loan” rather than
“Please apply for a personal loan.”
• Two signals of nominalization:
A. Distinct endings B. Weak helping verbs
- ance; - ence; - ant; - ity; be; conduct; do; effect; get
- ant; - ment; - ness; - sion; give; have; hold; make
- tion; perform; provide; put
 NOMINALIZATION

Text with nominalization Plain Language revision

We made an application … We applied ...
We made a determination … We determined ...
We will make a distribution ... We will distribute ...
We will provide appropriate We will inform shareholders
information to shareholders concerning… about…
We will have no stock ownership of the We will not own the company’s
company. stock.
There is the possibility of prior The Board might approve these
Board approval of these investments. investments in advance.
 TEXT WITH HIDDEN VERBS

Text with hidden verbs Plain Language revision

Shareholders will be notified of Shareholders will be notified when
the commencement of the offer. the offer commences.
If there is a refusal by the Court to... If the Court refuses to...
The SFC must grant permission... The SFC must permit...
The director made the statement in The director relied on...
reliance upon...
The shareholders have passed a The shareholders have resolved...
resolution...
Payment will be made by the The purchaser will pay...
purchaser
 PREFER THE POSITIVE FORM

Negative Positive
did not follow rules disobeyed
was not present absent
not guilty innocent
could not remember forget
not too many few
did not show dissatisfaction satisfied
not unlike like
 USE GENDER-FREE LANGUAGE

Traditional writing uses masculine pronouns like “he” or “his”

to refer to both men and women. “Gender-neutral” language,
on the other hand, uses “he or she,” “his or her,” “he/she,”
and “his/her.”
Traditional use of Gender-neutral language: Gender-free language:
masculine pronoun:

The borrower who is not Borrowers who are not

The borrower who is not
prompt in making the prompt in making the
prompt in making the
payments due under his payments due
payments due
or hermortgage risks under their mortgages
under his mortgage risks
losing his or her home risk losing their homes
losing hishome through a
through a foreclosure through foreclosure
foreclosure procedure.
procedure. procedures.
 USE GENDER-FREE LANGUAGE

• Avoid sexist language such as…

The “weaker sex”, a “manly effort”, “one of the
boys”

• The word “chairman” is politically incorrect. Use

“chairperson” instead.
 LEGALESE

• It refers to “legal speak” or language that is filled with a

whole lot of legal terminology and scholarly/academic
words, phrasing, and terms
“A style of writing used by lawyers that is
incomprehensible to ordinary readers.”
“The specialized language of the legal profession.”
“Language containing an excessive amount of legal
terminology or of legal jargon.”
 AVOID LEGALESE

“Legalese violates nearly every principle of good writing.”

~ Mark S. Matthewson

Will Rogers, famous American comedian, on the way

lawyers write:
• The minute you read something and you can’t understand it,
you can almost be sure that it was drawn up by a lawyer.
• Then if you give it to another lawyer to read and he doesn’t
know just what it means, why then you can be sure it was
drawn up by a lawyer.
• If it’s in a few words and is plain and understandable only one
way, it was written by a non-lawyer.
 ELEMENTS OF LEGALESE

• Formalisms, such as comes now, aver

• Archaic words, such as hereby, heretofore, forthwith,
henceforth, notwithstanding
• Redundancies, such as each and every, merge together,
early beginnings, blatantly obvious, false pretenses
• Latin words, such as per curiam, sui generis, ex
contractu, arguendo, prima facie
• Legal terms, such as gravamen, actionable, alienable,
chattel, decedent, larceny, malfeasance
 HOW CAN YOU AVOID LEGALESE?

• Write shorter sentences rather than longer ones

• Write shorter paragraphs rather than longer ones
• Avoid Latin terms, always
• If you wouldn’t say the word out aloud, don’t use it –
words like aforementioned, otiose, promulgate,
disambiguate and many others are great for a game of
hangman, but poor for legal writers
• Don’t write in a hurry – this is where we revert to our
base instinct to write gibberish.
• Always re-read your work – not just for typos, but for the
overall impact of the letter, including a “legalese check”.
 AVOID DUMMY SUBJECTS
IT IS…, IT APPEARS…, THERE IS…, IT WILL BE…

Dummy or false subjects Plain Language revision

It is argued in the report that it is The report argues that
essential to simplify the tax code. simplifying the tax code is
essential.
There was no consideration given The committee failed to
to the suggestion by the consider the suggestion.
committee.
It is her opinion that there are She believes that several issues
several issues that need to be need to be resolved.
resolved.
 AVOID UNNECESSARY PREAMBLES

• Avoid unnecessary preambles or pompous phrases

such as
• It is important to add that...
• It may be recalled that...
• In this regard it is of significance that...
• It is interesting to note that...
• I would like to point out ...
• I would argue that ...
• It should be noted that ...
• It has been determined that ...
• It is obvious that ...
 AVOID COMPOUND CONSTRUCTION

• Example: The employee was absent for the reason

that he was sick. (Use because instead.)
Better version: The employee was absent because
he was sick.

• Example: The fact that she had already died was

immaterial.
Better version: Her death was immaterial.
 SUMMARY: USE PLAIN ENGLISH
LEGAL WRITING IN PLAIN ENGLISH BY BRYAN A. GARNER

• Select simple words. Omit needless words.

• Keep sentences short. Limit it – not more than 20!
• Keep the subject, the verb, and the object together--toward the
beginning of the sentence.
• Cut down on jargon and use defined terms sparingly. Discard
superfluous words. Reduce nominalizations.
• Use the active voice with strong verbs. Use strong, precise
verbs. Minimize is, are, was, and were.
• Be specific rather than general.
• Turn “-ion” words into verbs when you can.
• Write personally, as if you were talking to the reader.
 SUMMARY: USE PLAIN ENGLISH
LEGAL WRITING IN PLAIN ENGLISH BY BRYAN A. GARNER

• Introduce each paragraph with a topic sentence. Bridge between

paragraphs. Vary the length of your paragraphs, but generally
keep them short.
• Minimize definitions.
• Delete every shall.
• Don’t use provisos.
• Replace “and/or” wherever it appears.
• Prefer the singular over the plural.
• Prefer numerals, not words, to denote amounts. Avoid word-
numeral doublets.
Remember that good writing makes the reader’s job easy; bad
writing makes it hard.