If you have read a contract, court decision, law book, or legal opinion, then you know that lawyers can write exhaustive and wordy pieces of work that can seemingly make no sense at all. In truth, a written legal document should not be complicated and hard to understand. Often, the complication stems from lawyers’ tendency to suffer from bad writing habits, such as gross verbosity and excessive use of legalese, hyperbole, archaic terms, and the passive voice. Moreover, there’s the fact that, just like all human beings, lawyers only have 24 hours in a day. Thus, on top of their daily legal battles, they probably have little time to thoroughly check their work and inevitably skip the editing process altogether. Still, there are significant reasons why lawyers and legal writers should never neglect this crucial process. The following are some writing errors that lawyers are guilty of and what editors do to fix them.
Unclear antecedents and ambiguous sentence construction
An unclear antecedent occurs when a pronoun may refer to more than one prior word in the sentence, which might confuse the readers as to the writer’s intended meaning.
Original sentence: “ABC Company is due to deliver construction materials to Company XYZ, but it couldn’t do so because it refuses to fulfill its obligation to make a full payment.” The repeated use of “it” in this compound sentence may confuse the reader as to which party is being referred to.
Edited: ABC Company is due to deliver construction materials to company XYZ but couldn’t do so because of the latter’s refusal to fulfill its obligation to pay in full.
Some lawyers and writers, being overzealous in their effort to sound more convincing, tend to ramble on or add more words than necessary. Although legal writing is far from the typical storytelling, capturing the reader’s attention until the very end and getting the point across remain to be the goals. Editors can filter pointless fillers, which tend to complicate what lawyers/writers mean to say, and put complex ideas into as little space as possible, without losing the writer’s intended meaning.
Take the following example from The Legalese Hall of Shame:
Original sentence: If there is material destruction of the Unit without fault of the Purchaser, this Contract shall be deemed canceled in accordance with 16.3, unless Purchaser elects by Notice to Seller to complete the purchase with an abatement of the Purchase Price. … Destruction shall be deemed “material” under …, if the reasonably estimated cost to restore the Unit shall exceed 5% of the Purchase Price.
Rephrased: If there is serious damage to the unit, and: 1) The purchaser did not cause the damage, and 2) It costs more than 5% of the purchase price to repair the damage, then the buyer can cancel the contract, or demand a reduction in price.
Excessive use of legalese and archaic words
People might think that the norm in the law profession is to use archaic English because legal documents are made in the traditional legal language that is filled with legalese, borrowed words from French Law and Latin Law, Latin phrases, and lengthy sentences full of antiquated jargon. Thus, a layman would often need to decipher what a legal document means or require the assistance of a lawyer to translate the alien language. Whereas lawyers tend to adopt the tradition of using archaic language and be unsparing about it, clienteles also tend to look for lawyers who can draft in plain language that can be easily understood. Therefore, it is best to stick to the normal language. Leave the archaic tongue to Shakespeare.
The following are some legal words and phrases that we can do without and their modern counterparts:
- aforementioned – aforesaid
- hereinabove – specify what is being referred to and where it can be found
- inter alia – among others or among other things
- instant case – this case, our case, his case, the current case, etc.
- prior to / subsequent to – before/after
- witnesseth – witness
It is not that lawyers or legal writers are incapable of handling the editing part themselves; rather, it would be more productive to let someone else with a fresh set of eyes take a look at the document from a new perspective so possible errors that a lawyer/writer might have overlooked can be found. At Lexcode, we have professional editors who have legal editing experience and who can effortlessly spot errors and would certainly know how to correct them. Let them do the dirty work.