eee a SKILLS FOR Some Annabel Elkington, John Holtam, Gemma Shield and Stephanie VerlanderContents PREFACE ‘CASE SCENARIOS Road traffic accident Personal injury case study Potential transaction Part! WRITING AND DRAFTING Chapter. WRITING AND DRAFTING 1.1 Introduction to writing and drafting 1:2 Preparation and esearch 13° Planning 14 Drafting 15 Checking 1.6 Practical and ethical considerations 17 Writinglewers 1.8 Writing reports and memoranda 1.9 Spelling and grammar ANSWERS TO EXERCISES Part It PRACTICAL LEGAL RESEARCH Chapter? INTRODUCTION TO PRACTICAL LEGAL RESEARCH 21 Why should {read this section? 2.2 Theroleoflegal research inthe office 23 Problem-solving 24 Principles of practical legal research Chapter3 ONLINE VERSUS PRINTED SOURCES 3:1 Introduction 3.2 Advantages of printed sources 3.3. Advantages of online sources 3.4 Accessing online sources 3.5 Guidelines for searching online databases 3.6 The fee Internet: Google and beyond Chapters GETTING STARTED 41 Introduction 42. Halsbuy’s Laws of England 43 Practitioner books 44° Widening the net Chapters RESEARCHING CASE LAW 5.2 Which source ofcases has the most authori? 5.3 How dot cite cases? 54 How do find a case with an incomplete citation? 55 How doLupdatea case? 5.6 How dol find cases on a subject? Chapter6 RESEARCHING LEGISLATION 64 Introduction 62 How do cite legislation? 6.3 Where cant find Acts? 64 — How do lestablish whether an Act has come into force? 7 7 7 69 n——— 0 0 viii Skills for Lawyers Chapter? Chapter 8 ‘Chapter 9 Part Ill Chapter 10 (Chapter 11 Chapter 12 Chapter 13 6.5 Where can! find statutory instruments? 6.46 Legislation on LexisLibrary 6.7 Legislation on Westlaw 6.8 How dol update legislation? RESEARCHING EUROPEAN UNION LAW 7. Introduction 7.2 General sources 7.3 Primary legislation 74 Secondarylegislation 7S Caselaw [RESEARCHING FORMS AND PRECEDENTS 8.1 Introduction 8.2 Atkin’s Court Forms 8.3 Encyclopaedia of Forms and Precedents ‘THE RESULT OF LEGAL RESEARCH 9.1 Recording research 9.2 Reporting research 9.3 Giteitright ORAL COMMUNICATION SKILLS INTRODUCTION TO ORAL COMMUNICATION SKILLS 10.1 The importance of oral communication skills 10.2 — Listening 10.3 Questioning 10.4 Non-verbal communication 10.5 Conclusion INTERVIEWING AND ADVISING 11.1 Whyis itimportant fora solicitor to bea good interviewer? 11.2 Objectives ofa solicitoriclient interview 113 Common filings 11.4 Two ingredients for suecess - skills and structure 115 Theskills 11.6 Client care and costs information 11.7 An overview of the structure ofthe interview 11.8 Structure and management ofthe initial interview 11.9 _ The secret of success practice NEGOTIATION AND ALTERNATIVE DISPUTE RESOLUTION 12.1 Introduction 12.2 Theethics ofnegotiation 12.3 Negotiating styles 12.4 Preparation fora negotiation 12.5 The forum for the negotiation 12.6 Other considerations before a meeting 12.7 Overview ofa negotiation 128 Theopening 12.9 The middle phase: discussion and bargaining 12.10 The end: closing a negotiation 12.11 ‘Dirty tricks’ 12,12 Alternative dispute resolution ADVOCACY 13.1 Introduction 132 Skills 13.3. Thebasics, n a 76 7° 79 81 82 86 89 89 a 95 95 96 96 99 101 101 104 105 105 105 107 107 108 108 109 10 us 19 31 7 139 139 140 140 144 151 152INDEX 134 BS 36 13.7 Reexamination 13.8 Closing the case 13.9 Ethical issues 13.10 Criminal eases: bail and mitigation 13.11 Civil cases: interim applications 13.12 Conclusion BIBLIOGRAPHY Contents ix 172 173 176 v3 v8 179 180 196 a4 215 27Case Scenarios ROAD TRAFFIC ACCIDENT / PERSONAL INJURY CASE STUDY Summary An accident occurred at the junction of Larkhall Road and Forest Road on Tuesday, 15 January 2013. A white van heading south on Forest Road was turning right into Larkhall Road. As the van was turning right it collided with a car heading north up Forest Road. The collision also involved a cyclist who was travelling alongside the car at the moment of impact. Forest Road Point of collision Larkhall Road g Vehicles and drivers involved Van White Ford company van owned by Armitage Deliveries and driven by Adam Worcik. ‘Mr Worcik is a Polish national living in the UK and working as a driver for Armitage Deliveries. He sustained minor whiplash asa result of the accident. Car Silver Vauxhall Zafira owned and driven by Caroline Marsh, a senior midwife who works for her local NHS trust. Ms Marsh suffered serious whiplash, a broken collar bone and a cut to her forehead which required seven stitches as a result of the accident. She has serious ongoing symptoms in relation to the whiplash injury, and the cut has left 2 permanent scar on her forehead (there is the possibility of further surgery to improve the appearance of this scar). Cycle Red Trek 200 ridden by Paul Chester, a freelance musician. Mr Chester suffered a broken left wrist and a cut to his arm which required 13 stitches. Liability Liability is disputed. Mr Worcik claims that Ms Marsh was driving far too fast and that she was using her mobile phone when the accident happened. Ms Marsh claims that Mr Worcik suddenly pulled into her path without indicating as she pulled out of the junction. Mr Chester, the cyclist, does not have a clear recollection of what happened.& 7, s Skills for Lawyers Solicitors for the parties [ActingforMrWorcik,the _ | Acting for Ms Marsh, the car TactingforMrChester,the | |van driver driver cyclist | Shea & De Sousa ‘Alexa Hughes & Co Marshalls | 67 Longbridge Road 33 Millennium House 114-116 Market Street | stockwell Teddington Kingston KT1 4RT London SW9.4RT KT4 6RB 0208 566 3228 | 0207 479 4791 0208 221 3445 [email protected] POTENTIAL TRANSACTION Robert Grove Ltdis a large company specialising in restaurants/retail food outlets. Toast & Tea je a small chain of upmarket cafes owned by two brothers, Mark and Dominic Flowers, and fiend of theirs, Florence Lowe. The Toast & Tea owners are seeking to find a buyer for their company, and Robert Grove Ltd has expressed an interest in purchasing the chain. Sellers “The owners of Toast & Tea have decided to sell, as their interests in the business are beginning to diverge. The chain has been very successful and currently owns 16 outlets in_ prime Iocations in central London. The cafes ae old fashioned in design witha focus on service and quality which is reflected in the prices. Each cafe offers a children's room where under-8s enjoy supervised play The cafes have won many awards for both food provided and provision for children/families. ‘The owners are keen for the transaction to progress quickly, as two of them have other ventures in which they would like to invest, They hope to achieve a purchase price of £22 trillion, but accept that in the current economic climate and given the current property market they may have to accept a figure closer to £18 million. Most of the value of the Company is in ownership of cafe properties which have been purchased as freeholds/iong Jewecholds and in most cases have undergone valuable development work. The Flowers brothers were the major investors in the company and have a bigger stake, but Florence Lowe has acted as CEO and has been very hands-on in managing the chain. Solicitors for the seller: Mace McKenzie Frobisher House, City Road, London EC2 SBR 0207 422.2134 Buyer Robert Grove Ltd owns a range of pubs, restaurants and retail food outlets across the UK ang Ireland, It has been looking to expand into the ‘luxury’ market. Toast & Tea's award-winning combination is attractive to it as a complement to its existing portfolio, and Robert Grove Lis believes that given greater economies of scale it can make the business highly profitable Robert Grove Ltd would like to see Florence Lowe continue in her role or accept a position anadvisor for an agreed handover period. It is happy to proceed quickly but would ideally It any deal to include structured payments over a 12-month period. The current sugassis purchase price of £22 million is based on valuation of Toast & Tea including its premises macs ata time when commercial property prices were significantly higher. Salinger & Rye 40-47 City House, Cornbill Square, London EC1 4RT 0207 836 9368PART I WRITING AND DRAFTING11 CHAPTER 1 WRITING AND DRAFTING 1.1 Introduction to writing and drafting 3 1.2 Preparation and research 4 13 Planning 4 14 Drafting 10 15 Checking v7 1.6 Practical and ethical considerations 18 17 Weiting letters 19 1.8. Writing reports and memoranda 20 1.9 Spelling and grammar 2 ACh} cae ree ee eR Dea ee teat Oe enue Ret ecg eset Ree ea eer ee eee et identify and avoid using archaic language, jargon, tautology and other common Cee ete ene eet understand the critical importance of checking and proofreading documents. INTRODUCTION TO WRITING AND DRAFTING Much of your professional work will require you to communicate in writing. The ability to write clearly, concisely and professionally under time pressure isa core skill for every solicitor. Every type of written communication needs to be effective, unambiguous and well drafted, whether itis an e-mail, letter or formal legal document. Modern working practices mean that we often send tens of e-mails every day. You will have to reply promptly to e-mails and letters, and will frequently be asked to draft legal documents quickly. Set out below are some of the fundamental rules of good writing and drafting practice, together with some of the most common errors. In each section, there are examples and exercises with recommended times for completion. The answers to exercises can be found in the Appendix to Part Good writing and drafting requires a four-stage process: (@) preparation and research take full instructions, undertake any further enquiries which are needed, identify the objective(s}/purpose of the document, research the law; (b) planning decide on the best structure and necessary content; (©) drafting clearly and concisely set out the information/points following your plan; (@)_ checking cross-check your document to ensure that i meets the objectives you identified. correct, unambiguous and4 1.21 Tal Skills for Lawyers 1.2. PREPARATION AND RESEARCH 1g instructions The first step will always be to take instructions from your client. You must have a clear understanding of what your client wishes to achieve and of all the relevant facts. Part of your role at this stage will be to ensure that you identify everything you need to know. Your client may not be aware of al the information you might need. EXAMPLE Your client instructs you to impose an obligation on a buyer of part of his land to put up a 2.5 metre fence along what will become the common boundary. You must identify the need for further information as to: (@) _ what type of fence is required; (b)__ the time limit to be imposed; (€)_ who will be required to maintain the fence; and (@) _whowill obtain planning permission and what happens if planning permission is not granted. 1.2.2. Researching the law Before you can decide how best to advise your client and/or how to draft any necessary documentation, you must research the relevant law. 1.3. PLANNING ‘Once you have full instructions and have mastered the current legal position, you can begin to plan your advice. Identify your client’s objectives and decide how they can best be met. You will then need to select the most appropriate structure. 1.3.1. Common document structure Many documents will contain the following elements: + commencement; + date; + parties; + recitals; + operative part; + testimonium; + schedules; + execution and attestation. 1.3.1.1 Commencement, date and parties ‘A document will normally begin with a ‘commencement’ which describes the nature of the document, for example ‘This Agreement’, ‘This Conveyance’. Alternatively, the document's title can simply be set out as a heading. Deeds may also use the word ‘deed’ in the title, for ‘example ‘This deed of Conveyance’ [A space should be left for insertion of the date when the document is completed. ‘The full names and addresses of the parties should be inserted. (In the case of a company, the address ofits registered office should be inserted.)13.1.2 13.13 13.1.4 13.15 Writing and Drafting 5 EXAMPLE SERVICE AGREEMENT DATE: PARTIES: (1) Weyford Products Limited whose registered office is at 32 Bridge House, Wharf Road, Milton, Berefordshire, (2) Joan Alice Bennet of 8 High Street, Milton, Berefordshire. ‘A long and complicated document can benefit from an index or table of clauses (preferably atthe front). Recitals Recitals clauses are not essential and you should consider carefully whether or not to include them. You can use them to set out the background facts to the document and so make it more self-explanatory. For example, in a conveyance of land by a personal representative, the date of the deceased's death and the date on which a grant of representation was obtained could be recited. Recitals are also sometimes used to introduce and summarise the contents of the operative part of the document but, except in complicated documents, this is generally not necessary and increases the risk of introducing ambiguities. Operative part ‘The operative part of a document is the part which creates the legal rights and obligations. ‘The contents of the operative part of a document depend on the nature of the document. For example, a commercial agreement will generally contain: (a) conditions precedent (setting out conditions which have to be satisfied before the agreement comes into force); (©) agreements (setting out the rights and obligations of the parties); (©) representations and warranties (ie, statements about factual and legal matters which cone of the parties requires to be made to him or her in a legally binding way); (@) ‘boiler-plate’ clauses (ie, standard clauses inserted into all agreements of such a type and dealing with, for example, the service of notices under the agreement, or the jurisdiction for action where the agreement has an international element). Testimonium A testimonium clause is not essential but, if used, it introduces the signatures of the parties and may describe a particular method of executing where, for example, a company is using its seal as part ofits execution, or an attorney is signing on behalf of a party. Schedules Use schedules where appropriate to avoid breaking the continuity of a document with too much detail. The operative part of the document then refers to the schedule, and the schedule contains the detail. EXAMPLE ‘TENANT'S COVENANTS ‘The Tenant covenants with the Landlord to observe and perform the covenants set out in Schedule 1.6 Skills for Lawyers 13.1.6 1.3.2 13.21 1.3.2.2 SCHEDULE1 1. Topaythe rent... etc, Note that the obligation or right is created in the operative part of the document. Only the detail of the obligation or right is put in the schedule. Execution and attestation A document will end with an execution clause. This will refer to the signatures of the parties and any other formalities necessary to give the document legal effect. The wording of this clause will vary depending on the nature of the party executing, whether the document is executed as a deed, and whether the party's signature is witnessed (‘attested’). Fora document executed by an individual and not intended to take effect as a deed, the clause could read: Signed by ALAN JONES) (Alan Jones signs here) inthe presence of, ) (Witness signs here) Ifthe documents intended to take effect as a deed the clause could read: Executed asadeed — ) (Alan Jones signs here) by ALAN JONES ) inthe presence of!) (Witness signs here) Order of clauses in the operative part Itis difficult to lay down rules as to the order of clauses. It will vary according to the nature of the document, butt is often a matter of common sense and logic. ‘Common structures for operative clauses Deciding on the best structure to adopt when drafting the operative clauses of a document is the most important stage in planning your document. Chronological order ‘One possibility isto list topics in chronological order. This is often particularly suitable for 2 document that deals with one simple transaction. Imagine a contract for the hire of a car. The order of topics could be: + patties; + definitions; + agreement by Owner to hire out car to Hirer on the terms set out in the agreement; + payment; + insurance; + promises by Owneras to the state of the car at the start of the hire; + duration of hire; + what the car can be used for; + who may dri + Hirer’s promises as to the return of the cary + remedies for breach of the agreement.1.3.23 13.24 13.25 13.3 13.3.1 Writing and Drafting 7 For a contract such as this, a chronological structure will produce a simpler and less repetitious document than if you try to divide topies into Owner's Obligations and Hirer’s ‘Obligations. Categorical order A categorical structure sets out the duties and responsibilities in categories. An example of this isa lease. ‘The structure of typical lease is: + parties; + definitions; + the grant of the term by Landlord to Tenant; + Tenant's covenants; + Landlore’s covenants; + provisos, eg, the Landlord's power to forfeit the lease. Here, the division into landlord's obligations and tenant's obligations is essential. The obligations have to be performed throughout the entire term of the lease, There is no chronological order to them. Order of importance This could be the order used in a simple contract, where the obligations are not to be carried. out in any chronological order. An example could be an agreement between employer and employee on severance of employment. Combinations ‘A document may use a combination of the above structures. A contract with a firm of furniture removers could lis the firm's obligations in chronological order, for example: + to pack the contents ofthe house; + to transport to storage; + tostore; + to transport to new house; + tounpack; and then list the owner's obligations. In a lease, all the tenant's covenants will be put together, but will appear in order of importance. Structuring a clause Structuring clauses and sub-clauses within the operative part (a) Usea separate clause for each separate matter. (b) _ Use sub-paragraphing to avoid long, cumbersome clauses and provisos. (6) Number each clause and sub-clause. (@) Give each clause or group of clauses a heading that correctly defines the subject matter ofthe clauses, eg: Tenant's Covenants Look at the following two examples and decide which you think is easier to understand.8 Skills for Lawyers EXAMPLE 1 i ‘The Licensee shall purchase exclusively from the Grantor all materials used in making the q Invention provided that the licensee shall be entitled to relieve itself of its liability to observe this obligation upon giving the Grantor three months! notice in writing. | m EXAMPLE2 1, Subject to Clause 2, the Licensee must purchase exclusively from the Grantor all materials used in making the Invention. 4 2. The Licensee may end the obligation contained in Clause 1 by giving the Grantor 4 three months’ notice in writing. Both examples contain the same provisions, but the second is easier to understand because it m uses separate numbered clauses for each point. st 1.3.3.2. Structuring a clause according to Coode Read the following clause and think about the structure. Do you think the structure adopted. ss helps to make the meaning clear? 1 b Clausex . ‘The Company shall reimburse the Replacement Value of lost or damaged goods provided - that the value of the claim does not exceed £1,000 and the Policyholder notifies the loss - within 7 days from (but excluding) the date ofits occurrence PROVIDED ALWAYS THAT the : above shall not apply to claims made under Clause 10 of this Policy. ‘This clause starts with a statement of a legal obligation which at first sight appears absolute. ‘The conditions and exceptions attaching to the obligation are not stated until afterwards, so that it is necessary to reconsider the obligation in the light of them. This kind of clause construction is very common in legal drafting, but itis not the most logical way to structure a clause and it makes it more difficult to understand. In 1843, George Coode wrote a treatise on ‘Legislative Expression’; or, “The Language of The Written Law’, His general principle is that a clause should be structured in the following. order: + circumstancesjexceptions (ie, circumstances where the right or obligation does or does not exist); reosye + conditions (ie, conditions on which the right or obligation depends); + obligation or right (ie, who must do what or who may do what). Words suitable for introducing an exception are ‘except where ze ‘Words suitable for introducing circumstances are ‘where ‘if... then’ of ‘when...’ of on... Words suitable for introducing conditions are ‘if...’ or ‘provided that... These are two examples of Coode in legislation: Section 2(1) of the Land Registration and Land Charges Act 1971 If any question arises as to whether a person is entitled to an indemnity under any provision of the Land Registration Act 1925 {cicumstence](.] he [person] may apply tothe court to have that question determined {the right) Section 23(1) of the Matrimonial Causes Act 1973 (On granting a decree of divorce ..{cicunstanc] the court [person] may make any one of more of the following orders. ht]. This is an example of Coode in a document:Writing and Drafting 9 15. Compensation on termination of contract Except where otherwise provided [exception], if before 1 December 2001 this contract is terminated by the Buyer [circumstance], then provided the Seller is not in breach of any of his obligations under this contract [condition] the Buyer must pay the Seller the sum of £5000 {obligation}. The rule produces a logical and, to lawyers, a familiar structure, but it does not have to be followed invariably. Imagine that an owner of land has employed consultants to design and build an amusement park, The consultants want to control the use of their name in any advertising material issued by the landowner. Their name is to be used only if certain conditions are met. Ifthe clause were drafted using Coode’s rule, it would read: Only where (2) the Landowner has given the Consultants advance details of any advertising material it plans to use; and (b) _ the Consultants have given their express written approval; and (©) the Consultants have not ended this Agreement under subclause 11(1) may the Landowner use the Consultants’ name in advertising material ‘The clause could make the point in a more natural and in a stronger manner if Coode were ignored and the clause were drafted to read: ‘The Landowner may only use the Consultants’ name in advertising material where: (a) the Landowner has given the Consultants advance details of any advertising materials it plans to use; and (b) the Consultants have given their express written approval; and (©) _ the Consultants have not ended this Agreement under subclause 11(1). EXAMPLE ‘Coode's structure can be a useful tool in preparing documents. The clause set out at the start of 1.3.3.2 has been redrafted below using Coode’s structure and other techniques to | improve its clarity. ClauseX Claims for lost or damaged goods Where: (@)_aclaim does not exceed £1,000; and (b) _ the Policyholder notifies the loss within 7 days from (but excluding) the date of its occurrence; and (©) the claim is not one made under Clause 10 ofthis Policy the Company shall reimburse the Replacement Value. 1.3.4. Use of precedents Using a precedent can help in the planning of your document by giving an example of: (2) suitable structures (b) provisions that you have not thought of and that will benefit your client; (6) _ suitable wording; andjor (@) legal problems you had not considered. However, precedents should be used with caution.—————o 10 Skills for Lowyers 13.41 1.4 141 Guidelines for using precedents (a) Look fora precedent only after you have researched and planned your document. (b) Always check that the precedent is up to date and legally correct. (©) Adapt the precedent to your transaction, not your transaction to the precedent, (@ _Donot copy words from a precedent unless you are sure of their legal effect. (©) Donot change words in a precedent unless you are sure that the change will not have an unexpected legal effect. This is particularly true of precedents for wills. (£)_Neverassume a precedent cannot be improved. (2) Donot copy clauses that are irrelevant or, worse, are to the disadvantage of your client; (bh) Donotadopt inappropriate or archaic wording. DRAFTING Having carefully planned the content and structure of your document, you can confidentl begin to draft. Your document should be as easy as possible to read and understand. It is essential that everything you draft is precise and unambiguous. You should try to be as concise as possible. Concise documents are easier and quicker to read. Set out below are a number of rules and guidelines which can help you to keep your documents precise and concise. Use definitions A definition can do two things. First, it can create a ‘tag’ or ‘nickname’. This avoids repetition of lengthy names or phrases. This use is often seen in the description of parties to a document. EXAMPLE This agreement is made between (1) _ Everett Kingdom Finance ple (‘Everett’) (2) Samuel Luke Stowe (‘SLS’) In the rest of the document itis only necessary to refer to Everett and SLS. EXAMPLE In this agreement 1. ‘the Period of Hire’ means from 9am on 1 November 2009 until noon on 23 ‘November 2009. A subsequent clause might then say something such as ‘ifthe Hirer does not return the Car at or before the end of the Period of Hire. Secondly, a definition can also create a private dictionary for the document by giving a word something other than its ordinary meaning, or by giving a word an unusually extended or restricted meaning. EXAMPLE In this agreement ‘Boat’ includes a sailboard.144.4 14.1.2 1.4.2 1.43 Writing and Drafting 11 Where to put the definitions Definitions that are to apply throughout the document should be put in alphabetical order in a definitions clause at the start of the operative part of the document. EXAMPLE Definitions Inthis Agreement (1) ‘Arbitration’ means.. (2) ‘Balance Sheet’ means... ete. If a definition will be used only in one part of a document or in one clause, you can put the definition at the start of the relevant part or clause. EXAMPLE 4.1 _Inthis clause, ‘Promotional Material’ means... 4,2. The Landowner must ensure that all Promotional Material is... Ina simple document, a ‘tag’ may be given to a name or phrase the first time that it is used, and the tag may then be used throughout the rest of the document. For example, in a contract, for the sale ofland, a clause may say The Seller, for the benefit of his adjoining property, 10 Smith Avenue, Morton, N. Yorks (‘the Retained Land’) reserves aright of way on foot... Later clauses can then refer to the Retained Land. This method should be used only for simple short documents. In a long document, it wastes time to have to search through the clauses to find the one in which the tag was first adopted. Guidelines for using definitions (@)_Itis usual to give the definition a capital letter and to use it with the capital letter throughout the document. This alerts anybody reading it to the fact that a particular word or expression has been given a particular meaning by the document. (b) A definition should only define. It should not be used to create a substantive right or obligation. The right or obligation should be created in the clause that uses the definition. (©) Ifyou have a definition, do not forget to use it when you are drafting the rest of the document. (4) When you use a defined term in a clause, check that it makes sense within the clause. (©) Imadefinition, do not define by reference to other, undefined terms. Padding/superfluous words Cut out unnecessary phrases which lengthen the sentence while adding nothing to its meaning. For example: + ‘inthe circumstances’; + ‘inthis instance’; + ‘the fact that’s + ‘ofcourse’, Tautology Tautology or saying the same thing twice using different words should be avoided. For example:12 Skills for Lawyers 144 145 1.4.6 147 + ‘unfilled vacancy’; + ‘true facts’; + ‘now current’ Similarly, avoid excessive use of adjectives which do not make the meaning more precise. For example: + ‘grave and fatal error’ + ‘careful and detailed consideration’. Compound prepositions Use single prepositions instead of compound prepositions. For example: + ‘inaccordance with’ under/by + ‘byreason of” by/through + ‘with reference to’ about in order to" to Nouns derived from verbs Use the verb itself rather than a noun derived from it. This helps create a more immediate effect. + ‘make an admission’ (admit); + ‘give consideration to’ (consider); + ‘effect. termination’ (terminate or end). Archaic language ‘Twenty-first century documents should be drafted using contemporary language. Delete oz replace archaic words and phrases such as: + ‘crave leave’ + ‘the said’; + ‘hereinbefore’; + ‘aforementioned’; + ‘whereof. Keep sentences and paragraphs short In long sentences, the verb, subject and object may be separated by too many subclauses. This places a strain on the reader’s memory and understanding. Always try to keep the sentence core together. EXAMPLE The evidence, including evidence from independent surveys as well as that gathered personally by the writers of this report and the results of investigations formally commissioned by this department, suggests that the public, while acknowledging an ‘overall inerease in the actual level of government spending on health, by which is meant on health care both at the doctor-patient level and in hospitals, still views the problems and defects in the National Health Service and in particular in National Health hospitals as the result ofa general ack of funding. ‘The subclauses break up the main thought of the paragraph so that itis difficult to follow. The paragraph would be better rewritten in separate sentences with the main thought first, even though this may increase its length. Brackets may be used for subsidiary points where appropriate. For example:1.4.8 1.4.8.2 Writing and Drafting 13 The evidence suggests that the public still views the problems and defects in the National Health Service and in particular in National Health hospitals as the result of a general lack of funding. Thisis so even though it acknowledges an overall increase in the actual level of government spending on health care both at the doctor-patient level and in hospitals. (Evidence on this issue includes evidence from independent surveys, that gathered Personally by the writers of this report and the results of investigations formally commissioned by this department.) Use the active and not the passive tense where possible Ina sentence where the verb is in the active voice, the subject of the sentence acts upon the object of the sentence. Where the verb is in the passive voice, the object of the sentence is acted upon by the subject. Compare: The defendant struck the claimant (active voice). ‘The claimant was struck by the defendant (passive voice). Problems with the passive Over-use of the passive voice lengthens a sentence and can make it sound weak. In the worst cases, it obscures meaning. For example: It is hoped that resources will be relocated so that changes may be made in the methods by which the system is administered. ‘Where the verb is in the passive, you may accidentally omit the phrase which indicates who or what is doing the acting. For example: The claimant was struck. Ina legal context, the effect of this omission may be important. For example: Notice will be served. By whom? EXERCISE 1 Try rewriting the following using the active tense. () final warning letter isto be written by the line manager. (i) The matter will be considered by the committee at the next meeting. (ii) Notice was given by the solicitor. Some uses for the passive The passive can sound more objective and detached, and therefore more approy certain legal contexts. For example: The allegations are denied sounds better than: Our client denies the allegations (which introduces a personal note). tis correct to use the passive where the subject of the legal action is irrelevant, For example: ‘The common seal of X Co was affixed ... It does not matter who affixed ‘The passive may also be used in a legal context to cover the possibility of action by a number of different persons, some of whom are unknown, For example: Ifthe goods are damaged we will refund the cost. This could cover damage by the supplier, the carrier, or any third party.Rznrze 22 4 Skills for Lawyers 1.4.9. Precision Itis particularly important to ensure that what you write is not ambiguous and expresses txactly your client's objectives. An ambiguous document may at best cause your client to have to make further enquiries; at worst it can result in an expensive dispute and litigation. Ambiguity ‘Take care with word order ‘Words or phrases in the wrong place may create ambiguity. Consider the sentence: We undertake to repair or replace goods shown to be defective within six months of the date of purchase. Itis not clear whether the phrase in italics governs the repair/replacement or the notification of defect. It could be rewritten as: Where, within six months of the date of purchase, goods are shown to be defective, we will repair or replace them. (assuming this was the intended meaning) Do you mean ‘and’ or ‘or’? Consider: ‘The Seller may serve notice of termination, recover goods already delivered and retain ai instalments already paid ‘The use of ‘and’ in this sentence suggests thatthe list is conjunctive, ie that the seller may do all ofthe things in it. But can he or she choose to do only some of them? Compare: The Seller may serve notice of termination, recover goods already delivered or retain = instalments already paid. “The use of or here suggests thatthe list is disjunctive, ie thatthe seller may do only one ofthe things in thelist. But it could also mean that he or she might both serve notice and eiths recover goods or retain instalments. ‘To avoid such ambiguity, consider (depending on the meaning required) using phrases sos as: The Seller may do all or any of the following: or ‘The Seller may exercise one only of the following rights: ‘The ‘undistributed middle’ ‘Take care with provisions ‘before/after’ a particular date or ‘over/under’ a particular weight measure. Consider the following examples: ‘Where the company delivers the goods before 1 January... JWhere the company delivers = goods after 1 January . What happens ifit delivers them on 1 January? Goods over 20kg must be sent by rail... IGoods under 20kg may be sent by air ‘What about goods weighing exactly 20kg? Expressions of time “Take care to avoid ambiguity. Consider:Writing and Drafting 15 ‘The Buyer must pay a deposit within 7 days of today’s date. Does the 7 days include or exclude today? For legal and practical reasons, avoid expressing periods of time in the following ways: + from [a date); + by[adate}; + within (so many days of] or from [a date}; + until fa date]. It is safer to be clear by using one of the following: + from but excluding/not including; + from and including; + onorafter; + onorbefore; + within a period of7 days commencing with; + until but excluding/not including; + until and including. Are you creating an obligation or a discretion? ‘An obligation is created by the phrase: ‘The Customer shall pay a deposit on signing this Agreement. A discretion is created by the phrase: ‘The Company may retain the deposit ithe Customer does not collect the goods on or before 30 June, Take care when using ‘shall’. It is grammatically correct to use it in the third person to indicate an obligation (‘the Tenant shall pay the Rent’), but itis also used in the first person to indicate simple future (‘I shall go to Londo’). Alternatively, you could use ‘must’ to create an obligation. Avoid words of similar sound or appearance Words of similar sound or appearance are easily confused and may also confuse a lay client. For example: Avoid Use instead ‘mortgagee/mortgagor’ —_‘lender/borrower’ ‘lessorilessee’ ‘landlord/tenant? Ambiguous pronouns Consider: Where the Supplier fails to deliver the Goods to the Customer in accordance with Clause 9 or the Goods delivered do not correspond with the sample he may terminate this Agreement. ‘Who may terminate the agreement? Where it is not clear to which noun a pronoun refers, the noun should be repeated. The ejusdem generis rule Consider: In consequence of war, disturbance or any other cause.16 Skills for Lawyers 149.2 1.4.10 1.4.10.1 1.4.10.2 Unless a contrary intention appears, ‘any other cause’ will be construed as meaning only causes in the same category as those previously listed. ‘To avoid ambiguity, add (as appropriate}: whether ofthe same kind as [the causes] previously listed or not or cor any other [cause] provided itis ofthe same kind as the [causes] previously listed. Shalliwill In the first person, ‘shall’ simply looks to the future. In the second and third person, ‘will looks to the future. | shall interview the client tomorrow. | hope that you will sitin. Afterwards we shall discuss the problem and consider the next steps. In the first person, ‘will’ expresses determination. In the second or third person, ‘shall expresses determination or obligation. Iwill make you do this. ‘The Buyer shall pay £500 on 1 December. ‘This means that you create problems if your document says ‘the Buyer will pay... Is this what he or she intends to do, or is it what he or she is obligated to do? Many documents use expressions such as, ‘If the Company shall breach this term .... The clause is looking to the future but is using ‘shall’ incorrectly. It could be redrafted to say, ‘In the event of the company breaking... Better still, ‘Ifthe Company breaks .... Layout and presentation Use the layout and presentation of your document to enhance its readability and usefulness. Use headings and bullet points to break up text. Use diagrams, tables, colours and different fonts where they are necessary or helpful. Where a document is likely to be annotated, leave wide margins and use double spacing. For many court documents there are very detailes requirements as to how you should present your document. Check that you have followed any relevant rules/guidelines. For example, under the Civil Procedure Rules (PD 32) it is recommended that witness statements should be ‘produced on durable quality A4 paper with a3.5cm margin’. Paragraphs Using paragraphs makes prose more readable and helps to avoid cumbersome clauses ané subclauses. Always number your paragraphs if possible as this aids navigation and will help anyone using the document. Tabulation ‘Tabulation aids clarity and can help to avoid ambiguity. Consider the sentence: Any trainee solicitor is entitled to paid leave to attend a conference, lecture, or seminar provided by The Law Society. How much of the sentence is the phrase in italics intended to qualify? Does it apply only to ‘seminar’, or to ‘conference’ and ‘lecture’ as well? Compare: [Any trainee solicitor is entitled to paid leave to attend: (@) aconference; or (b) alecture; or1.4.10.3, 1.4.11 ag Writing and Drafting 17 © provided by The Law Society. Care should be taken, however, not to indent the final phrase ‘provided by The Law Society’ to the same margin as ‘a seminar’ or the ambiguity would remain. ‘A useful basic rule is that any sentence longer than three lines is a good candidate for tabulation ifit includes a compound or series. Numbering Where a series of points is being made, numbering may improve clarity and aid later cross- referencing. Examples of numbering systems: 4.5.1 The system adopted in this book and known as the decimal system. 4(5)(a)(i) A system based on the legislative approach and known as the alphanumeric system. 4.5{a)(3) A combination system using elements of both decimal and alphanumeric systems, Jargon Jargon is a broad term and may include specialised language of a professional, occupational or other group which is often meaningless to outsiders. It may also include slang. While jargon can be a useful professional shorthand, it should never be used where it might obscure meaning. EXAMPLE + Bilateral probital hematoma medical terminology/jargon for a black eye + Abinitio Latin/legal jargon for ‘at the beginning’ + Constant phoenix military jargon for a transport aircraft equipped with devices to detect radioactive matter + HTH, web cookie computer/internet jargon for ‘Hope this Helps’, and the name for a small text file that is sent to your computer via your web browser when you visit certain websites Similarly, avoid using acronyms which might be unfamiliar or have several different meanings, eg CPR (Civil Procedure Rules, cardiopulmonary resuscitation, Canadian Pacific Railway, etc). Ifappropriate, consider providing a plain English translation of any legal or technical terms. It is worth noting that in June 2006 the Coroner Reform Bill became the first Bill to feature a plain English translation alongside every legal clause. CHECKING Always check your work. (2) _Ifpossible leave the document fora while and then come back to it. (b) Ideally get someone else to check it. (©) Reading the document aloud can be a good way of identifying mistakes/poorly-