This article has been written by Harshit Thirani, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho. It has been edited by Zigishu Singh (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).
Table of Contents
Introduction
Legal drafting is a method of creating well-structured documents such as petitions, memorandums, contracts, wills, statutes, etc that are legally binding on the parties to such documents. Such documents in a general sense are known as legal drafts. It is important that the language in which they are written is simple so that the intended audience can read and comprehend it. Also, that there is no room for any interpretation other than literal one by the courts. The more complex and long sentences try to cover several points all at once rather than making a conscious effort to make each sentence serve one precise purpose. The entire point of a legal draft is to be crisp, precise, it shouldn’t have a lot of double negatives, and should convey a point in comprehensible language. The best Drafts are those in which concise and unambiguous language is used; unnecessary abbreviations are avoided, “community jargon” and excessively long sentences are also avoided. This article tries to cover the steps of legal drafting, the understanding of how it is essential to draft in easy English and what are the drawbacks or disadvantages if we don’t.
Legal drafting involves two steps
1. To understand the context and concept of the document which is being drafted: To draft a legal document, the first step is to fully understand and comprehend the facts and context for which the document is being drafted and the laws that govern such facts and documents so that the document thus prepared does not offend or violate any provision of law. The draftsman should also take notice of the directions given by the parties to such a document, so that the document derives the exact meaning, for which the document had been drafted.
2. To put the document in writing: the next After interpreting the laws and understanding the facts in context of the document, the next step is to start drafting the document. This is done by collecting and consolidating the facts and writing them down in a structured, precise and accurate manner. The document thus prepared should bring out the exact meaning upon the legal interpretation of it, that the parties to the document wanted it to convey.
Legal Language in general
Legal language is different from normal language, which is normally written and spoken by laymen as it uses certain specialized terms and phrases which are not used by laymen in ordinary day-to-day conversations. Legal Language also comprises Legalese, which contains cluttered, wordy, indirect words and also contains certain technical terms and phrases which are not required or are unnecessary. 1
There are certain features of Legal Language which cause various sorts of problems:
1. Writing long sentences: The sentences written in legalese are often extremely long as each point or part of the document, as a part of a tradition, is made only one sentence long. As long sentences add to the complexity of comprehension this makes the language difficult to read.
2. Unnecessarily using extra words: Often, more words than necessary are written in a document which obscures the message.
3. Double negatives: In legal language, many times, double negatives are used in sentences and phrases. This does not only make the sentences extremely difficult to read but may also lead to a wrong interpretation of the document if it is not read carefully by the reader.
4. Terms of Art: There are certain words and phrases in legal writing which are called Terms of Art. These expressions have specific meanings in legal language and are only used by persons who are a part of the legal industry. Laymen cannot understand the meaning of these Terms of Art as most of them do not have the basic knowledge of the law.
5. Latin and French words: To add to the complexity of the Legal Language, there are certain Latin and French words which have been passed on to the Legal Fraternity and the meaning of these words can only be understood by jurists. (2)(3)
Why is normal and easy English appreciated?
As time is progressing, more and more lawyers, jurists and people associated with the legal industry are shifting towards the usage of simpler, plain legal language from the generic legal language. Plain legal language is the kind of legal language which is clear, comprehensible and easy to read.
There are many benefits of using Plain Legal Language in legal documents. These are as follows:-
1. Effective Communication and Increased Compliance: When a draft or a document is written in simple and plain language it makes the document easy to read. Thus, the gist of the legal document is easily and effectively communicated to the parties of the document. For example, if a statute is drafted using plain language, the persons who are supposed to comply with the Statute would be able to understand the provisions easily, and thus, the usage of such language would increase the compliance of such Statute. Similarly, if such language is used in other legal documents such as contracts, wills, etc. it would be easy for the parties to understand and comply with the terms of such documents as the communication would be effective.
2. Saves time and money: Usage of plain legal language in documents increases the readability of such documents and makes them easy to understand. Thus, as with the documents the readers or parties to such documents would relatively have fewer questions about the terms and provisions of such documents thus saving the time of both the reader and the person who has drafted the document.
3. Avoid Disputes: As discussed above, a document drafted using easy and plain language is easy to read and results in effective communication. The usage of such language makes the terms of the document extremely clear to all the parties. Because of this, there is no room for confusion and disagreements, which helps in reducing and avoiding disputes arising out of legal documents. For example, in recent times the usage of the internet has increased manifold. Many social networking sites are being used by people for enjoyment and also for money-making purposes. Before using the sites for their purposes, the users have to agree to the terms and conditions (regarding the data sharing, cookies, money making schemes, etc.) of these sites, which more than often are complicated for the users to understand, this results in disputes arising out of these terms and conditions. Using plain and simple language can help avoid these disputes from arising which would also help in saving the time and money which is wasted in litigation.
4. Helps in increasing reach and awareness of the brand: Consumers always prefer dealings with people and companies who are transparent. Making the terms and conditions of their brands simpler would help increase their transparency thus increasing the reach and awareness of the brand and would also help them get more customers. For example, online shopping sites having simpler policies on return and replacement of products will have more customers compared to a company having complicated return and replacement policies.
5. Helps lawyers increase their reach: Most of the lawyers these days get their clients through the internet, where they put up their legal content, such as contract templates, petition templates, and information regarding new laws and regulations made by the governments and statutory authorities. If this content is written using plain language more people would be able to understand the writings and documents of the lawyer and would want to give him/her their work, thus increasing the clientele of the lawyer. 4
Thus, using Plain legal language has various kinds of benefits and should be preferred over the complicated and ornamental language.
Is Ornamental language really a USP?
There are certain arguments in favour of Ornamental and complicated legal language but they are not entirely true. They are as follows:
1. Ornamental language showcases the skill of drafter while plain language does not: According to this argument, using ornamental and complicated language shows the knowledge and skill of the drafter, while drafting in simple language takes away the skill of the drafter. This argument is not at all true, as drafting in plain legal language is an extremely difficult task. It takes a lot of skill to showcase and present the exact and precise meaning of a document by using plain legal language. Also, if a document is drafted using ornamental language but fails to communicate the gist of the document to the reader, then the entire effort of making such document in the first place goes in vain.
2. People who want to read statutes and laws should educate themselves as reading a law is not similar to reading a newspaper: This argument and the logic behind it is entirely wrong as both people, who are uneducated or are laymen who cannot understand the terms or legalese and the educated, are equally affected by these laws and are supposed to comply and follow these. If the use of ornamental language affects the communication of the laws to the general public in a negative manner, then such laws are rendered ineffective and are of no use.
3. Drafts made in Plain Legal English are not accurate: According to this argument, drafts which are made in Plain legal English are not accurate or precise and cannot communicate the exact meaning that is meant to be communicated through such drafts. This argument is wrong in two senses. Firstly, proper usage of plain language in a document can make it precise and accurate as the language is not difficult to read and can help in properly and effectively communicating the gist of such a document as has been discussed above. Secondly, this argument assumes that documents or drafts which are prepared using ornamental language are precise and accurate and effectively communicate the gist of the document. This is not true. The usage of terms of art, double negatives, Latin and French terms, and unnecessary usage of words and phrases which are not actually required to be put in comprehension, makes the language complicated and the meaning- vague.
4. Plain Legal Language is time consuming and expensive: This argument might be true to an extent as the conversion of comprehension from complicated and ornamental language is time consuming and expensive, but in the long term such conversion would help reduce the consumption of time and the cost. This is because documents based on ornamental legal language are confusing, due to which various kinds of disputes and questions arise which cost a lot of money (litigation) and wastage of time. As plain legal language is clear and is understandable to the layman, the confusion created by legal documents such as statutes, wills, contracts, etc. would decrease, and thus would decrease the number of disputes arising out of such documents. This would lead to saving of both time and money. 5
From these above-mentioned points, it is clear that the usage of ornamental language is not actually an USP as it causes various sorts of problems and the usage of plain and simple language should be preferred over it.
Conclusion
It can be concluded that Plain Legal Language is beneficial as compared to ornamental and generic legal language as it helps avoid disputes, in making effective communication, saving time and money and also helps in increasing the business and profits of lawyers and brands who use such language as it improves their transparency, rather than increasing the complexity of the already complex legal world as is done by ornamental legal language. Plain legal language would also help in making the general public understand laws better and the reasoning behind them. It would also help in reducing unnecessary disputes which cause the judicial process to slow down and make them time consuming.
References
1. Bain Butler, 2013, p.32
2. Legal Language is exclusionary, Legal Service India https://www.legalserviceindia.com/legal/article-3905-legal-language-is-exclusionary-.html
3.What are the main features of legalese and why do they cause problems, Drafting in Plain English, http://www.plainenglish.co.uk/campaigning/past-campaigns/legal/drafting-in-plain-english.html
4. The benefits of using plain legal language, https://www.michalsons.com/blog/the-benefits-of-plain-legal-language/20
5. What are the arguments against plain English drafting and are they valid?, Drafting in Plain English, http://www.plainenglish.co.uk/campaigning/past-campaigns/legal/drafting-in-plain-english.html
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