Introduction

In the preceding chapters we examined the influences that tend to perpetuate the traditional style of legal drafting. We also considered the ways in which legal documents are interpreted. We traced the move towards plain legal language and explored some of the benefits of using modern, standard English. Now we move to examine rather more closely the techniques of drafting in modern, standard English: the ‘how to’. The best way to begin is by considering what not to do – that is, by considering techniques the drafter should avoid. And so this chapter highlights those aspects of the traditional style that should be shunned by the legal drafter who wants to move to a clear, modern style.

It is not difficult to identify characteristics of traditional legal documents that should be avoided. Here are some of the more common:

• wordiness and redundancy

• overuse of the modal verb ‘shall’

• obscure language

• unusual word order

• constantly litigated words and phrases

• foreign words and phrases

• unduly long sense-bites

• legalese and jargon

• peculiar linguistic conventions

• use of noun phrases in place of verbs

• overuse of the passive

• deeming

• poor use of definitions

• overuse of capitals

• careless use of provisos.

This list of characteristics is not exhaustive. But all are found, to a greater or lesser degree, in traditionally drafted legal documents. We will consider each in turn.

Wordiness and redundancy

Wordiness is the legal profession's most recognisable characteristic, redundancy its strongest point. Lawyers really do go on. Their motto might be: ‘Never use one word where you can use two; and the more you use, the better.’