PlainEnglishforLawyersChapter12.docx

1、PlainEnglishforLawyersChapter12 Plain English for Lawyers (Fifth Edition) Richard C. WydickPreface and AcknowledgmentsChapter 1 Why Plain English? Chapter 2 Omit Surplus Words How to Spot Bad Construction Avoid Compound Constructions Avoid Word-Wasting Idioms Focus on the Actor, the Action, and the

2、ObjectChapter 3 Use Base Verbs, Not Nominalizations Chapter 4 Prefer the Active Voice The Difference Between Active and Passive Voice The Passive Can Create AmbiguityChapter 5 Use Short Sentences Chapter 6 Arrange Your Words with Care Avoid Wide Gaps Between the Subject, the Verb, and the Object Put

3、 Conditions and Exceptions Where They Are Clear and Easy to Read When necessary, Make a List Put Modifying Words Close to What They Modify Avoid Nested Modifiers Clarify the Reach of ModifiersChapter 7 Choose Your Words with Care Use Concrete Words Use Familiar Words Do not Use Lawyerisms Avoid Shot

4、gunning In Rule Drafting, Prefer the Singular Number and the Present Tense Use Words of Authority with CareChapter 8 Avoid Language Quirks Avoid Elegant Variation Avoid Noun Chains Avoid Multiple Negatives Use Strong Nouns and Verbs Avoid Sexist LanguageChapter 9 Punctuate Carefully How Punctuation

5、Developed Lawyers Distrust of Punctuation Punctuate Carefully Definition of Terms Commas Semicolons Colons Dashes Parentheses Apostrophes Hyphens Periods, Question Marks, and Exclamation Points QuotationsChapter 1 Why Plain EnglishWe lawyers do not write plain English. We use eight words to say what

6、 could be said in two. We use arcane phrases to express commonplace ideas. Seeking to be precise, we become redundant. Seeking to be cautious, we become verbose. Our sentences twist on, phrase within clause within clause, glazing the eyes and numbing the minds of our readers. The result is a writing

7、 style that has, according to one critic, four outstanding characteristics. It is “(1) wordy, (2) unclear, (3) pompous, and (4) dull”Criticism of legal writing is nothing new. In 1596, an English chancellor decided to make an example of a particularly prolix document filed in his court. The chancell

8、or first ordered a hole cut through the center of the document, all 120 pages of it. Then he ordered that the person who wrote it should have his head stuffed through the hole, and the unfortunate fellow was led around to be exhibited to all those attending court at Westminster Hall.When the common

9、law was transplanted to America, the writing style of the old English lawyers came with it. In 1817 Thomas Jefferson lamented that in drafting statutes his fellow lawyers were accustomed to making every other word a “said” or “aforesaid” and saying everything over two or three times, so that nobody

10、but we of the craft can untwist the diction and find out what it means” Legal writing style long remained a subject of jokes and ridicule, but a reform movement started in the 1970s. A few legislatures passed laws that require documents such as insurance policies and consumer contracts to be written

11、 in plain language. Banks, manufacturers, and other businesses discovered that documents written in plain language can reduce costs and increase profits. For example, am auto makers clearly written warranty can help sell cars, and a lenders clearly written loan agreement can reduce costly defaults a

12、nd foreclosures. Understandable government forms can reduce the amount of staff time spent answering questions from puzzled citizens.The movement toward plain legal language is changing the legal profession itself. Most law schools now teach the plain language style in their legal writing courses. C

13、ourt rules, such as the Federal Rules of Appellate Procedure, have been rewritten to make them easier for lawyers and judges to use. Diligent committees of experts are rewriting packaged jury instructions to help make legal doctrines understandable to the jurors who must apply them. Practicing lawye

14、rs become eager students in continuing legal education courses that teach clear writing.Our profession has made progress, yes, but the victory is not yet won, Too many law students report back from their first jobs that the plain language style they learned in law school is not acceptable to the old

15、er lawyers for whom they work. Too many estate planning clients leave their lawyers office with a will and trust agreement in hand, but without fully understanding what they say. Too many people merely skim, or even ignore, the dense paragraphs of securities disclosures, credit card agreements, apar

16、tment leases, cell-phone contracts, and promissory notes, preferring to rely on the integrity or mercy of the author rather than to struggle with the authors legal prose.The premise of this book is that good legal writing should not differ, without good reason, from ordinary well-written English. As

17、 a well-known New York lawyer told the young associates in his firm, “Good legal writing does not sound as though it had been written by a lawyer.”In short, good legal writing is plain English. Here is an example of plain English, the statement of facts from the majority opinion in Palsgraf v. Ling

18、Island Railroad Co., written by Benjamin Cardozo:Plaintiff was standing on a platform of defendants railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without

19、 mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the

20、package was dislodged and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the expl

21、osion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues.What distinguishes the writing style in this passage from that found in most legal writing? Notice Justice Cardozos economy of words. He does not say”des

22、pite the fact that the train was already moving.” He says “though the train was already moving.”Notice his choice of words. He uses no archaic phrases, no misty abstractions, no hereinbefores.Notice his care in arranging words. There are no wide gaps between the subjects and their verbs, nor between

23、 the verbs and their objects. There are no ambiguities to leave us wondering who did what to whom.Notice his use of verbs. Most of them are in the simple form, and all but two are in the active voice.Notice the length and constriction of his sentences. Most of them contain only one main thought, and

24、 they vary in length. The shortest is six words, and the longest is twenty-seven words.These and other elements of plain English style are discussed in this book. But you cannot learn to write plain English by reading a book. You must put your own pencil to paper. That is why practices exercises are

25、 included at the end of each section. When you finish the section, work the exercises. Then compare your results with those suggested in the Appendix at the end of the book.Chapter 2 Omit Surplus WordsAs a beginning lawyer, I was assigned to assist an older man, a business litigator. He hated verbos

26、ity. When I would bring him what I thought was a finished piece of work, he would read it quietly and take out his pen. As I watched over his shoulder, he would strike out whole lines, turn clauses into phrases, and turn phrases into single words. One day at lunch, I asked him how he did it. He shru

27、gged and said,”Its not hardjust omit the surplus words.”How to Spot Bad ConstructionIn every English sentence are two kinds of words: working words and glue words. The working words carry the meaning of the sentence. In the preceding sentence the working words are these:working, words, carry, meanin

28、g, and sentence. The others are glue words: the, the, of, and the. The glue words do perform a vital service. They hold the working words together to form a proper, grammatical sentence. Without them, the sentence would read like a telegram. But if the proportion of glue words is too high, that is a

29、 symptom of a badly constructed sentence.A well constructed sentence is like fine cabinetwork. The pieces are cut and shaped to fit together with scarcely any glue. When you find too many glue words in a sentence, take it apart and reshape the pieces to fit together tighter. Consider this example:A

30、trial by jury was requested by the defendant.If the working words are underlined, The sentence looks like this:A trial by jury was requested by the defendant.Five words in that nine-word sentence are glue: a, by, was, by, and the. That proportion of glue words is too high.How can we say the same thi

31、ng in a tighter sentence with less glue? First, move defendant to the front and make it the subject of the sentence. Second, use jury trial in place of trial by jury. The sentence would thus read:The defendant requested a jury trial.If the working words are underlined, the rewritten sentence looks l

32、ike this:The defendant requested a jury trial.Again there are four working words, but the glue words have been cut from five to two. The sentence means the same as the original, but it is tighter and one-third shorter.Here is another example:The ruling by the trial judge was prejudicial error for the reasons that it cut off cross-examination with respect to issues that were vital.If the working words are underlined, we have:The ruling by the trial judge was prejudicial error for the reasons that it cut off cross