Notes on modulated legal drafting

November 1st, 2019
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By Muhammed Ahmed Mayat

There are numerous distinct constituents to fine legal drafting, however, its singular nub is located squarely within utilitarianism’s ambit. Beneath the skilled craftsman’s calculated literary ornamentation and far divorced from any aesthetic aspirations he or she may harbour lies the core aims of ‘clarity, conciseness and comprehensive coverage’ (see SF Parham Jr ‘The Fundamentals of Legal Draftsmanship’ (1966) 52 American Bar Association Journal 831).

Parham assumes the first and last (clarity and comprehensive coverage) as essential utilitarian tools to legal writing and the second as not only a device for the furtherance of utilitarian purpose but one which affords the writer mild latitude to demonstrate their literary prowess and flair. An inherent leniency that often compromises clarity as a result of an author’s usage of unwarranted adornment or, alternatively, as a result of a total neglect to consider the relevant audience.

It is within such crevice that I write this article with the aim of providing a few convenient devices through which a drafter may effectively modulate writing to suit ‘simpler’ audiences. The devices contained below may prove effective in simplifying excessive complexity and aiding comprehension.

Discourse structure

The organisation and structural coherence of a sentence or paragraph may be referred to as ‘discourse structure’ (see RP Charrow and VR Charrow ‘Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions’ (1979) 79 Columbia Law Review Association Inc 1306). A purposeful approach to drafting may assist significantly in achieving coherence and eliminating ambiguity. Prior to drafting a particular clause, the drafter must be cognisant of –

  • what the intent of the particular clause is; and
  • what elements must be present in the clause to satisfy such intent.

A drafter should also consider the most appropriate medium and method of arrangement for the required elements (eg, contingency, chronological order, separation through numbering etcetera). Precise appreciation of the above often translates into more accurate and penetrative construction.

Embeddings, misplaced phrases and word choice

The usage of multiple subordinate clauses within a single sentence (embeddings) is ubiquitous in legal writing. There is consensus that additions, particularly indiscriminate additions, of such clauses tend toward complexity. In fact, many practitioners may improve their own comprehension of sentences by delineating the respective main and subordinate clauses and appreciating them in isolation before understanding them in relation to one another.

Interestingly, a perusal of numerous embeddings indicates the relatively common use of misplaced phrases. The Charrows (op cit), in an interesting study make, inter alia, the following findings on the ability of American jurors to comprehend the following phrase, ‘If in these instructions any rule, direction or idea is repeated…’. They found the following:

‘The placement of the italicized phrase directly after the word “if” confused the majority of the subjects. Since the word “if” is normally followed by the subject of the sentence, most listeners perceived the noun in the misplaced phrase – “instructions” – as the subject of the sentence and paraphrased it as “if these instructions are repeated …’.

Misplaced phrases together with heightened vocabulary and unwarranted jargon are deleterious to mass comprehension and should be used with caution and care.

Nominalisation

A nominalisation is essentially a noun that is constructed from a verb base. This is most commonly achieved through the addition of a present participle ending in ‘ing’ to the verb stem, or the insertion of ‘-al’ or ‘-tion’ to the verb.

It is trite in linguistic theory that nominalisations (which tend toward abstraction) are less easy to comprehend than their basic verb forms (see E Pavlickova ‘The Role of Nominalisation in English Legal Texts’ in Alena Kacmarova Phd (ed) English Matters III (a collection of papers by the Institute of English and American Studies Faculty) (University of Presov 2012)). Consider, for instance, the following clause: ‘No responsibility or liability shall be borne for any defects latent or patent or for any damage resulting therefrom’. Nominalisation in the sentence is responsible for the absence of the sentence’s true subject and adds unnecessary complexity and opaqueness. Now, contrast this with the sentence here below:

‘The seller shall not be responsible or liable for any defects latent or patent or for any damage caused as a result therefrom.’

It is evidently easier to comprehend as compared to the former. This is not to indiscriminately charge nominalisation as unnecessary or burdensome on the reader, on the contrary, the use of nominalisation is often convenient and necessary. Regardless, a drafter should be cognisant of their usage of nominalisation and modulate their mode of expression accordingly.

Negatives and passives

Two of the simplest ways of simplifying complexity is through the deletion of multiple negatives and the phrasing of clauses in the active voice (B Kaup and J Ludtke ‘Context Effects when Reading Negative and Affirmative Sentences’ in R Sun and N Miyake Proceedings of the 28th Annual Meeting of the Cognitive Science Society (Psychology Press 2006)).

Negatives, as evident, are words or prefixes that negate. These have been shown to impact adversely on comprehension and it is recommended that negatives be utilised sparingly. Multiple negatives may often be converted to effective positive substitutes (the phrase ‘not irrefutable’ to just ‘refutable’ for instance) and in these instances double negatives serve limited efficacy where such usage negates each other.

Much of legal drafting tends to the passive voice, which has traditionally been considered mildly more difficult to comprehend than clauses phrased in the active voice. This problem may be compounded exponentially as the sentences themselves increase in length and complexity. While the active voice should not be prescribed rigidly, I admit that such consideration could prove moderately useful in certain circumstances.

Conclusion

Language is inexhaustibly vast, and its expression only constrained by one’s own imagination to the extent that the creation of a systemic paradigm of expression is a fool’s errand. Drafters should not be stifled in this inherent freedom but should be mindful of the constraints of their audience and that of a potential arbiter (for even a judge is not immune from confusion and error). In Irving Dilliard The Spirit of Liberty: Papers and Addresses of Learned Hand (Vintage Books, 1959) American Judge, Learned Hand, once stated: ‘The language of the law must not be foreign to the ears of those who are to obey it’.

I concur wholeheartedly.

Muhammed Ahmed Mayat LLB (Wits) LLM (UJ) is a candidate legal practitioner at Thokan Attorneys in Johannesburg.

This article was first published in De Rebus in 2019 (Nov) DR 8.