The Internet has provided me with a perfect, recent anecdote on the importance of clear and precise legal writing. On Monday, March 6th, legal blogs were buzzing over the decision by a Texas bankruptcy judge to deny a motion on the grounds of 'incomprehensibility'. In fact, the judge was so angered by the poor legal drafting that he added a footnote to the decision quoting a scene from the 1995 comedy 'Billy Madison', which included these lines:
'At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it.'
The footnote concluded:
'Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote.'
The motion also invites this Tip 7 and underscores why ambiguous words and phrases should be avoided. While I don't see the Court of First Instance (CFI) or European Court of Justice (ECJ) quoting Hollywood in their next judgments, I do see how lack of clarity can frustrate the purpose of your writing, whether it be to persuade a reader to your side or explain a key point of law. If a reader could possibly interpret your text in more than one way, it may just be a way adverse to your intended meaning. Ambiguity can arise in a number of instances, including the following:
1. words or phrases may have several different meanings
2. particular placement of words in a sentence lends itself to different interpretations
3. pronouns may refer to more than one person or object in a sentence
4. abbreviations or acronyms may not be known to the reader
Of course, other causes of ambiguity may be found in the substance of your writing, but this article focuses on how to correct the four language problems listed above.
1. Words or Phrases May Have Several Different Meanings
Many English words have more than one meaning, such as duck (noun: the swimming bird, or verb: a quick lowering of the head or body) or a word may represent a group of things, such as vehicle, which can include automobiles, army tanks, motorcycles, or even lawn mowers. The best way to avoid different interpretations of your writing is to replace the ambiguous words with concrete language. For example, if a local district wants to ban heavy trucks from their highways, the legislation would be clearer if it specifically contained the words 'trucks over [x] tonnage' rather than 'large vehicles'.
Moreover, in legal writing, a more technical meaning may attach to an ordinary word. A common example is the word residence. Say you advise clients that jurisdiction will be determined by their place of residence. Well, does that mean the place where they are currently living or the place deemed to be their permanent home under the law?
To clear up this confusion, you can add a qualifying phrase or include a definition of the term. For example, Jurisdiction will be determined by your place of residence can be clarified in a number of ways:
- Jurisdiction will be determined by the place you are living at the present time.
- Jurisdiction will be determined by your place of residence, which means your current legal domicile.
- Jurisdiction will be determined by your place of residence. Under Belgian law, residence is defined under Statute X.
2. Particular Placement of Words in a Sentence Lends Itself to Different Interpretations
The way words or phrases are arranged in a sentence may also create ambiguity. Take, for example, this sentence:
The lawyer went off to court to fight with her legal team.
Is the lawyer having an argument with her fellow lawyers or is she going to court to fight accompanied by her legal team? Or this sentence:
The property owner agreed to fill the ditch in front of the building with his tenants.
If this means that the owner is filling a hole with the bodies of his tenants, rather than coming to an agreement with them, then we may just have a crime on our hands!
To solve this problem, place the modifying word or phrase as close to the word it modifies. This means that the above sentences will now read like this:
The lawyer went off to court with her legal team to fight.
The property owner agreed with his tenants to fill the ditch in front of the building.
3. Pronouns May Refer to More Than One Person or Object in a Sentence
Ambiguous pronouns are another element that can affect the clarity of your writing. The ambiguity occurs when the pronoun can refer to more than one person or object. For example:
After the most senior partner hires the new office manager, she or he will then hire the new secretaries.
Who is hiring the secretaries - the partner or office manager? Repeating the noun or restructuring the sentence should clarify the sentence. Thus, the example can be changed to:
After the most senior partner hires the new office manager, the manager will then hire the new secretaries.
The most senior partner hires the new office manager. The job of hiring the new secretaries then becomes the responsibility of the new manager.
4. Abbreviations or Acronyms May Not Be Known to the Reader
Finally, watch out for abbreviations and acronyms that may be unfamiliar to the reader. While CFI and ECJ may be common acronyms in Brussels, they may be less familiar to, say, American lawyers. Simply spell out the particular reference at the beginning of your document, followed by its abbreviation in quotations or in parenthesis, and then you're free to use the acronym throughout the rest of your text.