29/11/16
LECTURE 7
TOPIC: LAYOUTS AND PRESENTATION OF DOCUMENTS
Paragraph
Using paragraphs makes pros more readable and helps to avoid cumbersome
clauses and sub-clauses.
Tabulation
It may help reduce ambiguity. Consider the following;
“Any trainee solicitor is entitled to paid leave to attend a lecture, conference
or seminar provided by the law society.”
The question is does it apply to seminar or to conference and lectures as well?
Compare with this;
“Any trainee solicitor is entitled to paid leave to attend,
a) Conference
b) A lecture
c) A seminar provided by the law society.”
Numbering
Where a series of points is being made, numbering may improve clarity and
later cross referencing e.g. of numbering systems are as follows;
a) 4.5.1 - this is known as the decimal system
b) 4 (5) (a) (i) - this is known as the alphanumeric system.
c) 4.5(a) (i) - this is a combination of both alpha and decimal numeric
system.
THE USE OF PRECEDENTS (TEMPLATES)
The use of precedent is a good servant but a bad master. Do not start drafting
from a precedent until you have analyzed your client’s instructions and decided
on what you want to achieve. If you turn to a precedent immediately, you will
find that it controls you instead of being a helpful tool.
Benefits of precedents
1) The precedent might suggest a suitable structure for your documents
2) It might suggest provisions you have not thought of which will benefit
your client.
3) It might suggest a suitable heading.
4) The introductory notes and footnotes might alert you to legal problems
you have not thought of.
Problems
1) The precedent night suggest an unsuitable structure. It might tempt you
into a long and complex document when a simple one is all that is
needed.
2) It might tempt you to use clauses that are irrelevant or worse to the
disadvantage of your client.
3) It might suggest inappropriate or archaic wording.
4) The notes on law will lead you astray, if the law has changed since the
precedent date.
Guidelines
1) Always decide what you want your document to do, before you consider
precedent.
2) Accept the fact that there may be no precedent that exactly covers your
situation.
3) Adopt the precedent to your transaction and not your transaction to the
precedent.
4) Use modern precedents, even modern precedents may have to be altered
if the law has recently changed.
5) Be careful if you bring a clause of a precedent into a draft document. The
clause may have to be altered to follow the definition on your draft to
make its style or language.
6) Do not copy words from precedents unless you are sure of their legal
effects.
7) Do not change words in a precedent unless you are sure the change will
not have an unexpected legal effect. This is particularly true for Wills.
8) Be wary of a document as a precedent which was drafted by someone
else in a transaction. The fact that the document has been used in a
transaction does not make it necessarily a good document.
Also, the document might have been slanted in favour of the party for
whom it has been drafted by that solicitor.
Language
The following advice is applicable in drafting documents, writing of letters,
reports and memoranda.
1.
2.
3.
4.
5.
Use simple and direct language
Keep sentences and paragraphs short.
Think before using a passive word.
Avoid ambiguity
Be careful how you use ‘shall’ and ‘will’.
SIMPLE AND DIRECT LANGUAGE
Padding
Try to avoid the use of phrases which lengthen a sentence while adding nothing
to its meaning .e.g. ‘until such crime as’, ‘in this instance’, ‘the fact that’.
Too Many Adjectives
Consider, whether the noun requires an adjective at all. In the following
example the adjectives add nothing to the noun. e.g. ‘True facts’, ‘terrible
disaster’, ‘unfilled vacancy’.
Also try to avoid a strings of similar adjectives which do not make the meaning
more precise e.g. ‘grave and fatal error’, ‘careful and detailed
consideration’.
Compound Preposition
Try to avoid using a phrase where a simple preposition will do e.g. in
accordance with “by or under, by reason of, by or through with reference to
“about”, in order to “to”
Noun Derived from Verbs:
You can use the verb itself rather than a noun derived from it. This creates a
more immediate effect. e.g. make an admission “admit”.
Give consideration to ‘consider’, effect a termination “terminate or end”
Jargons
Try to avoid jargons unless you are sure, the recipient will be familiar with it.
E.g. Mortgage sourcing information, clothing optional beaches.
Legal Terms
Legal terms should be translated for lay clients. e.g. Joint Tenancy, Decree
Nisi, Decree Absolute.
AMBIGUITY
Take care with word order
Words or phrases in the wrong place may create ambiguity.
Consider the sentence;
“We undertake to repair or replace goods shown to be defective within
six months of the date purchase”.
It could be written as;
“Where within six months of the date of purchase, the goods are shown
to be defective; we will repair or replace them”
Do you mean “and” or “or” consider this;
“The seller may serve notice of termination, recover goods already
delivered and retain all installments already paid “.
The use of “and” in the sentence suggests that the list is conjunctive. i.e. the
seller may do all of the things in it.
Compare with this;
“The seller may serve notice of termination, recover goods already
delivered or retain all installments already paid”.
The use of “or” here suggests that the list is disjunctive. i.e. the seller may do
only one of the things in the list but it could also mean that, he may both serve
notice and either recover goods or retain installments.
To avoid ambiguity, consider using the phrases such as;
“The seller may do all or any of the following or the seller may exercise
only one of the following rights”.
Expression of time
Consider the following;
“The buyer must pay a deposit within 7 days of today’s date”
Does the 7 days include or exclude reasons?
Avoid expressing periods of time in the flowing ways;
From “date”, by “date”, within “summary dates”, until “a date”.
It is safer to be clear by using one of the following;
1.
2.
3.
4.
5.
6.
From but excluding /not including.
From and including
On or after
On or before
Within a period of 7 days commencing with
Until and including
Are you creating an obligation or discretion?
An obligation is by the phrase “the customer shall pay a deposit on signing
this agreement”.
Discretion is created by the phrase “the company may retain the deposit if the
customer does not collect the goods on or before 30th June”.
AVOID WORDS OF SIMILAR SOUND AND APPEARANCE
Words of similar sounds and appearance can be accidentally transposed by the
typist and may also confuse a lay client. e.g. avoid using “mortgagor” or
Mortgagee” but use “lender” or “borrower” and use “landlord” or “ tenant”
instead of “leaseor “ and “leasee”.
Shall and will
In the first person “shall” simply looks to the future.
In the second and third person “will” looks to the future. E.g. “I shall interview
the client tomorrow, I hope that you will sit in, after wards we shall discuss
the drafting”.
In the first person “will” expresses determination.
In the second and third person “shall” expresses determination or obligation.
E.g. “I will make you do this, the buyer shall pay ¢500 on the 1st of
December”.