M o d e r n L e g a l D r a f t i n g
‘Herewith’ and ‘therein’ are pure legalese. So is ‘the same’, a phrase for which lawyers have a fondness verging on the pathological. (‘As regards’ is not strictly legalese, since its use is not specific to the legal profession; it is merely ugly English.) The sentence could have been written more simply:
We have seen our client about preliminary enquiries and so can return replies to them together with the enclosures referred to.
Even better would be:
We return replies to your preliminary enquiries.
The concept of ‘returning replies’ reflects the English practice by which preliminary enquiries were usually made on a two-column form, with the left column for the enquiries and the right column for the replies. Even so, no misunderstanding would be caused by an even shorter version:
We reply to your preliminary enquiries.
Of course, legalese is not confined to letters between solicitors. It spills over into documents and letters that lawyers draft for clients. It is also rife in standard forms printed by publishers for use in legal offices. Here is an extract from a standard form of executor’s oath:
To the best of my/our knowledge information and belief there was no land vested in the said deceased which was settled previously to his/her death and not by his/her Will and which remained settled land notwithstanding such death.
This bears many of the marks of legalese. ‘Knowledge’, ‘information’ and ‘belief’ are synonyms or near-synonyms. They could have been deleted and replaced with: ‘so far as I/we know’. The double negative (‘no land . . . not by his/her Will’) occurs frequently in legal documents, despite being a hin- drance to understanding. ‘The said deceased’ has an impersonal tone – a tone which is typical and seemingly inevitable in legal forms. ‘Notwithstanding’ is a word rarely seen in everyday communication between lay writers. The paragraph could have been written:
So far as I/we know, the deceased owned no settled land which remained settled land after his or her death.
Allied to legalese is jargon, by which we mean language peculiar to a profession. The Oxford English Dictionary gives as its original mean- ing the ‘inarticulate utterance of birds, or a vocal sound resembling it; twittering; chattering’. Jargon abounds in legal and quasi-legal documents. Jargon may be acceptable in a document that a lawyer drafts solely for another lawyer, but it is not acceptable in a document that a lawyer drafts for a client. Almost certainly the client will find the language stilted, and may well have difficulty understanding it. Rarely can there be any justification in drafting a document that the client finds difficult to understand.
To illustrate the use of jargon, consider the following clause in a will:
I hereby revoke all Wills made by me at any time heretofore. I appoint my Wife, Jean Heath, and Robert High, of Denton Road, Wolverhampton, aforesaid, Plumber, to be my Executors, and direct that all my Debts and Funeral Expenses shall be paid as soon as conveniently may be after my decease.
‘At any time heretofore’ and ‘aforesaid’ are pure jargon; both are unnec- essary. Also unnecessary is the description ‘Plumber’ – unless two persons called Robert High live at Denton Road, Wolverhampton.39Unnecessary, too, is ‘hereby’, of which we say more below. All these words and phrases give the clause a legal feel without serving any legal purpose. Legal feel is further heightened in this example by jargon-like techniques. There is an overuse of capitals, as though virtually every noun needed one. Also, the direction to pay debts and funeral expenses ‘as soon as conveniently may be’ employs quaint language but adds nothing, since personal representatives have a duty to pay debts and funeral expenses. It would have been simpler and clearer to write:
I revoke all previous wills.40I appoint as my executors my wife Jean Heath,
and Robert High of Denton Road, Wolverhampton.
39The legal profession’s zeal for stating occupations may hark back to the Statute of Additions
1413, which required court writs to contain details of the defendant’s place of abode and occupation (‘mistere’, translated as ‘mystery’, an obsolete word for trade or profession).
40Strictly, ‘previous’ is tautologous, since a person cannot revoke a will that is not yet made.
M o d e r n L e g a l D r a f t i n g
‘Hereby’
‘Hereby’ deserves special mention. Drafters in the traditional style have a particular affinity with it. Nothing is ever simply done; it is ‘hereby’ done. Presumably, the drafters consider that ‘hereby’ adds precision. But this is not always the case – ‘hereby’ can in fact introduce ambiguity. For example, in a New Zealand case a section in a statute gave landowners the right to compensation for loss or damage suffered from ‘the exercise of any of the powers hereby given’. Did hereby mean ‘by this section’, or ‘by this Part of the Act’, or ‘by this Act’? It took an appeal to the New Zealand Court of Appeal to decide that it meant ‘by this Act’.41
It is true that ‘hereby’ can give a particular emphasis to an action. But even then it is usually legal surplusage. For example, in an Australian case, a tenant purported to exercise an option to renew a lease by sending a letter which began, plainly enough: ‘We would hereby like to exercise our option to re- new the lease’. Were these words sufficient to indicate an intention, then and there, to exercise the option, or were they merely an expression of intention to exercise the option formally on some later occasion? The judge held that they amounted to an intent to exercise the option then and there. In reaching this conclusion, the judge considered that the use of ‘hereby’ was relevant. It was ‘a very strong indication’ that the option was being exercised by the letter.42 On closer examination, however, it is obvious that the uncertainty arose from the polite expression ‘we would like to’ – an expression displaying a diffidence of tone appropriate in conversation but not in the exercise of legal rights. The judge could have reached the same conclusion even without the presence of hereby. Similar wording – minus the ‘hereby’ – has been held sufficient to exercise an option. For example, in another Australian case, the words ‘we intend to exercise the option to re-new the lease’ were held to be sufficiently clear to amount to an operative act as opposed to a mere statement of future intention. They constituted ‘a clear and unequivocal act to exercise the option’.43
41Superior Lands Ltd v Wellington City Council [1974] 2 NZLR 251. 42Riltang Pty Ltd v L Pty Ltd (2002) 11 BPR 20,281 at 20,286 (para [24]). 43Young v Lamb (2001) 10 BPR 18,553 at 18,557 (paras [28], [30]).
Terms of art
To be distinguished from the unthinking and unnecessary use of jargon is the appropriate use of technical terms – ‘terms of art’. Like other profes- sions, law contains an irreducible minimum of terms of art, that is, terms which have a peculiar and fixed technical meaning, unmodified by context, and which are difficult and sometimes impossible to express in any other way.44 Examples are bailment, hearsay, deed (in contrast to an agreement not under seal), delivery (in the sense of the act which brings a deed into operation), and certiorari (as in an order of certiorari).
However, we should not exaggerate the problems that terms of art might be thought to pose for drafters who wish to use modern, standard English. The number of genuine legal terms of art (in this narrow sense) is small.45 More often than not, supposed terms of art are mere jargon. One writer suggests that ‘term of art’ is merely lawyers’ jargon for lawyers’ jargon.46
Many familiar legal words and phrases which bear the illusion of terms of art would be better abandoned, for two chief reasons. First, the illu- sion would disappear. Second, other words and phrases are better suited to the task. To illustrate: is ‘moiety’ more certain than ‘half’, or ‘dwelling- house’ more certain than ‘house’ or ‘dwelling’? Or is the following standard description
‘ALL THAT piece or parcel of land together with the messuage or dwelling- house erected thereon or on some part thereof situate at and known as No 3 St Andrew Street’
any more precise than the simple description ‘3 St Andrew Street’?
44In Skerrits of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions [2000] 3 WLR 511 at 518, Robert Walker LJ described a ‘term of art’ as ‘an expression
which is used by persons skilled in some particular profession, art or science, and which the practitioners clearly understand even if the uninitiated do not’. The court held that ‘curtilage’ (as in the curtilage of a building) is not a term of art.
45Research in the United States suggests that in property documents the proportion of judi-
cially defined terms is less than 3 per cent: B. Barr, G. Hathaway, N. Omichinski and D. Pratt, ‘Legalese and the Myth of Case Precedent’ (1985) 64 Michigan Bar Journal, p. 1136.
46David S. Levine, in the chapter ‘“My Client Has Discussed Your Proposal to Fill
the Drainage Ditch with his Partners”: Legal Language’, in State of the Language, ed. Leonard Michaels and Christopher Ricks (Berkeley: University of California Press, 1980), p. 403.
M o d e r n L e g a l D r a f t i n g
A typical example of jargon in the guise of term of art is the phrase ‘without prejudice to’. The phrase is commonly used to preserve the force of one provision while at the same time expressing another contrasting or overlapping provision. Here is an example from a tenant’s covenant in a lease:
Without prejudice to sub-clause (c) hereof not to create any interest in the
Premises or any part thereof derived out of the Term howsoever remote or inferior and in particular but without prejudice to the generality of the fore- going not to underlet the Premises or any part thereof.
In this context, ‘without prejudice to’ has no legal magic demanding its use. Where it first appears in this example, it can be replaced by a simple English word such as ‘despite’; where it second appears, it can be replaced by a phrase such as ‘without affecting’ or ‘without limiting’.
‘Without prejudice’ also has an entirely different usage – to introduce a letter written in an attempt to settle a dispute. In this context, its purpose is to claim a form of privilege, to ensure that the letter cannot be used as evidence in court if the attempted settlement fails. It is legal shorthand for ‘without prejudice to the position of the writer of the letter if the negotiations . . . propose[d] are not accepted’.47But this usage, too, is jargon in the guise of term of art. It also confuses readers. An English survey shows that a large percentage of non-lawyers misunderstand the phrase and are liable to be misled about its intended effect.48 Moreover, its use does not guarantee privilege for the letter. Privilege depends on the rules of evidence that apply to the letter in the context in which it was written, not on the knee-jerk addition of ‘without prejudice’. And the relevant rule of evidence is not dependent on use of the phrase ‘without prejudice’. If it is clear from the surrounding circumstances that the parties were seeking to compromise the court case, evidence of the content of their negotiations is, as a general rule, inadmissible at the trial.49
47Walker v Wilsher (1889) 23 QBD 335 at 337 (Lindley LJ). For a later application, see Unilever plc v The Procter & Gamble Co. [1999] 1 WLR 1630.
48Mark Adler, ‘Bamboozling the Public’ [1991] New Law Journal, p. 1032: only 10 out of
77 people with some experience of lawyers ‘clearly understood’ the meaning; and of those who did not understand, 33 (or 43%) ‘were under a misapprehension which seriously threatened their rights’.