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Lecture 2

CMN447 Lecture 2: Crashcourse in pld.pdf

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Department
Communication
Course Code
CMN 447
Professor
Carolyn Meyer

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A Crash Course in Plain Language Legal Drafting
November 1999
Cheryl M. Stephens
Legal Editor and Writing Instructor
Author of Plain Language Legal Writing,
available from ASAP Legal Publishing 604-685-2727
http://www.cherylstephens.com [email protected]
Page 2 A Crash Course in Plain Language Legal Drafting
Cheryl Stephens [email protected]
The Laws of Plain Language Legal Drafting
1 Use 1st and 2nd person or simple names.
Use “they” as singular pronoun.
2 Write in the active voice.
3 Don't use nouns made from verbs.
4 Organize short, concise sentences.
5 Use positive words and constructions.
6 Choose words that suit your reader.
7 Don't use shall: use may, will or must.
1 Use 1st or 2nd person pronouns or simple names for participants.
1
st person: I or we
2nd person: you
Define “you” and “we” if necessary.
3rd person: they
Smith, James, Henderson
Renter, Owner, Manager
Bank, Borrower, Guarantor
For value received, the undersigned hereby promises to pay…
To repay my loan, I promise to pay…
The statement for professional services enclosed herewith is, in all likelihood, somewhat in excess of
normal expectations. In the circumstances, it is appropriate to take this opportunity to provide an
explanation of the causes therefor.
The bill I am sending you with this letter is probably higher than you expected, and I would like to
explain why.
This is to acknowledge your letter of recent date, the contents of which have been duly noted. In the
third paragraph thereof, it states...
Page 3 A Crash Course in Plain Language Legal Drafting
Cheryl Stephens [email protected]
I have considered your letter of June 13. You say, in your third paragraph,...
1(a) Accept the use of “they” as a singular pronoun where no reasonable alternative exists.
… will provide education to help each child realize their potential…
Be certain that the antecedent for the pronoun is obvious.
Examples of alternatives
…from the BC Commercial Arbitration Act
On an application under subsection (4), the arbitrator may amend the award if the arbitrator considers that
the amendment will clarify it. [Repeats the noun]
Before an arbitration hearing commences, the arbitrator may, on the application of a party, order another
party to produce any documents that the arbitrator considers are relevant to the arbitration. [Repeats the
noun]
…from the BC Interpretation Act
A person reaches a particular age expressed in years at the start of the relevant anniversary of his or her
date of birth.
2 Use active voice instead of passive.
Who is supposed to do what to or for whom?
Passive voice focuses on the object receiving the action rather than on the subject
carrying out the action. It can make the identity of the actor ambiguous.
When a complaint against you has been received, a file will be opened...
When your client has filed a complaint against you, the Competency Department will open a file …
Passive voice:
Identify the Noun and Verb Phrases.
Classify the Main Verb as Linking or Action: Action Verbs describe an action of the mind or body.
Linking Verbs are forms of verb to be.
Locate the Real Subject of the Sentence: Find the stem or root of the verb. Ask “Who performs this
action?” Bring Performer to front of Sentence.
Passive voice verb
Object Acted Upon by (unnamed actor)
Lawyer was suspended [by a Discipline Committee? by the Benchers?]
Active voice/Legislative sentence
Actor Acts Upon Object
The Committee suspended the lawyer.
If this note is secured by a motor vehicle, boat or aircraft, property insurance on the collateral is
required.
If a motor vehicle, boat, or aircraft secures this note, the borrower must maintain property insurance on
the collateral.

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A Crash Course in Plain Language Legal Drafting November 1999 Cheryl M. Stephens Legal Editor and Writing Instructor Author of Plain Language Legal Writing, available from ASAP Legal Publishing 604-685-2727 http://www.cherylstephens.comerylstephens.com 2 e g a P A Crash Course in Plain Language Legal Drafting The Laws of Plain Language Legal Drafting 1 U1se stand 2 person or simple names. Use “they” as singular pronoun. 2 Write in the active voice. 3 Don't use nouns made from verbs. 4 Organize short, concise sentences. 5 Use positive words and constructions. 6 Choose words that suit your reader. 7 Do use't shall: use may, will or must. st nd 1 Use 1 or 2 person pronouns or simple names for participants. 1 sperson: I or we 2ndperson: you Define “you” and “we” if necessary. rd 3 person: they Smith, James, Henderson Renter, Owner, Manager Bank, Borrower, Guarantor • For value received, the undersigned hereby promises to pay… To repay my loan, I promise to pay… • The statement for professional services enclosed herewith is, in all likelihood, somewhat in excess of normal expectations. In the circumstances, it is appropriate to take this opportunity to provide an explanation of the causes therefor. The bill I am sending you with this letter is probably higher than you expected, and I would like to explain why. • This is to acknowledge your letter of recent date, the contents of which have been duly noted. In the third paragraph thereof, it states... CSherplens [email protected] 3 e g a P A Crash Course in Plain Language Legal Drafting I have considered your letter of June 13. You say, in your third paragraph,... 1(a) Accept the use of “they” as a singular pronoun where no reasonable alternative exists. … will provide education to help each child realize their potential… Be certain that the antecedent for the pronoun is obvious. Examples of alternatives …from the BC Commercial Arbitration Act On an application under subsection (4), the arbitrator may amend the award if the arbitrator considers that the amendment will clarify it. [Repeats the noun] Before an arbitration hearing commences, the arbitrator may, on the application of a party, order another party to produce any documents that the arbitrator considers are relevant to the arbitration. [Repeats the noun] …from the BC Interpretation Act A person reaches a particular age expressed in years at the start of the relevant anniversary of his or her date of birth. 2 Use active voice instead of passive. Who is supposed to do what to or for whom? Passive voice focuses on the object receiving the action rather than on the subject carrying out the action. It can make the identity of the actor ambiguous. • When a complaint against you has been received, a file will be opened... When your client has filed a complaint against you, the Competency Department will open a file … Passive voice: ▯ Identify the Noun and Verb Phrases. ▯ Classify the Main Verb as Linking or Action: Action Verbs describe an action of the mind or body. Linking Verbs are forms of verb to be. ▯ Locate the Real Subject of the Sentence: Find the stem or root of the verb. Ask “Who performs this action?” Bring Performer to front of Sentence. ▯ Passive voice verb Object Acted Upon by (unnamed actor) Lawyer was suspended [by a Discipline Committee? by the Benchers?] ▯ Active voice/Legislative sentence Actor Acts Upon Object The Committee suspended the lawyer. • If this note is secured by a motor vehicle, boat or aircraft, property insurance on the collateral is required. If a motor vehicle, boat, or aircraft secures this note, the borrower must maintain property insurance on the collateral. Chtepylens [email protected] 4 e g a P A Crash Course in Plain Language Legal Drafting 3 Don't use nouns made from verbs: turn them back into verbs. Nominalizations [derived nouns] replace personal nouns plus verbs removing the participants and the action. They act like passive verbs – needing no subject. Change to active verbs. • The refusal of … • Consideration of this matter should include... If you refuse … Please consider... • The failure to … • An application may submitted by mail if… If you fail to … You may apply by mail if… • Prior to the completion of … • Upon written request by the individual… Before you complete … When you ask in writing… Cosmic detachment comes from ignoring Laws 1-2-3 There were in excess of0 lost employee days. Our lost employee days were in excess of Lost employee days exceeded00. Active and with a stated actoEmployees missed more than 300 days of work. 4 Organize sentences to be concise; keep sentences short. Move qualifiers, provisos, or exceptions to the end of the sentence or to separate sentences. Avoid wordiness. State the action then list the conditions. Don’t try to cover all the possibilities. • Subject to the terms and limitations set out in these Provisions should you become Totally or Partially Disabled while your Insurance is in force, we will pay you monthly, in arrears, the benefits set out in this Part. We will pay benefits to you monthly, in arrears, subject to the provisions of this policy. Keep to the natural subject-verb-object order. Intervening phrase separates subject-verb-object: The decision of Ontario Attorney-General Howard Hampton to prefer an indictment against police Constable Brian Rapson on a charge of attempted murder, after a judge, in a full and open hearing, found an entire absence of evidence on which to base such a charge, is utterly reprehensible. CShepylens [email protected] 5 e g a P A Crash Course in Plain Language Legal Drafting If different requirements have different conditions, set out a table: Type of applicantho Partpnateis of One Corporation Officer Association Member who is an officer 5 Rewrite negatives as positives. Avoid layered negatives. Prefixes un- in- mis- il- Words none, unless, until, fail, exempted, unlawful, invalid, void limitatioupalbsinittionunless ambiguousavocidndrliyquentdeny douextcortdminimum no less than no more than no smaller than sanction transgression Concepts testimonial privilege negligence legally blind const(potvees.i)on, volenti non fit injuria Isolate exceptions and conditions. • Don't do any more than is necessary. Instead: Do only that which is necessary. • This policy shall not be valid unless countersigned by our authorized representative. This policy becomes valid when countersigned by our authorized representative. • Should you fail to receive a billing notice within five days of a premium due date, you should nevertheless make a conditional payment to the RIA within the Days of Grace not less than the amount of premium that you were billed on the preceding premium due date. You must send your premium payment within 31 days of its due date. If you have not received our bill at least five days before the due date, you must send us a conditional payment equal to the last premium you paid. 6 Carefully choose words that suit your reader. Avoid legal jargon. Use only necessary technical terms. Speak in the polite language you would use to express yourself at the dinner table. Robert Benson's definition: A genuine, technical, term of art has an uncontroversial core meaning that cannot be conveyed succinctly in any other way. CShtepylens [email protected] 6 e g a P A Crash Course in Plain Language Legal Drafting Proven problem words in lawyers’ bills paralegal litigation entitled parties legal fees interim application disbursements examination for discovery substantial disbursements order deliveries damages registry searches settlement out-of-pocket appeal enforcing conflict of interest contingent fee diverge conduct of a lawsuit heirs, executors, legal representatives, and issuance of a writ successors 7 Do us't shall: use may or must. Use "must" to impose a duty. Interp. Act: “must” is to be construed as imperative Interp. Act: “shall” is to be construed as imperative Use "may" to confer a power or a right, or to indicate that there is a choice. Interp. Act: “may” is to be construed as permissive and empowering Use “will” to express future action. Interp. Act: “will” … as defined in the Wills Act What are the meanings here? The architect shall make changes to the drawings before May 10, 1997. The architect must make changes to the drawings before May 10, 1997. The architect will make changes to the drawings before May 10, 1997. The architect may make changes to the drawings before May 10, 1997. Organizing information Serve the Reader ▯ Tell your reader what to expect. ▯ Organize from the reader’s perspective. ▯ Present ideas and information in an order that is logical for the reader. ▯ If different requirements apply to different users, organize separate sections for each user. CSherpylens [email protected] 7 e g a P A Crash Course in Plain Language Legal Drafting Be Obvious ▯ Make the organization easy-to-follow and intuitive. ▯ Make the organization apparent visually by using indents and lists. ▯ Make transitions between ideas and concepts plain and obvious. ▯ Organize the discussion around 3-5 major concepts – reconceptualize when necessary. ▯ Put the topics in an order that suits your audience and purpose. Structure ▯ Make sure you have a self-explanatory title, an obvious introduction, a structured
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