MAKING

LEGAL DOCUMENTS
READABLE
[And at the same time removing unnecessary
uncertainty and ambiguity]

by
David C. Elliott

MAKING LEGAL DOCUMENTS READABLE
Contents
Introd!tion
"roto!ol #or $ritin% Le%al do!&ent
I. "r%e t'e le%alese...................................................................................................................... 2
Wasted words
Foggy phrases
Clarifying cross-references
II. Brea( ) t'e te*t.....................................................................................................................6
Numbering system
How breaking up tet remo!es ambiguity
"e careful with commas
#aking lists
III. "roble& +ords.......................................................................................................................$
%roblems with time
%roblems with numbers
&%ro!ided that&' &pro!iding&' &pro!ided howe!er&
and(or
)efinitions
*he shocking misuse of
shall

Con!lsion
MAKING LEGAL DOCUMENTS READABLE
Introd!tion
*oo much time is wasted reading poorly written legal documents. %oorly written
documents result in uncertainty' ambiguity' and sometimes in litigation to settle the
meaning.
+,-
%oor writing practices' and the problems and costs created by them' are a!oidable.
.awyers might consider adopting a personal drafting protocol for writing legal
documents to commit to an understandable document and to a!oid needless errors. *he
protocol might be based on the following/
Protocol for Writing Legal documents
T'e )r)ose o# t'is "roto!ol is to !reate t'e &ost nderstandable and e##i!ient
do!&ent t'at !ir!&stan!es allo+. I +ill se t'e #ollo+in% as a %ide in +ritin%
do!&ents,
-. I +ill try to a!'ieve an avera%e senten!e len%t' in t'e do!&ent o# ./0.1
+ords. I# t'e senten!es are lon%er t'an t'is I +ill try to &a(e a list to brea(
) t'e te*t.
.. I +ill se %ender netral lan%a%e nless a %ender s)e!i#i! re#eren!e is
a))ro)riate.
2. I +ill se +ords &y readers are li(ely to nderstand.
3. I +ill avoid le%alese.
1. I +ill only se as &any +ords as are really needed.
4. I +ill +rite do!&ents in t'e )resent tense.
5. I +ill +rite in )ositive rat'er t'an ne%ative ter&s +'en )ossible.
6. I +ill avoid nne!essary !ross re#eren!es and brie#ly e*)lain to +'at t'ey
re#er +'en I do se t'e&.
7. $'en a))ro)riate I +ill se e*a&)les and dia%ra&&ati! aids to e*)lain t'e
do!&ent.
-/. I +ill )re#er t'e se o# must to shall. I +ill not se and/or.
*o reach agreement' parties sometimes deliberately agree on ambiguous wording. "ut too
often ambiguity and uncertainty is caused by careless writing. *his paper addresses some
of the more common problems caused by careless writing and how those problems can be
corrected.
I. "r%e t'e le%alese
$asted +ords
.egal documents are full of lawyers0 cant/ said' aforesaid' wherein' whereof' therein'
thereof' hereinbefore' hereinafter' hereinunder. 1ou ha!e seen it' and wasted time reading
it' hundreds probably thousands of times. 2ren0t you sick of legalese3
+2-
*hen get rid of it
- put a red pencil through the offending words.

*he aforesaid pro!isions in this
2rticle . . .
#arch ,4 2.). ,445
the terms of this agreement
hereunder
the said article
2ny conclusion reached in the
aforementioned
negotiations shall be made
retroacti!e to
the said anni!ersary date of the said
termination date
+6ust unnecessary-
+it could hardly be &"C&7-
+6ust unnecessary-
+unnecessary-

+three unnecessary words-
2
8t is sometimes thought that legalese makes things &precise& or &legal&. 8n fact it does
neither. .egalese can be dangerously ambiguous' leading to unnecessary litigation. For
eample' the word &hereunder& might mean
anywhere in the whole agreement - yes' sometimes it is used to mean &anywhere
in this agreement&
+9-
anything in the agreement after the word is used
anything in the clause in which the word appears.
*he word is probably used unnecessarily - but if not' make the meaning plain by saying
&in this agreement&' &in this clause&' or &in clause 9+2-+b-&' whiche!er is appropriate.
8o%%y )'rases
Ha!ing purged the legalese' look for the phrases that can be replaced by a word or two/
instead o#
Try
by means of
by !irtue of
in the e!ent that
subse:uent to
prior to
for the period of
period of time
by reason of
in order to
set forth in
during the term of
by
by' under
if
after
before
for
period' time
because of
to
in
during
9
in liew of
is authori;ed
is empowered
is binding on
the manner in which
instead of' in place of
may
may
binds
how
Notice how the meaning of the alternati!e word is immediately clear' compared to the
foggy phrase' in these eamples/
,. 8n the e!ent that employees are re:uired to work o!ertime
Better/ 8f employees are re:uired to work o!ertime

2. )uring the term of this agreement
Better/ )uring this agreement +or while this agreement lasts-

9. 8n order to :ualify for payment...
Better/ *o :ualify for payment

<. %rior to being appointed...
Better/ "efore being appointed...
*he Canadian "ar 2ssociation =eport on %lain .anguage )ocumentation
+<-
said/
*he following couplets or &twins& ha!e also been referred to as &freight trains&.
>ne will usually do the 6ob. )on?t use them blindly/
authori;e and empower in and for
<
bind and obligate
by and between
deemed and considered
due and owing
final and conclusi!e
finish and complete
for and during
full and complete
full force and effect
furnish and supply
ha!e and hold
if and when
known and described
o!er and abo!e
power and authority
sa!e and ecept
sole and eclusi!e
suffer or permit
supersede and displace
tried and true
true and correct
type and kind
understood and agreed
when and as
Clari#yin% !ross0re#eren!es
8f your legal documents are full of cross-references from one clause to another' this
signals that the document is poorly organi;ed. @ood organi;ation can help reduce cross-
references' although you may still need them from time to time.
*ry and make the cross-reference helpful by gi!ing an indication of the contents of the
clause referred to. For eample' a clause saying
8f there is a difference o!er . . . clause <.2' then the following matters . . . shall be
considered . . .
makes readers look back to clause <.2 to see what it means. 8f the clause is redrafted to
say
8f there is a difference o!er . . . the o!ertime pro!isions in clause <.2' then . . .
the reader is gi!en a helpful clue to the cross-reference and may not need to go back to
check what clause <.2 is all about. 2nd those anti:uated cross-references like clause (b)
of subclause (2) of clause 14 can be changed to: clause 14(2)(b).
A
2nother way of eplaining cross references is to add a few words after each cross
reference. For eample/
8f there is a difference o!er . . . clause <.2 Bovertime provisionsC then the following
matters . . .
II. Brea( ) t'e te*t
N&berin% syste&
.egal language has a peculiar habit of using long sentences. .ong sentences are strung
together to make long paragraphs - soon the page is chock full of tet. =epulsi!e to look
at' difficult to read' awkward to untangle' time wasting to understand.
Want to make impro!ements3 First take a look at the numbering system. What rules are
there for breaking up the tet3 None3 %robably some somewhere' but you don0t really
know what they are3
For a guide to a decimal numbering system' take a look at the "uilding Dtandards Code.
*he Code incorporates a description of the system it uses. 8f you don0t like that system'
take a look at the system used for di!iding up the tet of legislation. 2ny 2ct or
regulation shows how it is done. )ecide what you want to call the main di!isions of the
document. Dome legal documents call them &clauses&' and others call them &sections&.
2nd what about the di!isions of each clause or section3 2re they subclauses' subarticles'
subsections' paragraphs3 Choose a system for numbering and breaking up the tet and
stick to it.
9o+ brea(in% ) te*t re&oves a&bi%ity
"reaking up the tet not only makes documents easier to read but also remo!es
ambiguity. *ake this clause/
The Company has the exclusive right to operate and manage the business to control
production to maintain order and efficiency and to hire classify promote transfer
demote layoff and discipline or discharge employees for !ust cause.
Euite a miture of thoughts here. "ut what do the words &6ust cause& refer to3 No doubt
to discipline and discharge' but also to demotions' layoffs' and transfers3 2 reformatting
would remo!e the ambiguity. For eample/
*he Company has the eclusi!e right to
+a- operate and manage the businessF
6
+b- control productionF
+c- maintain order and efficiencyF
+d- hire' classify' promote' transfer . . .3F and
+e- . . .+3- discipline and discharge for 6ust cause.
Be !are#l +it' !o&&as
Dhould a comma be used after the word &safety& in this eample3
*he Company must report on the performance of the work' health' safety and welfare of
employees.
)oes the clause re:uire a
report on
a report on
,
2
9
<
work
health
safety
welfare
or
,
2
9

work
health
safety and welfare

2 lot can turn on that last comma - or its absence. *o a!oid ambiguity' include the
comma after &safety& so that the obligation of the company is clear +assuming the
intention is to ha!e four reports-. *o omit the comma can confuse' to insert it will clarify.
*he power of a comma was forcefully illustrated by =ichard Wydick
+A-
#aligned though it may be' punctuation can affect the meaning of an Gnglish sentence.
Consider' for eample' the +H.D. Constitution?s- fifth amendment?s due process clause.
2s punctuated by its drafters' it reads/
&BNo person shallC be depri!ed of life' liberty' or property' without due process of
law . . .&
@uided by the punctuation' our eyes :uickly tell us that the phrase &due process of law&
modifies the !erb &be depri!ed&. *hus' the fifth amendment re:uires due process if one is
to be depri!ed of life' liberty' or property. "ut suppose the drafters had omitted the
comma after &property&. *hat would permit a lawyer to argue +in defiance of the
pro!ision?s long history- that &without due process& modifies only &property&. *hus' the
fifth amendment would forbid depri!ation of property without due process and would
absolutely forbid both incarceration and the death penalty. Duch is the power of a comma.
I
Ma(in% lists
When using a list' make it clear whether the list is cumulati!e +by using &and&- or
whether the list is a series of alternatives by using &or& Bor make the meaning clear by the
lead-in wordsC. 8n this etract' does the employee ha!e to meet both conditions before
lea!e is granted or 6ust one of them3
2n employee may be allowed up to a thirty day lea!e of absence without pay for personal
reasons if
+a- *he employee re:uests it in writing at least I days in ad!ance.
+b- *he lea!e is for a good reason and does not interfere with operations'
ecept in emergency situations when lea!e shall be granted regardless.
Dhould there be an &and& or an &or& at the end of clause +a-3
III. "roble& +ords
"roble&s +it' ti&e
"e careful with &from(to&' &from(until& and &between& with dates and times
+i- 8f a right etends from , 2pril to $ #ay - does the right start on , 2pril3 8s
it a!ailable on $ #ay3
+ii- 8f a right etends from , 2pril until $ #ay - does the right start on ,
2pril3 8s it a!ailable on $ #ay3
+iii- 8f something must be done bet"een , 2pril and $ #ay - must it be done
on , 2pril3 Can it still be done on $ #ay3
8nstead of from(toF from(untilF or bet"een - use &after(before&.
*he right is a!ailable after , 2pril and before $ #ay' or say
*he right starts on , 2pril and must be eercised on or before $ #ay.
T'e isse ea!' ti&e is, are t'e dates and ti&es at t'e be%innin% and end o# t'e ti&e
#ra&e e*!lded or in!lded 0 is it !lear:
$
"roble&s +it' n&bers
)oes a clause saying
&2 Dafety Committee consisting of from 9 to 6 employees& mean that 6 employees can be
appointed to the Committee3
What does a clause saying
&2 6oint committee of up to < members from management& mean3
)oes &up to <& also include <3 2lthough &to 6& and &up to <& probably include &6& and
&<& respecti!ely' the meaning can be put beyond doubt by saying/
2 safety committee consisting of at least 9 but not more than 6 employees.
2 6oint committee of not more than < members.
;"rovided t'at;< ;)rovidin%;< ;)rovided 'o+ever;
#rovided that providing' and provided ho"ever pop up in so many documents that they
must be really precise legal words ha!ing well understood meanings. =ight3
Wrong. *hey are sloppy' anti:uated' imprecise and sometimes ambiguous words. *he
origins of provided that go back to the ,9th century when the words provided that meant
it is provided that this is our agreement or it is provided that this is the law.
+6-
Nowadays'
the words are used !ariously to mean
an eception
a condition' or
6ust another pro!ision of the legal document.
Here is an eample of two different uses of providing in one clause/
2n employee . . . shall' upon her written re:uest pro!iding at least 2 weeks ad!ance
notice' be granted maternity lea!e . . . pro!iding howe!er that if . . . her ability to carry
out her normal work assignments becomes limited . . .
4
*he first providing is used as a condition on the employee obtaining maternity lea!e. *he
providing ho"ever looks like it is an eception. 8n fact it is :uite a separate matter
because it permits the employer' unilaterally' to place the employee on maternity lea!e in
certain circumstances J it has nothing to do with the employee?s right to maternity lea!e.
*he first 9 lines could be rewritten along these lines/
. . . the Gmployer must grant a pregnant employee maternity lea!e if she gi!es the
Gmployer at least 2 weeks written notice . . .
Here is another provided that eample
%ro!ided that the efficiency of . . . shall not in any way be disrupted . . . time off work
without pay may be granted . . . for the following purposes . . .
*his #rovided that is used as a condition. 8t can be replaced with &8f&.
8f a document does not make clear which meaning a provided that provided ho"ever' or
providing has' a dispute can lead to litigation.
*he guiding rule is/ $on%t use &provided that& or &provided ho"ever& ' use instead
&except . . .& &if& or &but&. (se &providing& "ith caution but not as a condition or
exception.
and=or
>5?
2 former Kustice of the Dupreme Court of Canada
+$-
once said this about &and(or&
&)nd*or& seems to be used by "riters "hose main concern is to appear erudite. +n my
opinion ,uite the opposite impression is created. (se of this con!unction "hich is not a
con!unction is repugnant to the spirit of the language -nglish or .rench.
Not only is the epression repugnant J it is ambiguous. 8t has caused litigation. *he
words &and& and &or& ha!e :uite different meanings. 1ou might think that &and(or& means
2 or "' or both
"ut se!eral courts in the Hnited Dtates say &and(or& means the court can choose either
&and& or &or&' whiche!er the 6ustice of the situation re:uires.
+4-
What would you make of
this clause/
Dick lea!e means the period of time a permanent employee who comes under the terms of
this agreement is absent from work with full pay due to bona fide sickness and(or in6ury
that does not come under the Workers0 Compensation 2ct.
,5
8s the &and& in this clause necessary at all3 "ut if e!ery word used in a document is to be
gi!en a meaning' what meaning does and ha!e3
Here is another eample/
*ime off from work without loss of regular earnings may be pro!ided on the following
basis/
+a- *he @rie!or and(or one +,- Hnion Dteward for time spent in discussing grie!ance
with representati!es of the Gmployer as outlined in the @rie!ance %rocedure.
+b- . . .
)oes that mean
the @rie!or and the Hnion Dteward get time off with pay' or
either the @rie!or or a Hnion Dteward get time off with pay' but not both3
When there are 9 or more items connected by &and(or& the possible combinations become
more complicated and the interpretation more uncertain. *he only rule to follow is/ never
use and*or.
De#initions
)efine words in legal documents only if they are to be used in eactly the same sense
more than say' three or four times. G!ery time you use the defined word yo s'old be
able to sbstitte t'e de#inition in )la!e o# t'e de#ined +ord. 8f you cannot' the
meaning becomes uncertain.
Hse definitions only to define words. *his sounds ob!ious' but many definitions in legal
documents also deal with substanti!e matters. Dubstanti!e matters should come in clauses
later in the document' not in the definitions. Leep testing your defined words - are they
al"ays used in their defined sense3 8f they are not' you are heading for trouble. Consider
marking defined words with asterisks each time they are first used in a clause as a
reminder to check for problems and to alert readers that the words ha!e special meanings.
,,
T'e s'o!(in% &isse o# s'all
>-/?
>!eruse and misuse has gi!en shall a bad name. 8t has been so abused for so long that its
use is now an addiction. *he misuse comes from 9 sources/
drafters who write something today knowing it will only be effecti!e in the future'
after the agreement is ratified - so they think and write in the future tense
a desire to nail things down so that there can be no mistake that something shall
be done or shall mean something' that someone &shall ha!e a right& to something.
*his stems from an un6ustified mistrust of other more suitable words and a
misplaced reliance on the magic of shall
precedent and habit' which conspire to persuade writers to use shall when they
should not.
.et0s look at some eamples.
+n definition sections
&%resident& shall mean . . .
+n the holiday clause
*he Company shall not be obliged to make payment for a statutory holiday . . .
+n the confidentiality of records section
2ll employee0s records shall remain confidential unless . . .
To give rights
*he Hnion shall ha!e the right to originate policy grie!ances
and
2n employee shall ha!e the right to ha!e a union steward present . . .
To give !urisdiction
*he 2rbitration "oard shall ha!e 6urisdiction . . .
,2
To impose an obligation
*he Gmployer shall gi!e notice
and
*he Gmployer shall pay . . .
To state a future obligation
*he .egal document shall be printed and the cost shall be shared e:ually
To state an ongoing commitment
*he .*) benefit . . . shall not be altered ecept through negotiation
To create entitlements
)uring each of the first to the third year of continuous full-time employment an
employee shall earn entitlements to !acation calculated on . . .
*he word shall has spread like a disease. 8ts improper use has so penetrated legal
documents as to make them unreliable. Do frustrated was the California Dupreme Court
with the improper use of shall in statutes' that it said/
8t is a general rule of construction that the word &shall& when found in a statute is not to
be construed as mandatory' unless the intent of the legislature that it shall be so construed
is une:ui!ocally e!idenced.
With so many meanings of shall in legal documents' what to do3 *he cure is to abstain
from using shall. )on0t use the word at all. =emo!e all ambiguity'
+,,-
and impro!e the
language and tone of documents' with this test/
.or every &shall& replace it "ith &must&.
(12)
+f it does not &read right& ' shall is the "rong
"ord to use.
Day the sentence aloud - what would you tell someone the words mean3 >dds are that
you will choose the right replacement word. .et0s go through the shall eamples and look
for cures. *hink about legal documents as they work day to day. *hey are &li!ing
documents& applying to today0s :uestion' so write them in the present tense.
,. %resident shall mean . . .
Better/ %resident means . . . +notice &must& would not fit-

,9
2. *he Company shall not be obliged to make payments for a statutory holiday
Better/ *he Company is not obliged to make payments . . +or *he Company need
not . . .-

9. 2ll employee0s records shall remain confidential . . .
Better/ 2ll employee0s records are confidential . . . +or must remain confidential-

<. *he Hnion shall ha!e the right to originate policy grie!ances
Better/ *he Hnion may originate policy grie!ances

A. *he 2rbitration "oard shall ha!e 6urisdiction . . .
Better/ *he 2rbitration "oard has 6urisdiction . . .

6. *he Gmployer shall gi!e notice . . .
*he Gmployer shall pay . . .
Better/ *he Gmployer must gi!e notice . . .
*he Gmployer must pay . . .
&#ust& would fit in these two eamples' so shall is correct and could be used here

,<
I. *he legal document shall be printed and the cost shall be shared e:ually . . .
Better/ *he legal document is to be printed +by . .3- and the cost shared
e:ually . . .
B*he first shall is not incorrect.C

$. *he .*) benefit . . . shall not be altered ecept through negotiation . . .
Better/ *he .*) benefit . . . Bmay only be altered by agreementC Bmust not be
altered . . .C

4. )uring each of the first to the third year of continuous full-time employment
an employee shall earn entitlements to !acation calculated on . . .
Better/ )uring each of the first to the third year of continuous full-time
employment an employee earns entitlements to !acation calculated on . . .
8f you take the trouble to think about alternati!es to shall you will find your documents
become sharper because you ha!e to think about the specific meaning shall is intended to
con!ey. *ry it7
Con!lsion
Do what0s the point in getting rid of a few shalls' a couple of provided thats' an and*or or
two' and breaking up some sentences3 Here0s why/
,. *he rewriting impro!ements pay for themsel!es if they pre!ent 6ust one lawsuit'
or one claim of negligent or unprofessional drafting
2. =ewriting legal documents in plain language !irtually guarantees the document
will become shorter. *hink of the efficiency in not ha!ing to read etra words -
not 6ust once but e!ery time anyone reads the document.
+,9-
9. 8nstead of reading like a law 6ournal' or worse' your legal documents will be as
easy to read as a current affairs maga;ine.
,A
<. %eople are more likely to read the document' understand it' comply with it' and
respect the result.
,6
End Notes
,. 2 6udge of the #anitoba Court of Eueen0s "ench decided that a limitation of
liability clause in a courier contract was &legal gobbledygook& that didn0t protect
the courier when the courier lost its customer0s parcel. *he 6udge determined that
the customer did not ha!e reasonable notice of the limitation clause. *he 6udge
stated in his decision that &/otice cannot be said to be reasonable in my vie"
"hen the clause is neither legible or capable of comprehension&. )urora T0 and
1adio 2td. v. 3elco -xpress 2td. 2n unreported decision of Kudge >liphant in the
#anitoba Court of Eueen0s "ench +4mall Claims #ractices )ct- dated #ay ,5'
,445.
2. .egalese is defined by the Canadian "ar 2ssociation and Canadian "anker0s
2ssociation Koint Committee =eport' The $ecline and .all of 3obbledygoo5:
1eport on #lain 2anguage $ocumentation +,445- as a style of writing used by
lawyers that is incomprehensible to ordinary readers.
9. 8n one agreement the words &herein&' &hereof&' and &hereunder& were defined as
follows/ +C- &herein&' &hereof& or &hereunder& and similar epressions when used
in a section shall be construed as referring to the whole of this agreement and not
to that section only. Dee 6etis 4ettlements )ct' Dchedule 9' 2rticle ,59 +c-.
<. Dee endnote ,.
A. =ichard C. Wydick/ 4hould 2a"yers #unctuate The 4cribes 7ournal of 2egal
8riting' Mol ,' ,445' p,5
6. Dee )r. Glmer )riedger/ The Composition of 2egislation' +,4I6- )epartment of
Kustice' 49' and Commissioner of 4tamp $uties v. )t"ill B,4I9C 2.C. AA$ +%C-
I. For further discussion on &and(or& see =obert C. )ick' E.C.' 2egal $rafting +2d-
Carswell' ,4$A' ,5<F G... %iesse' The -lements of $rafting' +6th- .aw "ook
Company' ,4$,' ,59F )a!id #ellinkoff' The 2anguage of the 2a"' .ittle "rown
and Co.' ,469' ,<I.
$. .ouis-%hilippe %igeon' $rafting and +nterpreting 2egislation' Carswell' ,4$$' <<
4. 4tate v $udley' ,4A4' .a' $I,' $I4.
,5. For further discussion on this topic see 69 2ustl .K IA +,4$4-F 69 2ustl .K I26
+,4$4-F 69 2ustl .K $65 +,4$4-F 69 2ustl .K A22 +,4$4-F 6< 2ustl .K ,6$ +,445-F
Koe Limble' The 4cribes 7ournal +9 Dcribes K .egal Writing +,442-F with a
response from #ichele 2sprey in 9 Dcribes K .egal Writing I4 +,442-F "ryan
@arner' ) $ictionary of 6odern 2egal (sage +2d- under the heading Words of
2uthority 494F and =obert C. )ick' 2egal $rafting' Carswell +2d-' ,4$A' $4.
,,. %rofessor )a!id #ellinkoff' $ictionary of )merican 2egal (sage says/ may and
shall in legal writings are so fre:uently treated as synonyms that the grammatical
standard +may N permittedF shall N re:uired- cannot be considered the legal
standard. Contet and interpretation so easily o!erwhelm either word.
,2. >ne Court made these comments about the use of the word &must& *he word is a
common imperati!e. 8t is hard to think of a commoner. *here is no dictionary of
stature of which 8 am aware that accords to the word any other connotation. 8n its
present or future tense it epresses command' obligation' duty' necessity and
ine!itability. 8n contrast the word &shall& is an e:ui!ocal word that can either
epress a command or a simple futurity. Dince &must& bears only one meaning' an
,I
imperati!e one' it is inappropriate and unnecessary to search in the contet for
something that strengthens it. *here may howe!er be a pro!ision in the collecti!e
agreement that weakens its effect' in the sense that relief may be granted from an
omission to obey. *hat would not change the word0s meaning only its effect.
()8 and 6assey'.erguson +ndustries +,4I4-' 29 or 2d A6 +)i! Ct-.
,9. %lain language documents do not necessarily mean shorter documents J
sometimes a longer eplanation is needed to eplain a comple sub6ect. Howe!er'
most legal documents ha!e so many wasted words most would be significantly
reduced by a plain language rewriting' usually by more than 25O.

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