OTHER RULES ON LEGAL

WRITING
GILBERT R. HUFANA
Professor, Law 140 – Legal Writing I
 OTHER RULES TO FOLLOW

• Prefer Active Verbs or the Active Voice

• Avoid Legalese
• Avoid Sexist Writing
• Use Plain English
PREFER THE ACTIVE VOICE
 PASSIVE VERBS

• consist of the verb to be combining with the past

participle of another verb
• Each passive verb starts with one form of the verb to
be.
is, are, was, were, be, been, being
• Followed by the past participle of another verb, either
as:
• a regular verb ending in ...ed such as believed, calculated
or passed, or
• an irregular verb such as bought, made, understood
 EXAMPLES OF PASSIVE VERBS

Regular Passive Verbs Irregular Passive Verbs

are believed are bought
be recommended be taken
is subsequently stated been fully understood
been formally passed being taught
 PASSIVE VERBS VS ACTIVE VERBS

• An average of only one or two passive verbs in every

ten sentences is a sign of a competent and
professional writer.
• Replacing passive verbs with active verbs means your:
• style becomes more personal and less official,
• style is simpler and less awkward,
• readers get more information,
• meaning becomes clearer and more precise,
• sentences are shorter and more effective.
 PREFER ACTIVE VERBS

• Prefer active verbs. Active verbs are essential to good

writing.
• Replacing passive verbs with active verbs makes your
writing lively, direct, concise and personal.
• The use of active verbs is more forceful and concise.
• The active voice focuses on the actor, the action and
the object of the action.
• First state the actor, then the action and lastly the object
to whom the action is directed.
 PASSIVE  ACTIVE
PUT ‘WHO DID IT?’ FIRST

Passive: A report was made by the Secretary...

Active: The Secretary reported...
Passive: This form should be signed and should be
returned to me.
Active: You should sign the form and return it to me.
Passive: It was agreed that $30,000 needed to be
spent to improve the company’s financial reports.
Active: The Board agreed to spend $30,000 to
improve the company’s financial reports.
 PASSIVE  ACTIVE
CROSS OUT AS MUCH OF THE PASSIVE VERB AS YOU CAN

Passive: I would be pleased if your payment could be sent

to me this week.
Please send me
Editing: I would be pleased if ^ your payment could be
sent to me this week.
Active: Please send me your payment this week.
Passive: The funds that are allowed to be invested are tax
deductible.
Editing: The funds that are allowed to be invested are
tax deductible.
Active: The funds invested are tax deductible.
 WHEN TO USE PASSIVE VERBS

1. To focus attention on the receiver of the action

Passive: The officer was presented with the
military's highest heroism award.
Explanation: Here the writer wants to focus the
reader's attention on the person receiving the
award, not the person presenting the award.
Other Examples:
Passive: The two players were seen at the hotel.
Passive: They were both arrested for shoplifting.
 WHEN TO USE PASSIVE VERBS

2. If the agent is unknown or irrelevant

Passive: The book was printed in 1990.
Explanation: The writer may not know who printed
the book. Even if the information is available, it
may not be relevant to the reader.
Other Examples
Passive: The computer was delivered on time.
Passive: David Jones was born in 1953.
 WHEN TO USE PASSIVE VERBS

3. To focus attention on the receiver of the action

Passive: A mistake was made in processing your
claim.
Explanation: Sometimes the writer wants to hide
information from the reader or wants to avoid taking
responsibility for a problem or a mistake.
Other Examples
Passive: Some toxic material may have been
placed in the water supply.
Passive: An accident was caused because of poor
safety standards.
AVOID LEGALESE
 LEGALESE

• It refers to “legal speak” or language that is filled with a

whole lot of legal terminology and scholarly/academic
words, phrasing, and terms
“A style of writing used by lawyers that is
incomprehensible to ordinary readers.”
“The specialized language of the legal profession.”
“Language containing an excessive amount of legal
terminology or of legal jargon.”
 AVOID LEGALESE

“Legalese violates nearly every principle of good writing.”

~ Mark S. Matthewson

Will Rogers, famous American comedian, on the way

lawyers write:
• The minute you read something and you can’t understand it,
you can almost be sure that it was drawn up by a lawyer.
• Then if you give it to another lawyer to read and he doesn’t
know just what it means, why then you can be sure it was
drawn up by a lawyer.
• If it’s in a few words and is plain and understandable only one
way, it was written by a non-lawyer.
 ELEMENTS OF LEGALESE

• Formalisms, such as comes now, aver

• Archaic words, such as hereby, heretofore, forthwith,
henceforth, notwithstanding
• Redundancies, such as each and every, merge together,
early beginnings, blatantly obvious, false pretenses
• Latin words, such as per curiam, sui generis, ex
contractu, arguendo, prima facie
• Legal terms, such as gravamen, actionable, alienable,
chattel, decedent, larceny, malfeasance
 HOW CAN YOU AVOID LEGALESE?

• Write shorter sentences rather than longer ones

• Write shorter paragraphs rather than longer ones
• Avoid Latin terms, always
• If you wouldn’t say the word out aloud, don’t use it –
words like aforementioned, otiose, promulgate,
disambiguate and many others are great for a game of
hangman, but poor for legal writers
• Don’t write in a hurry – this is where we revert to our
base instinct to write gibberish.
• Always re-read your work – not just for typos, but for the
overall impact of the letter, including a “legalese check”.
 SEXIST WRITING

• What is Sexist Writing? Sexist writing includes all

words and phrases that carry a bias towards one sex or
use terms that stereotype one sex.
• Non-sexist writing is better writing.
• The main types of sexist writing are:
• Using masculine pronouns to include both sexes (he, his,
him, himself)
• Using "man" or words including "man" to include both
sexes
• Using job titles which refer to only one sex
• Using words or phrases that degrade, exclude or
stereotype women
USING MASCULINE PRONOUNS TO INCLUDE BOTH
SEXES (HE, HIS, HIM, HIMSELF)

SEXIST: When an author dies, his heirs have exactly 50

years to profit from his work.
NON- When authors die, their heirs have exactly 50 years
SEXIST: to profit from their work.
SEXIST: Each employee must report to the supervisor to
check his time sheet. If he does not, his pay will be
docked.
NON- Employees must report to the supervisor to check
SEXIST: their time sheets. If they do not, their pay will be
docked.
 USING "MAN" OR WORDS INCLUDING
"MAN" TO INCLUDE BOTH SEXES

SEXIST: Five million Frenchmen can't be wrong.

NON-SEXIST: Five million French people can't be
wrong.
SEXIST: The meeting discussed the firm's
manpower needs.
NON-SEXIST: The meeting discussed the firm's staffing
needs.
SEXIST: Man's history on Earth...
NON-SEXIST: The history of human life on Earth...
NON-SEXIST: The history of humankind on Earth...
NON-SEXIST: Our history on Earth...
 USING JOB TITLES WHICH REFER TO ONLY
ONE SEX

SEXIST NON-SEXIST
businessman executive, businessperson, manager
cleaning lady cleaner
watchman guard
policeman police officer
manageress manager
male nurse nurse
USING WORDS OR PHRASES THAT DEGRADE,
EXCLUDE OR STEREOTYPE WOMEN

SEXIST: the little woman

so simple even a housewife can
understand
my office girl will book your ticket
the best man for the job
the man in the street
USE PLAIN ENGLISH
"Plain English is clear, straightforward expression,
using only as many words as are necessary. It is
language that avoids obscurity, inflated vocabulary
and convoluted sentence construction. It is not baby
talk, nor is it a simplified version of the English
language.
Writers of plain English let their audience
concentrate on the message instead of being
distracted by complicated language. They make
sure that their audience understands the message
easily."
Professor Robert Eagleson
 USE PLAIN ENGLISH

• The main goal in writing is to convey your ideas with

the greatest possible clarity and to design and write in
a way that best serves your readers. Plain English is
clear English.
• Using plain English does not mean everyone's writing
must sound the same. There is no one "right" way to
express an idea. Every thought can be expressed in
many different ways and the variety comes from the
individual way we approach an idea or writing
task. There's plenty of room for individual style,
rhetoric and imaginative writing.