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7 legal writing mistakes to avoid

Legal Writing Mistakes To Avoid
When it comes to legal writing the stakes are high. Hard-to-read court filings can harm cases. What are the most common mistakes and how can you avoid them?

When it comes to legal writing, the stakes are high. Hard-to-read or understand court filings can harm cases and, sometimes, lead to sanctions from the court. It’s vital, therefore, that legal writing is as clear and succinct as possible.

Less is more when it comes to good legal writing, especially when it gets right down to business. Legal writers are rewarded for precision, analysis, conciseness, and efficient communication.

Having spent much of my career writing — at first at the Law Society of England and Wales and now at One Legal — I can offer insight into common writing mistakes you must avoid if you’re not to come across as a rookie.

1. Avoid writing in the passive voice

In general, prefer the active voice over the passive. Using the passive voice — where an outside force acts on the subject of the sentence — can cause confusion. It’s best to have the subject of your sentence do the acting and have it precede the action.

The guru of legal writing, Bryan Garner, says it best in his must-read book for all ambitious legal professionals, Legal Writing in Plain English:

“Think of it this way: if you’re active, you do things; if you’re passive, things are done to you. It’s the same with subjects of sentences. In an active voice construction, the subject does something (‘The court dismissed the appeal’). In a passive-voice construction, something is done to the subject (‘The appeal was dismissed by the court’).”

Why lawyers should avoid writing in the passive voice

Let’s go into a little more detail about writing in the passive voice.

Lawyers should avoid writing in the passive voice for several key reasons:

  1. Clarity: Active voice makes it clear who is performing an action. For example, “The defendant filed the motion” is clearer than “The motion was filed by the defendant.” This clarity is crucial in legal documents where understanding who did what is essential.
  2. Brevity: Active voice tends to be more concise. Passive constructions often require additional words, which can make legal writing more verbose and harder to read.
  3. Directness: Active voice sounds more direct and forceful, which can be persuasive in legal arguments. “The plaintiff demands compensation” is more compelling than “Compensation is demanded by the plaintiff.”
  4. Responsibility: In legal contexts, it’s important to assign responsibility clearly. Passive voice can obscure who is responsible for an action, which can lead to ambiguity. For example, “The contract was breached” does not specify who breached it, whereas “The company breached the contract” does.
  5. Engagement: Active voice engages the reader more effectively. It makes the writing more dynamic and keeps the reader’s attention, which is important in legal writing to ensure the reader understands and follows the argument.

By focusing on these aspects, you can make your writing more effective and impactful.

2. Beware of ambiguous pronouns

An ambiguous pronoun occurs when a pronoun may refer to more than one antecedent (a prior word in the sentence), leaving readers uncertain as to your intended meaning (hence, this error is sometimes called an unclear antecedent).

Consider the sentence: “Laura has a letter for Diane, but couldn’t deliver it because she was blocking her way.” Who was blocking whose way? This sentence is confusing for the reader to understand quickly because they have to think carefully about to whom the pronouns refer.

It’s best to rephrase sentences containing pronouns like “her” and “him” to make it clear which pronoun refers to what. For example: “Laura has a letter for Diane, but couldn’t deliver it because Petra was blocking Laura’s way.”

3. Watch out for unnecessary wordiness

“Don’t try to put in everything. Use a little editing. If I see something 50 pages… I’m going to wonder, Did she really have to write that 50 pages? I would have preferred 30. And if I see 30, I think, Well, she thinks she’s really got the law on her side because she only took up 30.” Stephen Breyer, U.S. Supreme Court Justice

A legal document that can convey its message in as little space as possible is more useful than one that rambles for many pages. When you have something to say, get right to it! Inflating your sentences and paragraphs with unnecessary words or pointless filler only obfuscates what you mean to say.

So, streamline your writing by following a few rules:

  • First, use the active voice over the passive
  • Second, use concrete rather than abstract language
  • Third, cut out all of those word-wasted idioms so beloved of the legal profession (“he was aware of the fact that” instead of “he knew”, for example).

4. Check that you’re using the right homophones

Spellcheckers these days are pretty good at spotting incorrectly spelled words and the most egregious of grammatical errors. Most, unfortunately, still struggle to spot homophones (those annoying words that sound the same, but have different meanings) when they’re spelled entirely correctly but used out of context.

There’s a great list of some of the most commonly misused here. Here are five that, I think, are worth paying extra special attention to:

  • Allude / Elude — “allude” means to make an indirect reference, while “elude” means to evade or escape from.
  • Ensure / Insure — “ensure” means to confirm that something will happen, while “insure” refers to the monetary insurance of something or someone.
  • Formerly / Formally — “Formerly” means in the past, previously, or in earlier times, while “formally” means conforming to convention, ceremony, and proper etiquette.
  • Their / There / They’re — “their” is the possessive case of the pronoun “they”, while “there” is an adverb that means in or at that place, and “they’re” is a contraction of the words “they” and “are.”
  • Its / It’s — “Its” is the possessive form of “it”, while “it’s” is the contraction of “it” and “is”.

5. Watch out for verbs used as nouns

Verb/noun interchange is very common in legal writing, and is referred to as “nominalization”. It means a verb used as a noun. For example, “act” becomes “take action” or “assume” becomes “make assumptions.” It’s almost always unnecessary, however. Make your writing more crisp and direct by cutting these nominalizations out wherever possible. For example:

Nominalization: “The implementation of the plan by the team was successful”

Verb: “The team implemented the plan successfully”

6. Over-using legalese

“Any profession has its jargon… I can’t bear it. I don’t even like legal Latin. If you can say it in plain English, you should.” Ruth Bader Ginsburg, U.S. Supreme Court Justice

In The Elements of Legal Style, Bryan Garner writes that, “In legal writing, jargon consists mostly of stilted words and phrases — blemishes, not graces — such as aforesaid, arguendo, hereinafter… Most hoary legal phrases have little or no substantive purpose. They sometimes mar the substance by suggesting precision where, in fact, an ambiguity lies.”

One of the simplest ways to cut back on legalese is to refrain from using redundant couplets (or, worse, triplets!). Why say “null and void” when just “null” would do? Why write “convey, transfer and set over” when just “convey” would do? A tiny handful of these phrases exist in statute, and so should be retained, but the vast majority serve little or no purpose. Cut them out.

7. Don’t neglect to proofread

Sometimes we all work on a piece of writing for so long that we begin to get sick of the sight of it. We may even consider just submitting it as it is. However, it’s always a mistake to skip the proofreading stage.

It’s often best to have a second person proofread important documents. If you’re not that fortunate, take a short break (at least 30 minutes) and, when you return, either print the document out and proofread it on paper with a pencil or, better still, give it a good dramatic reading (yes, out loud!).

If you stumble over a sentence when reading aloud, there likely are spelling or grammar mistakes you should take care of.

Conclusion

Mastering the art of legal writing is essential for any legal professional aiming to succeed in the field.

Clear and concise writing can significantly impact the outcome of cases and avoid potential misunderstandings or sanctions.

By avoiding passive voice, using precise language, and eliminating unnecessary wordiness, lawyers can enhance the clarity and persuasiveness of their documents.

Additionally, careful attention to pronoun usage, homophones, and avoiding nominalizations can further improve the readability of legal texts.

Overusing legalese should be avoided to ensure that documents are accessible and straightforward. Finally, thorough proofreading is indispensable, as it ensures the final document is polished and free from errors.

If necessary, don’t be afraid to dip into the myriad of legal writing tools that can help you at work.

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