Legal English Teacher

Video Tips: Beta testing

2011-05-23T00:47:00.000-07:00

Here's my first go at a video tip: Tips for Better English: using verbs instead of nouns

The tip deals with one of the main causes of dull writing - overuse of nouns where verbs would be clearer. Your comments are welcome! Go easy on me though - I am a beginner in this!

For more on the subject, you can see the original PDF tip on the same subject here:

Clarity in legal language

2010-04-28T05:27:00.000-07:00

A friend recently referred me to the website of Clarity - thanks Jane!

Clarity is an organisation whose mission it is to promote plain legal language.

Although my first role as teacher of legal English is to help my learners with, well...language, as I review the written work of the lawyers I work with, I find it impossible to ignore the 'bigger' question of how effective their writing is. A large part of effectiveness is down to clarity.

Adding value as a teacher of legal language
A client's primary concern is usually to receive clear and helpful advice. While a lack of linguistic sophistication in such advice can undermine the credibility of the adviser, so too can an excess of embellishment. This is why, to feel confident that I am 'adding value', I have to teach my learners how to write plainly.

Top-down, not bottom-up
When I started teaching writing skills, I began with work on accuracy - correcting errors at sentence level. It didn't take long, however, before I realised I had to take a 'top-down' approach.

The success of a document ultimately depends more on how well it is structured than how sophisticated the language is.

This two-part article published on the Clarity website by Christopher Balmford, entitled "Getting the Structure Right: Process, Paradigm and Persistence" is an excellent discussion of the importance of structure with detailed analysis of poorly-structured texts.

Tips for Better English Blog - up and running

2010-03-24T08:05:00.000-07:00

Our Tips for Better English steadily becoming more popular - we now have almost a thousand subscribers, of whom around 400 are regular readers. The purpose of the blog is to go into more depth than these 2-minute Tips can, and to answer the questions I am sometimes asked about a specific tip.

You can see the blog here and sign up for the Tips here (click on the pink box bottom right to create an email subscription request).

International Legal English Unit 12 Listening 1: supplementary task

2010-02-16T05:41:00.000-08:00

The letter I've pasted below is part of my extension of the listening task, which regards the validity of a promissory note.

The recording fades out with the client, Mr Carter, saying, "...we need to talk about whether I can get my money out of this whole mess..." This is where the exercise stops, but where the real discussion can begin - how to get the client out of the hole he is in.

Learners with a legal background should be able to advise on how Mr Carter could go about recovering the $2500 owed to him (problems with recovering receivables are all too common in business).

After they listened to the recording, I asked learners to discuss the options available to Mr Carter at this stage and then to prepare an email following-up the conversation. The letter below is my attempt at the task, which I handed out for comparison with what the learners came up with. Feel free to use it. Equally, any suggestions to improve/extend this would be welcome.

Complete the letter using the expressions in the box

Based on

Since

This

This does not, however,

no such

The good news is that

our next step

This means that

under the original contract

such a letter

below

Additionally

as well as providing

With reference to

following

Dear Mr Carter,

________________ our telephone conversation yesterday, ________________ I summarise your legal position with respect to the promissory note we discussed. ________________, I set out the options available regarding the recovery of payment ________________ between you and Mr Charles.

The endorsed promissory note

As we discussed, to be valid and enforceable, the note endorsed to you by Mr Charles must fulfill six requirements. ________________ your description of the note, it fails to meet the ________________ two:

the note must be unconditional: you stated that the note would be payable upon Mr Ellis receiving an inheritance, and
the amount due must be described as either “payable on demand” or at a specified time: the note contains ________________ statement.

________________ the note fails to fulfill these requirements, unfortunately, it gives you no legal basis for enforcement. ________________ mean you have no chance of recovering the money Mr Charles owes you.

Recovering payment under your contract with Mr Charles

________________ you still have grounds for recovering your original receivable. As the promissory note Mr Charles endorsed to you is not valid, it does not constitute ‘valuable consideration’. ________________ you are still entitled to payment under the contract.

Next steps

I suggest writing to Mr Charles, notifying him that as the promissory note is invalid, his debt to you remains outstanding. It is possible that ________________ will be sufficient to prompt Mr Charles to pay. If it proves not to be, ________________ will be to serve on him a demand for payment. ________________ will show him that you are serious about pursuing your claim, ________________ you with a basis for filing a claim against him if he refuses to pay.

Please let me know if you wish me to draft a letter to Mr Charles. My fee for preparing the letter will be USD….. I should emphasize that the sooner you take action, the greater the chance of resolving the matter quickly and without the need to commence court proceedings.

In the meantime, if you have any questions, please do not hesitate to contact me.

Yours sincerely,

Writing Skills for Lawyers - Warsaw, February 2010

2010-01-21T08:53:00.000-08:00

Many non-native speaker lawyers think that having ‘fluent English’ is all that’s needed to work with international clients. Of course, fluency is vital, but without being trained in how to write in CLEAR ENGLISH, even experienced lawyers have difficulty keeping their clients happy.

This course, designed especially for Polish lawyers, is for you if you advise - or plan to advise - English-speaking clients. The course covers:

principles for writing well
intercultural and commercial aspects of international legal work
goal-setting; planning and reviewing advice
useful structures for Polish lawyers
common problems and solutions

Part 1

Introduction to Effective Writing
Learn and practice the fundamentals of good writing

Monday 8thFeb 18:00 to 21.00

Part 2

Effective Writing in Practice
Case studies; planning techniques; editing; Q&A

Monday 15th Feb 18:00 to 21.00

Part 3

Problems and Solutions in Legal Writing
Workshop covering common problems faced by Polish lawyers with grammar and translation
Monday 1st Mar 18:00 to 21.00
Prices

Registration by 31 January: PLN 670     Registration by 5 February: PLN 790

How can I join?

1.   Pay the course fee to: 58 1240 6218 1111 0000 4616 6540 (PEKAO S.A.)
„Lacrosse Language Consultancy Spółka z ograniczoną odpowiedzialnością” Sp.K.,
ul. Krucza 16/22, 00-526 Warszawa
In ‘tytuł’, state: your full name; “Legal writing”
2.   Send the confirmation of the transfer to andrew@lacrosse.pl. If you would like an invoice send the necessary information.

www.lacrosse.pl

What does 'without prejudice' mean?

2010-01-21T08:40:00.000-08:00

This came up in a lesson this week. I'm not a believer in reinventing the wheel, so here are some references:

Where the term is used in correspondence attempting to settle a dispute before it gets to court:

http://bcfamilylawresource.blogspot.com/2009/09/whats-without-prejudice-and-whats-not.html

Where the term is used when a court has dismissed a claim without reference to the merits, leaving the way open for the parties to litigate the claim again:

http://legal-dictionary.thefreedictionary.com/Without+prejudice

In drafting when "without prejudice to the generality of the foregoing" or "without prejudice to the foregoing" is used to make it clear (!) that the rule that follows does not affect a previous rule. I couldn't find a concise definition in this context, but a Google search of the phrase will throw up examples to help.

Top Legal Movies

2010-01-04T07:20:00.000-08:00

I've recently been asked to recommend some films that focus on the law. In my search for an intelligent answer, I came across this top 25 list from the American Bar Association Journal.

Don’t ignore these 25 honourable mentions (perhaps my UK English spelling is at odds with the subject of this post), which include Michael Clayton and A Time to Kill…

Modals of obligation: interesting clarification

2009-12-30T04:15:00.000-08:00

These definitions come from the Law Society’s practice note on conducting Initial interviews.

1.5 Terminology

Must - a specific requirement in the Solicitors' Code of Conduct or legislation. You must comply, unless there are specific exemptions or defences provided for in the code of conduct or relevant legislation.

Should - good practice for most situations in the Law Society's view. If you do not follow this, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.

May - a non-exhaustive list of options for meeting your obligations. Which option you choose is determined by the risk profile of the individual practice, client or retainer. You must be able to justify why this was an appropriate option to oversight bodies.

I particularly like the clarity on the use of ‘should’ - to add an element of discretion in the fulfilment of a requirement.

Re the style of the note, it is also a nice example of clear writing (logical structure, attractive formatting, short sentences, use of helpful headings and bullet points) in a more sophisticated and formal register.

How many lawyers does it take to change a light bulb?

2009-12-07T09:16:00.000-08:00

An oldie but goodie. No idea where it originated.

Whereas the party of the first part, hereinafter referred to as "Lawyer", and the party of the second part, also known as "Light Bulb", do hereby and forthwith agree to a transaction wherein the party of the second part (Light Bulb) shall be removed from the current position as a result of failure to perform previously agreed upon duties, i.e., the lighting, elucidation, and otherwise illumination of the area ranging from the front (north) door, through the entryway, terminating at an area just inside the primary living area, demarcated by the beginning of the carpet, any spillover illumination being at the option of the party of the second part (Light Bulb) and not required by the aforementioned agreement between the parties. The aforementioned removal transaction shall include, but not be limited to, the following steps: 1.) The party of the first part (Lawyer) shall, with or without elevation at his option, by means of a chair, stepstool, ladder or any other means of elevation, grasp the party of the second part (Light Bulb) and rotate the party of the second part (Light Bulb) in a counter-clockwise direction, this point being non-negotiable. 2.) Upon reaching a point where the party of the second part (Light Bulb) becomes separated from the party of the third part ("Receptacle"), the party of the first part (Lawyer) shall have the option of disposing of the party of the second part (Light Bulb) in a manner consistent with all applicable state, local and federal statutes. 3.) Once separation and disposal have been achieved, the party of the first part (Lawyer) shall have the option of beginning installation of the party of the fourth part ("New Light Bulb"). This installation shall occur in a manner consistent with the reverse of the procedures described in step one of this self-same document, being careful to note that the rotation should occur in a clockwise direction, this point also being non-negotiable.

Note: The above-described steps may be performed, at the option of the party of the first part (Lawyer), by any or all persons authorized by him, the objective being to produce the most possible revenue for the party of the fifth part, also known as "Partnership."

Answer: None, he'll have the paralegal do it. But, you'll get the following itemized bill:

Lawyer's time (1 hr.minimum) USD 400;

Connectivity charge USD 100;

Staff charge USD 250;

Secretary prepared bill USD 2;

Research fee USD 422;

Consulting fee USD 431;

Paralegal processing fees USD 25;

Specialized equipment USD 122;

Bought bulb USD 5, and

Overnight express delivery USD 34

Legal English on You Tube

2009-12-07T01:43:00.000-08:00

I came across these links by (unoriginally) searching for "legal English" on YT. I haven't reviewed them all so can't vouch for the quality. It is encouraging though that there are more and more resources online - it's not too long ago that nothing would come up in a similar search:
http://www.youtube.com/results?search_query="legal+English"&search_type=&aq=f

Interview with a Corporate Lawyer: Judith Gliniecki (Part1)

2009-11-30T08:32:00.000-08:00

This post is a transcription of part of my interview with Judith Gliniecki, partner at Wierzbowski Eversheds in Warsaw. Judi is a member of the American and Warsaw Bar Associations as well as being on the board of Directors of the American Chamber of Commerce in Poland. She is a business-minded lawyer with many years' experience helping English-speaking investors do business in Poland and across CEE.

Here Judi shares her thoughts on two issues: 1) how approaches to delivering legal advise differ across cultures and 2) how - perhaps going against what lawyers typically think - precision may need to be sacrificed when explaining foreign terms to clients in order to help them get a handle on what's going on.

Andrew Nathan: Judi, thanks very much for agreeing to be interviewed – I know you’re very busy.

Judith Gliniecki: My pleasure.

AN: My first question is: in your experience, what difficulties to non-native speaker lawyers have when communicating with clients in English?

JG: There are really two major problems that I tend to see, and frankly they’re the reason I still have a job. The first is organization. Polish speakers – who I have most experience with - tend to organize their thoughts, whether when composing or speaking, differently than an Anglo-Saxon.

As English speakers, we’re taught to get to the point. Get your answer out there, and then, if you a discussion is necessary, make sure it comes after your main point. Lawyers from a more academic legal culture, such as Poland, on the other hand, are taught to write in just the opposite way: they give lots facts, and having presented those facts, they come to a conclusion. Your typical Anglo-Saxon doesn’t like to be kept waiting to find out why what he’s hearing or reading is relevant. So, I tell my juniors “front-end your conclusions, ideally in once sentence, because your client is a business person who’s got very little time to make a decision”.

AN: This is the ‘inverted triangle’ approach to presenting information, isn’t it?

JG: Absolutely – start a paragraph with a topic sentence, which is the conclusion of what the paragraph’s about; then go progressively into the facts, getting more specific as you go.

AN: So, first of all say what you think, then say why you think so, as opposed to setting out all the facts and then, at the end, drawing your conclusion based on those facts.

JG: Right. Unfortunately, in some legal cultures, it’s the other way round. For example, I’ve been told that in one jurisdiction I know, various institutions, such as the Bar Association, warn young lawyers not to ‘front-end’ their conclusions – the way I train my junior associates to do – because doing so may lead to accusations of malpractice. Of course, that could just be a horrible rumour...

AN: That’s right. Lawyers who spend little time with clients, or who are perhaps not yet very experienced, don’t necessarily appreciate that, when they write to clients, or even speak to them, that they usually have lots of other issues on their plate and need to get this decision out of the way quickly so they can move on to the others.

So, ideas of what constitutes ‘good legal service’ vary across cultures: on the one hand, there’s a business-minded approach, where there’s an impatience to get to the point, and on the other hand, there’s a more academic approach, where the conclusions only come after a detailed presentation of the facts.

JG: That’s right.

The second aspect I’d like to mention is also hard to teach because it too comes down to cultural context. I’m talking here about the incompatibility of terms used in different legal cultures.

For instance, when communicating with English language speakers, Polish lawyers often use legal terms that are pretty alien to the client. In these situations, it’s helpful to find some sort of functional equivalent in either the American or the English legal system. Of course, equivalents aren’t usually an exact match, as we lawyers would prefer, but those simplifications can help someone who comes from a different culture. Of course, if need be, I can then go on to explain exactly how the Polish concept differs from the American one. But the main thing is that, by this point, the client feels more at home with what we’re discussing.

Thanks to this approach, I’ve had clients say to me, “Judi, you’ve managed to explain to me in three minutes what I haven’t been able to get out of a half-hour discussion with a Polish lawyer.” That’s because I was able to home in on the closest equivalent so that they suddenly understood. So I think it’s very important to allow yourself to simplify because sometimes trying to give a complete answer actually causes more confusion.

[To be continued...]

Using boilerplate clauses to teach the language of contracts

2009-11-26T22:00:00.000-08:00

If you are new to teaching Legal English, you will need to grapple with the language of contracts. To be able to conduct a lesson on the topic of contracts, this means doing some research - teachers new to teaching Legal English correctly assume they need to learn about contract law, and there's no shortage of material on this. But what about helping learners with language to draft contracts, not just to talk about them?

Talking about contracts or drafting them?
It's helpful to separate lessons about contract law (e.g. articles on contractual disputes; litigation, landmark cases, etc) from lessons on the language of contracts. This post deals with how to teach/learn the language, not the theory, of contracts, using boilerplate clauses.

What are boilerplate clauses?
These are the standard clauses that you’ll typically find towards the end of contracts governed by English law. Boilerplate clauses include, (but, as lawyers say, are not limited to):

confidentiality
dispute resolution
entire agreement (or integration clause)
governing law and jurisdiction
notice
severability
termination, and
waiver

Whilst boilerplate clauses do not cover the real substance of a deal (e.g. what is being bought/sold –the ‘subject matter’ of a contract) they are very good resources for teaching aspects of contractual language, such as collocations, register, word order and frequently-occurring structures.

For more an overview of boilerplate, and a few sample clauses, see this concise PDF guide on the website of leading Australian law firm Mallesons Stephen Jaques.

I've found boilerplate clauses to be useful for two reasons:

1) they're conceptually simple and non-controversial, so you can quickly move from comprehension to language analysis.
2) they're easy to find - you'll find them in most contracts governed by English law, for instance.

Tips for teaching with boilerplate clauses
Because a boilerplate clause under English law will typically follow a predictable pattern, it’s worth getting your learners to compare several. Ask them to note differences in:

substance,
collocations and structures, and
style and register.

I find that, rather than presenting only one clause (which can make for a short lesson!) it can be more helpful to show learners several samples of the same type of clause at once. This exposes your learners to a nice variety of wording. One exercise here is to get learners to place on a continuum from Legalese to Plain English. For instance, I took the following collocations with 'a waiver' (unsurprisingly) from three different waiver clauses: ‘shall be deemed to be…’; ‘shall be …’ or ‘shall constitute…’ or ‘constitute…'

How to choose sample boilerplate clauses for use in the classroom?

If a sample clause is authentic, it’s fair game for the classroom: if it’s well-drafted, it’s a good model for your learners; if it’s poorly drafted, you can get your learners to improve it (purely in terms of style or (if you’re more confident) to bring it in line with local law.

How can I find samples?

I don’t need to teach you to google (duh) but here’s a tip for narrowing your search: search for register as well as clause type. For example, search for “governing law” with “of this agreement” and "under this agreement" to find plainer versions, and again using "hereinafter referred to", "hereunder" and “hereof” to find clauses drafted in a more traditional style.

That's all for now.

Laws that Choke Creativity: Larry Lessig on Ted.com

2009-11-26T04:24:00.000-08:00

I've just shown this 20-minute presentation by Larry Lessig, founder of Creative Commons, to a group of IP lawyers. It prompted quite a heated debate. http://www.ted.com/talks/lang/eng/larry_lessig_says_the_law_is_strangling_creativity.html

If this issue interests you, see also the (now closed) debate at Economist.com entitled "Copyright and Wrongs: this house believes that existing copyright laws do more harm than good". (You may need to be a paying subscriber to view this.)

Writing Skills for Lawyers: Recommended Reading 1

2009-11-04T08:43:00.000-08:00

Samples are a quick way into the register and phraseology of these clauses. My experience is that teachers venturing into LE teaching focus on learning legal terms, but are very unsure when it comes to the register used by lawyers in different text types (e.g. emails to clients, memoranda, contracts): if you are going to teach the language of contracts, reading and analysing several samples of different boilerplate clauses is very helpful.

Legal professionals spend much of their time writing. If you are new to teaching Legal English you really should invest some time on researching this skill from the lawyer's point of view.

Here are some of the books I've taken to bed (sad, I know) in the course of my research (all of these titles are aimed at native speakers):

A Lawyer’s Guide to Writing Well by Tom Goldstein and Jethro Koller Leiberman
Modern Legal Drafting, by Peter Butt and Richard William Castle.
Drafting: Cavendish Legal Skills Series by Elmer Doonan and Charles Foster (now out of print it seems)
Learning Legal Skills by Marie Fox and Christine Bell

Also:

The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, by Bryan A. Garner.

This is one I have seen most recently. Though quite specialised, it really is well written and informative. Here are the comments of one Amazon.com reviewer:

"The Winning Brief is essential reading for any lawyer who cares about writing clearly and persuasively. As a litigation partner and trial lawyer, I am always looking to improve my own skills and find that Bryan Garner's comments are clear and practical. I strongly recommend The Winning Brief because it goes well beyond many texts that discuss generalisms on trial and appellate briefs--Mr. Garner provides instead direct insight into how to move the trier of fact."

I will do my best to post some online resources too. In the meantime, please feel free to share below.

Questions to put to a practising lawyer?

2009-11-04T02:30:00.000-08:00

I'll be interviewing several lawyers over the coming weeks: some of them are native speakers, some non-native speakers.

If you have any questions you'd like to put to a practising lawyer - whether you are a teacher or a lawyer yourself - please do post them in the comments below (you can do so anonymously)

Here are some of the questions I plan to ask:

Questions to native speakers:

What problems do the non-native speaker lawyers you know encounter when communicating in English? What weaknesses can you identify in their language skills?
What language-related difficulties arise when you discuss points of law with lawyers who were not educated in Anglo-Saxon legal cultures?
Aside from language-related issues, are there any difficulties that arise from cultural differences between non-native speaker lawyers and a) their clients, b) native-speaker lawyers?
What role does an expat lawyer working outside of his home jurisdiction play in a law firm?
How are non-native speaker lawyers who are less than fluent perceived by native-speaker colleagues and clients?

Questions to non-native speaker lawyers:

What difficulties have you encountered when using English in your work?
What areas of language and communication do you feel are neglected by English teachers?
How do you improve your written English?
What motivates you to improve your English?

Bringing a contract to an end

2009-10-23T03:12:00.000-07:00

I came across this useful entry on Translegal's blog today "Drafter – How to End Things", by Greg Poehler. It explains the meanings of these words: termination, cancellation, expiration, rescission and repudiation.

Another verb that's commonly used by native speakers in this context is 'set aside'. Here's an example:

"Conditions" are the more important terms (i.e. those which "go to the heart of the contract"). Where there has been a breach of one or more of the conditions, the innocent party is entitled to set aside the contract in question in addition to receiving compensation for the loss and damages he has suffered." (http://www.pkykwong.com/eng/faq/contract.html).

So, 'to set aside' means 'to treat as invalid', 'to repudiate', 'to rescind' (or 'to annul') in this sentence.

'Set aside' is also used to describe the ruling of a judgment or contract by the court, as in: "The Court set aside the decision and declared it to be of no effect." Here's a current article on this question.

But is it too informal? Well...not really. Legal language does contain other phrasal verbs. The ones that always spring to mind are 'to wind up', 'enter into [an agreement]' and 'come into [force]'.

Per cent or percent? Precise or pedantic?

2009-10-22T07:50:00.000-07:00

When teaching legal English, and when checking lawyers’ work (I do quite a lot of proofreading) I often face questions regarding usage. For example: ‘percent’ or ‘per cent’?

The New Oxford Dictionary of English does not even recognise ‘percent’ written together, yet written as one word it gets nine million hits on Google.co.uk – over a million more than ‘per cent’. So what’s right - what the dictionary tells us or what people really use?

Here’s another: ‘some training’, ‘some training sessions’ or ‘some trainings’? The last of these grates with me, but it’s a fact that ‘trainings’ is coming into common usage around the world. I even know someone with a language school with 'Trainings' in its name.

How about this: “a taxpayer can now file their tax return electronically.” Do you prefer ‘their’ to ‘his’, ‘her’, or ‘his/her’?

When a learner comes to you with doubts about usage or questions your corrections of his or her email or memo, what can you answer? Here’s one possible response (thought up by someone wiser than me):
Faced with a choice between an established usage and something potentially contentious, if you go with the more established option; you are at least less likely to offend a linguistically conservative reader.

Applying this rule, it’s therefore ‘per cent’, ‘training’ and ‘his’. I can't say I'm completely happy with this explanation, but at least it gives you a path from which to deviate from time to time rather than leaving you stumbling through the woods.

So, do the pedants win? Not quite.

A more relaxed view is presented by Stephen Fry in Series 2 Episode 3 of his Podgrams. His more forgiving attitude to accuracy relates to the way native speakers use language (I won’t regurgitate the podcast here; I wouldn’t do it justice and it’s more fun to listen to anyway) but perhaps it works in a globalised world too, where much (two thirds, I heard) communication in English is between non-native speakers.

One Polish lawyer recently told me about a transaction involving investors from three countries, where the only person who had trouble understanding and being understood was a native English speaker...

Weekly Tips for Better English

2009-10-13T05:48:00.000-07:00

You might like to take a look at Tips for Better English. We began preparing these tips in response to requests from lawyers who use our translation and proofreading services, but we're delighted if anyone else finds them interesting.
Rather than focusing on strict legal terminology (like Translegal's useful Lexmail tips, for instance) we try to deal with problems that might be encountered by writers regardless of which branch of law or business they work in.
From time to time we deal with matters of style and register, though the format lends itself best to correcting errors (If you have any ideas for the tips, I'd love to hear them).

If you're a learner, you might find that, as well as testing your knowledge of the week's language point, the tips stimulate you to take more care when writing, or to be more inquisitive about matters of style and first language interference.

If you're a teacher of Legal or Business English you might use them as a nice quick warmer (my learners subscribe and we sometimes discuss the previous tip at the beginning of a lesson).

Too plain or not too plain? Writing vs drafting

2009-10-12T08:06:00.000-07:00

When teaching writing skills to lawyers, I am sure most teachers advocate using ‘Plain English’ as opposed to Legalese. I know from my own experience that there are lots of lawyers (I’m talking here about non-native speakers, but I know it holds true for natives too) who will not take a piece of writing seriously if it is not written in highly sophisticated language.

If you find yourself teaching writing skills to lawyers who are resistant to the idea of writing plainly (it’s happened to me many times), it helps to be prepared. Part of this preparation is appreciating the distinction between ‘writing’ and ‘drafting’ and being clear in your own mind about when a plainer approach is best.

Drafting

By ‘drafting’ in this entry, I do not mean “preparing an initial version of something’ as in everyday English we tend to mean. Here by ‘drafting’, I mean the preparation of legal instruments (such as agreements or acts of law) or formal letters (e.g. cease and desist letter; letter of intent). Because these documents have consequences in law, for instance, creating rights or obligations, they have to be prepared with precision. The need for precision is even greater bearing in mind that it may be in the interest of someone affected by the document to interpret against the intention of the drafter.

Against this background, even lawyers who are proponents of plain language will rightfully tell you “precision first, plain language a distant second.”

Of course, lawyers are from time to time no less guilty of imprecision than the rest of us (it’s been admitted to me in secret, I promise). I’ve heard native and non-native speaker lawyers say things like “I’ve finished drafting an email.” I take this use of ‘draft’ to mean that either:

the matter covered in the email is sophisticated and deserves a higher-than-usual degree of care, or
‘drafting’ makes the speaker feel more important.

‘Drafting’ is often used in the first sense, but not always…

So, strictly speaking, drafting is a ‘hard’ skill. As such, as an English teacher, I steer clear of teaching it for two reasons: firstly, I’m not a lawyer so I’m not qualified to teach it, and secondly, it’s not what I’m paid to teach. The law firms I teach at want me to help their lawyers write clear client correspondence, because it’s by the quality of this work that they are judged. Clients tolerate complex drafting, when it secures their legal interests, but they don’t want to get a headache from reading advice they’ve paid for.

Writing

‘Legal writing’ is for our purposes ‘everything else (not covered under drafting) that a lawyer writes in a professional capacity’. So, we’re chiefly talking about e-mails to clients, colleagues or prospective clients on all manner of issues, as well as memoranda (emails and memoranda are what I’m most often asked to help with).

When it comes to correspondence, clarity, and thus plain language really is king. Here are two ultramodern reasons why:

It’s the age of the Blackberry. Business people seem to read everything on Blackberries these days. So, your writing has to be clear enough to be read on a 3-inch screen in an airport check-in queue. Of course, I’m exaggerating (but only a bit). My point is that people in business simply do not have the luxury of devoting extra time and attention to deciphering correspondence that's written more to impress than to inform.
Business people are relentlessly bombarded with emails. They therefore have less and less time to devote to any single piece of correspondence. A case in point: a client of mine, General Counsel at a Polish telecoms company, receives 100-plus emails per day that require action (either a direct response from him, or delegation to one of his team, for instance).

Under such pressure, how can he, or someone in a similar position, be expected to understand, retain or act on information that is expressed anything but clearly? Put another way, given the choice between two law firms with the same skills and expertise, one with a business-minded culture, where lawyers obey the KISS principle (‘keep it short and simple’) and one which proudly displays its academic credentials through long memos written in highly sophisticated language, which one will a busy client prefer?

So, if you find yourself in a debate with your lawyer-learners about the merits of plain language in their professional practice, frame that debate clearly – by doing so, you have a chance of persuading.

Teacher, Student, Learner or Client?

2009-10-05T11:59:00.000-07:00

I’m uncomfortable with the pairing ‘teacher – student’. It implies a vertical relationship and such an understanding, in my view at least, can be counterproductive.

In the context of my classes (all with practising lawyers) I’m much more at home with the term ‘client’ than ‘learner’ or ‘student’ because ‘client’ concentrates my mind on certain aspects of our relationship:

a - a client is an equal
- as a service provider, I answer to my clients; if I don’t do a good job, I’ll lose the contract
- a good adviser (which a teacher is - especially an ESP teacher) works together with his/her clients to establish clear goals and expectations

I hesitate to ask you for your thoughts on what I can call myself…

Anonymous law firm

2009-10-05T10:42:00.000-07:00

Visit www.anonymouslawfirm.com for an excellent spoof of law firm websites.

If you teach practising lawyers (especially senior ones, who deal with marketing issues or at least need to have an awareness of them), they’ll see the funny side, as well as recognizing the language as useful.

Plain English in the legal profession

2009-10-04T22:49:00.000-07:00

Lawyers should deliver their advice in plain English. That’s a view which is gaining ground not only among users of legal services but among lawyers themselves.

But it’s by no means a consensus across the legal profession. In jurisdictions where the legal culture is much closer to academia than to business, there’s real resistance to the idea of writing plainly.

To lawyers with a more academic approach (not unknown in Poland, where I work, for instance) use of plain language in the mother tongue is taken as a sign of a lack of intellectual sophistication or even skill as a lawyer. This attitude inevitably spills over into these lawyers' use of and attitudes to English.

My learners often ask, ‘Isn’t there a more sophisticated way of saying this?’ Sometimes there is, but often the answer is ‘Does there need to be?’

At this point it is helpful to distinguish between language learnt to extend range and improve comprehension and language that we suggest our learners use in practice.

Based on	Since	This	This does not, however,	no such
The good news is that	our next step	This means that	under the original contract	such a letter
below	Additionally	as well as providing	With reference to	following

Part 1	Introduction to Effective Writing Learn and practice the fundamentals of good writing	Monday 8thFeb 18:00 to 21.00
Part 2	Effective Writing in Practice *Case studies; planning techniques; editing; Q&A*	Monday 15th Feb 18:00 to 21.00
Part 3	Problems and Solutions in Legal Writing *Workshop covering common problems faced by Polish lawyers with grammar and translation*	Monday 1st Mar 18:00 to 21.00
Prices	Registration by 31 January: PLN 670 Registration by 5 February: PLN 790
How can I join? 1. Pay the course fee to: 58 1240 6218 1111 0000 4616 6540 (PEKAO S.A.) „Lacrosse Language Consultancy Spółka z ograniczoną odpowiedzialnością” Sp.K., ul. Krucza 16/22, 00-526 Warszawa In ‘tytuł’, state: your full name; “Legal writing” 2. Send the confirmation of the transfer to andrew@lacrosse.pl. If you would like an invoice send the necessary information.