Time to learn about legal English!

Dictionary

Are you working on your assignments or preparing for the coming exams? We would like to draw your attention to some fundamentals of English writing which many people (even if they are as smart as you) can forget when they write!

A key objective of legal writing is to be sharp and clear.

What are the hurdles between us, as a writer, and our audience? And why do most laymen find our writing complicated and dull?

It is because we put confuse our readers, with riddles using twenty words to express what could be explained in just a few. Redundant phrases are commonly found in legislation and contractual documents because we want to be "precise". We think we are writing like a lawyer, but actually sacrifice the readability of our ideas, which contravenes the ultimate purpose of writing – to connect us with our audience.

Therefore, we need plain legal language. Remember, as Richard C Wydick writes in Plain English for Lawyers, “good legal writing should not differ, without good reason, from ordinary well-written English.”

Advice on how to proofread

Tip 1: Print your writing out after scanning through it on computer.

In Year 1, my University English tutor insisted us to print our drafts out for the purpose of proofreading. It helps you to pay more attention to details because you can see the ‘whole picture’, i.e. unlike strolling down a word document, you can see how sentences and paragraphs are linked together on the page. Trust me, you will identify more mistakes then you would on computer.

Highlighter pen

Tip 2: Get your highlighters and pens ready.

You would like to highlight verbs, nouns, ‘s’ and the like so you will not miss any of them. Also get your pens ready so you can rearrange sentences and paragraphs in a clearer way.

Tip 3: Don't be over-confident

You may think it is silly to check your essay from sentence to sentence, word by word, but you still have to do so because it is the only way to save yourself from looking foolish in front of your professors or clients.

Tip 4: How to set about proofreading

1: Check the content of the essay.

2: Check if your arguments are supported with adequate evidence or example.

3: Check if you have topic sentence for each paragraph.

4: Check if the structure of your essay flows well.

5: Check the style and tone of your essay by reading it aloud.

6: Read through every sentence, identify any apparent mistake.

7: Check the tenses.

8: Check the use of passive voice.

9: Check the proposition used.

10: Check the spelling.

11: Check citations.

Tip 5: Put aside your amended draft for a day, or at least a few hours.

You may listen to music, go running and do whatever you like to refresh yourself before you revisit your writing.

Tip 6: Double check, triple check, check as many times as you can before you submit your writing.

Active & passive voices

Mouth saying active or passive

(i) What is the difference between the active voice and passive voice?

We emphasise what the subject does when using the active voice: The Defendant murdered the victim. Here, emphasis is placed on defendant’s act of killing.

We emphasis what happens to the subject when using passive voice: The Defendant was charged with murder. This sentence highlights the charge faced by the defendant.

The active voice is usually preferred.

 

(ii) When should we use a passive voice?

We use a passive voice when who or what causes the action is unknown or unimportant or does not want to be known:

Six cars were set alight at the premises on the Tai Tong Road, Yuen Long.

Actor’s identity is unknown.

 

The skeleton submission should be served by Friday noon.

As long as the skeleton submission is served before the deadline, who serves it is not important.

 

The respondent was assigned the sole and exclusive right to hold use occupy and enjoy the yard adjacent to the property.

Who assigned respondent such exclusive right is not important.

 

The canopy is erected on or affixed to the walls of the buildings surrounding the yard [by the respondent].

Since the respondent is our client, we do not want to emphasise the fact that respondent is responsible for the act.

 

We also use passive voice when a sense of detached abstraction is appropriated:

Everyone is presumed to be innocent.

 

Furthermore, we use a passive voice when you want to place a strong element at the end of the sentence for emphasis:

When he walked through the door, ‘bang!’ Jessica was shot.

 

(iii) Converting active voice into passive voice

The passive is be + past participle [+by].

The table below demonstrates active and passive forms of different tenses:

Simple Present Tense

Alice

 

 

eats

 

an apple

.

An apple

is

 

 

eaten

by

Alice

.

Present Continuous Tense

Alice

is

 

 

eating

 

an apple

.

An apple

is

being

 

eaten

by

Alice

.

Present Perfect Tense

Alice

has

 

 

eaten

 

an apple

.

An apple

has

been

 

eaten

by

Alice

.

 

Simple Past Tense

Alice

 

 

 

ate

 

an apple

.

An apple

was

 

 

eaten

by

Alice

.

Past Continuous Tense

Alice

was

 

 

eating

 

an apple

.

An apple

was

being

 

eaten

by

Alice

.

Past Perfect Tense

Alice

had

 

 

eaten

 

an apple

.

An apple

had

been

 

eaten

by

Alice

.

 

Simple Future Tense

Alice

will

 

 

eat

 

an apple

.

An apple

will

be

 

eaten

by

Alice

.

Future Continuous Tense

Alice

will

be

 

eating

 

an apple

.

An apple

will

be

being

eaten

by

Alice

.

Future Perfect Tense

Alice

will

have

 

eaten

 

an apple

.

An apple

will

have

been

eaten

by

Alice

.

Active or passive?

(iv) An active Voice is preferable

Try to avoid the passive voice when possible because of two reasons:

  • The passive voice is lengthy
  • The passive voice creates ambiguity

(v) The passive voice is lengthy

A limit is a limit. We always face the problem of exceeding the word limit when we do assignments. Editing your assignment by converting passive voice to active voice is a good idea because it makes your writing more concise without scarifying your fruitful arguments.

 

Active Voice

Passive Voice

An apple is eaten by Alice. (6 words)

Alice eats an apple. (4 words)

The man was arrested by the police officer. (7 words)

The police officer arrested the man. (5 words)

The contract had not been intended by the seller to… (10 words)

The seller had not intended the contract to… (8 words)

 

(vi) The passive voice creates ambiguity

Truncated passive is especially problematic in legal writing. Hiding the agent of the sentence risks creating ambiguity. For example: ‘The window was broken.’ The reader has no way to identify the actor.

Example - Patent license provision:

All improvements of the patented invention that are made hereafter shall promptly be disclosed, and failure to do so shall be deemed a material breach of this license agreement.

Who must disclose the improvements to whom? The identities of parties are important or people have to slug it out in a lawsuit. Therefore, the active voice is preferred.

Exercise

Rewrite these sentences by using the active voice unless you have good reason for using passive voice.

Clicking on an item will reveal a sample correct answer.

The complaints of smell were dealt with by way of the security manager informing the person in charge of the property of such complaints.

The security manager dealt with the complaints of smell by informing the person in charge of the property of such complaints.

The police force was not notified by either the victim or anyone else that the car had been damaged.

Neither the victim nor anyone else notified the police force that the car had been damaged. (Keep passive voice because we cannot identify who damaged the car.)

As can be seen in the photo, trash and debris would be accumulated on top of the canopies.

As can be seen in the photo (keep passive voice because who see the photo is not important), trash and debris accumulates on top of the canopies.

Form 86 must be filled in and filed to high court officer before any judicial review case can be heard by the judge.

The applicant must fill in and file form 86 with the high court officer before the judge can hear any judicial review case.

Some attempt was made to discredit PW1.

Defendant made some attempt to discredit PW1. (Passive voice can be kept because the identity of actor is obvious.)

Three kilograms of unidentified white powder were discovered in a raid operation by the police force.

The police force discovered three kilograms of unidentified white powder in a raid operation.