drafting skills worksho
TRANSCRIPT
-
8/3/2019 Drafting Skills Worksho
1/36
9.00am 1.00pm
Friday 6 April 2001
Law Society House
H A L F D A Y W O R K S H O P
Drafting Skills
Workshop
-
8/3/2019 Drafting Skills Worksho
2/36
H A L F D A Y W O R K S H O P
Workshop
Exercises
-
8/3/2019 Drafting Skills Worksho
3/36
Drafting Skills Workshop
Paragraphing
Exercise 1
Re-draft the following passage into paragraphs and subparagraphs
Sick leave shall be granted in days, half-days, and hours having regard to the length of
service of the employee and his grading, pursuant to the terms of the Sixth and
Seventh Schedules hereto, but nevertheless he shall give his head of section warning
of the need for treatment etc except in any emergency so that the head can make
alternative arrangements for the work to be done, provided nevertheless that it is not
applicable where there is no section head when they are incapacitated for the
performance of their duties by sickness, injury, or pregnancy or confinement, or for
medical, dental or optical examination or treatment
-
8/3/2019 Drafting Skills Worksho
4/36
Exercise 2
Re-draft the following passage into clauses and subclauses
A director may enter into or have an interest in a contractor arrangement with
the company if the director declares to the board the nature of his or her
interest in the contract or arrangement (if the interest exists) at the meeting at which
the board first considers the contract or arrangement or in any other case at the first
board meeting after the directors acquisition of the interest and a director who has
declared an interest in a matter at aboard meeting must not vote on that matter but he
or she may be counted as part of the quorum for the meeting and witness the fixing of
the company seal to any resulting document and in this Article, contract or
arrangement includes an office or place of profit under the company.
-
8/3/2019 Drafting Skills Worksho
5/36
Letter Writing
Exercise 1
How much thought and time was given to this letter?
Further I confirm that you will be provided a list of all assets that you both
own jointly and their value and those which your husband now has in his
possession and those which you have in yours together with a note of your
personal property and the childrens property which your husband currently
has in his possession and that you wish returned.
-
8/3/2019 Drafting Skills Worksho
6/36
Exercise 2
There has been some suggestion by your client that Item 8 of the sale
agreement dealing with royalty payments needs to be amended to provide that
the royalty is calculated on the gross sale price of units and products as well
as rental payments. (45 word sentence)
-
8/3/2019 Drafting Skills Worksho
7/36
Exercise 3
Which passage do you prefer, and why ?
(1) The conclusion which has been reached by my client is that if there is a
continuation of your insistence on this position, the termination of the
contract will be taken into serious consideration by her.
(2) My client has concluded that if you can continue to insist on this
position, she will seriously consider terminating the contract.
-
8/3/2019 Drafting Skills Worksho
8/36
Plain English Drafting
Drafting Skills Workshop
6 April 2001
Part II Paragraphing
Exercise 1
Re-draft the following passage into paragraphs and subparagraphs
Sick leave shall be granted in days, half-days, and hours having regard to the
length of service of the employee and his grading, pursuant to the terms of the
Sixth and Seventh Schedules hereto, but nevertheless he shall give his head of
section warning of the need for treatment etc except in any emergency so that
the head can make alternative arrangements for the work to be done, provided
nevertheless that it is not applicable where there is no section head when theyare incapacitated for the performance of their duties by sickness, injury, or
pregnancy or confinement, or for medical, dental or optical examination or
treatment
Exercise 2
Re-draft the following passage into clauses and subclauses
A director may enter into or have an interest in a contractor arrangement with
the company if the director declares to the board the nature of his or her
interest in the contract or arrangement (if the interest exists) at the meeting at
which the board first considers the contract or arrangement or in any other
case at the first board meeting after the directors acquisition of the interest
and a director who has declared an interest in a matter at aboard meeting must
not vote on that matter but he or she may be counted as part of the quorum for
the meeting and witness the fixing of the company seal to any resulting
document and in this Article, contract or arrangement includes an office or
place of profit under the company.
-
8/3/2019 Drafting Skills Worksho
9/36
H A L F D A Y W O R K S H O P
Workshop
Notes
-
8/3/2019 Drafting Skills Worksho
10/36
Plain English DraftingPlain English Drafting
Ros MacdonaldRos Macdonald
Format of sessionFormat of session
General PrinciplesGeneral Principles
Why do we need plain English?Why do we need plain English?
Planning your documentPlanning your document
Plain English words, phrases and other thingsPlain English words, phrases and other things
Non-discriminatory languageNon-discriminatory language
Grammar and punctuationGrammar and punctuation
Exercises to doExercises to do
ParagraphingParagraphing
RulesRules
ExercisesExercises
Part 1Part 1
General PrinciplesGeneral Principles
-
8/3/2019 Drafting Skills Worksho
11/36
What is Plain English Drafting?What is Plain English Drafting?
It is clear, accurate and effective legal writingIt is clear, accurate and effective legal writing
Simplistic English?Simplistic English?
clarity not simplicity is the goalclarity not simplicity is the goal
coherence, comprehensiveness, consistency,coherence, comprehensiveness, consistency,
clarity and care (5 Cs)clarity and care (5 Cs)
It is considerate of users needsIt is considerate of users needs
It does not use archaic words, jargon, unnecessaryIt does not use archaic words, jargon, unnecessary
technical expressions or complex languagetechnical expressions or complex language
SeeSeeHalwoodHalwoodCorporation Ltd v RoadsCorporation Ltd v Roads
CorporationCorporation (unrep CA Vic 30.6.97)(unrep CA Vic 30.6.97)
Reasons for using plain EnglishReasons for using plain English
To improve understandingTo improve understanding
To improve access to the lawTo improve access to the law
To save time and moneyTo save time and money
To assist in micro-economic reformTo assist in micro-economic reform
To win new businessTo win new business
To stand out from the crowdTo stand out from the crowd
Why must we use it?Why must we use it?
Demands have increasingly been made forDemands have increasingly been made for
its use fromits use from
consumersconsumers
legislatorslegislators
courtscourts
governmentgovernment
-
8/3/2019 Drafting Skills Worksho
12/36
Demand fromDemand from
consumersconsumers more articulate clientsmore articulate clients
expectation that they will understandexpectation that they will understand
documentsdocuments
wary of complex documents and their drafterswary of complex documents and their drafters
`voting with their feet`voting with their feet
Demand fromDemand from
legislatorslegislators
Acts and Codes require documents to be draftedActs and Codes require documents to be drafted
in plain Englishin plain English
Trade Practices ActTrade Practices Act1974 s 51AB(2)1974 s 51AB(2)
Industrial Relations Reform Act 1996Industrial Relations Reform Act 1996s 150A(2)s 150A(2)
Residential Tenancies ActResidential Tenancies Act1994 (Qld) s 39(5)1994 (Qld) s 39(5)
Australian Bankers Association Banking Code ofAustralian Bankers Association Banking Code of
Practice (1993) cl 2Practice (1993) cl 2
Insurance Council of Australia General InsuranceInsurance Council of Australia General Insurance
Code of Practice (1994)Code of Practice (1994)
Demand fromDemand from
courtscourts
criticism of bad draftingcriticism of bad drafting
National Bank of Australasia v MasonNational Bank of Australasia v Mason (1975)(1975)
133 CLR 191 at 203133 CLR 191 at 203
Houlahan v ANZ Banking GroupHoulahan v ANZ Banking Group (1993) 110(1993) 110
FLR 259 at 259FLR 259 at 259
Trafalgar House Construction v General SuretyTrafalgar House Construction v General Surety
and Guarantee Codeand Guarantee Code [1996] 1 AC 199[1996] 1 AC 199
-
8/3/2019 Drafting Skills Worksho
13/36
Demand fromDemand from
governmentsgovernmentsnew legislation is drafted in plain Englishnew legislation is drafted in plain English
legislation is drafted in plain English whenlegislation is drafted in plain English when
reprinted (reprinted (Reprints ActReprints Act1992 (Qld))1992 (Qld))
government forms are being drafted in plaingovernment forms are being drafted in plain
EnglishEnglish
departments have adopted plain Englishdepartments have adopted plain English
document policiesdocument policies
If lawyers wrote proverbsIf lawyers wrote proverbs
That which appeals to a flesh eater may seem toxicThat which appeals to a flesh eater may seem toxicto anotherto another
The pilferer may best be apprehended by anotherThe pilferer may best be apprehended by anotherof the same persuasionof the same persuasion
The completion of incubation should take placeThe completion of incubation should take place
prior to the census enumeration of ones fowlprior to the census enumeration of ones fowl An aged canine cannot be educated to innovativeAn aged canine cannot be educated to innovative
attainmentattainment
It is unwise to allow the concentration in one placeIt is unwise to allow the concentration in one placeof resources obtained from poultry industryof resources obtained from poultry industry
productionproduction
Planning your documentPlanning your document
The pre-writing stageThe pre-writing stage
Scope and purposeScope and purpose
Target audienceTarget audience
ConsequencesConsequences
The Writing stageThe Writing stage
StructureStructure
ContentContent
LanguageLanguage
ReflectionReflection
RewritingRewriting
The post-writing stageThe post-writing stage
Questions to askQuestions to ask
-
8/3/2019 Drafting Skills Worksho
14/36
Words -Words -
LegalLegal plain English(1)plain English(1)
allege - claimallege - claim
annex - attachannex - attach ascertainascertain
averaver
construeconstrue
deliverdeliver
demisedemise
expireexpire
disclosedisclose
determinedetermine
samesame
LegalLegal plain English (2)plain English (2)
forthwithforthwith
furnishfurnish
pecuniarypecuniary
procureprocure
rescindrescind
residereside
submit -submit -
transpiretranspire
attestattest
affixaffix
Compound expressionsCompound expressions simplesimple
expressions (1)expressions (1)
by means of - by, usingby means of - by, using
by virtue of - becauseby virtue of - because
as a consequence of -as a consequence of -
for the reason that -for the reason that -
for the purpose offor the purpose of
inasmuch as -inasmuch as -
in connection with -in connection with -
in favour of -in favour of -
-
8/3/2019 Drafting Skills Worksho
15/36
Compound expressionsCompound expressions simplesimple
expressions (2)expressions (2)
in order to -in order to -
in relation to -in relation to -
in the event that -in the event that -
in the nature of -in the nature of -
due to the fact that -due to the fact that -
notwithstanding the fact that -notwithstanding the fact that -
prior to -prior to -
subsequent to -subsequent to -
with a view to -with a view to -
Twice as many wordsTwice as many words
alter or change - alter (or change)alter or change - alter (or change)
cease and desist -cease and desist -
for and during the period -for and during the period -
full and complete -full and complete -
save and except -save and except -
unless and until -unless and until -
true and correct -true and correct -
Passive voicePassive voice active voiceactive voice
Oxford was defeated by Cambridge OxfordOxford was defeated by Cambridge Oxforddefeated Cambridgedefeated Cambridge
Our interpretation is supported by the legislativeOur interpretation is supported by the legislativehistory -history -
The trust was intended by the settlor to -The trust was intended by the settlor to -
New evidence was produced by the police New evidence was produced by the police
Note also the impersonal passive Note also the impersonal passive
It is thoughtIt is thought
It is feltIt is felt
It is regretted It is regretted
It is thought that you will now have received the formIt is thought that you will now have received the formof agreementof agreement
-
8/3/2019 Drafting Skills Worksho
16/36
Use the present tenseUse the present tense
In legislation, the rule is that the law isIn legislation, the rule is that the law isconstantly speakingconstantly speaking
In private legal documents the same ruleIn private legal documents the same ruleapplies, [seeapplies, [see PiessePiesse at 64-67,at 64-67, AspreyAsprey atat124-125] so use the present tense 124-125] so use the present tense
This agreement shall be governed by the lawsThis agreement shall be governed by the laws
(passive voice and future tense) becomes (passive voice and future tense) becomes
Queensland law governs this agreementQueensland law governs this agreement
Do not use archaic wordsDo not use archaic words
heretofore, hereinafter, hereby, herewithheretofore, hereinafter, hereby, herewith
thereof, thereinbefore, thenceforththereof, thereinbefore, thenceforth
said, aforesaid, abovementionedsaid, aforesaid, abovementioned
herein, hereon, hereto, hereof , hereunderherein, hereon, hereto, hereof , hereunder
whatsoever, howsoever, wheresoeverwhatsoever, howsoever, wheresoever
notwithstanding, whereas, whereuponnotwithstanding, whereas, whereupon
The use of shall - sheThe use of shall - she shallshall
attendattend
obligation - use must [ cf Tadgell J inobligation - use must [ cf Tadgell J in
Hallwood Corp v Roads Corp (Hallwood Corp v Roads Corp (unrep VCAunrep VCA
30.6.97) grotesque use of must]30.6.97) grotesque use of must]
permission or discretion - use may - dopermission or discretion - use may - do
not use cannot use can
in the future - use willin the future - use will
-
8/3/2019 Drafting Skills Worksho
17/36
Latin WordsLatin Words
de facto - existing but not officialde facto - existing but not officialbona fide - in good faithbona fide - in good faith
inter alia - among other thingsinter alia - among other things
pari passu - equally, without preferencepari passu - equally, without preference
per se - by itselfper se - by itself
per annum - each yearper annum - each year
prima facie - on its faceprima facie - on its face
pro rata - proportionalpro rata - proportional
Non-discriminatory languageNon-discriminatory language
Do not use gender specific language whereDo not use gender specific language wheregender is uncleargender is unclear
If you use he, his, or him where theIf you use he, his, or him where thecorrect gender isnt clear, you misrepresentcorrect gender isnt clear, you misrepresenta group as being exclusively male.a group as being exclusively male.
Dont assume all people in influentialDont assume all people in influential
positions are necessarily male. Dont use positions are necessarily male. Dont usemale pronouns when it is possible to usemale pronouns when it is possible to usemore inclusive pronouns.more inclusive pronouns.
Techniques for avoiding gender-Techniques for avoiding gender-
specific language (1)specific language (1)
Use gender-specific pronouns only to identify aUse gender-specific pronouns only to identify aspecific person or gender.specific person or gender.
If the document refers to an office, rather than theIf the document refers to an office, rather than theincumbent of the office, use gender neutralincumbent of the office, use gender neutralreferences.references.
If it does not change the meaning of the sentence, useIf it does not change the meaning of the sentence, use plural nouns and pronouns to remove gender plural nouns and pronouns to remove genderdistinctions.distinctions.
-
8/3/2019 Drafting Skills Worksho
18/36
Techniques for avoiding gender-Techniques for avoiding gender-
specific language (2)specific language (2)
Write the sentence without pronouns. Try to avoidWrite the sentence without pronouns. Try to avoid
conditional structures, generally introduced by if orconditional structures, generally introduced by if orwhen. These often require the use of pronouns.when. These often require the use of pronouns.
Use a more descriptive or inclusive compound word,Use a more descriptive or inclusive compound word,such as people or worker.such as people or worker.
Write from a first-person (I) or second-personWrite from a first-person (I) or second-personperspective (you). Only the third-person singular isperspective (you). Only the third-person singular isgender-specific.gender-specific.
Grammar, punctuation andGrammar, punctuation and
spelling exercises (1)spelling exercises (1)
There are to many people trying to use theThere are to many people trying to use the
systemsystem
John said that the report was not their on hisJohn said that the report was not their on his
deskdesk
Whose sorry now?Whose sorry now?
Lawyers areLawyers are percievedpercieved to be a devious lotto be a devious lot
He specialised in womens studiesHe specialised in womens studies
The Macdonalds are off on there holidaysThe Macdonalds are off on there holidays
Jane should of paid the fine on timeJane should of paid the fine on time
Grammar, punctuation andGrammar, punctuation and
spelling exercises (2)spelling exercises (2) Like most public phones, its out of orderLike most public phones, its out of order
I realised that I have forgotten to put theI realised that I have forgotten to put thebins outbins out
ImIm not surenot sure wetherwethertheirs enough petrol intheirs enough petrol inthe carthe car
Its time to give it its bathIts time to give it its bath
II recievedrecieved this package in the mailthis package in the mail
The company must file its returnThe company must file its return
The first copy was different than theThe first copy was different than thesecondsecond
-
8/3/2019 Drafting Skills Worksho
19/36
-
8/3/2019 Drafting Skills Worksho
20/36
AnswerAnswer
A member, on leaving the Association,A member, on leaving the Association,must pay back to the Association anymust pay back to the Association any
money the member owes to it.money the member owes to it.
OROR
All former members must pay back anyAll former members must pay back any
money they owe to the Associationmoney they owe to the Association
OROR
A former member must pay money he orA former member must pay money he or
she owes the Association back to it.she owes the Association back to it.
Part IIPart II
ParagraphingParagraphing
Coodes rule for legal draftingCoodes rule for legal drafting
A legal sentence consists of three (usually four)A legal sentence consists of three (usually four)partsparts
The case the circumstances in which or theThe case the circumstances in which or theoccasion on which, the sentence operates (where,occasion on which, the sentence operates (where,when)when)
The legal subject the performerThe legal subject the performer
The legal action what is done by the legal subjectThe legal action what is done by the legal subject
(usually) the condition what has to be complied(usually) the condition what has to be compliedwith (if)with (if)
Coode on Legislative Expression; or The Language of theCoode on Legislative Expression; or The Language of theWritten LawWritten Law 22ndnd ed 1843ed 1843
-
8/3/2019 Drafting Skills Worksho
21/36
Rules of paragraphing No 1Rules of paragraphing No 1
Paragraphing is only be used when aParagraphing is only be used when a
sentence can be divided into two orsentence can be divided into two or
moremore
parts;parts;
Rules of paragraphing No 2Rules of paragraphing No 2
Words to be included in paragraphs must beWords to be included in paragraphs must be
introduced by and be grammaticallyintroduced by and be grammatically
connected with words called introductoryconnected with words called introductory
words- these introductory words must bewords- these introductory words must be
ableable
to be read separately with the words of eachto be read separately with the words of each
paragraph;paragraph;
Rules of paragraphing No 3Rules of paragraphing No 3
Words after the paragraphs (resumingWords after the paragraphs (resuming
words)words)
must be capable of being read with eachmust be capable of being read with each
preceding paragraph separately and with thepreceding paragraph separately and with the
introductory words;introductory words;
-
8/3/2019 Drafting Skills Worksho
22/36
Rules of paragraphing No 4Rules of paragraphing No 4
Where there are paragraphs continuing afterWhere there are paragraphs continuing afterresuming words, those paragraphs must beresuming words, those paragraphs must be
able to be read with the resuming wordsable to be read with the resuming words
ANDAND
the paragraph notation continues after thethe paragraph notation continues after the
resuming words, it does not recommence.resuming words, it does not recommence.
Rules of paragraphing No 5Rules of paragraphing No 5
In a clause or a section, paragraphs areIn a clause or a section, paragraphs are
indented and distinguished by lower caseindented and distinguished by lower case
letters of the alphabet ((a), (b)),letters of the alphabet ((a), (b)),
subparagraphssubparagraphs
by Roman numerals ((iv), (v)), and sub-by Roman numerals ((iv), (v)), and sub-subparagraphs by upper case letters of thesubparagraphs by upper case letters of the
alphabet ((A),(B)), all enclosed by brackets.alphabet ((A),(B)), all enclosed by brackets.
Paragraphing should NEVER be taken belowParagraphing should NEVER be taken below
the level of sub-subparagraphingthe level of sub-subparagraphing
Rules of paragraphing No 6Rules of paragraphing No 6
If the provisions in a set of paragraphs orIf the provisions in a set of paragraphs or
subparagraphs are to be cumulative in effect,subparagraphs are to be cumulative in effect,
and should be inserted between eachand should be inserted between each
paragraph or subparagraph; if they are to beparagraph or subparagraph; if they are to be
alternative, or should be inserted betweenalternative, or should be inserted between
each provision;each provision;
-
8/3/2019 Drafting Skills Worksho
23/36
Rules of paragraphing No 7Rules of paragraphing No 7
The first word of a paragraph orThe first word of a paragraph orsubparagraphsubparagraph
commences with an upper case letter only ifcommences with an upper case letter only if
itit
is a proper noun;is a proper noun;
Rules of paragraphing No 8Rules of paragraphing No 8
Paragraphing is punctuated; introductoryParagraphing is punctuated; introductory
words conclude with a dash (-), paragraphs,words conclude with a dash (-), paragraphs,
subparagraphs and sub-subparagraphssubparagraphs and sub-subparagraphs
conclude with a semi-colon before and orconclude with a semi-colon before and or
or (; and, ; or) and a paragraph endsor (; and, ; or) and a paragraph ends
withwith
a full stop unless there are resuming words,a full stop unless there are resuming words,
inin
which case it ends with a comma.
ExerciseExerciseSick leave shall be granted in days, half-days, andSick leave shall be granted in days, half-days, and
hours having regard to the length of service of thehours having regard to the length of service of the
employee and his grading, pursuant to the terms ofemployee and his grading, pursuant to the terms of
the Sixth and Seventh Schedules hereto, butthe Sixth and Seventh Schedules hereto, but
nevertheless he shall give his head of sectionnevertheless he shall give his head of section
warning of the need for treatment etc except inwarning of the need for treatment etc except in
any emergency so that the head can makeany emergency so that the head can make
alternative arrangements for the work to be done,alternative arrangements for the work to be done,
provided nevertheless that it i s not applicableprovided nevertheless that it is not applicable
where there is no section head when they arewhere there is no section head when they are
incapacitated for the performance of their dutiesincapacitated for the performance of their duties
by sickness, injury, or pregnancy or confinement,by sickness, injury, or pregnancy or confinement,
or for medical, dental or optical examination oror for medical, dental or optical examination ortreatmenttreatment
-
8/3/2019 Drafting Skills Worksho
24/36
Drafting in clauses Rules1-4Drafting in clauses Rules1-4
A clause is a single grammatical sentence;A clause is a single grammatical sentence;
Each subclause is also a single separateEach subclause is also a single separate
sentence;sentence;
A clause should deal with only oneA clause should deal with only one
obligation or right;obligation or right;
Subclauses should be used rather thanSubclauses should be used rather than
separate clauses when they deal withseparate clauses when they deal with
different aspects of the same right ordifferent aspects of the same right or
obligation, or very closely related rights orobligation, or very closely related rights or
obligations;obligations;
Drafting in clauses Rules 5-7Drafting in clauses Rules 5-7
No introductory or resuming words areNo introductory or resuming words are
used.used.
A heading and a number should be givenA heading and a number should be given
to the main clause;to the main clause;
A decimal system of numbering is used [1],A decimal system of numbering is used [1],
[1.1] etc;[1.1] etc;
ExerciseExerciseA director may enter into or have an interest in a contractA director may enter into or have an interest in a contract
or arrangement with the company if the director declaresor arrangement with the company if the director declares
to the board the nature of his or her interest in theto the board the nature of his or her interest in the
contract or arrangement (if the interest exists) at thecontract or arrangement (if the interest exists) at the
meeting at which the board first considers the contract ormeeting at which the board first considers the contract or
arrangement or in any other case at the first boardarrangement or in any other case at the first board
meeting after the directors acquisition of the interest andmeeting after the directors acquisition of the interest and
a director who has declared an interest in a matter at aa director who has declared an interest in a matter at a
board meeting must not vote on that matter but he or sheboard meeting must not vote on that matter but he or she
may be counted as part of the quorum for the meeting andmay be counted as part of the quorum for the meeting and
witness the fixing of the company seal to any resultingwitness the fixing of the company seal to any resulting
document and in this Article, contract or arrangementdocument and in this Article, contract or arrangement
includes an office or place of profit under the companyincludes an office or place of profit under the company
-
8/3/2019 Drafting Skills Worksho
25/36
ReferencesReferences
AitkenAitken, JK,, JK,PiessesPiesses The Elements of Drafting,The Elements of Drafting, 99thth
ed, Law Book Co, Sydney, 1995ed, Law Book Co, Sydney, 1995
AspreyAsprey MMPlain Language for LawyersPlain Language for Lawyers 22ndnd ed,ed,Federation Press, Sydney, 1996Federation Press, Sydney, 1996
Macdonald, R and McGill, DMacdonald, R and McGill, DDrafting,Drafting,ButterworthsButterworths, Sydney, 1997, Sydney, 1997
Clark-Dickson, D and Macdonald, RClark-Dickson, D and Macdonald, RClear andClear andPrecise: WritingPrecise: WritingSkllsSkllsfor Todays Lawyer,for Todays Lawyer, QLSQLSCLE, Brisbane, 2000CLE, Brisbane, 2000
-
8/3/2019 Drafting Skills Worksho
26/36
1
Letter Writing
Part A Letter writing - an approach
Part B Letter writing - language
Part A
Letter writing - an approach
1. Style
2. Plan - content
3. Design - document
1. Style
The thorniest of subjects
Personal style
Functional style
- legal, business, marketing ..
How describe style for letters by lawyers?
Your style in letter writing is to be judged not by
your literary conventions or grammatical niceties but
by whether it carries out effectively the job you are
paid to do.
-E. Gowers
-
8/3/2019 Drafting Skills Worksho
27/36
2
Style (2)
Style depends on function and purpose
Common letters to:
clients - advice, information
lawyers and third parties - clients instructions,
demand, explanation
functional letter - enclosures etc
Style (3)
Style to be good must be clear, as is proved by the
fact that speech which fails to convey a plain
meaning will fail to do what speech has to do
Clearness is secured by using the words that are
current and ordinary.
- Aristotle, Rhetorica Clarity - use the most appropriate word
Overriding concern - precision and consistency
2. Plan - content
Plan - thinking out the contents of the letter
Two basic questions
- to whom do I write? (archaic!)
- for what purpose do I write?
-
8/3/2019 Drafting Skills Worksho
28/36
3
Plan (2)
Planning = thinking = time
I have made this letter longer than usual, only
because I have not had the time to make it shorter.
- Pascal (1657)
Plan (3)
Letter of advice to client:
identify the problem/issue
find and explain the law
draw conclusion
advise on action client should take
Plan (4)
Exercise 1How much thought and time was given to this letter?
Further I confirm that you will be provided a list of all
assets that you both own jointly and their value and those
which your husband now has in his possession and those
which you have in yours together with a note of your
personal property and the childrens property which your
husband currently has in his possession and that you wish
returned.
-
8/3/2019 Drafting Skills Worksho
29/36
4
Plan (5)
Exercise 1 - Rewritten
I will send a list of assets with the following details:
assets and their values owned jointly by you and your
husband;
assets currently in your possession;
assets currently in your husbands possession
assets which you wish returned to you and the
children.
Plan (6)
we are all different - the visual, the kinetic etc
the dictaphone
3. Design - document
structure - main ideas, points = paragraphs
a simple letter
- paragraph 1 (after opening sentence) -
key idea
- subsequent paragraphs - expanding,
qualifying key idea
more complex letter
- multiple issues - headings can assist and
clarify
-
8/3/2019 Drafting Skills Worksho
30/36
5
Design (2)
Hints
space - white paper (lines, paragraphs)
headings
typefaces - vary
numbering and dot points
relationships
Part B Letter writing - language
The survey:
wordiness
sentence structure
1. Wordiness
Verbiage, the needless accumulation of words,
clutters the text and the mind
Superfluous words waste your time and paper, tire
your reader and obscure your meaning.
- E. Gowers
-
8/3/2019 Drafting Skills Worksho
31/36
6
Wordiness (2)
Four suggestions:
remove surplus words - primary words and
secondary wordseg
A trial by jury was requested by the defendant
(of the 9 words, 5 are secondary)
The defendant requested a jury trial.
(secondary words reduced from 5 to 2)
Wordiness (3)
Replace unnecessary words with fewer words
- The fact that she had died her death
- He was aware of the fact that he knew
that- Despite the fact that although, even
though
Wordiness (4)
Exercise 2
There has been some suggestion by your client that
Item 8 of the sale agreement dealing with royalty
payments needs to be amended to provide that the
royalty is calculated on the gross sale price of units and
products as well as rental payments (45 word sentence)
-
8/3/2019 Drafting Skills Worksho
32/36
7
Wordiness (5)
Exercise 2 - Rewritten
Your client has suggested that royalty payments (sale
agreement item 8) be calculated on the rental payments
and the gross sale price of units and products. (26 word
sentence)
Wordiness (6)
Remove unnecessary introductory words
It should be noted that .
It is appreciated that
It will be noted that ..
Wordiness (7)
Let us have an end of such phrases as these:
It is also of importance to bear in mind the following
considerations . Or
Consideration should be given to the possibility of
carrying into effect.. Most of these woolly phrases
are mere padding, which can be left out altogether,
or replaced by a single word. Let us not shrink from
using the short expressive phases even if it is
conversational.
- Winston Churchills Memorandum 9 August 1940
-
8/3/2019 Drafting Skills Worksho
33/36
-
8/3/2019 Drafting Skills Worksho
34/36
9
Sentence structure (3)
Relative separated from antecedent
Enquiries are received from time to time in connection
with requests for the grant of leave or absence to school
children during term time for various reasons, which give
rise to questions as to the power to grant such leave.
Sentence structure (4)
b. Conciseness
brief but comprehensive in expression.
Bad - one great package
All main themes, suggesting reasons, details,
qualifications, exceptions and conclusions.
Sentence structure (5)
Conciseness - a guide
average sentence length - below 25 words
use conjunctions
choppy
Counsel objected to the question. She argued that it
called for hearsay. The court overruled the objection.
The witness was allowed to answer.
a variation:
Counsel objected to the question, arguing that it called
for hearsay; the court overruled the objection and the
witness was allowed to answer.
-
8/3/2019 Drafting Skills Worksho
35/36
10
Sentence structure (6)
Exercise 3
Which passage do you prefer and why?
1. The conclusion which has been reached by my client
is that if there is a continuation of your insistence on
this position, the termination of the contract will be
taken into serious consideration by her.
2. My client has concluded that if you can continue to
insist on this position, she will seriously consider
terminating the contract.
3. Composition
first paragraph opening - not stilted
eg Further to our letter of 1st instant .
second paragraph - direct and to the point
eg Your clients offer is not acceptable to our client,
who ..
main idea, then qualifications, exceptions (as
paragraphs)
4. Summary
Nine questions for letter-writers
Approach
- to whom?
- for what purpose?
- what contents? - plan
- how present contents? - design
Language - in writing and proof reading
- remove, substitute or rephrase what words?
- is the sentence ordered?
- is the sentence concise?
- do the paragraphs help or hinder the meaning?
- does the writing style help or hinder the meaning?
-
8/3/2019 Drafting Skills Worksho
36/36
Final word
If language is not correct, then what is said is not
what is meant; if what is said is not what is meant,
then what ought to be done remains undone.
- Confucius