ACHIEVING GOOD LEGAL WRITING... Study Unit 2 eLearning RPK 214

1. He approves your legal writing ACHIEVING GOOD LEGAL WRITING... Study Unit 2 eLearning RPK 214

2. WHAT IS GOOD LEGAL WRITING? CLARITY 2. CONCISE 3. ENGAGING

3. CLARITY Your writing must be clear.... The reader must understand immediately what you intend to say Clarity is not necessarily achieved by using the smallest possible word...

4. How can I write CLEARLY?

5. PROPER GRAMMAR & PUNCTUATION • Can change meaning... • A woman without her man is nothing • A woman, without her, man is nothing • SMS language PROPER WORD CHOICE & SENTENCE STRUCTURE Overly complicated sentence structure can change the meaning of your message... NO LEGALESE!! • Avoid archaic language • Avoid foreign words • Avoid ‘padding’ • Avoid ‘said’ & ‘such’

6. LEGALESE ‘Legalese’ belongs to jurists of an age gone by... PLAIN LANGUAGE MOVEMENT Study information in study material – Study Unit 2

7. PLAIN LANGUAGE MOVEMENT Legal writing must be accessible to more readers! Simplification vs Precision? Will simplification of legal writing sacrifice the precision of what the legal practitioner is trying to say? (Study this work in the Study Unit) How simple must simple legal writing therefore be? RULE: LEGAL WRITING MUST NOT MOVE THE READER TO TAKE OUT A DICTIONARY!

8. ESSENCE OF CLEAR WRITING: “STATE WHAT YOU MEAN” Study guide NB

9. Part of sentence Independent meaning Vowels CLAUSE Consonants WORD LETTER THABO WENT TO LAW SCHOOL TO HELP PEOPLE SENTENCE A paragraph is a sentence or collection of sentences dealing with one issue or topic. It is a distinct section of writing, set apart from other sections of writing in the same document by numbering, indenting or spacing. PARAGRAPH Deals with ONE topic only!

10. STATE WHAT YOU MEAN! • Most NB skill: clear & concise written expression • More difficult than oral expression • Write  Reread  Consider  Rewrite • DON’T expect reader will ‘catch the drift’!

11. 6 RULES TO STATE WHAT YOU MEAN • Shortest meaningful WORD • Avoid unnecessary CLAUSES • Short sentences • ONE issue per paragraph • Use punctuation correctly • Consider physical presentation of writing

12. 1 SHORTEST MEANINGFUL WORD • Shortest word to convey EXACT meaning • Concrete words rather than abstract • Avoid legalese • Avoid tautology (repetition of same words grouped together) • Avoid over-emphasis & qualifying words • Avoid qualifying absolutes (e.g. very crucial) • Be consistent in using words • Avoid ‘buzz words’ • Use gender-neutral language • Use dictionary & thesaurus

13. AVOID DIFFICULT WORDS Equitable Remand Finding Duress Mutatis mutandis Prima facie Forthwith Due & payable Null & void Moreover Fair Postpone Decision Force With the necessary changes At first sight From now on Owing / Due Void So Exam: Study guide– IMPORTANT!

14. GENDER-NEUTRAL LANGUAGE • Antecedent noun & pronoun = PLURAL *E.g.: An employee cannot be dismissed unless he violated policy • Eliminate pronoun *E.g.: An employer is not liable for the work done by his independent contractors. • “One” / “you” E.g.: One has the right to defend one’s home • Repeat noun E.g.: Courts should not prejudice the accused or deny the accused his rights. • Simply use: “person”, “human beings”, “individuals” Employees cannot be dismissed unless they have violated policy An employer is not liable for work done by ____ independent contractors

15. AVOID LEGALESE! Archaic language Foreign words “Said” as adjective Unnecessarily complex sentences

16. 2 AVOID USING UNNECESSARY CLAUSES • Avoid ‘padding’ • Avoid clichés! • “in actual fact” • “In is expected that…” • “It is generally recognised that…” • “It may be argued that…”  “Arguably” • “It is more likely than not that…”  “Probably”

17. CONCISENESS • Eliminate redundancies (tautology) • (advanced) warning • at (the) present (time) • ask (a question) • cease and desist / aid and abet • Reduce phrases to words • because of the fact that  because • despite the fact that  although • in regard(s) to  about / concerning • by means of  by • in compliance with your request  as requested

18. 3 USE SHORT SENTENCES Overly lengthy and loquacious sentences may unavoidably guide the unsuspected reader into a misapprehension of facts stated in such writ by drawing a veil of impenetrability over material that otherwise should have been comprehensible. • Long sentences may lead to misunderstandings & confusion • 2 pieces of information / sentence • Active voice • Correct word order – can affect meaning • ‘Squinting’ modifiers – “often” & “only” • English grammar! • Avoid legalese!

19. 4 ONE ISSUE PER PARAGRAPH Paragraph = series of sentences DEALING WITH SAME ISSUE Sentences 1  State contention / point of view  Topic sentence Rest  Support for topic sentence Paragraph can be one sentence long…

20. REMEMBER TO COMPLETE THE CLASS EXERCISES (2 & 3) FOR THIS LECTURE!!

21. 5 USE PUNCTUATION CORRECTLY Punctuation marks = POWERFUL! A WOMAN WITHOUT HER MAN IS NOTHING… Now employ punctuation: A WOMAN: WITHOUR HER, MAN IS NOTHING A WOMAN WITHOUT HER MAN, IS NOTHING

22. FUNCTIONS OF PUNCTUATION MARKS - Short pause… Justice must be done, and seen to be done - Separate nouns - Separate clauses in sentences Tom said, “How are you?” The accused stands accused of assault, rape and robbery. COMMA ,

23. RULES FOR USING COMMAS Before coordinating conjunction joining 2 main clauses - And / But / Or / For / Nor / Yet / So … only if joining 2 main clauses!! - Exception: short sentences  optional Separate introductory phrase from main sentence - Using their sirens, the police signaled the driver to pull over Separate appositives (Nouns/substitutes that follow another noun to further describe it) Separate participial phrases & main clauses (-ing) Set off “interrupters” (The contract, however, was flawed) Set off phrases of contrast - Botha initially indicated the he, not Odwa, committed the robbery Separate listed words (I like milk, honey, bread and butter) Separate dates, addresses, geographical locations ' ' ' ' ' ' ' '

24. FULL STOP END OF SENTENCE , SEMI-COLON • - Pause longer than comma, shorter than full stop • Sentences closely related (main clauses) • Separate list of LONG items or where internal commas

25. 2 MAIN CLAUSES together… • E.g. There was no medical report, the court saw the injury • DO NOT USE COMMA!!  Comma splicing • Use semi-colon ; • Add coordinating conjunction • Divide into 2 sentences • 1 = Dependent clause • 1) There was no medical report; the court saw the injury • 2) There was no medical report, but the court saw the injury • 3) There was no medical report. The court saw the injury • 4) Although there was no medical report, the court saw the injury CAREFUL!

26. COLON • Introduce a list • ‘To prove murder, the State must prove the following: • An unlawful act; • Done with intention; • That causes the death; • OF a human being’. Introduce further clarification ‘The judge’s decision was final: the accused was found guilty of murder’

27. ELLIPSIS • Indicates omissions in quotations • Indicates unfinished sentence Example: “After the accused refused to plead on charges against him, including charges of murder, aggravated robbery and illegal possesion of a firearm, the presiding officer noted a plea of not guilty.” “After the accused refused to plead on charges against him…the presiding officer noted a plea of not guilty.”

28. UNLESS: part of quotation

30. DASH HYPHEN • Word modified by another • Prevent confusion • e.g. ‘attorney-general’ • ‘At the end of the lease, the flat was re-leased’

31. ROUND BRACKETS • Indicate information  disrupt flow of sentence • NOT: information that should be in footnote • Violent crimes involving dangerous weapons (aggravated robbery, murder and attempted murder) generally carry heavier sentences. • Victim impact statements3 are presented to court by the State prior to an accused being sentenced. • (3 in footnote to define what victim impact statements are)

32. ' APOSTROPHE ' Indicate possession: Singular  accused’s alibi  witness’s testimony Plural  workers’ rights  Jameses’ horse Indicates contradiction: do not = don’t you are = you’re …careful Indicate plurals: a’s, b’s ' '

33. QUOTATION MARKS • Indicates actual words of another • Referring to word itself, rather than meaning • E.g. “Unaccountable” refers to those accuseds unable to stand trial. • - ‘ 'Single quotation marks  quote within a quote • “The presiding officer referred to the accused in his judgment as ‘a remorseless and vengeful person who should be removed from society altogether’”.

34. “QUOTATIONS” • >50 WORDS  Indented •  Single-line spacing •  NOT IN QUOTATIONS • [sic] after error in quote  indicates it was not your error • “Charles Manson [sic] was a famous philanthropist who saved a child from drowning” • - When emphasising: underline & add ‘(my emphasis)’

35. 6 PRESENTATION! SPELLING SMS language Spell-check • Margins & white space & JUSTIFY! • Headings, sub-headings, numbering = Consistent • Indentations = Consistent • Line spacing

36. Font choice - Appropriate for type of writing - Legal writing: Ariel Size = readable - Minimum: 11; preferred: 12 Spacing: 1,5 / double line Tabulation: effective for complicated pieces of writing

37. ADDITIONAL TIPS FOR GOOD LEGAL WRITING… • Active voice instead of passive • Avoid unnecessary preambles to sentences • Eg. “In consideration of all the above, it is humbly submitted that the client has ample legal foundation to institute proceedings.” • “It is submitted that the client is legally justified in instituting legal proceedings” • Omit unnecessay words • Eg. “It should be noted that…” • “She is a woman who thinks that there is no legal basis for the application”. exists”.

38. WHEN CAN PASSIVE VOICE BE USED? • Where the doer is not known • E.g.: The power lines were cut. • Act is more important than the actor • E.g.: The accused was found guilty of murder. • To de-emphasise client’s act • E.g.: The employees were not paid.

39. Class exercise 3!