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Drafting Legal Documents

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Principles of Clear Writing

1. Write in the active voice. The active voice eliminates confusion by forcing you to name the actor in a sentence. This construction makes clear to the reader who is to perform the duty.

The passive voice makes sentences longer and roundabout. Who is responsible is much less obvious. Passive verbs have a form of the verb to be plus the past participle of a main verb.

am is are was were be been

plus

a main verb usually ending in "en" or "ed".

Examples of passive verbs:

  • was received,
  • is being considered,
  • has been selected.

The passive voice reverses the natural, active order of English sentences. In the following passive example the receiver of the action comes before the actor.

Passive: The regulation [receiver] was written [verb] by the drafter [actor].

Active: The drafter [actor] wrote [verb] the regulation [receiver].

Passive constructions are confusing when used in regulations. Active sentences must have actors, but passive ones are complete without them.

The material will be delivered.By whom?
The start date is to be decided.By whom?
The figures must be approved.By whom?

Putting the actor before the verb forces you to be clear about responsibility.

  • The messenger will deliver the material.
  • The contractor will decide the start date.
  • The administrator must approve the figures.
The passive voice is appropriate when the actor is unknown, unimportant, or obvious. This does not usually apply in regulatory text.

  • Small items are often stolen.
  • The applications have been mailed.
2. Use action verbs.

Avoid words like this:

DON'T SAYSAY
give consideration toconsider
is applicable toapplies to
make paymentpay
give recognition torecognize
is concerned withconcerns

They are called "nominals" -- nouns with verbs inside. They are hard to read and make sentences longer. Action verbs are shorter and more direct.

3. Use "must" instead of "shall".

shallimposes an obligation to act, but may be confused with prediction of future action
willpredicts future action
mustimposes obligation, indicates a necessity to act
must notindicates a prohibition
shouldinfers obligation, but not absolute necessity
mayindicates discretion to act

To impose a legal obligation, use "must."

To predict future action, use "will."

DON'T SAY: The Governor shall approve it.

SAY: The Governor must approve it. [obligation]

OR: The Governor will approve it. [future action]

4. Be direct. Talk directly to your readers. Use the imperative mood. Regulations lend themselves to this style, especially procedures, how-to instructions, and lists of duties.

Directness avoids the passive voice:

SAY: Sign all copies.

SAY: Attach a copy of your W-2 to your return.

This style results in procedures that are shorter, crisper, and easier to understand.

5. Use the present tense. A regulation of continuing effect speaks as of the time you apply it, not as of the time you draft it or when it becomes effective. For this reason, you should draft regulations in the present tense. By drafting in the present tense, you avoid complicated and awkward verb forms.

DON'T SAY: The fine for driving without a license shall be $10.00.

SAY: The fine for driving without a license is $10.00.

6. Write positively. If you can accurately express an idea either positively or negatively, express it positively.

DON'T SAY: The Governor may not appoint persons other than those qualified by the Personnel Management Agency.

SAY: The Governor must appoint a person qualified by the Personnel Management Agency.

A negative statement can be clear. Use it if you're cautioning the reader.

DON'T WALK
DON'T SMOKE
But avoid several negatives in one sentence.

DON'T SAY: A demonstration project will not be approved unless all application requirements are met.

SAY: A demonstration project will be approved only if the applicant meets all requirements.

It's better to express even a negative in positive form.

DON'T SAY SAY
not honest dishonest
did not remember forgot
did not pay any attention to ignored
did not remain at the meeting left the meeting
did not comply with
or
failed to comply with
violated

7. Avoid use of exceptions. If possible, state a rule or category directly rather than describing that rule or category by stating its exceptions.

DON'T SAY: All persons except those 18 years or older must...

SAY: Each person under 18 years of age must...

However, you may use an exception if it avoids a long and cumbersome list or elaborate description. When you use an exception, state the rule or category first then state its exception.

DON'T SAY: Alabama, Alaska,... and Wyoming (a list of 47 states) must ration...

SAY: Each state except Texas, New Mexico, and Arizona must ration... (Note that the category "each State" is established first and then the exceptions are stated.)

8. Avoid split infinitives. The split infinitive offends many readers, so avoid it if you can.

DON'T SAY: Be sure to promptly reply to the invitation.

SAY: Be sure to reply promptly to the invitation. or SAY: Be sure to reply to the invitation promptly.

9. Use the singular noun rather than the plural noun. To the extent your meaning allows, use a singular noun instead of a plural noun. You will avoid the problem of whether the rule applies separately to each member of a class or jointly to the class as a whole.

DON'T SAY: The guard will issue security badges to the employees who work in Building D and Building E.

SAY: The guard will issue a security badge to each employee who works in Building D and each employee who works in Building E.

unless you mean
The guard will issue a security badge to each employee who works in both Building D and Building E. (There are other possible meanings.)

10. Be consistent. Don't use different words to denote the same things. Variation for the sake of variation has no place in regulation writing. Using a synonym rather than repeating the precise term you intend just confuses the reader.

DON'T SAY: Each motor vehicle owner must register his or her car with the Automobile Division of the Metropolitan Police Department.

SAY: Each automobile owner must register his or her automobile with the Automobile Division of the Metropolitan Police Department.

Don't use the same word to denote different things.

DON'T SAY: The tank had a 200-gallon tank for fuel.

SAY: The tank had a 200-gallon fuel container.

11. Use parallel structure. Arrange sentences so that parallel ideas look parallel. This is important when you use a list.

Nonparallel construction:

The duties of the Executive Secretary of the Administrative Committee are:

  • To take minutes of all the meetings; (phrase)
  • The Executive Secretary answers all the correspondence; and (clause)
  • Writing of monthly reports. (topic)
Parallel construction:
  • To take minutes of all the meetings;
  • To answer all the correspondence; and
  • To write the monthly reports.

12. Prefer simple words. Government writing should be dignified, but doesn't have to be pompous. Writing can be dignified when the language is simple, direct, and strong. To make your writing clearer and easier to read -- and thus more effective -- prefer the simple word.

DON'T SAYSAY
construct, fabricatemake
initiate, commencebegin
terminateend
utilizeuse
substantial portionlarge part
afforded an opportunityallow

13. Omit needless words. Don't use compound prepositions and other wordy expressions when the same meaning can be conveyed with one or two words.

DON'T SAYSAY
because of the fact thatsince (because)
call your attention to the fact thatremind you
for the period offor
in many casesoften
in many instancessometimes
in the nature oflike
the fact that he had not succeededhis failure
the question as to whetherwhether

14. Avoid redundancies. Don't use word pairs, if the words have the same effect or where the meaning of one included the other.

Examples: Word pairs to avoid

any and all
authorize and direct
cease and desist
each and every
full and complete
order and direct
means and includes
necessary and desirable

15. Use concrete words. Government writing often concerns abstract subjects. But abstract words can be vague and open to different interpretations. Put instructions in simple, concrete words.

DON'T SAYIF YOU MEAN
vehiclesautomobiles
firearmsrifles
aircrafthelicopters

16. Don't use words that antagonize. Words can attract or repel readers. It is possible to choose words in our writing that do not make the wrong impression or antagonize our readers. Use words to which people react favorably rather than words that they resent.

USE WORDS LIKE
ability achieve benefit guarantee
please reasonable reliable service
useful you

RATHER THAN THESE WORDS
alibi allege blame complaint
impossible liable oversight unfortunate
waste wrong

17. Avoid noun sandwiches. Administrative writing uses too many noun clusters -- groups of nouns "sandwiched" together. Avoid these confusing constructions by using more prepositions.

DON'T SAY: Underground mine worker safety protection procedures development.

SAY: Development of underground procedures for the protection of the safety of mine workers.

OR MORE LIKELY: Development of procedures for the protection of the safety of workers in underground mines.

Which meaning is intended becomes clearer when this four-word sandwich is broken up.

18. Don't use gender-specific terminology. Avoid the gender-specific job title:

DON'T SAYSAY
CrewmanCrew member
DraftsmanDrafter
Enlisted menEnlisted personnel
FiremanFirefighter
ForemanSupervisor
ManhoursHours worked
ManpowerPersonnel, workforce

Avoid the gender-specific pronoun when the antecedent could be male or female.

DON'T SAY: The administrator or his designee must complete the evaluation form.

SAY: The administrator or the administrator's designee must complete the evaluation form.

Be careful when you rewrite to avoid the problem. The following examples don't necessarily have the same meaning --

  • Each Regional Director will announce his or her recommendations at the conference.
  • The Regional Directors will announce their recommendation at the conference.

19. Write short sentences. Readable sentences are simple, active, affirmative, and declarative.

The more a sentence deviates from this structure, the harder the sentence is to understand.

Long, run-on sentences are a basic weakness in legal documents.

Legal documents often contain conditions which result in complex sentences with many clauses.

The more complex the sentence, the greater the possibility for difficulty in determining the intended meaning of the sentence.

Solutions

  • State one thing and only one thing in each sentence.

  • Divide long sentences into two or three short sentences.

  • Remove all unnecessary words. Strive for a simple sentence with a subject and verb. Eliminate unnecessary modifiers.

  • If only one or two simple conditions must be met before a rule applies, state the conditions first and then state the rule.

  • If two or more complex conditions must be met before a rule applies, state the rule first and then state the conditions.

  • If several conditions or subordinate provisions must be met before a rule applies, use a list.

20. Make lists clear and logical in structure. Listing provides white space that separates the various conditions. Listing can help you avoid the problems of ambiguity caused by the words "and" and "or". When you list, use the following rules:

  • Use parallel structure. (See example in item 11 above.)

  • List each item so that it makes a complete thought when read with the introductory text.

  • If the introductory language for the list is a complete sentence --
    • End the introduction with a colon; and
    • Make each item in the list a separate sentence.

  • If the introductory language for the list is an incomplete sentence --
    • End the introduction with a dash;
    • End each item in the list except the last item with a semicolon;
    • After the semicolon in the next-to-last item in the list, write "and" or "or" as appropriate; and
    • End the last item in the list with a period.

21. Use short paragraphs. A writer may improve the clarity of a regulation by using short, compact paragraphs. Each paragraph should deal with a single, unified topic. Lengthy, complex, or technical discussions should be presented in a series of related paragraphs.

22. Use a checklist and review your draft for each of these principles separately.

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