Legal Profession

Modern Legal Drafting: A Guide to Using Clearer Language, 3rd Edition

By Peter Butt
Cambridge University Press July 2013

Specifications

ISBN-13
9781107607675
Publisher
Cambridge University Press
Publication
July 2013
Format
Paperback , 379 pages
Jurisdiction
International ? Countri(es) for reference only

Details

Modern Legal Drafting provides a comprehensive, authoritative guide to drafting legal documents in effective, plain English. Peter Butt, a leading expert in the field, has fully revised and updated the text for this new edition. It combines a practical focus with the legal principles that underpin the use of plain language in law. This dual practical and academic approach distinguishes it from other books in the field. It includes expanded material on the techniques for achieving a style that is both clear and legally sound. It also includes new material on the challenges and merits of drafting in plain language, and provides many before-and-after examples to help both practising lawyers and students develop their skills. It takes an international approach, drawing upon case law and statutes from England, Australia, New Zealand, the United States, Canada, Ireland, India, Malaysia, Singapore and Hong Kong.

• takes a dual practical and academic approach and goes beyond mere drafting techniques to delve into the theory and case law

• provides many before-and-after examples to bring legal drafting to life

• draws upon international case law and statutes, making it relevant in all countries where English is the language of the law

Table of Contents

List of panels
xi
Table of statutes and subsidiary legislation
xii
Table of cases
xix
Acknowledgements
li
1       Introduction
1
Traditional legal language
1
Pressures for reform
2
What this book tries to do
4
2       What influences the legal drafter?
5
Introduction
5
Familiarity and habit
6
Conservatism
9
Fear of negligence claims
14
Means of production
17
Professional pressures
21
Straining to avoid ambiguity
22
The mixture of languages
23
Payment by length
32
Payment by time
38
The litigious environment
39
A case study in traditional influences: the United States of America
40
3       How legal documents are interpreted
46
Overview
46
What judges have said about traditional legal drafting
47
The principles of legal interpretation
53
Internal factors
55
External factors
73
Modern restatement of approach to interpretation
80
Implied terms
86
Precedent as an aid to interpretation
88
Interpreting plain-language documents
91
What judges have said about plain English in legal drafting
98
4       Some benefits of drafting in plain English
101
The meaning of ‘plain English’
101
Benefits of plain English in law
104
Conclusion
127
5       How to draft modern documents – Part 1: Structure and form
129
Document structure
129
Form of document: deed or agreement?
135
Layout and design
145
Purpose clauses
152
Tables, plans, graphs and formulas
153
Notes and examples
161
Simplified outlines
163
Numbering systems
165
Lists
166
Standard forms
169
Testing and readability
172
6       How to draft modern documents – Part 2: Particular issues for legal drafters
175
Wordiness and redundancy
175
Excessive particularity
178
Long sentences
179
Obscure language
184
Unusual word order
185
Conditional clauses
187
Peculiar linguistic conventions
189
Consistency of terminology
191
Handling generality and vagueness
193
Syntactic ambiguity
196
Inclusive language
198
Cross-references
202
Drafting in the present tense
204
Deeming
205
Definitions
207
Overuse of capitals
223
Provisos
228
Recitals
231
7       How to draft modern documents – Part 3: Words and phrases
236
Modern, standard English
236
Choose the simpler word or phrase
239
Frequently litigated words and phrases
243
Foreign words and phrases
247
Legalese
248
Jargon
250
Terms of art
257
Overuse of ‘shall’
262
Nouns instead of verbs
276
Overuse of the passive
276
Pronouns
278
Issues with ‘and’ and ‘or’
280
Punctuation and grammar
288
8       Using the modern style
298
Lease: how to bring it to an end if the property is damaged
300
Company memorandum of association: subsidiary objects clause
302
Will: attestation clause
303
Will: distribution in unequal shares
305
New land obligations: buyer's restrictive covenant
307
Building contract: determination by employer
309
Conclusion
316
Further reading
318
Index
320

About the Author

Peter Butt
University of Sydney

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