Legal Writing Tips – Why Simple English is preferable but not acceptable in deeds and documents
Legal writing is a bone of contention nowadays. On the one hand there is a very practical movement in favor of simplifying expressions and legalese into everyday English, which can be well understood by both lay persons and courts, and on the other, there is need to explain to the bench things and concepts in the language they understand, and in the language of statutes and precedents. There is a third issue, which few of those in support of ‘easy language’ fail to recognize – strict interpretation of deeds and documents – the language you use cannot be open to multiple interpretations or ambiguity, otherwise more trouble may come of it than relief. Consequently, today’s good legal writing would need to keep in mind all the points mentioned above while trying to simplify things as much as possible. But it is easier to say than do, because of the responsibilities that lawyers have to carry.
Be brief, succinct, and simple where you can afford to be so. If the law of the land and stare decisis clearly indicate that the clause “X hereby lawfully sells this piece of land to Y subject to all legal liabilities and consequences he is required to fulfill to complete the sale” will do the job, then by all means use it.
You need to be sure that the ‘sale’ can be effected properly under the law of the land just by that sentence. It is obviously better than writing “X hereby conveys, transfers, and gives unto Y, all and each of his rights, titles, and interests in the aforementioned property, absolutely and forever, along with the absolute relinquishment of all rights, titles, and interests, whatsoever, of X and all his heirs or any person who may have, or in future may gain, any rights, title, or interest in the aforementioned property by, through, or under the existent rights, titles, and interests of X, as they are prior to this sale, along with all easements and other rights, titles, and interests appurtenant to the property mentioned for the sale of the property which is the subject of this document.”
Now, from a legal standpoint, both of the statements mentioned above fall short of the mark, because, if we are to protect our clients, we also need to add a clause of indemnification that binds the seller to keep the purchaser protected from any harm, damages, claims or whatever unforeseen negative consequences that may arise in the future affecting the rights that the purchaser is lawfully acquiring.
So, protective clauses and phrases like “done in good faith,” “agrees to keep Y indemnified for all damages, claims and whatever …” “lawfully and truthfully represents that there are no other persons who have a claim of any kind on the property,” “Agrees to return with interest the full consideration, along with reparatory damages and compensation, if any claims are found to be untrue and affect the peaceful and legal enjoyment of the rights, title, and interests purported to be conveyed by this document,” etcetera, and more, are required to absolutely ensure that a client is fully protected and the lawyer himself or herself is not going to be dragged up for professional negligence or misconduct in the future.
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Critics of legalese, rarely understand the burden lawyers bear because of the knowledge they possess. By their hours of study and experience, they ‘know’ the kinds of things that may happen and what has already happened in cases where a word was miss-spelt, or a clause not spelt out specifically. While a lot may be assumed on good faith and equity, if problems arise, it would cost years and one or several lawsuits to assert rights, which would still be at risk of being lost. If at the time of drafting an initial document, a few paragraphs of well-drafted clauses can avert such future situations, then that is more acceptable than crying for, and claiming, that a four word sentence like “X sells Y to Z” would do. Easy English is preferable, no doubt, but a lawyer’s foremost duties compel him or her to write things in a manner that the layman finds superfluous. That is why a layman has to work very hard to become a good lawyer, and why a lawyer charges fees to write a few pages.