english legal writing

English Legal WritingUniversidade CatolicaLisbon October 2007

Turano/Legal English/ King’s College London/ 2007 1

INTRODUCTION TO LEGAL ENGLISH WRITINGLISBON, SEPTEMBER 2007

Dr. Leslie Turano, King’s College London, School of Law

Day 1 – Language:I. Introduction: The richness of English: a blessing and a curse.

I(a). Problems peculiar to English:I(a)(i). large vocabulary owing to multitude of influences.I(a)(ii). Phrasal verbs.I(a)(iii). Jargon.

I(b). Problems specific to Legal English:I(b)(i). Punctuation and spelling. I(b)(ii). Terms of art.I(b)(iii). Legal jargon.I(b)(iv). Special legal meaning of otherwise ordinary words.

II. Is Legal English different from ordinary English? Yes and No.

II(a). Vocabulary and register.II(b). Grammar.II(c). Punctuation (avoidance of ambiguity) – exercises.II(d). Style.

II(d)(i). Active or passive voice? – exercises.II(d)(ii). Concealed verbs.II(d)(iii). Repetition and elegant variation.II(d)(iv). Archaic language.II(d)(v). Usage:

‘shall’ and ‘will’ Commonly confused words Specific legal usage – ‘terms of art’

III. The logic of the legal sentence.III(a). the four elements – exercise.

Legal subject Legal action Case Condition

III(b). Structure of the legal sentence.

Day 2 – Context:

IV. English specific to Civil Law:IV(a). Text 1 – exercisesIV(b). Text 2 - exercisesIV(c). Text 3 - exercises


V. English specific to Contract Law:V(a). Text 1 – exercisesV(b). Text 2 – exercises

VI. English specific to Company Law:VI(a). Text 1 – exercisesVI(b). Writing exercise.

Day 3 – Technical aspects:

VII. Review case.

IX. Citations.

X. Questions.


Bibliography.This booklet draws heavily on several published works. It is advisable to obtain and consult one or two of the following:

*William R MacKay & Helen Charlton, Legal English (Pearson/Longman, 2005).

Gillian D Brown & Sally Rice, Professional English in Use: Law (Cambridge University Press, 2007).

*Paul Rylance, Legal Writing and Drafting (Oxford University Press, 1994).

*Rupert Haigh, Legal Writing (London: Cavendish, 2004).

María Teresa Alejos Juez, English for Law (Madrid: Editorial Centro de Estudios Ramón Areces, 2004).

Bruce Grant, Legal Writing, Newcastle Law School website: <http:www.ncl.ac.uk/nulls/lectures/legwrit/index.htm>

Bill Bryson, Troublesome Words (London, Penguin, 1987).

Ian McLeod, Legal Method (London: Macmillan, 1993).

See also the following websites;

www.dca.gov.uk (Department of Constitutional Affairs - the Lord Chancellor’s department).

www.parliament.uk (Parliament)

http://www.opsi.gov.uk/acts.htm (legislation)

http://www.hmcourts-service.gov.uk/judgments.htm (judiciary)

http://www.lawcom.gov.uk/ (Law Commission)

*most recommended


http://www.lawcom.gov.uk/

http://www.hmcourts-service.gov.uk/judgments.htm

http://www.opsi.gov.uk/acts.htm

http://www.parliament.uk/

http://www.dca.gov.uk/

I. Introduction: the richness of English: a blessing and a curse:

Borges’ “dual language” (Germanic and Romance) is actually quadruple: Old English, Old Norse, Old French and Latin (and this is excluding the borrowed words, that is, foreign words used in their original form in English (e.g., dénouement, cul-de-sac, raison d’etre, Schadenfreude, Realpolitik, stoop, pukka (slang) - most of which should be avoided where there is an English equivalent!).

Register: colloquial - English, Norse; formal - French, Latin. The former are used more in everyday speech, the latter in legal and other scientific or professional contexts.

Example: compare these two sentences:

a) The merchandise contained in the consignment is of inferior quality to that anticipated by the purchaser.

b) The standard of the goods contained in the delivery is worse than the buyer expected.

The first contains 50% Old English and 50% Old French and Latin; moreover, the conceptual words (nouns, adjectives and verbs) derive from Old French and Latin, while the basic words (articles, prepositions) come from Old English.

In the second, 67% are from Old English, while 33% are from Old French and Latin.

Over-sophistication: you can take things too far!Example:

a) I went to the nearest shop with my dog and met my wife on the way.

b) I proceeded to the closest emporium accompanied by the dog and encountered my spouse along the route.

The first is almost all Old English. The second 41% from Old French, Latin and Greek; the result is pretentious.

What is the balance in a typical legal sentence?Example: Neither party shall be liable to the other for failure to perform or delay in the performance of its obligations caused by any circumstances beyond its


reasonable control. (This is a typical force majeure clause).

Note that the words that describe the legal concepts derive mainly from French and Latin, while the basic words come from English.

I(a). Problems peculiar to English:

I(a)(i). large vocabulary owing to a multitude of influences:Compare these two columns -

annex/append attachcease/desist stopconceal hidedemise(now archaic) deathdetain hold/delaydetermine end/decidedonate giveeffectuate/realise carry outemployment work/jobendeavour tryevince showexpedite hastenexpend spendexpiration/expiry endextend giveindicate show/sayinitiate/institute beginlawful/legitimate rightoccasion (verb) causeoccupation work/jobpossess have/ownprior earlierproceed go aheadretain keepterminate endutilise use

I(a)(ii). Phrasal verbs:These must be learnt individually. Some commonly used in legal English are:

abide by (an agreement)account to (someone for payment)adhere to (an agreement)break up (a company)call in (a loan)carry on (a business)deal in (a business)dispose of (assets)draw up (a contract/will)


draw on (reserves/capital)engage in (an activity)enter into (an agreement)find for (defendant/claimant)hand down (an official decision)object to (a clause/decision)opt/ in to/ out of (a financial plan)provide for (something/someone)put across (an idea)put forward (a plan/ an idea)put down (a deposit)put in (money/effort)result in (an effect)rule in/out (a possibility)serve upon (a summons)set down (rules)set out (principles)set forth (an argument)settle up (money)strike off (a name)strike out (evidence/words)subject to (conditions)sue for (damages)sum up (an argument/case)tamper with (evidence)testify to/ attest to (the truth)turn down (an offer)weigh up (evidence)wind down (a business/ activity)wind up (a trust/ company)write off (a debt)

I(b). Problems specific to Legal English:

I(b)(i). punctuation and spelling: An odd feature of much legal writing is that traditionally there is little or no punctuation. One reason offered is that there were no common standards during the early days of printing, so to avoid ambiguity, writers often simply omitted punctuation. Modern drafters now tend to follow ordinary rules, but you will come across older texts where this is not so. Courts nowadays will have regard to punctuation when construing a document.

Consider the role of punctuation in the following:

This man said the judge is a fool.This man, said the judge, is a fool.

Woman without her man would be a savage.Woman - without her, man would be a savage.

James hit Ian and Edward, then ran away.


James hit Ian, and Edward then ran away.

Spelling follows ordinary rules, although there are some spellings peculiar to the legal world, such as judgment (e omitted) when referring to a decision of a court, moneys, not monies, flotation (when referring to a company) not floatation (as in a raft or boat).

I(b)(ii). Terms of art:

These are technical words and phrases which cannot usually be replaced by synonyms (unless by other equivalent terms of art: e.g., sub-tenant/ sub-lessee). Here are some examples of words that are specific to law (i.e., they are not used in other contexts): *be aware that English spell checkers on computer programmes do not often recognise these terms.

abatementabsolute titlebailmentbequestcharterpartychattelcollateralconveyancedevisederogation from granteasementencumbranceestoppelfee simple/ freeholdfiduciaryincorporeal hereditament (now archaic)indemnityinvitation to treatgrievous bodily harmlienmanslaughtermortgageoverriding interestoverreachable interestprivityrescissionretention of titlesecured creditorspecific performancestatutory instrumentsuccessor in titlesuretyterm of years/ leaseholdtrust of landundue influencewaiverwarranty


winding-up

Note that because these are technical terms with specific and immutable meaning, they should not be used interchangeably with synonyms. In writing generally, it is common practice to vary words used repeatedly in order to avoid monotony of style. In legal writing, however, this should be done with caution and avoided where terms of art are used, as it could create confusion (see II(d)(iii) below). It is best to pick one set of terms and to stick with it. For example see the pairs of synonyms below, all of which are terms of art:

assign, transferbreach, violationbuyer, purchaserclause, provisioncontract, agreementdefault, failurelessee, tenantlessor, landlordobligation, liabilitypromise, assurance, undertakingseller, vendorvoid, invalid

I(b)(iii). Legal jargon

This are different from terms of art, in that jargon comprises terms which have no official fixed definition but are commonly used among lawyers as shorthand. These should be avoided when writing formal documents. Some common one are boilerplate clause, corporate veil, Chinese wall.

I(b)(iv). Special legal meaning of otherwise ordinary words:Some terms of art consist of ordinary words used for a specifically legal meaning. These differ from those at I(b)(ii), which appear only in legal language. It is important to consider carefully, especially when reading these terms, whether the meaning is ordinary or legal.

Consider both the ordinary and the legal meaning of the following:

assignmentbearerbindingbondbreachcapacity/ incapacitychargeconsideration


constructioncovenantdeeddeemdeliverydepositdistressfixturefrustrationguaranteeimplyinstrumentissuematurityminutesnegligenceoverreachprincipalquotationrecitalrecklessnessrecogniseredemptionrepudiationrestitutionreturnroyaltysalvagesevertendertitletrust

II. Is legal English different from ordinary English? Yes and no.

II (a). Vocabulary and register: The register refers to the tone of language, that is, to levels of formality or familiarity. The standard register in Legal English is formal. However, you must take care not to sound so formal that you end up sounding pretentious (see examples at I). As explained in I, the use of Latinate language produces a formal register, while words deriving from Old English convey an informal tone, generally speaking.

Formal words may also function as euphemisms, which can be appropriate in detached and official language: see intoxicated for drunk, passed away for died. Latinate words are often considered morally neutral, while Old English words can seem laden with emotive resonances. However, even in formal language, euphemisms should be used with caution, as they can impair clarity and occasionally sound ridiculous (revenue enhancement for tax increase and vertically challenged for


short). Where the ordinary word will not cause offence, use that.

A note on gender bias in English: English does not have a neutral singular form (or common form) of pronouns for people (It and its refer to inanimate subjects and collective nouns only). Offence can be caused by the use of the male pronoun to mean people in general (he/ his/ him where the subject’s gender is uncertain because the phrase is meant to apply generally). It is now common in business, legal and academic writing to use he or she (or he/ she), but this can be cumbersome where there are several pronouns in the same sentence: The tenant may extend his or her lease if he or she wishes to remain on the premises, until further notice is given to him or her. The OED now sanctions the use of the plural pronouns they, them and their for use with a single subject, but the result is unfortunately ungrammatical and inelegant: the tenant shall pay their rent in advance. Often, the problem can be avoided by constructing the sentence so as to omit the pronoun. This can be done by simply leaving it out (the tenant shall pay rent in advance), by substituting an article (the tenant shall pay the rent in advance), or by using who, especially following a conditional (if) clause (if he does not receive his rent in advance, the landlord may forfeit the lease becomes the landlord who does not receive rent in advance may forfeit the lease).

Nowadays, it is preferable to use the neutral form of nouns:

chair for chairman business executive for businessman police officer for policeman/womanfirefighter for firemanhead for headmaster/mistress

II(b). Grammar:

Parts of speechIt is impossible to set out grammatical principles without using the terminology that serves to distinguish the "parts of speech" – the various categories to which different words belong. In fact, you are more likely to make mistakes if you do not understand how grammar works. By using the terminology of grammar, a rule can be stated briefly, and the problem understood more quickly. Learning the following parts of speech and the grammatical principles set out in the next section will help you write more clearly and avoid mistakes.

The main parts of speech are:1. Verb


2. Subject 3. Object (direct and indirect)4. Modifier (adjective and adverb)5. Noun6. Noun phrase 7. Pronoun (object and subject8. Preposition9. Conjunction10. Article11. Clause (main and subordinate) 12. Participles and gerunds

1. VerbThis is a word or combination of words that shows action or a state of being: "The purchasers of a flat sued a valuer, on whose report they had relied, for negligence". Verbs have tenses, which indicate whether the speaker is talking about something as happening now (present tense), or as having happened (past tense), or as going to happen (future tense). The simple form of the verb plus the word to is called the infinitive (e.g. to sue and to rely in the above sentence).

2. SubjectBeing a subject is not an enduring trait of any word; it is a role played within a particular sentence by a word or phrase, which may play a different role in other sentences. The subject is inseparable from the verb; indeed, a subject and a verb are the minimum requirements for a grammatically correct sentence. "It is", for example, is a complete sentence, as it has a subject (it) and a verb (is). An exception to this rule is when the verb is in the imperative form, that is, when it expresses an order, like "Sit!", "Fetch!", "Speak!".

A subject may comprise a simple noun (e.g., law), a noun-phrase (e.g., common law, rule against perpetuities), or a pronoun (e.g., he, she, it). The subject answers the question "What…?" or "Who…?".

The subject governs the verb, so the verb must agree in number with the subject. For instance, in the sentence "A more important point is that civil liberties are merely residual", the first subject (point) is singular and so is the form of the verb to be (is), whereas the second subject is plural (civil liberties) and so is its form of the same verb (are). Compare George W. Bush Jr.'s gaffe "Families is where our nation finds hope…".

A word must be said about singular and plural in general. Students frequently get themselves into a muddle when they compose sentences with noun-phrases: "The most notable feature of constitutional conventions are their flexibility". The


student has fallen into the trap of thinking that she is talking about conventions, and so supplies a verb in the plural; she is really talking about a singular feature, so the verb should be is. Similarly, in "Dicey is one of the few writers who has objected to the use of discretion", substitute have, because the subject of the verb is writers, not Dicey. When nouns are joined by the conjunction and, the verb is plural, and not as this student has written: "The common law and statute provides the legal sources of the constitution". When denying that any noun does the action of the verb, the verb should be in the singular, as in “None of the students has done the work”. When the conjunction is or, for example, the singular form is needed, not the plural as here: "Dicey does not say that conventions or the prerogative do not exist"; the verb should be does. Similarly, in "Neither conventions nor prerogatives originate in law", the verb should be the singular originates. A common error is exemplified by the following: "To assert that such restrictions inconvenience the elderly and the disabled are wrong". The subject of the verb is not the elderly, the disabled or even restrictions; it is to assert. Here, the infinitive functions as a noun, and it is singular, so the verb should be is.

Dr. Turano has noticed that the British like to use a plural form of the verb where the subject is a collective noun, that is, a noun which comprises individuals, like family, staff, government, class (meaning the students in it). Examples include: "The family are going to France", "The management do not accept responsibility", " The staff are under great pressure", and "The Foreign Office admit they made a mistake". This use of the plural is wrong according to the rules of British English, as in American English (Dr. Turano apologises if she sounds smug when she says that Americans don't make this error). The mistake probably arises because when we think of a group of people we are inclined to use the pronoun they. The strict rule is that a singular noun, even if denoting a group of people, should be followed be a verb in the singular and be replaced by the pronoun it. However, when the main noun is number or majority (or minority), the use of the plural is tolerated.

3. ObjectLike the subject, the object is also a role. Unlike the subject, it is not necessary to every sentence, but only where the verb demands one. So in the sentence "The plaintiff wept", there is a subject and a verb, but the verb is of a type that does not require an object (intransitive verb). However, in "The court applied the decision in Re Gorman", the verb applied (which is here a transitive verb) needs an object to make sense; the object here is decision.


It is often said that the object receives the action of the verb: you apply the law, smell the roses, drink the coffee. The object can receive the action of the verb either directly or indirectly. If the object is affected indirectly it is usually (but not always) preceded by a preposition (see below). So, in "The court applied the law to the facts of the case", the court is the subject, applied is the verb, the law is the direct object of the verb and the phrase the facts of the case is the indirect object of the verb, as it follows the preposition to. Note, however, that in some cases a preposition may not be present if the structure of the sentence does not require it: "I gave the book to her" or "I gave her the book" – in both cases her is the indirect object. The direct object answers the question "What…?" or "Whom…?". The indirect object answers the question "To what…?" or "To whom…?".

4. Modifiers Modifiers are words that describe. They are divided into two groups: adjectives and adverbs.

Adjectives describe nouns (see below), as in "The quick, brown fox jumped over the lazy dog". They may also appear as demonstratives, such as this hat, those gloves, these red scarves, in which case they specify. They answer the question "What kind of…?". Adjectival phrases are made up of several words that describe a thing: "She sat behind her tidily arranged desk".

Adverbs describe verbs, as in answered correctly, settled amicably, proceeded clockwise. They may also describe adjectives, as in "Salt is reputedly unhealthy" – here, the adverb reputedly modifies the adjective unhealthy, which in turn modifies the noun salt. Most adverbs are easily recognised by the suffix –ly, although the adverb well is an exception, as is clockwise. Adverbs answer the question "How…?" or "In what manner…?". An adverbial phrase is made up of several words describing how something is done: "Without a moment's hesitation, he signed both documents".

5. NounThe noun is the name of a person or a thing. In the sentence "Constitutions are drawn up to establish the fundamental principles of a new system of government", the nouns are constitutions, principles, system and government. Proper names like Georgina, Mohammed and the British Isles are also nouns.

6. Noun-phrasesThese are made up of several words which taken together make up the subject or the object. They may also be adverbial


phrases. In "The assassins' hands were stained with Caesar's blood", both the assassins' hands and Caesar's blood are noun-phrases, the first phrase functioning as the subject of the sentence ("What were stained?"), the second functioning as the adverbial phase ("How were they stained?"). In "Brutus plunged the sharpened dagger into Caesar's breast", both the sharpened dagger and Caesar's breast are noun-phrases, the first phrase being the direct object ("What was plunged?), and the second being the indirect object (Into what was it plunged?"). You will note that if we change the object noun-phrase to the newly sharpened dagger, it contains an adjectival phrase (newly sharpened).

7. PronounsPronouns replace nouns. They differ from nouns in serving to determine who or what is being spoken of only by reference to the context. The nouns Mohammed and the cat may be replaced by the pronouns he and it. So in "Mohammed looked after the cat. He fed it every day", we know from the context that he and it refer to Mohammed and the cat respectively. A pronoun must have an antecedent, that is, the noun that precedes the pronoun (from Latin: ante=before, cedere= to go). Here, Mohammed and the cat are the antecedents for he and it.

A distinctive feature of pronouns in English is that they are inflected. This means that the form of the pronoun changes depending on its role in the sentence. So, for instance, if Mohammed is the subject of the sentence, then he is the correct form of the pronoun. If Mohammed is the object, then him is the correct form of the pronoun, as in "The cat relied on him". Subject pronoun forms are I, you, he, she, it, we, and they. Object pronoun forms are me, you, him, her, us, and them. Possessive pronoun forms are my, your, his, her, its, our, and their. If you understand that pronouns change form depending on the role they play in the sentence, you can easily see why the common phrase "between you and I" is wrong. The preposition between must be followed by an object, and the object form of the pronoun I is me; the phrase should be "between you and me". Compare the following forms of the pronouns: "The present was meant for her and me (indirect objects)"; "You and I (subjects) will be late". A good test is to see whether you can replace you and I (or he, she, it and I) with the object pronoun us or with the subject pronoun we: Between us is fine, but not between we, so the object pronoun me is correct.

The words who and which can serve as relative and interrogative pronouns. Who is also inflected; its forms are who (subject), whom (object) and whose (possessive). Relative pronouns serve to introduce a relative clause (see below): In "The assassins, who had plotted for months, gathered in the


forum" who is the relative subject pronoun. In "The assassins were men, whom Caesar had trusted", whom is the relative object pronoun. In "The assassins, whose hands were stained with blood, …" whose is the relative possessive pronoun. Interrogative pronouns pose questions: "Who said that?" (subject), "To whom was the letter addressed?" (indirect object), "Whose cat is that?" (possessive).

Pronouns, relative clauses and the "he who" problemThe form of the relative pronoun who is determined by the role the pronoun plays in the relative clause. So in "Nader is the candidate who will win" who is the correct form of the pronoun because in the relative clause who will win it is the subject of the verb win. In "Nader is the candidate whom we hope to elect", whom is the correct form because in the clause whom we hope to elect it is the object of the verb elect, while we is the subject (compare "we hope to elect him"). So in "She denounced whomever had committed the crime", whomever should be replaced by whoever because it is the subject of had committed in the relative clause. Even if the main clause contains a preposition, the case of who is still determined by its function in the relative clause: "Give this work to whoever looks idle" (not to whom). As usual, George W. Bush Jr. provides a good example of bad grammar: "It was us vs. them, and it was clear who them was".

By contrast, the form of the pronoun he or she is determined by the role it plays in the main clause. If it is the object of that clause, or is governed by a preposition, it should take the form him or her: "All things come to him who waits" (not "he who"). Note that the relative pronoun takes the form who, not whom, because it is governed by the relative clause, and in that clause it is the subject of waits.

Do make sure that your pronouns agree in number with their antecedents. This is one of the most common student errors, and it always mars an otherwise good piece of work: it is a clear sign of carelessness. Dr. Turano reads countless essays that contain sentences like: "A convention is a non-legal rule. Generally, courts will not enforce them". This always prompts her to circle them and scribble "antecedent?" in the margin.

8. PrepositionsPrepositions define the relationships between people or things. In "She gave a scarf to her husband", and "He borrowed a book from his sister" both sentences express an action (giving, borrowing) that involved two people and a thing. The words to and from are prepositions. These are normally short words that serve to indicate the role of a person or thing in a relationship or action.


The use of prepositions is not easy to master even for native speakers of English. There are few principles to follow; for instance, why should we "forbear to cheer" but "refrain from cheering"? You just have to learn by example. When in doubt, look up the verb in a dictionary; the definition will usually indicate the preposition to be used.

9. ConjunctionsConjunctions join together clauses (other than relative clauses) or introduce a subordinate clause: "We wanted to leave, but our friends detained us, and we stayed another week in New York"; "He went to bed, for he was feeling tired"; "She won the match although she was injured" (subord. clause); "He fell because he was not looking"; They cannot do this unless you help" (subord. clause). Conjunctions can also join words and phrases shorter than whole clauses, as in "man and boy", or "naughty but nice". Conjunctions can compare, as in than and as: "She is taller than Joan, but she is not so old as her".

10. ArticlesThere are only two words in the English language that fall into this category: the and a (or an). The former is called the definite article and the latter the indefinite article (Foreign speakers of English in particular should note how articles are used - English uses articles more than in Russian or Polish but less than in Latin languages and German, for example). Some students use the definite article for plural nouns incorrectly, as in, "Jennings used the metaphor of flesh to describe the conventions". The speaker is referring to conventions in general, not to particular ones, so the use of the here results in ambiguity; it prompts the reader to ask, "Which conventions?".

11. Clause (main and subordinate)Clauses are the distinct sections of a sentence. They are often marked by commas, as in "Morris, who was gloomy by nature, suddenly smiled". The part in italics is the main clause, and the part underlined is the subordinate clause, i.e., that which is dependent on the main clause for its sense. In this case, the subordinate clause is also an adjectival clause because it describes a noun (Morris), and it is also a relative clause, beginning with who. The clause contains an adjectival phrase, gloomy by nature. Main clauses are identified by the presence of a main verb: "As they were on their way to the beach, it started to rain". Started is the main verb; were cannot be since it follows the preposition as. Main clauses can exist on their own; subordinate ones cannot.

12. Participles and gerunds


The suffix –ing, added to the root of a verb, serves to form two essentially different verbal expressions: the participle and the gerund. They are grammatically different: a participle is an adjective, a gerund a noun. They can therefore be distinguished by their role in the sentence. For example, in the sentence "We passed a man struggling up the hill on a bicycle", struggling functions as an adjective since it qualifies a noun, man. It is therefore a participle. By contrast, in the sentence "The undergraduates resent paying a higher rent", there is no noun or noun-phrase for paying to qualify. It therefore functions as a noun, and is a gerund, not a participle. The whole noun-phrase paying a higher rent is the object of the verb resent. A misunderstanding of this simple fact will result in error, as in "The undergraduates resent the College imposing a higher rent". It should be the College's imposing; the undergraduates do not resent the College, as an institution, but its action in imposing a higher rent. Therefore the phrase should be in its possessive form. By contrast, we passed the man, not his struggling.

Compare these sentences: "She concealed my being in debt from my parents" and ""She concealed me being in debt from my parents". The first means that she concealed the fact that I was in debt, whereas the second means that she concealed me while I was in debt. The same difference exists between the next pair: "We were surprised by him wearing a tie" and "We were surprised by his wearing a tie". The first means that he surprised us while wearing a tie, and the second that we were surprised by the fact that he wore one. So, "The chances of them staying sober are nil" should be "The chances of their staying sober…". Compare the meanings of these two sentences: "We saw him going" (adjective describing him, therefore a participle) and "We observed his comings and goings (nouns, therefore gerunds and preceded by the possessive pronoun; here the gerund, as noun, is a direct object of the verb observed).

Dangling participlesDangling participles occur in sentences that contain no noun or pronoun that the participles are meant to qualify. This is permissible in other languages (compare the ablative absolute in Latin), but not in English. Dangling participles are a sign of careless composition. They are also frequently amusing, as in "Stripped of her more lurid language, Baroness Thatcher has a point" (The Independent). The writer meant that, when Lady Thatcher's observations have been stripped of their more lurid wording, they contain a point; what he has said is that when she is stripped of lurid language, she has a point. The same objection holds good for "Handing me my whiskey, his face


broke into an awkward smile" (a rare thing, a face that can pass whiskey).

A common form of the dangling participle is having said that, as in "Having said that, the original question remains unanswered". Strictly interpreted, this can only mean that the question just made the remark referred to. It should be "Despite that,…" or "Having said that, I must admit that the question…". However, there are certain participial phrases that have the effect of conjunctions or prepositions, and you may dangle them without breaking any rule or making a fool of yourself. They include generally speaking, concerning, regarding, owing to.

II (c). Punctuation:

When we speak, we use intonation to dispel any ambiguity that sentences and phrases might otherwise have. Written sentences are in general more complex than spoken ones, and so are more in danger of ambiguity; and a writer cannot correct a reader's misunderstanding, as a speaker can correct a hearer's. Punctuation is the principal means of avoiding ambiguity.

The main punctuations are: comma (,), full stop (.), colon (:), semi-colon (;), apostrophe ('), quotation marks (") and question mark (?). Dr. T says that exclamation marks (!) are not appropriate in essay writing.

CommaThe comma causes the most problems for students. It signifies a pause, and it shows the boundary where one thought ends and another begins: "She cursed the dog, kicked the cat, tripped, and fell down the stairs"; "India beat Australia, and Pakistan beat England". Consider the difference between the following sentences:

A counter-notice must be given to the landlord, who may, or may not, be the immediate landlord who served the notice terminating the tenancy and must be given within two months of the landlord’s notice.

A counter-notice must be given to the landlord (who may, or may not, be the immediate landlord) who served notice terminating the tenancy and must be given within two months of the landlord’ notice.

The comma separates the subordinate clause from the main clause. You need to make sure that the main clause reads sensibly on its own. In "She saw that many, if not most of, the


dancers were barefoot", the comma is incorrectly placed. The test is to take out the subordinate clause (if not most of) to see if the rest of the sentence makes sense. Here, the main clause is left as "She saw that many the dancers were barefoot", so you need to place the comma before of.

Some people apply the rule that you place a comma where in speech you would normally pause for breath. This is not a good rule of thumb; it often leads to errors such as: "His view, is that conventions are not binding". Neither clause here makes any sense on its own, therefore a comma is not appropriate.

Commas frequently come in pairs, usually where they separate a relative clause from the main clause. A relative clause ought to be encased in commas when it does not serve to define the person or thing referred to, but merely adds supplementary information: "The invigilator, who had sat up all night marking papers, fell asleep during the examination". Here, the omission of the relative clause would still leave an unambiguous sentence. But when the relative clause is essential to determine the reference, no commas are needed: "The dog to which he threw the bone obstructed him no further". If the relative clause is omitted here, the reader will need to ask "Which dog?". In this type of sentence, if the relative pronoun is the direct object, that is preferred to which (although the rule is not sacrosanct; if there are already other occurrences of that in the sentence, then which is acceptable): "The dog that I teased yesterday bit me today".

Words like however or nevertheless, or a phrase like despite this, should always be followed by a comma when they begin a sentence. But consider the differences between these two sentences: "However much time was wasted in reminiscence, they ended by resolving their disagreement" and "However, much time was wasted in reminiscence". Note that the latter is a complete sentence. But if you replace the comma with a full stop in the first sentence, you are left with an incomplete sentence. Therefore, if placed at the beginning of a sentence, should be followed by a comma; but it is normally better style to place it later in the sentence, usually without commas: "Therefore, there is no need…" is better as "There is therefore no need…".

Note that no comma should separate a noun from its restrictive term of identification: "The novelist Charles Dickens wrote Bleak House"; "William the Conqueror"; "Billy the Kid"; "my sister Jane".


Full stopIn general, a full stop indicates the end of a sentence. Like any punctuation mark, it is always followed by a space. See? When ending a sentence with a parenthetical clause, place the full stop after the closing parenthesis. The same rule applies to quotation marks. A quotation, even if it consists of a complete sentence, is only a part of the larger sentence that introduces it, so you need a full stop to signify the end of the larger sentence: Jennings says, "Conventions are the flesh on the dry bones of the constitution". Here, the full stop closes the sentence that begins "Jennings says". If you are including a footnote reference, place the superscript number directly after the full stop, and follow the number with a space. Even footnotes need full stops.

Colons and semi-colonsA colon is used before a list, or before a specification of any kind. Consider its use and the use of the semi-colon in the following sentence by Sir Stephen Sedley: "But there is another and subtler sense in which it can be said that in this country we have constitutional law without having a constitution: our constitutional law offers an account of how the country has come to be governed; and in doing so it confers legitimacy on the arrangements it describes". The part of the sentence following the colon functions as a specification: it precisely defines the meaning of the preceding clause (as in this very sentence). The specifying clause need not form a complete sentence. A semi-colon, however, needs to be followed by a complete clause. A semi-colon is used when a long sentence demands more of a pause than a comma provides, but the second half is too closely connected to the first to warrant a full stop.

ApostropheThe apostrophe is used to show possession. Students often leave out the apostrophe. Please put it in. It is simply not acceptable to write: "The plaintiffs demanded the governments disclosure of evidence". You know very well that it should read "government's". With singular nouns not ending in "s", an apostrophe plus "s" is added to show possession, as in the cat's whiskers and the bee's knees. Where the noun is singular and ends in "s", the apostrophe follows the "s", just as it does with nouns that have "s" in the plural: the thesis' binding (singular); the dogs' shelter (plural), but the children's toys (plural not ending in "s"). (N.b. It is important for Law students to remember that titles of Acts of Parliament are not in the possessive: it is the Children Act, not the Children's Act; also note that here Dr. Turano is placing the full stop inside the closing parenthesis because the parenthetical remark makes up


the whole sentence - but don’t use such sentences in your essays.)

Quotation marksQuotation marks set words or phrases apart in a sentence. The most common use is to indicate that you are citing another person's words exactly. Another use is where you are referring to a word rather than using it (in this guide, I have generally used italics for this purpose). In "She always avoided toilet, preferring almost any other word", what is meant is that she avoided using the word "toilet". The sentence should read "She always avoided 'toilet'…". Note that here I have used single quotation marks (' as opposed to "). This is because I have set the whole sentence within double quotation marks. The orthodox rule is to use double marks for the principal quotation and to use single ones for the quotation within the quotation. This is the traditional way, but more and more publishers are reversing the positions. Whichever you choose, make sure you are consistent. Also note that the full stop follows the closing quotation marks.

II (d). Style:

II(d)(i). Active or Passive voice?

In an effort to achieve a formal, detached tone, lawyers and other professionals often use the passive voice. However, this can weaken the effect of the sentence and even impair its clarity. In order to enhance the force and clarity of your sentence, prefer the active to the passive where both voices would supply the same information. Only use the passive where information is lacking, where you do not wish to reveal it, or where it is irrelevant.

Examples: In the following sentence, the author does not say who signed the contract.

The contract was signed.

Is it because she does not know, or does not want to say? If she does know and does not mind saying, then she should use the active voice. The passive voice is acceptable where the speaker does not know who the agent (the “doer” of the action) is or does not wish to reveal the information, or where the information is irrelevant:

The goods were stolen - we don’t know who stole them or we don’t care by whom where the emphasis is on the illegitimate


quality of the goods. In the last case, the use of the passive is more adjectival, than verbal.

Consider the difference in emphasis between these two sentences:

I found no records at Company house.

No records were found at Company House.

In all other cases, use the active. Both the following sentences convey exactly the same information; the second is preferable to the first:

The contract was signed (by Jane and John).

Jane and John signed the contract.

But where the agent is obvious, the passive voice (without agency) is preferred:

The contract was signed.

rather than

The parties signed the contract/ the contract was signed by the parties.

because only parties to a contract can sign it.

Here is a summary of the characteristics of the active and passive voices and reasons why you should prefer the former whenever possible:

Active Passive personal impersonalsimple ponderousinformative and specific evasive and vagueclear and precise ambiguousdirect indirectshort sentences long sentences

II(d)(ii). Concealed verbs:

The use of concealed verbs is also called nominalization. This is where the writer uses noun-phrases instead of verbs. It is very common in bad formal writing. Concealed verbs add more words to the sentence and therefore weaken the effect of it. The style becomes less dynamic and less effective. See the list


below: on the left are common noun-phrases, on the right are the preferable verbs that convey the same meaning in fewer words:

give indication of indicatego to arbitration arbitratehave possession of have/ possesshave knowledge of knowhave ownership of ownhold a meeting meetimpose enforcement of enforceput under obligation oblige/obligateput up opposition to opposereach an agreement/ settlement agree/ settlereveal identity identifyundertake negotiation of negotiate

Improve the following sentences by revealing the verbs:

The parties reached an agreement to make a settlement.

It may assist you if you agree that if the other party terminates he will be obliged to pay.

The decision saw the reversal of many tax avoidance schemes.

In the verification of a prospectus you must check every detail.

Occasionally, you may need to soften the impact of a sentence, so as not to sound to abrupt, in which case concealed verbs can help.

II(d)(iii). Repetition and elegant variation.Legal writing can present a dilemma: one the one hand, to avoid ambiguity a writer needs to use terms consistently; on the other hand, repeating the same word can cause tedium. Elegant (or slight) variation by use of synonyms can relieve the tedium, but it can produce ambiguity, particularly where it substitutes terms of art.

Consider the following letter (ignore for the moment the use of concealed verbs and passive voice):

Re: 36 High St.We act for the landlord of the above-named property, and on his behalf we enclose notice to quit.

The leased premises were let to you pursuant to your contract of employment to enable you to carry out your duties and the


lease of the said premises provides that you will be required to vacate the demised premises upon the cessation of your employment. Our instructions are that your employment has recently been terminated.

These kinds of variations are common in legal writing, but should be avoided. Be consistent. Never change your language unless you intend to signal a change in meaning, particularly in an official document.

In the above example, the use of said and above-named does not generate confusion, but it does sound cumbersome and is no improvement on the simple repetition of the original word. You will often find these words in poorly drafted legal documents (along with aforesaid, aforementioned, the same, such).

o Said: The use of said is unhelpful. Lawyers use it because they think that it resolves ambiguity, but it doesn’t. If you need, for example to distinguish two ships in a contract, the phrase “said ship” doesn’t help because it can refer to either. If you have only mentioned one ship, then the phrase is redundant because there is no need to distinguish. If there are two or more ships, the obvious remedy is to use the names of the ships throughout.

o Such: This is another unfortunate lawyer’s term when it is used in the same way as said. Consider the egregious use of such in the following (ignore for the time being the lack of punctuation and other flaws):

In the event that capital allowances in respect of the goods in an amount equal to 100 per cent of the total cost shall not be available to the lessor for the accounting period in which such expenditure is incurred or that such capital allowances shall be withdrawn for such period but such capital allowances become available to the lessor in respect of such goods at a later time or times the lessor shall be under no obligation to apply for, utilise or give credit for any such allowances provided that if the lessor actually utilises any such allowances and obtains the benefit therefrom, the lessor shall take into account such utilisation and benefit and shall adjust each such instalment of primary period rent payable after receipt of such benefit in such manner as the lessor in its sole discretion considers appropriate.

There are eleven uses of such. Only the last is justified.


Exercise: rewrite the paragraph, suppressing such as much as you can.

o SynonymsWhen using legal language in other contexts (conversation, academic writing), elegant variation is permissible. Below is a list of some common synonyms which may be used interchangeably, but be aware that the context may demand some synonyms rather than others:

assign deliver, transfer, give, hand over,

passbreach violation, failure,

contravention,infringement, offence, omission

clause condition, paragraph, warranty,

stipulation, provision, proviso, section,

sub-section, part, article

contract agreement, bargain, commitment,

deal, settlement,undertaking, understanding

claim action, dispute, lawsuit, process,

suitinvalid null, ineffective, voidmutual common, joint, reciprocal,

sharedobligation commitment, compulsion,

duty, liability, requirement, responsibility

promise assurance, commitment,

undertakingvalid allowed, approved, authentic

authorised, current,enforceable, genuine, legal, legitimate, permissible,

proper, ratified

II(d)(iv). Archaic language.


Legal English is replete with archaic words like hereinafter, whosoever, whereas, aforementioned. The present trend is to reject these for modern terms, but as lawyers in general are temperamentally conservative, progress is slow. Not only are these words needless in communications between lawyers, they are inappropriate when used with non-lawyer clients. Unless the word is a term of art, use ordinary English. You should be able to recognise the following, but avoid using them:

o Herein, hereof, hereinafter, hereinunder: These often appear in agreements where the drafter wishes to cross-reference terms between clauses. The context usually makes this clear, but if you feel the need to be more precise, use the modern terms above and below instead. In fact, the herein- words can cause ambiguity, and it is better to be precise by referring to the clause number to which you are cross-referencing

Example:

Subject to the provisions hereof

is better as

Subject to the provisions of paragraph 7(b).Subject to the provisions of this clauseSubject to the provisions of this agreement.

o Hereby:

This is common but redundant and adds nothing to the sentence. Consider:

It is hereby agreed as follows/ it is agreed as follows

The same objection applies to the common herewith, heretofore, thereof, thereafter thereupon, whereof and many other similar terms.

Words such as whatsoever, wheresoever and whoseoever should be replaced by whatever, wherever and whoever.

Henceforth and thenceforth (from this or that time on, and from that time, place or point onwards, respectively) are still used quite widely and are possibly unavoidable, particularly the former.

o Qualifying words:


These are words like completely, totally, definitely, really and very. Although not archaic, they emphasise a point needlessly and have little place in good writing:

o Legal pairs (redundant)These are unfortunately characteristic of legal writing, although the current trend is to suppress them: common ones include: null and void, last will and testament, suffer and permit.

II(d)(v). Usage.

The synonyms at II(d)(iii) can be used interchangeably. However, not all words that can be used interchangeably in one context can be so used in others. Occasionally, you may need to use a word in a specific way which cannot be conveyed by that word’s usual synonym. Special care is needed to choose the right word. Moreover, English, because of its multiple roots, has many words which look and sound similar but have different, even contrary meanings, particularly in law. This creates pitfalls for non-native and native speakers alike.

o Shall and willThese are commonly confused. In legal writing in particular, you should not interchange them. Shall denotes a real obligation and is inappropriate where the sentence conveys a hypothesis or condition (see III on the logic of the legal sentence).

In legal texts, shall is often used incorrectly to state a case or condition in the future tense. In most cases, it should be substituted by the present tense.

Examples: The following are common misuses of shall:

If the purchaser shall fail to pay…

If the company shall go in liquidation…

If the lender shall have given notice to the borrower…

Where any person shall find himself aggrieved…

These are better expressed as follows:

If the purchaser fails to pay…


If the company goes into liquidation…

If the lender has given notice….

Where any person finds himself aggrieved…

Shall is correctly used in the following circumstances: - in the second and third person to express obligation:

The tenant shall keep the premises in good repair.(i.e., must)

- in the first person to express simple futurity:

I shall have your document ready by tomorrow. (no obligation)

Will is used correctly in the following circumstances:- in the second and third person to express to express simple futurity:

You will find that the contract contains the usual clause. (simple statement, no obligation)

- in the first person to express obligation:

I will keep and maintain… (obligation, duty, promise)

(Note, however, that documents are rarely drafted in the first person.)

What is the difference between these two sentences?:

The seller shall manufacture the goods in accordance with the specifications set out in Schedule 1 to this agreement.

The seller shall warrant that the goods will be manufactured in accordance with the specifications set out in Schedule 1 to this agreement.

Note that shall can usually be replaced by the present tense in most cases:

The dollar shall be the currency of account under this agreement.


The dollar is the currency of account under this agreement.

but not in all - consider the following:

The agreement is governed by and shall be construed in accordance with the law of England.

Here, there is no need for shall in is governed by, but it is needed in shall be construed because it imposes an obligation on persons to construe it in accordance with English law.

o Shall and may.As noted above, shall denotes obligation. May denotes permission or discretion.

Explain the difference between these two sentences:

Upon signature of the agreement, the customer shall pay a

deposit.

If the customer fails to collect the goods on or before the delivery date the company may retain the deposit.

o Commonly confused words.Some words are confused because of their similarity in appearance and sound to one another. Others are misused simply because the writer does not know the meaning of the word (this afflicts native and non-native speakers alike). Below is a list of the most commonly confused and misused words.

An asterisk indicates a common error. Two asterisks mean an egregious error.

Abdicate/ abrogate The first means renounce formally an office or power, the second repeal.

Admit toThis is nearly always wrong, as in these two examples: 'Pretoria admits to raids against Angola' (Guardian); 'Botha admits to errors on Machel crash (Independent). Delete to in both cases. You admit a misdeed, you do not admit to it.


Advance planningThis is fatuous. All planning must be done in advance. (The same objection applies to plan ahead, future plans, end or final result, past history, join together.)

Adverse/ averseThe first means opposed, contrary or hostile, the second means strongly disinclined.

**Affect, effectAs a verb, affect means to influence ('Smoking may affect your health') or to adopt a pose or manner ('He affected ignorance'). Effect as a verb means to accomplish ('The prisoners effected an escape') As a noun, effect is almost always the correct one (affect as a noun has a narrow psychological meaning having to do with affection). Just forget about affect as a noun.

Aggression, aggressiveAggression is an unprovoked attack, and it always denotes hostility. Poorly educated business people often use aggressive incorrectly instead of enterprising, bold, active or forceful.

AnticipateIt means to foresee, and so to forestall. It should not be used to mean expect, as in 'Eastern Electric does not anticipate power cuts'. Of course Eastern did anticipate them. It would have been incompetent of EE not to do so. What is meant is that EE does not expect power cuts because it has done its best to anticipate them.

Among, betweenWhen more than two things or persons are involved, among is usually called for: "The money was divided among the four players"; "the money was divided between the two players (or "both players"). However, when more than two are involved but each is considered individually, between is preferred: "an agreement between the six heirs".

AppreciateThis has a slightly more specific meaning than many writers give it. If you appreciate something, you value it ("I appreciate your help") or you understand it sympathetically ("I appreciate your plight"). But when there is no sense of sympathy or gratitude or esteem (as in "I appreciate what you're saying, but I think it's nonsense"), understand or recognize would be better.


As to whetherWhether is sufficient.

As yetYet is nearly always as good, if not better:X No agreement has been reached as yet No agreement

has yet been reached.

Be (with a participle)Often a wordy way of getting your point across:X He will be joining the company in He will join the company inMarch. March.

BeingNot appropriate after "regard as":

X He is regarded as being the best He is regarded as the best lawyer in the firm. Lawyer in the firm.

*Between you and IBryson calls this "a grammatical error of unsurpassed grossness". It is very common and it is always wrong. The rule is that the object of a preposition should be in the accusative. More simply, we don't say "between you and I" for the same reason we don't say "give that book to I" or "as I was saying to she only yesterday". For further explanation, see the section on prepositions in the chapter on grammar.

But…howeverSince both words indicate a shift in direction, they should not appear together in a sentence. "But that, however, is another story" should be either "But that is another story" or "That, however, is another story".

**CannotThis is one word. "She can not see me" is wrong.

CaseOften unnecessary:

X

In many cases, the rooms were too small. Many of the rooms were too

small.


Character, natureOften redundant, used from a mere habit of wordiness:

X

acts of a hostile character hostile acts

ClaimProperly, claim means to demand recognition of a right. You claim something that you wish to call your own. It should not be used a substitute for declare, maintain, profess, allege, contend or say, all of which can almost always fit more accurately into the space usurped by claim.

Comparatively"Comparatively little progress was made in the talks yesterday" (Guardian). Compared with what? Comparatively, like relatively is better used only when a comparison is expressed or clearly implied. It is best avoided when all you mean is fairly or only a little.

*Comprise"Audiences are comprised of ordinary people" (Martin Amis in the Observer). No, they are not. They are composed of ordinary people. Comprised of is a common expression, but it is always wrong. Comprise means to contain. The whole comprises, or contains, the part, not vice versa. A zoo comprises animals. Animals do not comprise a zoo; they constitute a zoo.

CondoneThe word does not mean approve or endorse, senses that are sometimes attached to it. It means to pardon, forgive or overlook. You can condone an action without supporting it.

Consensus"The general consensus in Washington…". This is a tautology. Any consensus must be general.

Consequently/ subsequentlyThe first means "as a result". The second means "afterward". The first indicates a causal relationship between the subject matter of two sentences: "She turned in her essay three days late. Consequently, she had marks deducted". Subsequently would not be appropriate here.

Construct, construction, construeThe first is to build or make, the second may be either (generally) a building or other fabrication or (legally) the meaning a court derives from interpreting a document or other


evidence. The third means to interpret, derive a meaning from words or other evidence.

Continual, continuousThe first means "very frequent", the second means "uninterrupted". "It rained continuously for three days" means it never stopped raining. "It rained continually for three days" means it rained on and off over that period.

Convince, persuadeThere is a distinction between these two words. You convince someone that he should believe, you persuade him to act. It is possible to persuade someone to do something without convincing him of the necessity of doing it. Persuade may be followed by an infinitive, but convince may not:

X The US is not able to convince Israel The US is not able to persuadeto accept a cease-fire. Israel to accept a cease-fire.

(or …convince Israel that it should accept…)

Council/ counselThe first is an assembly of people, the second is advice or a barrister.

Country, nationThere is a minor distinction here. Generally, country refers to the geographical characteristics of a place and nation to the political and social ones. Thus the US is a large country and a rich nation.

Dependant/ dependentThe first is a noun, the second an adjective.

**DifferentDifferent should normally be followed by from, not by than or to:X Men are different to/than women. Men are different from

women.

It helps to remember that when something differs from something else, it, in effect, diverges or moves away from it.

Dilemma


The use of dilemma to signify any difficulty or predicament weakens the word. Strictly speaking, dilemma only applies when someone is faced with two clear courses of action, both unsatisfactory. It may be extended to contexts in which there are more than two alternatives, but the number of alternatives should be definite and the consequences of each should be unappealing. It is wrong in the following sentence: "Indeed this was the dilemma facing the Bank of England: how could it coax people to help Laker?".

Disinterested/ uninterestedThe first is impartial, the second not interested.

***Due toThis is Dr. Turano's pet peeve. Due to does not mean owing to or because of. It means caused by. It is an adjective and it can only modify a noun. Generally speaking, owing to can often replace due to but not vice versa. The use of due to is therefore more likely to lead to mistakes. There should be no doubt, if the words caused by and because of are applied:

X The cat became ill due to bad fish. The cat became ill because of bad fish.Due to the flood the bridge was Because of the flood the bridge wasimpassable. impassable.I remained at home due to I remained at home because of problems.

problems.BUT: The flood was due to heavy rain/ His illness was due to stress

When in doubt, substitute caused by and see if the sentence makes sense. If you cannot use caused by , you cannot use due to .

Each other/one anotherThe first is used with two subjects, the second with more than two.

EitherEither suggests a duality and is almost always better avoided when the context involves quantities of more than two. It is wrong in the following: "Decisions on Michigan's economy are now made in either Detroit, Washington or New York" (The New York Times). Often in such constructions, as in this example, it is simply a clumsy intrusion; delete it and the


sentence says no less. A separate problem with either is seen here: "In every case the facts either proved too elusive or the explanations too obscure to be satisfactory". Either should be place before "the facts" or deleted.

Elicit/ illicitThe first is a verb meaning to draw a response or reaction, the second is an adjective meaning forbidden or unlawful.

EnormityDoes not mean enormous size but wickedness. Here it is used wrongly (presumably!): “Given the enormity of the task that faces the average law student…” (Blackstone’s Study Pack on Land Law).

Equable/ equitableThis first means calm, the second fair.

Equally asThis is illiterate. "This is equally as good" should be "This is equally good" or "This is as good".

FactorThis is a hackneyed word; the expression of which it forms part can usually be replaced by something more precise:X His superior training was a great He won the match by being factor in his winning the match. better trained.

*Fact thatThe fact that is usually unnecessary. Its presence generally indicates a sentence that could profitably be rewritten: X The court was told that he returned The court was told that

he returned the next morning despite the fact that the next morning

although he knew he knew she would be there. she would be there.

Our arrival was delayed for four Our arrival was delayed for hours due to the fact that the ferry four hours because the ferry failed to arrive. failed to arrive.

Hanged/hungPeople are hanged; pictures and the like are hung.

*Imply/infer


These two cause no end of trouble for students, but the difference is really very simple. Imply means to suggest; infer means to deduce. A speaker implies, a listener infers: "He implied in his letter that he wasn't coming; we inferred from his letter that he wasn't coming".

Infringe, impinge onStudents get these confused. The first means to violate a rule. The second means to have an effect, usually negative, on something. Infringe does not take a preposition: you infringe a rule (you do not infringe on it). Remember, when in doubt, consult a dictionary.

*ImpactThere is a vogue for using impact as a verb meaning to have an effect on something. This use is not recognised by the OED, and, as it smacks of jargon, it is recommended that you avoid it. Impact, as a transitive verb, means to press or fix something firmly into something else (think of an impacted tooth). As a noun, it means a collision. If you mean effect, simply use effect.

In terms ofThis is mere padding usually best omitted:X The job was attractive in terms The salary made the job attractive.of salary.

-ise/-izeIt is commonly thought that –ize is the American spelling, so that words like realize should be realise in British English. Whichever you choose, treat verbs carrying this suffix with suspicion. I am not referring to accepted words like surprise, devise or revise, but to newly coined or faddish words like finalise, prioritise and pressurise. Instead, write make final, give priority to and press.

***It's/itsThe rule here is simple: never use it's. The reason is that it's is a conjunction for it is, and conjunctions are never appropriate in formal essay writing (you should never use forms such as don't, can't or won't). Its is the form of the possessive ("Its head could be seen above the water"). Simply forget about it's.**Less/fewerLess is used for quantities that are not counted; fewer is for numbers of things:less water, fewer drops, less light, fewer people. These words are comparative forms of little and few. You should regard with horror a sentence such as "The highways on the internet will become more few" (George W. Bush Jr.).


Lend/loanLend is a verb, loan is a noun only: X I loaned her money I lent her money/it

was a loan.

License/ licenceThe first is a verb, the second a noun (the first is used for both in the US).

*Like, unlike, as, as ifLike and unlike are adjectives, but they can also be used as prepositions to govern a noun, pronoun or noun-phrase. They cannot govern either a clause or an adverbial phrase. As, by contrast, is a conjunction, which can introduce a whole clause or a shorter phrase. It is therefore proper to write like me or unlike me, but wrong to write like I am or like I do: it should be as I am or as I do ("She wants a guy like me; she's willing to take me as I am").

For the same reason, like should not be used in place of as if (which normally requires the subjunctive: see were/was):X He looked like he was at the end of his He looked as if he tether. were at the end of his

tether.

A common mistake is to use like or unlike as governing an adverb or adverbial phrase, as in like before, unlike in the old days, unlike in those cases. The proper replacement for like in such contexts is as, but to replace unlike, it is usually necessary to recast the sentence:X Unlike in the earlier case, the Court The Court did not refer to Hansard, did not refer to Hansard. as in the earlier case.

ORThe Court did not refer to

Hansard, as it had in the earlier case.

LiterallyWriters often misuse this to mean – literally – the opposite of what they're saying. The result is often painful: "Hetzel was literally born with a butcher's knife in his mouth" (Chicago Tribune); "Our eyes were literally glued to the screen", or as an Oxford don put it, "Since my retirement I've literally buried


myself in the garden". The word means actually, not figuratively. So if you don't want to be taken literally, don't use literally.

**ParameterParameters are variables in a mathematical equation. They are not to be confused with perimeters, or outer boundaries. Unless you need a word to describe an aggregation of curves that are constant in one case but are otherwise varied, avoid parameter. It does not impress anyone.

Partly/partiallyThe first means in part, the second means incompletely: "the house was made partly of brick and partly of stone"; "the ground was partially covered in snow".

Percentage/proportionThese words are used inexactly when the relationship between two numbers is not specified. "The drug has proved of value in a percentage of cases" tells us next to nothing; it could mean 2 per cent or 98 per cent. Similarly, " a ship of large proportions" is vague and would be better replace by " a large ship".

Practise/ practiseThe first is a verb, the second a noun (the first is used for both in the US).

Prescribe/proscribeThe first is to recommend, the second to forbid.

*PresentlyThis means soon or shortly, not at present.

*Principle/principalThe first means "fundamental" and is usually applied to fundamental beliefs or truths (as in "it's not the money, it's the principle") or to fundamental understandings ("They have agreed in principle"). It is always a noun. Principal can be a noun or an adjective and it means "chief" or "first importance" (think of "school principal"; "The principal reason for my leaving…").

*Prior toUse before instead. Prior to is longer, clumsier and awash with pretension. After all, you would not say posterior to instead of after.


SanctionThis word has opposite meanings depending on the context. As a verb, it can mean either to approve of or to ratify a penalty. As a noun it means either confirmation or penalty.

So as toDelete the first two words:X She averted her eyes so as to avoid being She averted her eyes asked to contribute. to avoid being asked

to contribute.

TotalThere are two points to be made about total:

1. Total is redundant when what it is qualifying already contains the notion of totality, as in "total annihilation" (Washington Post).

2. The expression a total of is also generally superfluous, as in "Officials said a total of 84 prisoners had escaped" (New York Times). It doesn't add anything to the meaning of the sentence. Make it "Officials said 84 prisoners had escaped".

Tortious/tortuousThe first means having the nature of a tort, a civil wrong, the second means excessively winding and complex. Neither to be confused with tortoise (a reptile).

Unique.There can be no degrees of uniqueness:X It was a very unique case. It was a unique case.

UtiliseIn its strictest sense, utlise means to make the best use of something not intended for the job ("He utilised a coat hanger to repair his car"). It can be extended to mean making the most practical possible use of something ("Although the hills were steep, the rice farmers utilised every square inch of the land"). In all other senses, use is better.

Verbal/oralVerbal means expressed in words, and can therefore refer to something in writing. If, for instance, you mean an agreement is unwritten, oral agreement is more precise than verbal agreement.


*VeryVery is often used where it adds nothing to the sense, as in "a very tragic accident". Try to avoid it, and treat rather, quite, and pretty (in the sense of rather) with the same disdain.

Viable"A commercially viable replacement for internal-combustion engines" is wrong. Viable does not mean feasible or workable; it means capable of independent existence and its use should be confined to that meaning. Even when it is correctly used, it tends to make the sentence read like a government document, as in "Pollution threatens the viability of the lakes and woodlands" (Chicago Trib.). Deleting the viability of shortens the sentence without altering its sense.

**Were/wasThose who have studied a foreign language will be familiar with the subjunctive. The subjunctive is used less often in English than in German or French, but it still has its place. The subjunctive is not a tense but a mood, and it expresses not fact but suppositions, wishes, hopes, or proposals. These examples are self-explanatory: "If I were a rich man…"; "It is necessary that one obey the law, or else chaos ensues"; "Let us imagine he were an elephant and I were a butterfly"; "It's important that she arrive on time". In these cases, the words was, obeys and arrives (the first- and third-person singular of the verbs to be, to obey and to arrive) are replaced by were, obey and arrive, which are the subjunctive forms. The past-tense form of the subjunctive is used in sentences expressing a hypothesis, hence it is often accompanied by a verb in the conditional tense: "If a convention were legally enforceable, it would no longer be a convention". The subjunctive expresses the opposite of what is really the case: "If I were a rich man…" (but I am not); if Britain were a republic…" (but it is not).

III. The logic of the legal sentence. The drafting of legal documents (contracts, memoranda, statutes, etc.) abides by its own conventions. In 1843, barrister George Coode explained these conventions in a presentation to Parliament entitled “On legislative expression; or the language of the written law”. They still hold good as “Coode’s rule”.

III(a). The four elements of the legal sentence. The rule states that every law (or legal sentence) has up to four elements: the legal subject, the legal action, the case and the condition. The first two are essential, the second two are optional. More specifically, the legal subject and legal action are indispensable to every legal sentence; the case and the condition may appear where the sentence in question does not


have universal application. In other words, each legal sentence states a general rule, then it may limit its scope by the addition of a case or condition.

Identify the parts of the following legal sentence (ignore for the present the use of such):

Where there is any question between any parishes touching the boundaries of such parishes, if a majority of not less than two-thirds in number and value of the landowners of such parishes make application in writing, the Tithe Commissioners for England and Wales may deal with any dispute or question concerning such boundaries.

o The legal subject: In the above example, the legal subject is the Tithe Commissioners for England and Wales; in other words, the legal subject is the person permitted or obliged to act.

o The legal action:The legal action is may deal with any dispute…; that is, that which the subject is permitted or obliged to do.

o The case:The case is Where there is any question…of such parishes; that is, the circumstances in which the rule is to operate (notice the use of where).

o The condition:The condition is if a majority of…make application in writing; that is, the condition on performance of which the rule is to operate (notice the use of if).

III(b). The structure of the legal sentence.Most legal sentences follow this order: case, condition, legal subject, legal action (see example above). But in constructing the sentence, it is best to consider first the legal subject and action and then the limitations that may apply (case and condition).

Exercise: Suppose you are instructed to draft an agency agreement under which one party (the hirer) is to act as agent for your client (the lessor) for the purpose of purchasing a plant, machinery and equipment. Your client does not want any seller or prospective seller to know that the hirer is acting as his agent. Your task is to draft a clause to that effect.

Method:


1) First define the legal subject and the legal action - that the hirer is not to disclose that he is acting as the agent of the lessor. 2) Then consider the case - that the client may insist that this undertaking be restricted to operating only in relation to third parties with whom he deals as potential sellers in connection with a purchase contract.

3) Lastly, consider that there may be occasions when your client may not object to the hirer disclosing the identity of the principal. So draft the agreement to allow for the possibility that where the hirer wishes to name your client as principal, your client has the opportunity of assessing whether it would be appropriate; in other words subject the legal action to a condition.

Conditions may be expressed positively in if clauses (if the lessor has given consent…hirer may) or negatively in unless clauses (unless the lessor has given consent…hirer shall not…) or by defining the legal subject more closely, either positively or negatively (a hirer who has obtained the consent of the lessor…may disclose/ a hirer who has not obtained the consent of the lessor…shall not disclose - also notice the difference here between shall and may).


.IV. English specific to Civil Law.

IV(a). Text 1. The Civil Law.

Court cases are divided into Criminal and Civil Law. Civil Law involves private rights and settle disputes between individuals or organisations. It deals with claims for compensation (financial or otherwise) by a person (the plaintiff/ claimant) who has suffered loss or damage (such as breach of contract or a negligent act) at the hands of another (the defendant). Civil cases may be decided by settlement before the trial or by a judge and sometimes a jury after trial. Civil law proceedings in Great Britain are brought either by the County Courts, which deal with 90 per cent of civil cases (money, property contract, divorce and family matters), or in the High Court. Less expensive or complex actions are dealt with in the County Courts rather than the High Court, and most civil disputes do not reach court at all, they are normally settled by negotiation out of court through the County Court Arbitration System introduced in 1973 to avoid high costs any uncertainty about trial results.

Although the majority of civil cases are disposed in the County Courts by a judge sitting without a jury, there are limits to the jurisdiction of this type of court normally based on the nature and the amount of the claim. Actions in tort and contract, such as accident claims and the collection of contractual debts, can only be brought in inferior courts where the amount claimed does not exceed a certain amount of money.

The High Court of Justice is divided into three divisions which specialise in specific matters: the Queen’s Bench Division, The Chancery Court and the Family Division. The Queen’s Bench Division (QB) deals with cases arising out of breaches of contract, the commission of torts and claims for the recovery of land. Typical cases would include an action for non-performance of a contract, a claim for damages arising out of a road accident or an injury suffered at work. The Chancery Court Division (ChD) is concerned with financial and commercial matters (partnerships, companies, trusts, mortgages, bankruptcies, etc.) and the administration of the estates of deceased persons. The Family Division (Fam) deals with domestic issues arising out of marriage such as divorce, matrimonial property, child custody, etc.

A civil action begins when the plaintiff sues (e.g. brings an action against) the defendant, he serves documents with details of a claim on the defendant. In general, the party that cites specific facts for the substantiation of its claim also has the


burden of producing the evidence to prove these facts. If the plaintiff is successful in proving his case, there are several remedies which the judge may grant. The most common is an order to the defendant to pay damages to the plaintiff a fixed amount of money by way of compensation. The judge also has the power to grant an injunction (an order by the court to do or refrain from doing a certain act), or to make various other orders.

Alejos Juez, op. cit., p. 111.

IV(a)(i). Exercises:

o Find words in the text which mean :

- a person who defends a defends a civil (or criminal) case.

- to take legal action against a person or an entity in a civil case.

- financial compensation given by the court for a loss suffered by a claimant in a civil action.

- a person who brings an action in civil law.

- non-performance of a contract.

- a demand for something.

- an argument.

- a person’s entire property.

- the power of a court to hear and decide on a case before it.

- an agreement to lend money secured on property in land.

o Insert the words from the following list into the appropriate blanks in the paragraph:

Dismiss, appellant, respondent, uphold, appeal, reverse, appellate

When one of the parties in a civil case is not satisfied with the judgment delivered, it is possible to___ to a court with ___jurisdiction. The party appealing is referred to as the ___ and the opposite party is the ___. The appeal judges can ___ or affirm the original judgment, or ___ it or set it aside. When the original judgment is upheld, the appeal is___.

o Courts may do any of the following, depending on their place in the hierarchy. What is the difference between them?


Repeal, overrule, reverse, uphold, apply, follow, doubt, approve disapprove, distinguish

IV(b). Text 2. The Civil Case.Insert in the blanks the appropriate noun-phrase from the list below:

court proceedings the rights of the claimant the purpose of the discovery a court reporter

a copy of the complaint a word-for-word account the identity of the witnesses the claimant’s injury dispute resolution the discovery of evidence

A civil case involves a legal dispute between two or more parties. To begin a civil lawsuit in a court, the claimant files a complaint with the court and serves___ on the defendant. The complaint describes___, explains how the defendant caused the injury, and asks the court to order relief. A plaintiff may seek money to compensate for the injury, or may ask the court to order the defendant to stop the conduct that is causing the harm. The court may also other types of relief, such as a declaration of ___ in a particular situation.

To prepare a case for trial, the litigants may conduct ‘discovery’. In discovery, the litigants must provide information to each other about the case, such as ___ and the copy of any documents related to the case. ___ is to prepare for trial by requiring the parties to assemble their evidence and prepare to call witnesses. Each side may also file requests or motivations, with the court seeking rulings on ___, on the procedures to be followed at trial.

One common method of discovery is the deposition. In a deposition a witness is required to answer under oath questions about the case asked by the lawyers in the presence of ___. This is a person specifically trained to record all testimony and to produce ___ called a transcript.

To avoid the expense and delay of having a trial, judges encourage the litigants to reach an agreement resolving their dispute. In particular, the courts encourage the use of mediation, arbitration and other forms of alternative ___ without the need for trial or other ___. As a result, litigants often decide to resolve a civil lawsuit with an agreement known as a settlement.



IV(c). Text 3. Tribunals and Arbitration.

Insert one of the following words into the blanks.

jurisdiction abuse practitioner invest claimantsadjudication operate resolutionprocedure

In the last decades the great expansion pf government into social and economic fields has led to the creation of a large number of new special courts and tribunals in most of the legal systems in the world.

The special nature of some of the disputes arising from the new activities has made the composition and setting of ordinary courts inappropriate for their purpose. The ordinary courts of law are not usually well-equipped to deal with the economic, business, industrial relations and certain other considerations lying behind certain types of disputes. Moreover, the procedure of ordinary courts tends to be too formal, slow and costly, and delays cause great financial hardship to ___.

The two main forms of outside-court adjudication are tribunals and arbitration.

Within the English legal system, there are over fifty different types of tribunals, each with its own limited ___ over a particular type of claim: there are tribunals that deal with employment, revenue, transport, VAT, use of land, etc. Disputes over social legislation usually rest on special administrative tribunals which differ from each other in many respects but which do have some common features: most of them sit locally, they ___ informally, cheaply and fairly quickly, and are subject to judicial review by the higher courts. The ordinary courts can review the actions of administrative tribunals in those areas where they exceed or ___ the powers given them.

Arbitration is a means of ___ disputes other than by court action and it arises when one or more persons are appointed to hear the arguments submitted by the parties to a dispute and to give a decision on it. The parties agree to place their dispute in the hands of an independent third party and ___ him with the power to decide the issue. Arbitration is used in many different situations, from the ___ of complex commercial disputes to those involving minor disagreements. The type of arbitration will depend on the nature of the case. In some instances, a legal ___ will be required, while in more highly technical cases it will


be more appropriate to choose a person with expertise in the subject matter.

The advantages of arbitration are similar to those of tribunals: lower costs, speed, informality and ___ by an expert. The increasing use of tribunals and arbitration seems to indicate that both constitute a suitable way of resolving disputes.


Vocabulary in legal method.English courts exist in a hierarchy. Higher courts may overrule decisions of lower courts, but not vice versa. Courts are bound by their own precedents and those of higher courts (but see the Pinochet case). This is called the doctrine of precedent.

The biding part of a decision is called the ratio decidendi (the reason for the decision). Other, non-binding parts of the decision are called the obiter dicta (or dictum)

o The following terms are techniques used in handling ratios:

following: an earlier decision is followed in a later case where the facts are so similar that the same principle of law is used.

approving: This is like following, but if the later court is higher, the principle of the earlier case is said to have been approved.

applying: if a later court finds an earlier decision attractive, but the facts of the case are not substantially the same, but are not dissimilar, the later court applies the earlier decision.

not following: where the earlier case is not attractive and where the later court is not bound by the doctrine of precedent, the earlier decision is not followed. It may be doubted, or disapproved.

overruling: where a later, higher court finds an earlier decision unattractive, it may overrule it to deprive it of the power to bind courts in future.

distinguishing: Where a later case has different material facts from an earlier one, a court may distinguish the earlier case and so be excused from not following it despite the power of the earlier case to bind. Sometimes, an earlier case may be distinguished by being confined to its facts, which implies some criticism of the decision.


V. English specific to Contract Law.

V(a). Text 1. Contract Law.

Contract law is the branch of civil law concerned primarily with the enforcement of promissory obligations. It governs contractual arrangements and it is basic to many areas of business and commerce as much of the law governing sales of goods and land. Insurance, the giving of credit, the formation and sale of business organisations, partnerships and employment all involve the application of general contractual principles.

There are many ways to define a contract, but to put it simply, a contract is an agreement entered into voluntarily by two or more parties with the intention of creating legal relations binding in law. In order to be binding in law, an agreement must include an offer and an acceptance of the offer. Every contractual obligation gives rise to a corresponding contractual right. A contract may be oral or in writing, and the parties to it have rights and obligations arising from their agreement and which are personal to them. All contracts must be entered into both willingly and freely, consequently any contract violating this principle may be declared unenforceable.

The basic elements of any contractual agreement are an offer accepted by one of the parties, two or more parties having the capacity to contract and intending to enter legal relations, and something promised or done by one of the parties in return for the promise of the other party, what in English law is called consideration, a term used to refer to the inducement to a contract (the cause, motive or price that induces a contracting party to enter a contract). Consideration is a special feature of the common law and is not usually required in most European legal systems. The English law of contract only recognises a bargain, not a mere promise; consideration must exist and have some value, otherwise there is no contract.

Most systems of law have similar requirements about offer, acceptance, consideration and legal intention. They also consider the capacity of contractors; that is, whether or not they are legally entitled to contract. Legal minors, the insane and others viewed by the law as unable to care for themselves are usually forbidden from signing contracts on the grounds that they may be too easily taken advantage of. Failure to honour a contract allows the other party to bring an action for damages in a court of law. Contracts come to an end when the parties to the agreement have fulfilled all their obligations.



V(a)(i). Exercises:


something given promised or done in exchange for something

the legal right to make a contract

compensation for breach of contract

person, business, etc. that enters into a contract

that cannot be made effective by law

o Fill in the blanks using the following words:

Terms, party, consideration, breach of contract, damages

They were a ___ to a contract with a multinational company.

If there is no ___ an agreement will not be binding.

I am afraid that the ___ of your offer are too vague to be considered.

If one of the parties does not fulfil his or her promise, the other party will sue for ___.

He will claim £15,000 ___ from his employers.

o Parts of a contract (in no particular order):

Heading: title of the agreement.

Exordium: information making reference to parties and action.

Recital: additional background information (often introduced by whereas).

Transition: part containing the words of agreement.

Definitions: specifications of terms

Operative provisions: body of contract with elements of agreement.

Testimonium: closing part which indicates agreement.

V(b). Text 2. The elements of a contract.

Insert the following words into the blanks:

disputants offeror


litigation construe

exchange deed

obligations validity

terms disputes.

In order for a contract to be binding there must be a valid offer and acceptance by the parties involved. A valid offer is based on some basic requirements: the offer must contain language of commitment; it must be made with serious intention by the ___ and must be communicated by him or her ___ to the offeree; it must also contain the names of the contracting parties, a description of the subject-matter, the price or other consideration and the time and ___ for performance.

Two important principles of English contract law are that the terms being offered and accepted must be certain, and that there is no contract if one of the parties does not intend legally to be bound. The terms of a contact reflect the rights and ___ of the parties. The more important terms in the contract are called the conditions, whereas the less important one are called warranties. In general, the form in which a contract is made does not matter and will not have effect upon the ___ of the contract. However, there are certain exceptions. Some contracts must be by deed; promises for no consideration and some bills of sale (mortgages of goods) are void unless in this specific form. Conveyances of land and leases for a period in excess of three years must be completed by deed.

Contracts which must be in writing but not necessarily be ___ include the transfer of shares in a company, the legal assignment of debts, bill of ___, cheques and promissory notes.

When the terms of fulfilling a contract are brought into dispute, as often happens in modern multiparty agreements, the ___ may decide to submit their differences to private, but binding, arbitration, believing that public ___would be disadvantageous to all parties. In this way, trade secrets can be kept private, and ___ that could prove embarrassing can be kept off the public record. However, on the whole, most contractual actions are brought in regular courts of law that ___the meaning of the contract and the rights and obligations of each party, assessing damages where they are called for.

V(b)(i). Exercise: o Fill in the blanks with an appropriate

preposition:


A contact is an agreement made between two or more parties and which is binding ___ law.

Contractors must understand what they are agreeing ___.

If there is a breach ___ contract, a judge must decide how the party in breach must compensate the other party.

Most legal systems have rules ___dealing with illegal contracts.

Under the rule of law, no person is ___ the law.

o Note the following pairs of reciprocal relationships:

assignor assignee

donor donee

lessor lessee

mortgagor mortgagee

offeror offeree

payer payee

promisor promise

representor representee

transferor transferee

and also:

debtor creditor

lender borrower

vender/ seller purchaser/ buyer


VI. English specific to Company Law.

VI (a). Text 1. Company Law. (McKay & Charlton, 2005, pp. 5-20).

A company is regarded in law as being as separate legal ‘person’, with a separate legal personality. This means that it has rights separate from its owners and managers to enter into contracts, employ people, own property and conduct business (Salomon v Salomon (1897)) . The creation and management of a company is governed by the Companies Act 1985 (CA 1985) and the Companies Act 1989.

By far the largest number of incorporated companies are incorporated with limited liability, being limited by shares as defined by section 1(2)(a) CA 1985. The potential financial liability of a member (in other words, shareholder) of such a company is limited to the amount, if any, remaining unpaid on the shares held by that particular member. Such a company is know as a limited company and will have the word ‘Limited’ (Ltd) at the end of its name.

A company can be a private or public company. A public company must have a minimum issued share capital of £50,000, as required by sections 11 and 118 CA 1985. A public company may offer its shares for sale to the public (s. 81 CA 1985), whereas a private company must not. A public company may also have its shares listed (and traded) on the stock Exchange. Information on the current values of such listed shares is publicly available and can be checked for instance in The Financial Times.

There are a number of legal requirements which must be complied with in order to incorporate a company. In particular, the follow documentation will be required:

Memorandum of Association: this is also known in the US as the ‘articles of incorporation’ and it contains the name of the company, the company’s objects and powers and the company’s share capital.

Articles of Association: these are a set of rules governing the conduct of the members of the company and its officers. The officers of a company are its directors and company secretary. These rules relate to matters such as the conduct of shareholder and board meetings, any restriction on the transferability of shares and the powers bestowed on the directors, etc. In the US these are known as the ‘bylaws’.


Form 10: This is a standard form which must be completed with the details of the intended officers of the company, as required by s. 10(2) CA 1985. Every incorporated company must have at least one director and one secretary; they may not be the same person.

Form 12: This is another standard form which must be signed by a person applying for incorporation of a company to certify that registration has been complied with.

Once completed, these documents must then be sent to the Registrar of Companies. The registrar then registers the company and issues a Certificate of Incorporation. This is when the company comes into existence. There are further legal requirements with which the incorporated company must then continue to comply, such as having annual accounts prepared (s. 226 CA 1985), a copy of which must be filed annually at Companies House (s. 242 CA 1985).

VI(a)(i). Exercises:


a legal person with a finite number of shares

creation of a company

the sphere of activity and nature of the company

VI(b). Compound verbs.

o Insert the following words into the blanks :

Go against negotiate with act for

Appeal against decide against enter into

The claimant has decided to _____ _____ the judgment.

The judgment _____ _____ my client.

We are confident that the judge will _____ _____ our opponent.

He wants to _____ _____ discussions with a view to becoming a director of the company.

She intends to _____ _____ the company to purchase some shares.

I have been asked to _____ _____ a newly incorporated company.


VI(c). vocabulary.

o Choose one option form each of the sections to insert into the blanks on the form:

1. restitution/ resolution/ resolved/ determined

2. employed/ appointed/ selected/ commissioned

3. classified/ head/ official/ registered

4. disclosed/ indicated/ presented/ represented

5. collated/ convened/ assembled/ accumulated

6. given/ provided/ catered/ supplied

7. intentions/ proposals/ resolve/ resolutions

8. declared/ proclaimed/ affirmed/ publicised

See overleaf for text:


From McKay & Charlton, 2005, p. 18.

VII. Cases and headnotes. See Appendices B and C.


VIII. Review cases.

IX. Citation:

IX. 1. Citing legislation:

Acts of the UK Parliament give statutory authorisation for their short titles to be used: e.g., Dangerous Dogs Act 1991. Provided your reader can be expected to know the Act, you may abbreviate it (e.g., DDA 1991). Abbreviations are commonly used for well-known legislation: LPA 1925, LRA 2002, TLATA 1996, HRA 1998.

Note that the titles of Acts are not possessive: it is the Dangerous Dogs (not Dogs’) Act, and the Children (not Children’s)Act.

Acts of Parliament are printed by the Queen’s Printer in their unamended form. To find amended texts, use the privately published Halsbury’s Statutes, Current Law Statutes, Blackstones Statutes.

Statutes are divided into sections, sub-sections, paragraphs and sub-paragraphs. They may also include chapters and schedules and parts. The following examples show conventions of reference:

Companies Act 1985, s.6

Children Act 1989, s.15 and sch 1 para 1

Section 15 of the Children Act

Subordinate (delegated) legislation is issues as Statutory Instruments (SIs). They are cited as Acts, but with SI year/ number in brackets:

The Education (Mandatory Awards) Regulations 1997 (SI 1997/431)

SIs can be further classified as an Order, sub-divided into articles, Regulations, sub-divided into regulations, and Rules sub-divided into rules (abbreviated as r).

Order/ art/ arts Regulations /reg/ regsRules/ r/ rr


IX. 2. Citing English cases.

There are now two methods for citing cases. All cases have a proprietary citation, which refers to the a cases location in the various law reports. Since 2001, all cases may also have a medium neutral citation, which is not dependent on a publisher as it is web-based. Nowadays, it is usual to cite the most authoritative law report and the neutral citation if there is one.

Proprietary citations: The case name is followed by the year in brackets, the volume number, the series and the page number:

Grobberlaar v News Group Newspapers Ltd [2002] 1 WLR 3024

In re Connan (1888) 20 QBD 690

Note that square brackets are essential for locating the correct volume, round brackets are not. Case names are in italics except for “v”.

You should prefer reports which are published in the semi-official Law Reports (published by the Incorporated Council of Law Reporting for England and Wales). Cases that first appear in the Weekly Law Reports vols 1 and 2 are later replaced by one of the other reports and the later reports should be preferred.

The official law reports are;AC (Appeal Cases)QB (Queen’s Bench)Ch (Chancery)Fam (Family Division)WLR (Weekly Law Reports)ICR (Industrial Cases Reports)

Other non-official reports include:All ER (All England Reports)Cr App R (Criminal Appeal Reports)P & CR (Property Planning and Compensation Reports)Lloyd’s Rep. (Lloyd’s Reports)

Pinpoint referencing: if referring to a particular dictum, then add the specific page number and the judge’s name: (NB: Some cases have a side letter in the margin, in which case the pinpoint reference may be on, e.g., 182D)

Gillick v West Norfolk Health Authority [1986] AC 112 at 182 per Lord Scarman.


Medium neutral citation: The case name is followed by the year, the jurisdiction, court, division and case number. Pinpoint references are to paragraph numbers.

Grobberlaar v News Group Newspapers Ltd [2001] EWCA Civ 1213 [10]

EW = England and WalesCA = Court of AppealCiv = CivilCase number 1213Paragraph 10

House of Lords (no division) UKHLCourt of Appeal Civil EWCA CivCourt of Appeal Criminal EWCA CrimHigh Court Chancery EWHC (Ch)High Court Queen’s Bench EWHC (QB)High Court Administrative EWHC (Admin)High Court Family EWHC (Fam)

Common Abbreviations:The following abbreviations are used when referring to the judiciary:

Justice of the High Court Smith J Smith and Jones JJLord Justice of Appeal Smith LJ Smith and Jones LJJLord Chief Justice Lord Smith CJMaster of the Rolls Lord Smith MRPresident of the Family Smith PDivisionVice Chancellor Smith V-C


X. Appendix A

http://www.law.indiana.edu/webinit/tanford/reference/how2write.html

HOW TO WRITE GOOD LEGAL STUFF © 2001Eugene Volokh, UCLA

J. Alexander Tanford, Indiana Univ - Bloomington

This is a guide to good legal writing. Good writing consists of avoiding common clunkers and using simpler replacements. The replacements aren't always perfect synonyms but 90% of the time they're better than the original. Warning: Some changes also require grammatical twiddling of other parts of the sentence. This is not a guide to proper high English usage. We don't give two hoots whether you dangle participles, split infinitives or end sentences with prepositions. We care that you can write clearly.

PART ONE -- TOP 10 SIGNS OF BAD LEGAL WRITING10. USING PASSIVE RATHER THAN ACTIVE VOICE

BAD LEGAL WRITERS USE PASSIVE VOICE

"the ruling was made by the judge" "the complaint was filed by the plaintiff" "It was held that..."

GOOD WRITERS USE THE ACTIVE VOICE

"the judge ruled""the plaintiff filed a complaint" "the court held..."

SPOTTING GUIDE

(a) Check for the word "by" (search for by[space])(b) Look for sentences or phrases starting with "it is" or "it was."

EXCEPTION. Passive voice should be used only when you do not know the actor, or when the result is important.

"The documents were mysteriously destroyed." (actor unknown)"Bill Clinton was elected anyway" (result important)


http://www.law.indiana.edu/webinit/tanford/reference/how2write.html

9. NOMINALIZATIONS

BAD LEGAL WRITERS TURN VERBS INTO NOUNS, AND THEN ADD AN EXTRA VERB TO TAKE THE PLACE OF THE ONE THEY CONVERTED

"reached a conclusion""granted a continuance""involved in a collision" "take action"

GOOD WRITERS JUST USE THE FIRST VERB

"concluded""continued""collided""act"

SPOTTING GUIDE

Look for words ending in "ion."

8. FEAR OF CALLING THINGS BY THEIR NAMES

BAD LEGAL WRITERS ARE AFRAID TO CALL THINGS BY NAME, USING GENERIC TERMS INSTEAD

The plaintiffThe defendantThe day in questionThe scene of the accidentHer place of employment

GOOD WRITERS GIVE THEIR CHARACTERS NAMES

Susan JonesMichael FitzhughJune 3rdIn the parking lotPizza Hut

7. VERBOSITY

BAD LEGAL WRITERS USE RUN-ON SENTENCES CONTAINING NUMEROUS QUALIFYING PHRASES


"The court in Chester v. Morris, a case involving a similar traffic accident, held that a person riding a bicycle must adhere to the same standards as a person driving a car, although it limited its holding to the facts of that case, which included the fact that the bicyclist was intoxicated.

GOOD WRITERS USE SEVERAL SHORT SENTENCES

"Chester v. Morris involved a similar traffic accident. The court held that a bicyclist must adhere to the same standards as a person driving a car. The opinion is limited to situations in which the bicyclist is intoxicated.

6. QUALIFYING PHRASES

BAD LEGAL WRITERS PUT QUALIFYING PHRASES IN THE MIDDLE OF SENTENCES WHERE THEY DO NOT BELONG

"the court, although it limited its holding, held that a bicyclist must adhere to traffic rules" "the court has, although with limits, held that a bicyclist must adhere to traffic rules" "the court held, although with limits, that a bicyclist must adhere to traffic rules"

GOOD WRITERS PUT QUALIFYING PHRASES AT THE END OF SENTENCES OR ELIMINATE THEM ALTOGETHER

"the court held that a bicyclist must adhere to traffic rules, although it limited its holding ..." "the court held that a bicyclist must adhere to traffic rules"

5. REDUNDANCY

BAD LEGAL WRITERS LIST EVERY KNOWN SYNONYM, AS IF THEY WERE WRITING A THESAURUS, IN A MISGUIDED EFFORT TO BE PRECISE

"Every town, city, or village""Cease and desist" "Give, devise and bequeath""Null and void"

GOOD WRITERS USE A SINGLE WORD


"Every municipality""stop""give" "void"

SPOTTING GUIDE

Look for "or" or "and".

4. MEANINGLESS ADVERBS USED IN A VAIN EFFORT TO MAKE A WEAK POINT APPEAR STRONGER

BAD LEGAL WRITERS USE MEANINGLESS ADVERBS THINKING THEY MAKE AN ARGUMENT STRONGER

Chester v. Morris clearly held that bicyclists must adhere to the rules of the road.The fact that he was drunk is extremely importantThe holding is very narrow.It is really important that he was not wearing a helmet.He was undoubtedly drunk.It is manifestly obvious that drunken bicyclists are dangerous.

GOOD WRITERS DILIGENTLY AVOID USELESS ADVERBS

Chester v. Morris held that bicyclists must adhere to the rules of the road.The fact that he was drunk is importantThe holding is narrow.It is important that he was not wearing a helmet.He was drunk.It is obvious that drunken bicyclists are dangerous.

SPOTTING GUIDE

Look for words ending in "y"

3. MEANINGLESS WEASEL WORDS USED BECAUSE YOU'RE AFRAID TO TAKE A POSITION

BAD LEGAL WRITERS HAVE A FEAR OF BEING WRONG AND USE WEASEL WORDS IN AN EFFORT TO AVOID TAKING A CLEAR POSITION

allegedmaybe


quite possiblyat best/at least might be seems toappears to perhaps so-calledimplicates probably tends to

2. DOUBLE NEGATIVES

ONE OF THE CLEAREST SIGN OF THE BAD LEGAL WRITER IS THE DOUBLE NEGATIVE

"not uncommon" "failed to show inability" "not insignificant" "not uncomplicated" "no small part" "not incapable" "not inappropriate"

GOOD WRITERS USE SINGLE POSITIVES

"common""showed ability""significant""complicated""large part""capable""appropriate"

1. PHRASES WITH ABSOLUTELY NO MEANING WHATSOEVER

AND THE CLEAREST SIGN OF THE BAD LEGAL WRITER IS THE USE OF TOTALLY MEANINGLESS (AND USUALLY POMPOUS) PHRASES

"I would like to point out that Chester v, Morris was overruled""I would argue that Chester v. Morris is not applicable.""It should be noted that Chester v. Morris was decided before the statute was amended.""Evidence that the defendant was drunk does not operate to remove the issue of contributory


negligence""Despite the fact that the defendant was drunk, he operated his bicycle carefully." "In fact, he should be commended.""During the course of his ride, he never fell off his bicycle""It has been determined that he was wearing his helmet.""It is obvious that a drunken bicyclist is a danger on crowded streets." "It is clear that he had the right of way. He was clearly justified in crossing the street""Chester v. Morris is distinguishable (or worse, clearly distinguishable). It does not apply because it involved an intoxicated bicyclist"

GOOD WRITERS OMIT THEM

"Chester v, Morris was overruled""Chester v. Morris is not applicable.""Chester v. Morris was decided before the statute was amended.""Evidence that the defendant was drunk does not remove the issue of contributory negligence""Despite the defendant's drunkenness, he operated his bicycle carefully." "He should be commended.""During his ride, he never fell off his bicycle""He was wearing his helmet.""A drunken bicyclist is a danger on crowded streets." "He had the right of way. He was justified in crossing the street""Chester v. Morris does not apply because it involved an intoxicated bicyclist"

PART TWO -- A DICTIONARY OF LEGALESE

Group one -- hideous prepositional phrases and their plain English alternatives

at present - nowat the place -- whereat the present time-- nowat the time that - whenat that point in time - thenat this point in time - now OR currently by means of - byby reason of - becausefor the duration of - during OR while


for the purpose of - tofor the reason that - becausefrom the point of view - fromin a case in which - when OR wherein accordance with - by OR underin all likelihood - probablyin an X manner - Xly, e.g., "hastily" instead of "in a hasty manner"in close proximity - nearin connection with - with OR about OR concerningin favor of - forin light of the fact that - because OR given thatin order to - toin point of fact - in fact (OR OMIT altogether)in reference to - aboutin regard to - aboutin relation to - about OR concerningin terms of - inin the course of - duringin the event that - ifin the nature of - likeinasmuch as - because OR sinceon a number of occasions - often OR sometimeson the basis of - by OR from on the part of - byto the effect that - thatuntil such time as - untilwith a view to - towith reference to - about OR concerningwith regard to - about

Group two -- hideous phrases ending with prepositions and their plain English alternatives

a number of - many/some/(state the exact number)is desirous of - wantsis dispositive of - disposes of concerning the matter of - aboutthe totality of - allis binding on - bindsaccord respect to - respectadvert to - mentiondue to - becauseprior to - beforeis able/unable to - can/cannot

Group three -- bad ways lawyers start sentences

As stated previously, ...There are ....


It is ....I might add ...It is interesting to note ...

Group four -- sexist words and their nonsexist alternatives

rights of man - human rights reasonable man - reasonable person workman - worker congressman - member of Congress foreman - supervisor OR forepersonchairman - chair OR chairpersonthe judge .... he - the judge .... the judge

Group five -- words used only by lawyers and their plain English alternatives

accord (verb) - giveacquire - getadditional - moreadditionally - alsoadjacent (to) - next (to) OR nearadjudicate - determine/tryafforded - givenaforementioned - none -- omit ambit - reach OR scopeany and all - allapproximately - aboutascertain - find outassist - helpas to - aboutas well as - andcase at bar - this caseattempt (verb) - trycease - stopcircumstances in which - when OR wherecognizant of - aware OR knowscommence - startconceal - hideconsensus of opinion - consensusconsequence - resultcontiguous to - next tocounsel - lawyerdeem - find/believedemonstrate - showdesire - wantdonate - give


echelon - levelelucidate - explain/clarifyendeavor (verb) - tryensue - take place/followevidence (verb) - show/demonstrateevince - showexclusively - onlyexhibit (verb) - show/demonstrateexit (verb) - leaveexpedite - hurryfacilitate - helpfirstly, secondly - first, second, ...foregoing - theseforthwith - immediatelyfrequently - oftenfundamental - basichas a negative impact - hurts OR harmsindicate - show/say/meanindividual (noun) - personinquire - asklocate - findmanner - waymethodology - methodmodify - changenarrate - saynegatively affect - hurt/harmnotify - tellnotwithstanding - despitenumerous - manyobjective (noun) - goalobserve - see OR watchobtain - getowing to - because period of time - time OR periodpermit - let OR allowpersonnel - peoplepertains to - refers/belongs topoint in time - time OR pointportion - partpossess - havepost hoc - hindsightprior to - beforeprocure - getprovide - giveprovided that - if OR butprovision of law - lawpurchase - buypurport - claim/intendrate of speed - speedreferred to as - calledremainder - rest


render assistance - helprequest (verb) - askrequire - needrespond - answerretain - keepsaid (adjective) - the/this ("this contract" not "said contract") stipulates - sayssubsequent - latersubsequent to - aftersubsequently - after OR latersubstantiate - provesufficient - enoughsufficient number of - enoughtermination - end the case at bar - this casethe fact that - thatthe instant case - this casethe manner in which - howupon - onutilize - useverbatim - word for wordwas aware - knewwheras - since/although

PART THREE - CONCISE GUIDE TO HOW TO WRITE CRITICALLY ABOUT ANYTHING

STEP ONE -- GENERATE ALTERNATIVES

Alternatives can come from current news stories, interesting cases, common experience or your personal experience. In litigation, alternatives are often defined by the two sides of the case.

In scholarly and judicial writing (in which the author pretends to be neutral), the alternatives should be stated fairly -- the best possible case for each side. For example:

This case presents the issue of whether a physician should be exempt from jury duty. A good argument can be made that the community benefits from having its doctors caring for the sick. On the other hand, we have a historical principle of universal jury service. Surely the community also benefits from having its juries representative of a cross-section of all the community.

In advocacy writing (in which the pretense of neutrality is impossible), you should slant the alternatives favorably. You should state the best plausible case for your side and the worst plausible case for the other side, but both sides must


be plausible. This is where the famous "slippery slope" argument comes into play -- you point out the logical implication of the other side's position, and then attack the implication rather than the original position. For example:

The state argues that Dr. Jones should be exempt from jury duty because he is a surgeon and has patients waiting. That argument could be made by all educated professionals -- doctors, dentists, lawyers, architects. If they are all excused, we end up with a predominantly blue-collar jury that does not fairly represent a cross-section of the community. The defendant argues that everyone must take his or her turn serving on a jury, so we can achieve a jury that is truly a fair cross-section of the community.

STEP TWO -- MARSHAL THE RELEVANT INFORMATION

An informed choice rests on information. In the absence of information, choices can only be made on the basis of personal biases, stereotypes and prejudices. Whether you are writing in a neutral or an advocacy style, you want your conclusion to appear to be reasoned rather than based purely on bias. Therefore, you need to marshal information which common sense suggests will be relevant to an intelligent decision. Such information is of three kinds: facts, legal authority, and social authority.

In "neutral" scholarly and judicial writing, all relevant information is mentioned, regardless of which side it supports. Neutral writing must summarize the information favoring each alternative. For example (very abbreviated):

Court records indicate that the issue has come up in Bloomington seven times in the last five years -- six physicians have been excused from jury service, one has served. There are no cases in Indiana on this issue, although cases concerning other exemptions have held that the matter is generally within the discretion of the General Assembly. Thirty other states have statutes specifically exempting doctors; twenty do not. Other state courts have also generally held that the question of eligibility for jury service is within the discretion of the legislature. The Supreme Court, however, has held that the sixth amendment guarantee of an "impartial jury of the state and district" requires that the jury be drawn from a fair cross-section of the community. Any blanket occupational exemptions must be justified by a compelling state interest, although individual


decisions to excuse someone from jury service are within the trial judge's discretion. Against this background are several studies by social psychologists showing that juries without educated elite jurors such as physicians produce different verdicts than juries on which educated jurors participate.

In advocacy writing, the summary of relevant information should be slanted to favor your side. Note that I said slanted, not tipped over onto its head. You can't misstate facts or omit major Supreme Court precedent. However, you can be selective in which facts you report and which of the hundreds of relevant cases you include. Two examples (very abbreviated):

For the state: Court records indicate that the issue has come up in Bloomington rarely in the last five years and that not all physicians are excused. Indiana cases hold generally that deciding whether to create a statutory exemption is within the discretion of the General Assembly. A majority of other states follow the Indiana practice of exempting doctors, and the practice has been approved by a majority of state courts. The Supreme Court has held that a jury in a criminal case should be drawn from a fair cross-section of the community and that any exemption that removes a substantial number of potential jurors from the pool must be justified by a compelling state interest. The Court has not previously ruled on the issue of physician exemptions, but has said clearly that the trial judge's decision in an individual case is within discretion. The issue has not been specifically addressed by the social psychologists who study jury behavior.

For the defense: Court records indicate that in every Bloomington case in the last five years a physician who invoked the exemption was excused from jury duty. There are no cases in Indiana on this issue, and other states are divided on the wisdom of creating a blanket physician exemption. The U.S. Supreme Court has held that because the sixth amendment guarantee of an "impartial jury of the state and district" requires that the jury be drawn from a fair cross-section of the community, any blanket occupational exemption must be justified by a compelling state interest. Several studies by social psychologists demonstrate that juries without physicians produce different


verdicts than juries on which physicians and other educated elite participate.

STEP THREE -- EXAMINE THE RELEVANT INFORMATION CRITICALLY

The important part of an argument is the critical examination of the information that could be used to support one or the other alternative. A critical examination is one that uses principled reasoning to assess the relative strengths and weakness of each piece of supporting information -- bolstering the pieces of your own argument, and weakening your opponent's. Bear in mind that information is rarely completely reliable or completely bogus. For example, eyewitness testimony from a 85-year-old woman with cataracts describing a complete stranger she saw for three seconds during a bank robbery is not totally useless -- it has some value. Some common examples:

Did a witness have an adequate opportunity to observe? Is the witness of good character. Does s/he have a bias or vested interest?

Is a case cited in a brief recent or old, from this or a different jurisdiction, from a lower or higher court, a majority opinion or a split decision?

Does an expert have appropriate education and training, adequate experience, a bias or vested interest, good institutional affiliations?

How are the facts of another case similar or dissimilar Is an argument or witness account consistent or

inconsistent with other evidence, human experience, or the laws of physics?

Has a case been cited approvingly or criticized by other judges, in treatises, or in law review articles?

Is a witness's opinion supported by adequate personal observations? Do the data support it?

STEP FOUR -- REACH A CONCLUSION ABOUT WHICH IS THE BETTER ALTERNATIVE

The better solution does not need to be the best; it does not need to be perfect. It is enough that one alternative rises above the other(s). If no alternative is clearly better than any other, the better solution may be a compromise.

The alternative you ultimately select is not necessarily the one that "wins" the critical analysis. Legal decision-making is not mathematical, and no judge or lawyer would weigh all issues equally. For example, some judges place great weight on the single principle of how widely held a particular legal doctrine is, or adheres to precedent for the sake of stability in the law, even if the reform alternative has the better of most of the analysis. However, a good judge first expresses some concern about the result, given that his or her analysis of other factors suggests that the majority may be wrong.


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