Cathy Wilcox Training

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Improving poor legal drafting

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I promised to tell you the techniques used to improve that awful passage from the GDPR.  My six principles of a user-friendly drafting style came into their own:

  1. Prefer the active voice: I’ve kept just one passive because I felt it needed to be there to convey the legal meaning.
  2. Keep sentences under 40 words with an average sentence length of under 20 words:  When you use clauses and sub-clauses, you can count each sub-clause as a separate sentence, making the new average sentence length under 10 words.
  3. Choose simple words if possible:   I’ve got rid of “pseudonymisation” for example.  I am, however, stuck with words that mean something under data protection law, for example “process” and “state of the art”.
  4. Don’t use three words if one would do:  “In order to” becomes “to” and I’ve replaced “take account of” with “consider”.  “At the time of” becomes “When”.
  5. Avoid jargon (including legal jargon):   I’ve changed “shall” into “must”.  
  6. Don’t turn perfectly good verbs into nouns:  “The determination of” has changed to “deciding”.

How to improve poor drafting

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I promised to redraft Article 25 of the General Data Protection Regulation (see my last post). Here’s my best effort so far.  Unfortunately Word Press doesn’t let me indent, so it’s not as easy to read as it would be in real life:

1. When deciding how to process, and when processing, data, the controller must take appropriate technical and organisational measures such as using pseudonyms (the Measures).

2. Measures must be designed to:

(a) implement data protection principles (such as data minimisation) effectively; and

(b) integrate into the processing all safeguards necessary to:

(i) comply with the Regulation; and

(ii) protect the rights of data subjects.

3. In taking Measures, the controller must consider:

(a) the state of the art;

(b) the cost of complying with the Measures;

(c) the nature and scope of the data;

(d) the context and purpose for processing the data; and

(e) the likelihood or severity of the risks that processing the data might pose to rights and freedoms of individuals.

I’d welcome comments, or suggestions to improve the drafting!  In my next post I’ll explain the techniques I used.

Worst drafting seen this week…

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Take a look at the General Data Protection Regulation, an EU regulation coming into force in May 2018. Article 25 is a 114-word cracker:

“Taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing, the controller shall, both at the time of the determination of the means for processing and at the time of the processing itself, implement appropriate technical and organisational measures, such as pseudonymisation, which are designed to implement data-protection principles, such as data minimisation, in an effective manner and to integrate the necessary safeguards into the processing in order to meet the requirements of this Regulation and protect the rights of data subjects.”

Scoring it on my StyleWriter software gave it a “dreadful” and an “unreadable”!  A client challenged me to redraft it – easy enough, you’d think, with plenty of lists and sub-clauses. But when you take a closer look, parts of it are ambiguous – and that’s the danger with poor drafting! Anyway, it’s work in progress while I work out the legal meaning. More next week…

Commas before “and” hit the headlines again

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I’m a big fan of putting a comma before “and” when it helps the reader and adds clarity. I read this in Metro yesterday:

“They needed a flat that was affordable but also within easy reach of work and Lewisham, with a DLR station, was perfect.”

With no comma after “and“, most of us will read “within easy reach of work and Lewisham“, get confused, and have to re-read it to make sense of it. A comma before the “and” would have solved the problem and made our lives easier.

What is the Oxford comma? It’s where, in a list of three or more items, you put a comma after the second-last item and before the “and“:

“Apples, bananas, and pears“.

Mostly you don’t need it, but occasionally it’s useful:

“I shop at Sainsbury’s, Marks and Spencer, and Lidl.”  [I know that in reality M&S has an ampersand.]

The Americans are generally less keen than we are on the Oxford comma. Indeed the Maine Legislative Drafting Manual instructs lawmakers not to use it. But three truck drivers in Portland, Maine have just won a case in the appeal court that may cost Oakhurst Dairy millions of dollars in a dispute over overtime, just because of the lack of an Oxford comma.

Life’s too short…

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… to be in a job that is less than perfect (although you may not realise it at the time).  Esther Stanhope’s article “Finding your career groove” struck a chord with me: https://www.estherstanhope.com/found-career-groove/

The sweet spot is at the point where three things meet – things you’re good at, things you love and things you get paid (well) for.  Reading her blog, I realised that I’m in that sweet spot, thanks to all my wonderful clients and everyone that I’ve trained or coached. I’ve found my career groove!

Variety makes for happy trainers!

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Cathy’s had a lovely week, with a real mix of training delivery:

Three courses for lawyers at different global firms – one on “white-water drafting” (the scary bits of legal drafting), one on getting the right approach (risk allocation etc) and one on client-friendly drafting.

Three business services training sessions for law firms in London and in Newcastle, two on good business writing and one for senior managers on writing to influence.

Add in some one-to-one coaching slots for business services staff at yet another law firm and you have the perfect week as far as Cathy’s concerned!

Thank you to all our clients, and enjoy the weekend.

Contact:

Cathy Wilcox Training Limited, a company registered in England under company number 08161035
Meadow End, Skittle Green
Bledlow, Princes Risborough
Bucks HP27 9PJ
T: +44 (0)1844 345519
M: +44 (0)7771 842830

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