Effective legal drafting Archives - Cathy Wilcox Training

Improving poor legal drafting

June 19, 2017 by Cathy Wilcox

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:

Prefer the active voice: I’ve kept just one passive because I felt it needed to be there to convey the legal meaning.
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.
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”.
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”.
Avoid jargon (including legal jargon): I’ve changed “shall” into “must”.
Don’t turn perfectly good verbs into nouns: “The determination of” has changed to “deciding”.

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;

(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…

June 9, 2017 by Cathy Wilcox

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…

Variety makes for happy trainers!

May 13, 2016 by Cathy Wilcox

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.

Drafting around the country

November 27, 2015 by Cathy Wilcox

This was a busy week’s training starting north in Newcastle, heading west to Bristol and then east to London. Lawyers all around the country are keen to improve their legal and business writing and legal drafting. Firms and companies are very different in style and approach, but the principles of a good communication style remain the same. And to prove it, I’m off to Moscow in a couple of weeks to train Russian lawyers in how to advise their English-speaking clients most effectively!

Supreme Court decision upholds the validity of clauses alleged to be penalties

November 4, 2015 by Cathy Wilcox

Anyone drafting liquidated damages clauses should read the Supreme Court’s judgments in the El Makdessi and ParkingEye cases published today, which should make it easier to ensure that these clauses are watertight (see https://www.supremecourt.uk/cases/uksc-2013-0280.html). A seven-judge Supreme Court found the disputed clauses in each case to be valid.

The court upheld the existence of the penalty rule but arguably reduced its scope, finding the concept of a “genuine pre-estimate of loss” to be unhelpful. The true test should now be whether the disputed contractual term is a secondary obligation that imposes a detriment on the contract-breaker that is disproportionate to any legitimate interest of the innocent party in enforcing the primary obligation. In El Makdessi the two disputed clauses were primary obligations and thus not penal. In ParkingEye, the charge levied on overstaying motorists, although high, was not penal for a number of reasons including the fact that it enabled the company to manage the car park efficiently for the benefit of shops, shoppers and motorists.

The highs and the lows

May 2, 2014 by Cathy Wilcox

A mixed week. The highs:

finishing my series of three films on English legal drafting, which are now available to buy – contact me if you’re interested
some great training and coaching sessions at various firms in the City, and lots of positive feedback afterwards (and some contributions to my collection of grammar howlers by big companies!)
perhaps surprisingly, some lovely long walks through the London sunshine, forced by the Tube strike. What a beautiful City.

The lows:

learning that a good friend my age has had a stroke (the second friend in a few weeks)
and another friend’s father died

The moral:

I’m lucky that I love my job and feel I’m making a difference. After all, we spend enough of our lives at work! But far more important is taking time to appreciate our surroundings and, above all, our friends and family. Enjoy the long weekend, everyone!

“Nothing can be so clearly and carefully expressed that it cannot be utterly misinterpreted.”

April 24, 2014 by Cathy Wilcox

Lord Justice Lewison ended a recent talk to Clarity members with the above quote by the American linguist, Fred Householder. His Lordship’s warnings of the dangers of poor drafting and his support for plain language legal drafting were compelling, enlivened by his wonderful examples of poor and archaic drafting. He once included a simple obligation to “keep the property in repair” in place of the following clause from an old lease:

“When where and so often as occasion shall require well and sufficiently to repair renew rebuild uphold support sustain maintain pave purge scour cleanse glaze empty amend and keep the premises and every part thereof (including all fixtures and additions thereto) and all floors walls columns roofs canopies lifts and escalators (including all motors and machinery therefor) shafts stairways fences pavements forecourts drains sewers ducts flues conduits wires cables gutters soil and other pipes tanks cisterns pumps and other water and sanitary apparatus thereon with all needful and necessary amendments whatsoever. ”

He also came up with an interesting reason for consumer contracts having led the way in plain language drafting – that it’s easier to produce clear legal writing in documents intended to be signed without alteration. Once parties start negotiating the wording of a complex commercial agreement, it almost inevitably loses some of its clarity.

Court reminds us of need for accuracy and care in drafting legal agreements

November 14, 2013 by Cathy Wilcox

Two High Court cases on legal drafting have come across my desk this week, both on topics covered in my modular drafting training course:

Liberty Mercian Ltd v Cuddy Civil Engineering Ltd [2013] EWHC 2688 underlines the importance of getting the right contracting parties. In this case the court was unsympathetic to the Claimant, Liberty, who had used the wrong company name for the other party in the contract, confusing two related companies with similar names. It only came to light when Liberty wanted to end the agreement for breach. Claims for misnomer and for rectification for mutual or unilateral mistake all failed.
Moral: Never assume – always check the names of contracting parties (your client’s or the other side’s) particularly carefully.

In Alegro Capital LLP v AllProperty Media Pte Ltd [2013] EWHC 3376 (QB) both sides felt that they had lost out financially through the court’s decision that the agreement between them had failed to record clearly what they had agreed (or thought they had agreed). Not only did each party lose its claim; they also had to bear legal costs that were probably at least five-figure sums. Nobody was the winner.
Moral: You need to check and cross-check, before the agreement is signed, that it reflects what your client intended. And in an ideal world your drafting should be so clear that no other interpretation is possible.

Who touched base in my thought shower? A treasury of unbearable office jargon

November 1, 2013 by Cathy Wilcox

Marvellous title for Steve Poole’s new book. I’ve just ordered it, and am looking forward to reading it (and cringing!).

Other excitement this week – our remote learning drafting course, Introduction to Modern Legal Drafting in English, is coming along nicely. In the first place you’ll be able to buy it on three DVDs. Eventually we hope to make it available online.

And we’re nearly ready to launch a new course called Effective Minute-Taking. Watch this space!