The running machine is where I catch up on what’s hot and what’s not in the music world. I’m afraid the grammar geek in me couldn’t get over one lyric this morning. Great new song by Ramz – “Barking”. But his line “7 a.m. in the morning”… When else could 7 a.m. be? He could so easily have changed it to “7 o’clock in the morning”…
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;
(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.
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…
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.
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!
I was proud that WriteMark (www.writemark.co.nz) asked me to judge the “best legal document” category in their 2015 Plain English Awards. My two fellow judges and I each reviewed in detail all of the entries (several hundred pages of text) before coming up with a shortlist and then choosing the winners. It was time-consuming, but worth it to see the effort going into making complex legal documents accessible to the general public. The winners will be revealed at the awards ceremony on 19 November. Shame I can’t be there – I love New Zealand!
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.
Yet again this week I’ve found myself using StyleWriter, the plain language editing tool, and recommending it while training. Does it work? Emphatically yes! For example it’s one thing to learn in a training session that you should avoid the passive, using active verbs if possible. Exercises help you to identify and replace passives but, when you’re under pressure back at your desk, old habits die hard. StyleWriter is a brilliant reminder with its easy scoring and editing. If you use it regularly, plain language will start to come naturally to you. For more detail or a free trial go to https://www.cathywilcoxtraining.com/stylewriter/
I’ve just enjoyed reading a speech from last year by Lord Neuberger (President of the Supreme Court of England and Wales) on judgment writing.
He says: “Judgments must speak as clearly as possible to the public. This is not to suggest that judgments could, or even should, aim to be bestsellers. Chance would be a fine thing. But every judgment should be sufficiently well-written to enable interested and reasonably intelligent non-lawyers to understand who the parties were, what the case was about, what the disputed issues were, what decision the judge reached, and why that decision was reached. Non-lawyers may not be able to grasp the finer details of the legal issues, because such understanding often can only come from many years of legal education and practice. They should however be able to understand what the case was about, even if they are unable to appreciate all the intricacies of the more abstruse legal principles.” I couldn’t agree more.
For the full speech see https://www.supremecourt.gov.uk/docs/speech-121120.pdf