Legal Writing: Ditch Here-And-There Words

http://lawyerist.com/legal-writing-ditch-here-and-there-words/ Legal Writing: Ditch “Here-and-There Words” 13 comments by Andy Mergendahl on on May 24th, 2012 The straightest path to good legal writing is to follow Bryan A. Garner’s advice. And one of Garner’s goals is to promote legal writing in plain English, i.e., doing away with legalese. I suspect that Garner and I differ quite a bit politically, but I like to think we agree that the ideal of equal treatment under the law is best served when legal writing strives to be democratic (note the lower-case ‘d’ there) rather than exclusionary, and, legal terms of art aside, understandable by any literate person. You can make a significant leap toward clear, concise legal writing by simply avoiding certain words. “Shall” is one. But there are a number of others, including what Garner calls “Here-and-There Words.”

Avoid that musty smell Here are some examples of Here-and-There Words: Herein, heretofore, hereinafter, hereunder, thereof, thereto, therewith, thereunder, therefor, thereon, therefrom. In Garner’s Dictionary of Legal Usage (a book you should own), Garner, in his inimitable understated style, writes of Here-and-There words: These abound in legal writing (unfortunately, they do not occur just here and there), usually thrown in gratuitously to give legal documents that musty legal smell.

I hereby declare an exception Garner gives “hereby” special attention. Sometimes it’s a surplusage, e.g., “I hereby declare” instead of simply, “I declare.” But Garner does allow that “hereby” can be used to “denote that the sentence in which it appears constitutes the legally operative act by which something is done.” So, “hereby” can be effective in making it certain that if in a document one “hereby resigns,” that document itself serves as the resignation. Other than that one exception, avoid these words like the plague. They do not clarify; they only confuse and frustrate. And confusion leads to disputes over meaning. As I’ve noted before, that’s exactly what we are paid to avoid. The great British lawyer Lord Denning wrote, of lawyers and their writing: They would rather be accurate than be clear. They would sooner be long than short. They seek to avoid two meanings, and end—on occasions—by having no meaning. And the worst of it all is that they claim to be the masters of the subject. The meaning of words, they say, is a matter of law for them and not a matter for the ordinary man. Making your legal writing accessible and understandable strikes a blow for freedom. Because if people can’t understand legal documents that affect their lives in important ways, is the law helping to keep them free? Or just the opposite?

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 Amy • a year ago o o It is my opinion that you can even dispense with the archaic "hereby," even as a word that signifies an operative act. Writing "I resign" is as effective writing "I hereby resign," in a document that is signed and dated. However, I would review case law for your state, especially in the area of will and trusts, to make sure that this word is no longer necessary to make the act legal. I would also argue that "hereby" is even unecessary in certificates/proofs of service; and it is especially redundant in documents that require notarization. Has anyone got any case law that says otherwise? That is, the document was unenforceable because of the omission of the word "hereby?" o o o • o Reply o • o Share › . . .  Laura L. Thatcher • a year ago o o I agree that much of the "here" and "there" words are over used in legalese. That said, I have to disagree on Garner's recommendation to avoid "shall." Shall has specific meaning -- as we learned in law school it means "must" and is stronger than "will" or "may." I am all for making legal writing understandable and clear for the client/reader, but we should not sacrifice formal English just to make writing clear. Imagine if we started using OMG and LOL in our legal writing! o o o • o Reply o • o Share › . . .

o Sam Glover Laura L. Thatcher • a year ago . . Actually, I think clarity is the only acceptable goal in legal drafting. . . . • . Reply . • . Share › . . .

 killflash • a year ago o o There is nothing wrong with the "here and there" words; they are perfectly understandable. They obfuscate no more than adverbs in general obfuscate. Garner's dislike of them and especially his annointed exception show that his rule is based simply on arbitrary taste. o o o • o Reply o • o Share › . . .

 Brian Dunkin • a year ago o o It's usually all about billable hours and has nothimg to do with plain language. o o o • o Reply o • o Share › . . .

 J Kaplan • a year ago o o I'm also a big fan of Garner, and definitely appreciate the trend towards plain, concise writing. For those who aren't yet ready to shell out cash for one of his dictionaries, Garner offers a free daily email containing one or more usage entries; you can sign up for free on his website: http://www.lawprose.org/ (the subscription form is on the lower right side of the page). o o o • o Reply o • o Share › . . .

 Lou • a year ago o o I've heard this advice many times but I think it ignores the fact that clients often want to see legalese. I've had a client or two ask why documents didn't contain more legalese. While such language may be superfluous, there is a lot to be said for providing a product that meets the client's expectations both in terms of substance and form. o o o • o Reply o • o Share › . . .

o Sam Glover Lou • a year ago . . I have never had a client who wants to see legalese. . . . • . Reply . • . Share › . . . . Lou Sam Glover • a year ago . . Maybe it's because a number of my clients are uneducated but small handful have seemed to believe that a document without legalese is somehow not a "legal document" and therefore will not be binding. My point is simply that, depending on variables such as one's area of practice, legalese may be useful in assuaging a client's concerns. . . . • . Reply . • . Share › . . .

. Sam Glover Lou • a year ago . . I think that's when it becomes a lawyer's job to educate his or her clients on what makes an effective legal document. I often have clients bring me legal documents for review or modification that are stuffed with legalese. Without exception, they have been happy to see my revisions, which subtract the crud and are readable by normal people without degrees in law and Latin. . . . • . Reply . • . Share › . . .

 Tim • a year ago o o I tend to avoid those words when I type my own documents (although I haven't figured out a way to start the prayer in the pleading without a "therefore"). However, when I dictate, I am much more likely to use them. I wonder why that is, since I don't include them in my normal speech patterns? o o o • o Reply o • o Share › . . .

o Andy Mergendahl Tim • a year ago . − . There are places where "therefore" is an acceptable choice, particularly if it's setting up the reader for some sort of exciting and unassailable conclusion. Of course, if local rules or custom require it, you're stuck with it. As for writing vs. dictating, I guess the old advice, "write the way you wish you spoke" could be pointed the other direction: "speak the way you wish you wrote."