Riga Graduate School of Law

RIGA GRADUATE SCHOOL OF LAW

PROFESSIONAL LEGAL WRITING: PRINCIPLES AND PRACTICE

COURSEBOOK

Language Tools for Legal Writing 1

Professional Legal Writing: Principles and Practice

Effective legal writing, as an essential ingredient to being a complete lawyer, is arguably the principal means by which legal skills are measured. In particular, legal writing should clearly demonstrate the means by which conclusions are reached, rather than being a mere summary of conclusions. Moreover, terminology should be kept to a minimum but, when used, should be used correctly.

Course aim: to improve professional communication skills. Course objective: to introduce elements of professional legal writing. Course content will be a mixture of theory and practical exercises Texts: a variety of legal texts are used for course exercises and tasks, e.g., emails, contracts, due diligence, court reports, press reports, EU directive, ECJ decision. Tasks involve professional skills such as advising, persuading, and informing. Students prepare tasks in-class and then choose one task to deliver for grading. Skills: The course involves mainly reading, writing, analytical and organizational skills. Methodology: the course begins with a seminar dealing with theoretical aspects of legal writing, followed by a series of interactive workshops. These will be based on case studies in which participants will have the opportunity for guided practice in legal writing in realistic contexts. Course requirements and grading: to pass the course, students must attend 80% seminars + deliver one completed writing task (see above “Tasks”).

CONTENTS

I. DEFINING EFFECTIVE LEGAL WRITING ...... 4 Legal language: functions, features; varieties, and characteristics of legal writing. TASK: linguistic analysis of newsletter on European tax law

II. LEGAL WRITING: BASIC PRINCIPLES ...... 122 Overview: categories and styles of legal writing; aspects of writing in cross-cultural contexts. TASK: create newsletter item from EU directive

III. WRITING CORRECTLY: GRAMMAR AS A VITAL TOOL FOR LAWYERS...... 18 Functions of grammar in legal English. Problem Areas: legal prepositions; modals to express intention in legal text (e.g.may vs is entitled to); conditionals; verb structures and tenses; relative clauses; recommendations and suggestions. TASK: linguistic analysis of online banking contract.

IV. WRITING EFFECTIVELY: ORGANIZING STRUCTURE OF TEXT ...... 300 Effective writing: ingredients; developing your argument in structured paragraphs; paragraph organization; sentence structure. TASK: linguistic analysis of scaffolding hire contract.

V. WRITING COHESIVELY: GUIDING THE READER; LINKING IDEAS ...... 39 Language as a connector/commas as connectors; text coherence; linking word sentence position; adverbial linking words; playing with paragraphs. TASK: linguistic analysis of draft contract for services.

VI. WRITING CLEARLY ...... 54 Accuracy; punctuation; summarizing text. TASK: summary report on ECJ judgment.

VII. WRITING WITH PROFESSIONAL STYLE: TECHNIQUES FOR LAWYERS ...... 66 Avoiding unnecessary words; avoiding wordy expressions; plain English for lawyers; formality; techniques for revising and editing. FURTHER TASKS: edit mails; test your vocabulary skills.

Sources ...... 87

Appendix: notes on EMAILS 88

I. INTRODUCTION: DEFINING EFFECTIVE LEGAL WRITING

“They would rather be accurate than clear. They would sooner be long than short” – Lord Denning on lawyers, 1978.

LEGAL LANGUAGE: FUNCTIONS, FEATURES, VARIETIES, CHARACTERISTICS

Functions of legal language

- to establish rights and obligations

- to distribute information

- to enable communication within the legal profession

Universal features of legal language

 extreme precision

 obscurity, ambiguity

 archaism (structures and vocabulary)

 formalism, ritualism and ceremonialism

 wordiness and redundancy

 lengthy and complex sentences (embeddings)

 impersonal constructions (passive)

 terms of art, technical terminology

VARIETIES OF LEGAL WRITING

One suggestion as to varieties of legal writing is:

1) Academic Legal Writing: the language of academic research journals as well as that of legal text-books (instructional or informational orientation)

2) Juridical Writing: the language of court-judgements, case-books and law reports (where one may find traces of legislative writing)

3) Legislative Writing: typical legal documents like Acts of Parliament, statutory instruments, contracts, agreements, treaties, etc., where the main function is to legislate by creating a unique world of obligations, permissions and prohibitions. (Bhatia)

We can develop this further by seeing legal language in professional settings: legislative language, statutory language language of statutes, conventions, treaties, language of legal drafting language of jurisprudence, courtroom language language used by courts and judges, court decisions, judg(e)ments language of litigation language used by lawyers (UK: barristers) in court bureaucratic language, administrative language

language of administrative documents language of legal doctrine

academic writing, language of legal textbooks language of private legal documents contracts, insurance policy, testament language etc. language of international organizations?

Language of international or multilingual organisations, “EU language”, “eurospeak” lawyer-client communication consultations, putting client’s concrete situation in legal context

CHARACTERISTICS OF LEGAL ENGLISH

(Mellinkoff. D., 1963 The Language of the Law):

1. common words with specialist meaning executed meaning signed and delivered/performed, carried out/ killed as a punishment party meaning person contracting or litigating

2. old or middle English words thenceforth notwithstanding

3. Latin words and phrases ultra vires in propria persona

4. words of French origin damage mortgage

5. terms of art (technical terms, often Latinisms) comparative negligence negotiable instrument

6. argot (jargon) for the duration of (= during) in the event that (= if)

7. formal words

I do solemnly swear to tell the Truth, the whole Truth and nothing but the Truth

8. words and expressions with flexible meaning (euphemisms)

fair division undue influence reasonable man

good faith 9. extreme precision

10. many words where one will do (Old Engish/Latin/Law French) Examples rest, residue and remainder Will and Testament final and conclusive fit and proper give, devise, and bequeath null and void/null, void, and of no effect Act and Deed

WHY LEGAL ENGLISH IS THE WAY IT IS Historical reasons

. development of legal and administrative system and characteristics of the power elite (Latin/Roman influence, Norman conquest, French influence) . doubling and tripling (e.g., null, void, and of no effect) . retention of foreign elements (latinisms, frenchisms)

Jurisprudential factors

. common law: precedent and case law (the law is determined by reference to earlier judgments) . legal terms fixed in earlier judgments

Sociological factors

. lawyers’ need to conform to and identify with other members of the profession, professional peer pressure (”talking and writing like a lawyer”) . lawyers’ need to be “indispensable”

Political factors

. euphemisms (”visually challenged”) . need for precision/ambiguity (treaties, agreements) . administrative

“We lawyers cannot write clear English. We use eight words to say what could be said in two. We use old, archaic phrases to express commonplace ideas. Seeking to be precise, we become redundant. Seeking to be cautious, we become verbose. Our sentences twist on, phrase within clause within clause, glazing the eyes and numbing the minds of our readers.”

Richard Wydick

Characteristics of good legal writing Here is one group of suggested characteristics, or traits, of good legal writing. This is not intended to be definitive, especially as the borderline between legal and business writing is not always clear.

Conciseness: write the message in as few words as possible Completeness: ensure that all information needed by the reader to respond or act is included Courtesy: show consideration for the reader Clarity: write clearly Correctness: check for accuracy of all statements and details And here is another list of characteristics:

Accurate (grounded in law) analytical

Relevant organized

Thorough Specific and concrete

Logical Correct (grammar, punctuation, usage)

Persuasive Clear

Next: Punctuate the following sentence as you think appropriate:

“ To communicate effectively you must know three things your audience your purpose and your material”

Answers 1

ASSESSING WRITING SKILLS EXERCISE A. Highlight the appropriate word choice in the following sentences:

1. The EU is comprised of/composed of sovereign states.

2. Regulations compliment/complement statutes by implementing them.

3. The EU has been moving further/farther eastwards.

4. The advocate’s task is to persuade/convince the court to accept that a particular line of argumentation makes sense.

5. The principle/principal documents on which the EU is founded include the Treaty of Rome.

B. The four sentences below contain common errors of grammar and spelling. Can you correct them?

1. The complexity of our laws make interpretation difficult.

2. The government may change at the next election, however, the employment law is likely to remain the same.

3. Good communication skills can help lawyers affect change.

4. Regulations under the statute fail because they are inconsistent, incomplete and implementation and enforcement are not reliable.

Answers 2

GUIDELINES FOR BETTER LEGAL WRITING

 match the function and the style of the text according to the reader

 avoid long and embedded sentences

 avoid complex structures

 use active instead of passive, if possible

 avoid double negatives, exceptions to exceptions

 avoid unnecessary synonym pairs (null and void)

 use technical legal terms only when necessary, avoid jargon

 avoid Latin and foreign words if possible

A MODEL OF THE WRITING PROCESS: OVERVIEW

1. Prewriting: Clarify objectives Define reader Establish scope

2. Information: Collect information Tailor it to your audience

3. Organization: Determine organizational pattern, paragraph topics Compare it to the objective, reader and information

4. Drafting: Put information into sentence form Put paragraphs into organizational pattern

5. Revision: Revise globally in terms of objectives, information and organization. Revise locally (one sentence at a time) for conciseness, coherence, clarity and correctness.

TASK: European Tax Law

DOCUMENT FILE I

Complete the Introduction to the text by adding the verbs: would be examines changed maintaining concluding hint at seeking published is has been Next, in Background, what function do the verbs perform? Find synonyms or antonyms for these.

Third, under Purpose, find two phrases that can be rewritten as verbs. Then find all the verbs in this short piece: what function do they perform?

Fourth, read the text under Generally, then replace Generally with a more suitable title. Explain why the new title is more suitable.

Fifth, under Full Harmonisation, mark the key words in the text.

Sixth, under Tax Base Harmonisation, mark the words that make the text more analytical.

Next, under Exchange of Savings Information, mark the key words and analytical words. Can you suggest ways to improve the text?

Under Conclusion, what function do the words marked perform?

II. LEGAL WRITING: BASIC PRINCIPLES “Uncritical use of words bedevils the law” – Justice Frankfurter, 1882- 1965

FOCUS: THINKING

List specific examples of legal writing skills. Answers 3

Overview: Categories and styles of legal writing In many legal settings specialized forms of written communication are required. In many others writing is the medium in which lawyers must express their analysis of an issue and seek to persuade others on their clients’ behalf. Any legal document must be concise, clear and conform to the objective standards that have evolved in the legal profession.

Can you improve this paragraph? Answers 4

Explain the improvements Answers 5

There are generally two types of legal writing. The first type requires a balanced analysis of a legal problem or issue. Examples of the first type are inter-office memoranda and letters to clients. To be effective in this form of writing, the lawyer must be sensitive to the needs, level of interest and background of the parties to whom it is addressed. A memorandum to a partner in the same firm that detailed definitions of basic legal concepts would be inefficient and annoying. In contrast, the absence of basic legal concepts from a letter to a client with no legal background could serve to confuse and complicate a simple situation.

Can you improve this paragraph? Answers 6

Explain the improvements.

Answers 7

The second type of legal writing is persuasive. Examples of this type are court pleadings and negotiation letters written on a client’s behalf. The lawyer must persuade their audience without provoking a hostile response through disrespect, or by wasting the recipient’s time with unnecessary information. Moreover, in presenting documents to a court or administrative agency a lawyer must conform to the required document style.

The drafting of legal documents, such as contracts and wills, is yet another type of legal writing. Guides are available to aid a lawyer in preparing the documents but a unique application of the “form” to the facts of the situation is often required. Poor drafting can lead to unnecessary litigation and otherwise injure the interests of a client.

Finally, there are academic or journalistic texts. Case reports, which fall under both descriptions, appear both in academic journals and in newsletters provided by international law firms. But while the language of the first addresses an audience of lawyers and academics, the language of the second addresses a wider audience.

However, legal writing does not simply “happen”. It is important to remember that it generally occurs as a result of or in conjunction with some other activity. For example, at a meeting terms of an agreement are negotiated, and briefly noted down; these notes, which themselves result from discussion, form the basis for a formal, written document. That document is then sent as a draft for approval to someone else, who reads and amends it before returning it to the sender. The proposed amendments are then discussed by telephone, or by email, and further changes may result to reflect the intention of the parties.

Correct use of language is vital to fulfil that intention. However, the desire to avoid ambiguity often leads to use of too many words (e.g., to cover all possible situations, products, and so on), over-long sentences and “lawyers’ jargon”. In the result, many legal texts are understandable only to lawyers. On the other hand, legal texts should be professional, and not too informal. Effective legal writing both avoids unnecessary complexity and uses language that simplifies and clarifies, while at the same time presenting a professional image.

Can you improve the last sentence? Answers 8

Explain the improvements Answers 9

To conclude, some traps to avoid in legal writing, apart from simple linguistic ones. Most importantly, it is important to realize that legal documents do not exist in isolation, i.e., they exist against the background of a wider real, and legal, world. This is especially true if you are operating in the international context. So, here are some suggestions. First, remember that a legal concept, or word, that exists in the legal system in one country may not exist in others, or it may exist in a different form. Second, different legal cultures have different approaches to drafting legal documents. In some cases, drafters will include detail to cover every possible eventuality, while in others details will be kept to a minimum, in the interests of “flexibility”. This can lead to accusations of “unnecessary detail”, on the one hand and “cheating”, on the other. Never accept a draft document on its face value – ask yourself, not only whether what is included is in order, but also, what has been (or may have been) excluded. Thirdly, laws in any country may be subject to supranational legislation. Fourthly, legal documents are not an exercise in “lawyer-speak” – their aim is to fulfil the wishes of clients in a realistic and understandable way.

More on cross cultural matters later in this section.

Can you improve this sentence from the text? Most importantly, it is important to realize that legal documents do not exist in isolation, i.e., they exist against the background of a wider real, and legal, world. Answers 10

Explain the improvements Answers 11

PLAIN ENGLISH FOR LAWYERS

The Woolf report of 1999 was an attempt to make the English legal system faster, cheaper and easier to understand. Similar reforms have been taking place in the United States. The report can be found online at www.open.gov.uk . The section that is most helpful to you appears in the civil procedure rules.

The report has had serious consequences for students of legal English, as it renders the UK style significantly different from that used in the USA.

The central points to remember about the new UK style are these: 1. Avoid over-technical terms and over-complicated methods of expression. Don’t say “aggregate” if you mean “total”. Don’t say “effectuate” if you mean “do” or “sign”. Use plain English wherever possible rather than “legalese”.

2. Where possible, eliminate Latin or any other foreign words where there is an English alternative. A case is no longer heard “in camera” but “in private”. Don’t act “bona fide” but “in good faith”.

3. Eliminate all archaic terms. Archaic means “old and no longer used”. When drafting a contract, don’t say “heretofore” but “before this time”. Most archaic terms such as “hereby” and “aforementioned” can just be deleted and no alternative may be necessary. 4. Eliminate all legal pairs and triplets. Lawyers used them in the past to add emphasis or to provide one word understandable by clients and another by lawyers. However, this is now seen as using 2 or 3 words where 1 will do. A clause containing the words “will not amend, vary or modify” is a typical legal triplet – “will not change” is a good alternative.

However, you need to know both styles because in your career as an overseas lawyer dealing with foreign documents you will use a variety of styles at this time of transition.

Later sections develop these ideas in detail.

Can you improve these sentences from the text?

The Woolf report of 1999 was an attempt to make the English legal system faster, cheaper and easier to understand.

The report has had serious consequences for students of legal English, as it renders the UK style significantly different from that used in the USA. Answers 12

Explain the improvements Answers 13

Aspects of writing in cross –cultural contexts. Several issues connect with reworking texts in an intercultural context – e.g., translations into English for a US audience from a Spanish text originally intended for a South American audience.

In particular, differences of rhetoric may exist, e.g.:  History and context  Concrete versus abstract  Universalism versus particularism

History and Context Many cultures (e.g., Spanish) place importance on including historical and contextual information, whereas others (e.g., US) do not.

In what are termed high context cultures (e.g., Latin America), communicators tend to depend heavily on the communication contexts for meaning (Hall, 1976; Rosch and Segler, 1987). This can lead to inclusion of much concrete and detailed contextual information that a mid- to low-context culture such as the US would exclude. In high-context cultures, social structures are the reference point for all interaction, whereas in low-context cultures social reality is based on the abstract, acontextual, and universal laws that go hand in hand with extreme individualism. Put differently, in low-context cultures, the individual tends to be the reference point for all interaction, along with abstracted values such as equality, independence, constitutional rights, justice, laws, and social programs. Inevitably, these cultural differences are reflected in text.

Particular and Abstract Some cultures write in a particularist style (e.g., “termination of the labor contract”), whereas others are more universal (e.g., “termination of labor contracts”), which may be reflected in the need to change “the” to “a” or “…”. An individualist society such as the US may use the universalist style, whereas a more collective culture, such as Japan, will be more particularist in writing style. A high context culture may use a more lively, original, dynamic, and stylized form of rhetoric, whereas the US style may appear dry and uninteresting. An example of this is that one culture may use what is called a long transition, e.g.: - Another type of company is a mixed economy company in which public and private capital is utilized… - Mixed economy companies have both public and private sector capital… Or, - It is necessary to point out that foreigners must register their visa… - Foreigners must register their visa…

Accumulative and analytic High-context cultures may use an accumulative approach in writing – rather like telling a story in chronological order, with each piece of new text building on the last. This can be seen, e.g., in legal documents. Low-context cultures, on the other hand, will re-order such a text to show relationships, such as cause and effect, hierarchies and procedures. The re-worked text will have greater analytical complexity. Another feature of high-context culture writing style is longer sentences, with more repetition, even with deviations from the main idea, before returning to the main topic, using a linguistic signalling device.

The writer of text from a high-context culture can look at a reworking of their text for, e.g., a US audience and find it very different – almost certainly rather uninteresting.

Precision High-context-cultures may assume certain issues or procedures to be evident. In high-context/collective cultures, procedural directness is considered impolite because the context itself symbolizes the correct procedures. As a result, many procedures are tacitly shared and not fully explained textually. This may be interpreted by a low-context culture reader as lack of precision (Hall, 1976). Text should be sensitive to audience demands, so that a text (in the original or translated version) that may be acceptable in the original target culture could be unacceptable to an audience from a different culture.

Summary Broad differences in rhetorical patterns appear to exist across populations and languages. These differences correspond to the cultural patterns of that population.

However, a great deal of research needs to be done in improving understanding of the role of language in cross-cultural interactions. Perhaps it is not language itself that influences rhetorical patterns. It may be that language is one of a number of factors, which might also include the specific rhetorical context, the community or group concerned, and the wider cultural/historical context.

Task: create newsletter item from EU directive.

Document file II: European Consumer Law Read, discuss, analyze and summarize the text as a newsletter. How to approach this task? We will discuss and establish criteria. The summary should be analytical. The target readership is “educated professionals”.

III. WRITING CORRECTLY: GRAMMAR AS A VITAL TOOL FOR LAWYERS. “Law is too important a thing to leave to lawyers” – Professor H.L.A. Hart on human rights, 1973.

Grammatical correctness is essential to effective presentation of text. It goes hand in hand with logical thinking. However, effective writing is more than simple grammatical correctness. Organization, style and analysis are also essential. But even a simple mistake like a missing comma can make a big difference to meaning. Grammatical correctness is also important for two other reasons. First, so that readers can focus on what you are saying (i.e., not how badly you are saying it). Secondly, so that your readers can understand the point you are making (even if they do not want to). Indeed, making your readers want to understand is another matter entirely. This vital component of the lawyer’s professional being is - the art of persuasion. One element of this art is logic.

What are the other two elements? Answers 14

Functions of grammar in Legal English

Try to see grammar positively: as a useful tool, not a boring necessity. A good knowledge of grammar enables you to express yourself with clarity and precision, both in the concrete and in the abstract. Some areas of grammar pose problems for both native and non-native speakers of English. In the following section, we examine some of these.

Legal Writing Skills: Problem Areas Legal Prepositions Legal English involves using many prepositional phrases and idioms. Not only do you need to know when and how to use them, but you also have to get them right.

EXERCISE Put the correct or most usual prepositions into the blanks provided. In some cases more than one preposition is possible – but does it change the meaning of the phrase?

To comply ______to allocate ______

To be subject ______to derogate ______

To apply ______to appeal ______

_____ regard ______behalf ______

_____ addition ______view _____ to exclude ______to result ______to derive ______in respect ______to withold ______to include ______

____ the circumstances to deduct _____ to add ______to carry ______

Answers 15

Can you put these expressions into categories?

Answers 16

Legal Writing Skills: Problem Areas Modals: Can, Could and Be Able To

All are about ability, or possibility. With general ability we use can or be able to for present ability, could or was able for past ability and will be able for future ability.

She can read Latin texts When I was at school I could read Latin texts, but now I can’t. (You can use be able to for [instead of] both of these. I am able to read Latin texts, I was able to read Latin texts) If you study hard, you will be able to read Latin texts.

My father can read Latin texts. My father could read Latin texts. (But now he can’t because he’s dead, or incapable for some other reason)

We use can and could also to talk about ability on particular occasions, especially with sense verbs.

I can smell alcohol. Is your father drinking again? She could hear music playing when she walked into the apartment. (Here you cannot use be able to instead of can/could)

Can and Could with Possibility and Probability To talk about general possibility we use can.

Smoking can make you ill.

To talk about a present hypothetical, or a future hypothetical of a specific situation, we use could, NOT can.

This new tax law could cause problems for small businesses. New tax laws can be difficult to implement.

“Where is Andris?” “I’m not sure. He could be at the bank.” (NOT can) For this meaning of could it is possible to use may or might instead. Andris may/might be at the bank”.

Modals in the Past These are used to comment on, or to analyze, past actions, often with a view to giving advice or making recommendations. e.g., Could/couldn’t have done; didn’t have to do; must have done; should/shouldn’t have done; needn’t have done; would/wouldn’t have done; may have done.

EXERCISE

Use the above to make a statement about the following:

1) Your English clients paid you USD 100 in addition to your bill, as a “Thank you”. 2) You are interpreting statute A. The meaning (intention) is absolutely clear to you – but not to your client. 3) However, in statute B, there are two possible interpretations. 4) The Parliament decides to pass another statute, statute C, to clarify statute B. However, by mistake, the new statute C refers to statute A rather than to statute B. 5) Last year, your client company made some staff redundant because of falling orders. Now, business is improving. 6) Commercial tenants of your client’s shopping mall made structural changes without permission. 7) Case Analysis: The police are interviewing five people about a crime – robbery and murder. All are equally suspect…. …but after some time the police are sure that two of these people had no connection with the crime…. … and finally they are sure that only one person, X, is guilty… … X makes a statement to police in which he says he made a big mistake in that he thought the victim was rich but there were only 30 cents in his pocket … … the criminal adds that he now realizes that the victim’s brother, who is rich, was the correct target for the crime.

Answers 17

Legal Writing Skills: Problem Areas Modals Review EXERCISE

In some or all of the following sentences the use of modals is incorrect. Look them over and be ready to explain why.

1) He must spend ten years in prison for money laundering – the judge said two years was enough. 2) My assistant still hasn’t completed the report. He should finish it two days ago. 3) As long as your father’s estate is valued at under USD 600,000, you must not pay death taxes on it. 4) You needn’t have paid your redundant employees only one week’s money – four weeks’ money was the correct amount. 5) My client was nowhere the scene of the shooting – he may have done it. 6) Skaidrite is a loyal employee of our company; she shouldn’t have sold trade secrets to our competitors. 7) It was a violation of the law to import food products without a proper licence – you didn’t have to do it. 8) Many thanks for your help: we needn’t have succeeded without it. 9) The bank knew that Mantas had a bad credit record: they would have advanced him the money. 10) . The bank credited our account with USD 3000 but we only paid in USD 300: they may have made an error.

Answers 18

Legal Writing Skills: Problem Areas Conditionals

Similarly to modals, these are needed in legal English to analyze and comment on past actions, or to present alternatives – often in connection with giving advice or recommending a course of action.

While conditionals are difficult in English, they are much less difficult than most learners believe. Here is one simple rule to remember:

If + will/would do not appear in the same clause in the same sentence.

So, to start a sentence with if you will or if you would, then you know you are wrong. To start with a non-legal example to illustrate the three basic conditionals in English. Imagine the following conversation, in a movie, between narcomafia boss and dealer:

If you don’t pay for the goods, we will kill you. If you didn’t pay for the goods, we would kill you. If you hadn’t paid for the goods, we would have killed you.

In what situation does the narcoboss say these sentences? Which is the most common in legal English? Why? What is the effect of using modal verbs like may in the second clause?

Answers 19

EXERCISE Rephrase the following situations using conditional sentences:

1) The government seems likely to pass a new law that would definitely give new companies in special areas tax relief for four years.

2) You are discussing which type of company a smaller client should set up. There are several options and the client has not yet decided. You want to point out that a sole proprietorship (self-employed person), while easy to set up, carries the risk of personal liability. Then make the case for a limited liability company.

3) The corporation you are advising (a new client) was recently penalized in the EU for violating employment law. It now wants to set up business here. Answers 20

Legal Writing Skills: Problem Areas Writing Skills: Verb Structures Verbs in pairs can present problems to users of English as a second or foreign language. This is because it is difficult to formulate any grammar rule. The second verb is either an infinitive (sometimes with ‘to’, sometimes without it) – or ends in ‘-ing’. EXERCISE Put the verbs in brackets in their correct structure to complete the sentence. 1) I hope ______(see) you next Thursday at the conference. 2) We ______(look) forward to ______(hear) from you. 3) I suggest ______(arrange) a meeting between all parties concerned. 4) Unfortunately, our confidentiality agreement does not allow us ______(disclose) such information. 5) Our qualified consultants are trained to help you ______(achieve) the optimal level of performance from your billing. 6) We recommend ______(use) mediation to resolve this problem. 7) You might consider ______(employ) a practice manager to deal with administration. 8) Our clients do not intend ______(pay) the balance until the work is completed. 9) I will let you ______(have) relevant details in the next letter. 10) We propose ______(allow) the applicant the right to live and carry on business in this country. [2 possibilities with 2 different meanings] 11) I would appreciate ______(receive) payment as soon as possible. 12) I wonder if you ______(answer) a few questions. [needs modal]

Answers 21

Legal Writing Skills: Problem Areas

Prepositions of Time Prepositions of all kinds can be a problem if English is not your mother language. However, correct use of prepositions is vital in legal English. Here, we show why – by selecting expressions where different prepositions give different meanings. Can you suggest a strategy to avoid this problem? Answers 22

EXERCISE Put the correct preposition/prepositional phrase into the blanks below.

1) Payment is due ______one month. (the money is due on the day of the deadline) 2) Payment is due ______the end of January. (the money is due on the day of the deadline) 3) Payment is due ______one month. (the money is due any time from now until the deadline) 4) Payment is due ______the end of January. (the money is due any time from now until the deadline) 5) We refuse to settle accounts ______the work is completed. 6) We noted that ______01 September 2002 no prepayments had been submitted as agreed in the building agreement. 7) ______our examination of employment practices at your company, we identified a number of discrepancies between those practices and the new employment law. 8) ______receipt of this letter, you have five days to respond, or we shall take legal action. 9) We are scheduled to work for the bank ______June 15 and no later. 10) She has worked for our firm ______1998. 11) The next partners’ meeting will be held _____ 01 January. 12) He has worked for our company ______three years. Answers 23

Legal Writing Skills: Problem Areas

Tense Overview EXERCISE In the following extract, a modification of a newsletter report, put the verbs in brackets into the correct tense. Be careful of passive structures, conditionals, infinitives, negatives, and nouns. Some present and past participle clauses appear in the text. Where are they? How are they similar to relative clauses? Note: the text shifts in time from recent past, to present, and future.

Businesses (face) 25 sets of laws under Unfair Commercial Practices Directive In a controversial move, EU trade ministers (withdraw) the ‘country of origin’ principle (propose) in the Directive on Unfair Commercial Practices (the ‘Directive’).

 A recap of the Directive The Directive (design) (clarify) consumers’ rights and (facilitate) cross-border trade by (establish) common, EU-wide rules against aggressive or (mislead) business-to-consumer marketing. It (apply) to anyone (sell) goods or services, or (advertise) in the EU, with a duty (place) on Member States (ensure) that the rules on unfair commercial practices (enforce). A full summary of the (propose) Directive (include) in the September 2003 edition of the Commercial Newsletter.

 (Remove) the ‘country of origin’ principle Under this principle, entities within the EU (require) (comply) with the laws of the country in which they (establish), thereby (avoid) the laws of other EU Member States in which they (trade). With such provisions from the Directive (withdraw), European entities (require) (comply) with the consumer protection laws of all 25 EU Member States, rather than just those of their country of establishment. A number of Member States (argue) that (include) a ‘country of origin’ principle (be) unfair to those countries with more stringent consumer protection requirements. However, (remove) the principle (provoke) controversy in six Member States, (include) the UK. (Feel) that this (lead) to legal uncertainty, since the requirement on UK businesses (comply) with 24 other sets of national laws (can) not (be conducive) to (increase) cross-border activity. The Commission (support) its decision, however, on the basis of the benefits of ‘full harmonisation’ – by (comply) with the Directive, traders (act) not only in their own national context but also at EU-level. Since the same rules (apply) in all EU member states, there (be) no need for mutual recognition.

 Timetable

Following publication, the draft Directive (adopt) by the Council of Ministers and (submit) to the European Parliament for a second reading.

Adapted from Baker & Mackenzie’s Commercial newsletter June 2004 Answers 24

Legal Writing Skills: Problem Areas Relative Clauses Relative clauses divide into two groups – defining and non-defining.

Here are some examples of defining relative clauses.

The firm who (that) occupies the next door office is a consultancy. (information about the firm) (Here, using the strategy in the answer to the last question, you can avoid a relative clause: The firm occupying the next door office is a consultancy). The city which (that) (no pronoun) we most want to establish an office in is Geneva. (information connecting city and Geneva) Laima is a company which (that) makes chocolate. (information about the company)

Now, some examples of non-defining (or “extra information”) relative clauses.

My client, who claims compensation from defendants, is a manager. She works for Laima, which makes excellent chocolate. Running, which promotes fitness, is her favorite sport.

Notice:

In defining relative clauses:  We can use either who/which or that or sometimes no relative pronoun.  We do not use commas.  The two sentences or clauses that are combined are not logical alone.

In non-defining relative clauses;  We have to use either who or which and cannot use that.  We use commas  The sentences that are combined could stand (are logical) alone.

REFLECTION Some defining relative clauses need no relative pronouns, while others do. Why? Answers 25

Legal Writing Skills: Problem Areas Relative Clauses EXERCISE In which of the following sentences can we use that instead of which or who? In which of them can we leave out the relative pronoun altogether? Put commas in the sentences where appropriate. Does inserting commas (or not) change meaning?

1) The risks which we mentioned earlier are extremely serious. 2) The property which has been valued at USD 275K should be sold at the earliest possible date. 3) Only citizens who have been deemed eligible are allowed to vote. 4) Generally, activities which have been carried out in connection with production marketing and sales of goods are taken into account when assessing whether there has been a violation of competition laws. 5) Solveiga Jacobsone who is an experienced corporate lawyer with our firm is the right person to ask. 6) Politicians who break the law should be given long prison terms. Answers 26

Countable or Uncountable? 2 EXERCISE Complete the blanks in the following sentences, by choosing the correct form of the nouns. 1) The (insurance) company declined to accept the fire (risk) on the old building. 2) Everybody must take (risk); if it/they turn/s out right, it is/they are renamed opportunities. (Sybil Taylor, as Sidney Tremayne) 3) With so much (money) missing from the (fund), there is/are a/- clear (implication) of (fraud). 4) If we go ahead with this deal, what is/are the (implication)? 5) The company established an/- amortization (fund) to cover the (expense) of renovating their offices. 6) Monthly (expense) exceed/s income: where are we going to find the (fund/money) to pay salaries? The bank won’t give us any more (credit). 7) Investigations into company (finance) uncovered a series of (fraud). 8) She has considerable (experience) of working in the world of (finance), in particular export (credit). 9) Following (exposure) of clear (evidence) of ministerial involvement in corrupt activities, public (opinion) turned against the governement. 10) (Opinion) vary/varies, but my (suggestion/advice) is/are to put your ideas on (paper). 11) On the (information/evidence) we have, our clients cannot accept (liability) to refund the (money). 12) The (documentation/paper) contain/s a lot of (information) about the company’s (liability) to creditors.

13) The best (advice) we can give you is to apply to the court for (relief). 14) Tax (relief) is/are available to companies setting up business in the special enterprise zone. Answers 27

Legal Writing Skills: Problem Areas

Recommendations and Suggestions

EXERCISE What language is appropriate for the situations presented below? Choose according to whether the situation calls for a spoken or written recommendation and with regard to the strength of what you wish to say.

1) You are sitting with a client. You know that it is legally permissible for their company to pay a majority of their employees’ salaries from a Cyprus account, thereby significantly lowering income tax liability. 2) You are writing a legal opinion and wish to inform the government that their current policies applied to state aids allow for an unacceptably high risk of penalties. 3) You are writing a formal email to a client and wish to stress the importance of complying with trademark regulations. 4) In your report, you wish to express that the company should spend a tax- deductible USD 1.7 million to improve its environmental friendliness. Strict new environmental legislation seems likely to be passed. 5) In a meeting with a Ukrainian client, you wish to stress that you believe that their proposed export of gorilka to the EU does not appear viable due to strict quality control regulations. 6) In a report to government, you want to recommend the appointment of an individual responsible for keeping up to date with the latest EU regulations and court decisions, since it appears that the government is likely often to be in breach of the law after entry to the EU.

Answers 28

Task: perform linguistic analysis of the online banking contract (Document file III). First, we will discuss and establish the criteria: e.g.language aspects, such as vocabulary and style, sentence word order, uniformity of terminology.

IV. WRITING EFFECTIVELY: ORGANIZING STRUCTURE OF TEXT “The advocate who seeks to persuade should first seek to please” – Quintilian, c AD35-95.

EFFECTIVE WRITING: INGREDIENTS

1. MAIN IDEA This ingredient of effective writing involves focusing on a clear, manageable idea or argument, then organizing your material around it. This includes choosing secondary ideas that support and strengthen the main idea.

Checkpoints  Main idea/aim is narrow enough for meaningful discussion.  Main idea is clearly stated, normally at the beginning.  All secondary ideas relate clearly to the main idea.

2. ORGANIZATION This element of writing is about coherent arrangement of material. It involves keeping the reader oriented to the main and secondary ideas. Good organization is logical and orderly. It guides the reader between divisions of the material.

Checkpoints  Introduction orients reader to main idea and line of reasoning.  Material is arranged in a logical and coherent sequence; secondary ideas are effectively identified.  Transitions are clear and helpful.  Conclusion or closing summarizes the argument, emphasizes the main idea, and leaves the reader with a sense of completion.

3. SUPPORTING MATERIAL Explanations, examples, statistics, and quotations make the ideas and information presented meaningful and memorable for the reader. In exposition, the role of supporting material is to clarify; in argument, to persuade.

Checkpoints  Examples are relevant, specific, detailed, sufficient, and persuasive.  Quotations support the argument.

4. EXPRESSION, WORD CHOICE AND POINT OF VIEW

Language is clear, specific, accurate, and appropriate to the audience, purpose, and material. Variety in sentence structure and length creates emphasis.

 Word choice is clear, specific, accurate, unassuming, and free of clichés and misused jargon.  Sentences are free of wordiness and ambiguity.

5. SPELLING, GRAMMAR, AND PUNCTUATION This element of good writing matters only when it is wrong. That is, readers notice spelling, grammar, and punctuation only when you make a mistake.

Checkpoints  Spelling, including technical terms and proper names, is correct.  Correct words are used to convey the intended meaning.  Generally accepted rules of grammar and syntax are followed, including pronoun/noun agreement, subject/verb agreement, appropriate verb tense, pronoun case, possessive forms, parallel construction, and others.

DEVELOPING THE ARGUMENT IN WELL-STRUCTURED PARAGRAPHS COMPOSING THE PARAGRAPH

1. The paragraph is the basic unit of composition. It is a convenient organizational unit for the writer, as well as an aid to the reader. Text arranged in carefully structured paragraphs is more coherent and easier to follow than text presented without breaks or in random order. With the beginning of each paragraph, the writer signals a new stage in developing the subject. 2. Try comparing the process of writing to constructing a brick building. A word is like a brick, and a paragraph is like a level, or floor. Both in writing and in bricklaying, each stage of the structure rests on the one that preceded it. Writing can be expressed as the logical arrangement of thinking. 3. Given the sequential nature of written communication, make sure every sentence follows logically the one that preceded it. In the same way, the writer should organize and arrange every paragraph so that it connects with and builds on the preceding paragraph. 4. Continuing the brick-laying analogy, imagine climbing a stairway that leads from the building’s first floor to its top floor. Just as each level is set apart by a new floor, each paragraph should begin either with a sentence that suggests the topic or with a sentence that helps the transition.

5. Consider the paragraphs on this page as examples. Which ones begin with topic sentences? Which ones begin with transitional sentences? 6. Transitions may be announced by phrases or thought-connecting words such as nevertheless, therefore, consequently, indeed, then, accordingly, however, moreover and also. In paragraph 3, the transitional phrase, “Given the sequential 7. nature of written communication,” for example, could be replaced by the connecting word, “Therefore”.

Legal Writing Skills: Problem Areas

Paragraph Organization

Different languages, different cultures, may have different approaches to structuring texts, including legal texts.

In English, we are expected to structure each paragraph in a logical and organized way. Learning how to do this will greatly improve your ability to sound professional in English.

The formula is simple. The first sentence of each paragraph is called the ‘topic sentence’. The topic sentence operates much like the heading in a report: it tells the reader what the rest of the paragraph is going to be about. The sentences that follow in the body of the paragraph either:

1) support the statement made in the topic sentence, if the writer is expressing an opinion, or 2) elaborate on (develop) the topic sentence if the writer is describing a process or situation (see next page). A paragraph may also contain a sum-up or concluding sentence.

It is possible to imagine the paragraph as a kind of pyramid, with the topic sentence giving us the general idea of the paragraph supported or developed by the more specific sentences that follow:

TOPIC SENTENCE BODY (SUPPORT)

In a well-written letter or report following this paragraph structure, the reader can get the main ideas quickly by simply scanning the first sentence of each paragraph. After that, readers are able to decide for themselves if they want to read the details. (Compare this with journalistic text). In a poorly written text, vital information may be hidden in a paragraph that seems to be about something else. Thus, writing in this orderly way not only saves your audience time, but also ensures that they won’t miss what they are looking for.

Paragraph Organization 2

Here is an example of the first kind of paragraph, in which the statements below the topic sentence support it logically:

Legal argumentation requires a systematic, disciplined approach. Failure to connect ideas, logical fallacies, poor organization, and other features of substance and presentation, suggest to the reader that both the argument and the research behind it are professionally incompetent. The negative effects from such an impression may range from simple lack of profesional effectiveness, to loss of status and reputation.

Notice that the body of the paragraph backs up the assertion that elementary issues of legal argumentation are important by giving examples of the possible consequences of not taking it seriously.

Here is an example of the second kind of paragraph (about establishing common procedures in multinational law firms), in which the topic sentence is developed, rather than supported logically:

In the world of multinational law firms, a common feature is a merger between a larger foreign firm with a smaller local law practice. Often it is a question of a long-established New York or London firm acquiring a local firm to gain access to the market. The partners in the new, enlarged firm will need to set in place effective administrative procedures, to ensure smooth operation. Inevitably, lines of communication will be a priority.

Notice that here the topic sentence is much more general and doesn’t need to be backed up with logical support. It provides an overview of what the paragraph will discuss.

In the next paragraph, what might the topic sentence be? Answers 29

Legal Writing Skills: Problem Areas Re-Organize the Paragraph EXERCISE The following is a scrambled text summarizing aspects of revision of the Committee of Advertising Practice (‘CAP’) Code. Re-order the sentences so that the paragraph flows logically. The paragraph begins with a heading.

This prohibits the sending of any unsolicited marketing communications by means of electronic mail (e.g. email or SMS) to individual subscribers if the identity of the sender has been concealed, or if a valid opt-out address has not been provided. The clause now also provides that email and mobile marketing communications contain the full name and a valid address of the marketers (e.g. an email address for email communications) to which recipients can send opt-out requests. Clause 22 of the Code deals with identifying marketers in marketing communications. The clause has been amended to clarify that distance-selling advertisements must include the marketer's name and, in certain circumstances, full address (i.e. a PO Box may not be sufficient) or telephone number. Information to be provided in marketing communications These amendments reflect section 23 of the Regulations. Adapted from Baker & Mackenzie’s Commercial newsletter June 2004 Answers 30

More on Paragraphs A new paragraph introduces, and develops, a new set of ideas. But what kind of ideas – can you classify them? Answer 31

What function does each of these perform? Answer 32

Sentence structure How to avoid sentence fragments A sentence fragment is a sentence that is not grammatical, e.g., “Although, the court did not accept this proposition.” (Should read “However, the court…”). This is an example of the first of two main categories of sentence fragments.

Dependent clauses used as sentences. e.g., “Whereas, the Italian courts take a different approach”. How to avoid?

Answers 33

Groups of words without a main verb. e.g., “The French courts’ view of illegal use of industrial property as a crime.” is wrong, but can easily be changed, either as above or, e.g., “The French courts’ view of illegal use of industrial property as a crime is not matched by that of the Italian courts.”

How to avoid run-on sentences. These are sentence fragments in reverse. That is, instead of half a sentence standing alone (sentence fragment), a run-on sentence is actually two sentences, wrongly joined to form one sentence, e.g.: “The result of the decision in Lubbe v Cape the whole concept of forum non conveniens is under question.” How to correct?

Answers 34

Unnecessary emphasis This is more a mistake of style than grammar. It happens by adding extra modifiers, e.g.:  It is very necessary to change the law in this respect.  The government acted knowingly by allowing arbitrary human rights abuses to continue.  Judges should not be improperly biased. What to do? Answers 35 Too few words Missing prepositions Both native and non-native speakers of English often make this mistake, though possibly for different reasons. Examples:  The ECJ is the forum which they should make their case.  We are considering which court to bring our case.  This controversial question discusses the press. How to deal with this? Answers 36

Task: analyze the language of draft scaffolding hire contract (Document file IV), using comments as a guide. Write a linguistic analysis according to criteria which we will agree.

As to the scaffolding hire contract, see email exchange (below) between client and English-language text editor.

From: Christopher Goddard [mailto:[email protected]] Sent: Sunday, March 19, 2006 5:23 PM To: Bilbo Lukasenko Avocati

Subject: RE: Scaffolding hire

Dear Bilbo

Attached: scaffolding contract and annexes, all edited.

First of all: big congratulations on attempting this in English.

Do not be discouraged by the huge number of suggested changes and comments.

That said, this was indeed a monster - 100 comments in main text is probably a record!

In going through the document, I have been wearing two hats, as: - legal English editor, applying rules of modern legal English, and - contract drafter, applying principles of contract drafting (in which I run courses here in Riga, and elsewhere).

The first target has been to achieve accuracy, and clarity of both meaning and intention.

The second target has been to achieve good modern legal English style.

I have replaced 'shall' almost everywhere, and have used simple modals (e.g., 'may') to express clearly the important regulatory features such as permission, prohibition, obligation, authorization, conditions.

In addition, I have removed articles where possible, changing passive verbs to active.

Most of the comments relate to clarity of meaning of content. It is always possible that (as with statutes) some aspects of a contract are deliberately left vague, where no full agreement has been reached. However, that should not be the case here, because this is going to be a standard form contract.

Some comments relate to the form of the contract itself: these include a separate clause for key definitions, one idea for each clause (or sub-clause), more sub- headings.

I could have gone further, but have already exceeded my remit as simple text editor - as an honorary member of your team, I allowed myself to do this :) However, at the end of the day the English version must be no more than a faithful reflection of the Bulimian original.

For the moment, we have an English version that needs some clarifying, and that may make you want to revisit the Bulimian original, which I am pleased to hear is not in final form.

Best,

Chris ------

Dear Chris,

Yes, it should be a standard contract. The Bulimian version ist already approved by the client and "under final constration" now. So changes are possible yet.

I think I can answer your questions and clerify most of them but I need to compare the Bulimian version with the bad english translation. I don't think that I can deliver my answers today. (That means neither this week....)

I do my best, but I'm very busy today. If you can't get answers from me today and if you can not procede without me than we should postpone the work to next week.

What's your opinion?

Bilbo

Bilbo Lukasenki Avocati L - 1001 Loch Ness ulica Monstera 72. Telefon +44 (1) 413 3 400 Telefax +44 (1) 413 3 413 bilbo.Lukasenki @bna.bu www. bla.avocati.com ------

------Original Message----- From: Christopher Goddard [mailto:[email protected]] Sent: Tuesday, March 14, 2006 12:55 PM To: Bilbo Lukasenki Avocati Subject: RE: Scaffolding hire

Dear Bilbo

Many questions arise on this document, which I guess is a standard form contract.

I have stopped after a few pages, because the extent of editing will depend (as I now realise) on whether the Bulimian original is (a) also under preparation (a good thing) or (b) whether it is already finalized with no possibility to change it (a bad thing). These comments will be clear to you if you read through the attachment - especially the comments.

In short, if (a) is the case, then I can continue freely with changes and suggestions,

I look forward to hearing from you.

Best,

Chris

V. WRITING COHESIVELY: GUIDING THE READER; LINKING IDEAS “If you are out to describe the truth, leave elegance to the tailor” – Albert Einstein 1879-1955.

A. Connect Ideas with Care.

Language as a connector Your ideas are important. Also important is how you link them. If not properly connected, ideas may not be understood. And if your reader cannot understand your ideas, there is no point in writing at all.

Some words and phrases are called connectors, language signals, transition words, linking words, signposts, or guideposts. In linguistics they are called “discourse markers”. Discourse is text; a marker is a sign that tells you where you are – and where you are going. It’s like driving from Riga to Tallinn. You do this by driving north, using a map and following the road signs that tell you that Tallinn is getting closer. So, use discourse markers (+ structural techniques) to make a road map of your text for the reader.

Connectors have grammatical terms (e.g., and, but, or, for are conjunctions, i.e., words used to join word groups). However, it is probably more useful to think of them in terms of what they do – their function. For example, but is used to show contrast between meaning of groups of words on either side of it; while and makes a positive connection between groups of words on either side of it.

The message here is – use words for a purpose.

EXERCISE Below is a list of common connectors. These provide transition, or movement, between ideas and show their relationship. Try placing them in categories. (Can you add to them?).  then, meanwhile, next, before, later, in a few days, until, when, after, following…  above, below, nearby, beyond, opposite (to), adjacent (to), far from…  indeed, moreover, further, furthermore, besides, also, in addition (to), again…  because, since, for that/this reason, in light of, in view of…  to, in order to, so that, so as to, with a view to, with the aim of…  consequently, as a result, resulting in/from  nevertheless, hence, thus, therefore, so…

 however, but, despite, although, similarly, likewise, yet, on the contrary, notwithstanding, in like manner…  this, these, those…

Answers 37

Connectors are important in legal and official English – both speaking and writing. Using connectors helps give text coherence – that is, a natural, reasonable and logical connection between parts of the text. The result: text that is easier to understand. Connectors are often not present in legal and official writing. Indeed, the better you know the theme (and the language), the more likely it is that you will omit connectors. This is probably because they are there in your mind but because you are your own reader, you don’t need them. So, when writing – think of the actual readers. The same applies with speaking. Make life easy for your audience.

Connectors are used for transition. Transition means, moving from one place to another, or from one phase to another (e.g., transition economy). Use connectors to link sentences within paragraphs. However, effective transition is even more important between paragraphs than between sentences. Again, transition is equally important between whole different sections of text. Here, though, the writer may be able to call upon an extra aid to transition – especially in longer text. What is this? Answer 38

A new paragraph often shows a new topic, or a change of direction for or from the previous paragraph topic, e.g.:

(Para A) “…… Until Costa v ENEL some uncertainty might have existed as to the role of EU law and its relationship with national law. In its decision in this case, the Court…. (Para B) As a result of this decision, it now became clear that…”

Note also the use of As a result of. This analytical language helps to establish cause and effect in the mind of the reader.

The first draft of any writing is likely to lack transition. As already suggested, this is even more likely when you know your subject so well you do not realize that transition language – discourse markers or connectors - is absent. The problem is aggravated when the subject is complex and the text long. So, as you read your first draft, add transition language.

Note: A list of some useful transitions appears at the end of this section.

Can you add more categories, and more examples, to the list?

Can you see any transitions that belong to more than one list?

Commas as connectors Be careful with commas in professional writing! Adding – or omitting – a comma could result in ambiguity – and a lawsuit! Consider the following, from a will (testament):

“I leave all my assets to be divided equally between my children: Kristi, Neringa, Aija and Marina”.

How many divisions are intended?

Answers 39

Again, in a claim for compensation for a client who is now blind after an accident:

“Plaintiff enjoyed Baltic yachting and fishing, travelling, the study of Russian art and history”.

In this sentence, what are possible ambiguities? Answers 40

Next, a receipt for payment:

“I (name) confirm that I have received full payment of the claim filed in this suit against the defendant on (date)”.

What does the date refer to? Answers 41

Moving on, a misplaced comma can be as damaging as ones that are omitted, e.g.:

“Neither the death penalty nor imprisonment, except as punishment for a crime of which an individual is convicted, is acceptable under our Constitution”.

In the case of your own country, is the first comma in the correct position? Answers 42

How to rewrite this sentence to give the probable intended meaning? Answers 43

Note, however, that commas are often used after transitional phrases and connectors, e.g.: “On the other hand, it is also true to say that…”; “However, we cannot agree that…”; “As a result, the court decided…”. Here, the comma adds emphasis to the transition. It can also help bring clarity to longer sentences.

TEXT COHERENCE

When sentences, ideas, and details fit together clearly, readers can follow along easily, and the writing is coherent. The ideas tie together smoothly and clearly. To establish the links that readers need, you can use the methods listed here. Repeating a Key Term or Phrase This helps to focus your ideas and to keep your reader on track.

Example: The problem with common law is that it is not easily understood by most people. Common law depends on judicial interpretation, which often results in language so complex that only lawyers can understand it.

Synonyms Synonyms are words that have essentially the same meaning, and they provide some variety in your word choices, helping the reader to stay focused on the idea being discussed. Note, however, that this may not apply in legal writing, which sacrifices style to clarity.

Example: Human rights violations in the Rwanda-Congo war set new standards in horror on the African continent. Indeed, abuses of human dignity and breaches of human rights in general can only begin to be understood against a background of three million dead.

Pronouns This, that, these, those, he, she, it, they, and we are useful pronouns for referring back to something previously mentioned. But be sure that what you are referring to is clear.

Example: The original concept of EU citizenship was no more than that of ‘market citizen’. This has gradually been developed by the ECJ into something less superficial, although still far from traditional concepts of citizenship.

Transitional Words Many words in English cue the reader to relationships between sentences (or parts of sentences), connecting and developing ideas. See the file on Transitional Devices (Connecting Words). There you'll find lists of words such as however, therefore, in addition, also, but, moreover, and others.

Example: Common law seems unsystematic, and yet somehow it works, too. The common lawyer may understand a client’s case, but may have difficulty in making the client understand it. In addition, due to reliance on precedent, no lawyer can ever really be sure of having found exactly what the client needs to guarantee success.

Sentence Patterns Sometimes, repeated or parallel sentence patterns can help the reader follow along and keep ideas tied together. Example: If duties without rights make slaves, rights without duties make strangers. (David Selbourne, in The Principle of Duty).

TRANSITIONAL EXPRESSIONS

Amplification or addition also in addition equally important and many in other words besides moreover similarly first, … too likewise second, … finally furthermore third, … next another reason

Cause and effect; consequence or result and so so due to accordingly if thus as a result then it follows because (of) since hence consequently therefore as owing to

Comparison or analogy in the same way equally again likewise similarly also analogously whereas while

Contrast or alternative but conversely on the one/other hand

however in contrast although in spite of nevertheless (even) though on the contrary contrary to alternatively still yet despite

Condition or concession although if unless even though provided that no doubt of course to be sure it is true granted that

Conclusion finally in short as a result at last in summary consequently in conclusion to conclude accordingly therefore thus to summarize

Emphasis of course after all to repeat obviously above all unquestionably again in fact indeed

Illustration or example/clarifying for example specifically as an illustration for instance that is in effect particularly in particular namely in other words to illustrate this means

Relationship in time next then at times as soon as until beforehand last later earlier before afterwards after when recently eventually subsequently simultaneously at the same time thereafter since currently during from now on meanwhile now at present once soon while

Legal Writing Skills: Problem Areas

Linking Word Sentence Position All the linking words on the previous page can be put (roughly and with exceptions) into three sentence position patterns. We will use the sentences ‘He admitted the crime’ and ‘He received a heavy sentence’ to illustrate.

Although admitting the crime, he received a heavy sentence. He received a heavy sentence although he admitted the crime.

Despite admitting the crime, he received a heavy sentence. He received a heavy sentence despite admitting the crime.

He admitted the crime. Nevertheless, he received a heavy sentence.

REFLECTION While each of the three linking words used above expresses contrast, each functions differently in the sentences above.

What generalizations can you make about each group? Answers 44

Legal Writing Skills: Problem Areas

EXERCISE Correct the Mistakes 1) We managed to file the lawsuit by the deadline although the problems with obtaining evidence. 2) The situation described above is extremely serious. We, therefore, recommend immediate action. 3) However the court took into account evidence given by witnesses on behalf of the plaintiff, the fact that the plaintiff himself had clearly lied was very damaging to his case. 4) The former employee arrived for work as usual on Monday, despite of having been dismissed the previous Friday. 5) As it turns out, your company has violated the tax laws. It means that you may face penalties.

6) On one side, we do not foresee difficulties; on the other, we should always think proactively. 7) Nevertheless your staff were always polite, they were never helpful. 8) The company can, thus, substantially reduce its employee base. 9) The organization was found to be subject to certain penalties due to they engaged in certain prohibited transactions. 10) We are unable to estimate the total potential liability. Whereas, we consider it to be probably substantial. Answers 45

Adverbs as Linking Words

Currently ordinarily subsequently alternatively

Additionally accordingly generally similarly

These words are similar to the linking words we saw above and are very common in legal and business texts. They follow the same sentence position rules as linking words: mainly first position second sentence. ‘Currently’, ‘generally’ and ‘ordinarily’ are interesting exceptions: they are usually found in first position, first sentence. They create the expectation that further information is coming in the second sentence. They are often used in conjunction with negative type linking words like ‘however’.

Here are two examples:

Ordinarily, the government does not grant tax holidays to venture capital concerns. However, if the firm is engaged in software development, a recent provision allows a five year tax holiday.

Currently, early release from prison is allowed for good behaviour. The government has recently proposed that this be abolished where the prisoner has committed a serious crime.

EXERCISE Fill the blanks below with one of the adverbs above: 1) ______, all foreign managers are subject to income and social taxes. However, if they can prove that they are physically present for less than 183 days, then they are exempt.

2) You may wish to claim all of your loss under the heading of breach of contract. ______, you may also, or in the alternative, wish to claim all or part under the heading of negligence. 3) The authorities tend to be very strict in these matters, especially with foreign companies. ______, you can expect to face severe penalties. 4) Foreign companies must register in this country if they maintain an office here. The company registration office sends an identifying number to the company’s business address. ______, all company documents must include this number. 5) Company business expenses can be set off against income for tax purposes. ______, individuals who register themselves as companies can obtain this benefit. ______, however, individuals would not qualify. Answers 46

Using transitions to create coherence within the paragraph. Add transitional words or phrases to achieve smooth flow from sentence to sentence. Brussels, 15 April 2004 The 10 new Member States due to join the EU on 1 May 2004 are on course to meet the EU's food safety standards. ______food establishments (processing plants, dairies and abattoirs) will need some transitional time to finish upgrading their standards. ______that time, their products will only be sold on the domestic market of the new Member States concerned. The EU-15 agreed today to the final list of establishments which will benefit from such an upgrading period. ______, the Commission made details available today on 37 new Border Inspection Posts which will start operating as of 1 May at the new borders. ______purpose is to control incoming veterinary products from third countries.

Adapted extract from press release IP/04/485 Safe food in an EU of 25 Member States: final steps towards enlargement on 1 May

Answers 47

Legal Writing Skills: Problem Areas Cohesion 1 The following short article contains, after the short heading, three logical, well- crafted paragraphs. The use of linking words is effective and the topic sentences are carefully chosen and well-supported.

Another crucial test of a well-written paragraph is whether or not it coheres or holds together, both on its own and with the paragraphs around it.

EXERCISE Mark the words, phrases and abbreviations that help the whole text function as an interconnected (coherent) whole, and which also allow the writer to avoid unnecessary repetition.

OFT recommendations lead to removal of all car servicing restrictions The OFT recently concluded a study into new car warranties. This revealed that dealer-based extended warranties limit consumers’ ability to choose where to have their new car serviced. As a result, the OFT recommended, firstly, that car manufacturers and franchised dealers lift restrictions on where new cars may be serviced while under warranty, and, secondly, improve provision of customer information on the terms of their warranties.

 The restrictions The recommendations follow introduction of the Cars Block Exemption Regulation (‘BER’), which came into force in October 2003. The BER provides an exemption from the EC Treaty prohibition on anti-competitive agreements. However, under the BER, manufacturers and their dealers are obliged to open themselves up to greater competition from garages outside their network. The practice under OFT scrutiny concerned franchised dealers selling new cars with warranties that obliged consumers to have their new cars serviced by franchised dealers. Such dealers have been carrying out up to 90% of servicing of cars up to three years old. Therefore, in line with the OFT recommendation, the remaining manufacturers who maintained this practice have now lifted their servicing restrictions. In doing so, they have averted the risk of formal action by the OFT or the European Commission.

 The effect of the action The lifting of restrictions will mean that consumers will now be able to choose freely where they have their new car serviced. The OFT also recommends that consumers shop around but to ensure that only a reputable garage is used that will carry out work in line with the car manufacturer’s service schedules. However, the OFT’s recommendations only apply to motor cars. This means that the servicing arrangements for other types of vehicle (such as motorbikes) remain unaffected. Adapted from Baker & Mackenzie’s Commercial newsletter June 2004 Answers 48

Legal Writing Skills: Problem Areas Cohesion 2 EXERCISE

Make changes in the following short text, to eliminate repetition and help the paragraph hold together better. Some of the following expressions might be useful: such lastly based on these following especially particularly this moreover according to which after in addition finally derives from in accordance with Brussels, 19 April 2004

Community legislation on the collective management of rights, and ______on the governance of collecting societies, would be highly desirable. _____ is one of the main conclusions arrived at in a Communication published by the European Commission ______an in-depth analysis of the issues surrounding the management of copyright and related rights. ______, the Commission is immediately launching a further consultation exercise on what ______legislation might consist of. The Communication also concludes that interoperability and acceptance by all stakeholders is a pre-condition for their emergence. ______, the Communication sets out several options for improving the situation regarding the development of Community-wide licensing for the exploitation of rights. The Communication is ______the conclusions of the consultation carried out on ______issues, ______took place against the backdrop of the emerging Information Society. ______another study ordered by the Commission in 2003, copyright exploitation accounts for over 5.3% of Community GDP. Adapted from press release IP/04/492 Copyright: the Commission advocates European legislation on the governance of collecting societies

Answers 49

TASK: linguistically analyze the draft agency contract below. Compare with the draft agreement on page 45 Document file. We will establish criteria for written work.

-----Sākotnējā ziņa----- No: "Emmanuel Clot" Sūtīts: 2004-10-06 13:40:59.857 Kam: "Roman Justs" Par: contract agreement

ATELIER D'ART DE LIMOGES ZI Ponteix, 3 rue Thomas Edison / 87220 Feytiat - Limoges - France Phone : +33 555 313 474 - fax : +33 555 313 475 Website : http://www.atelier-limoges.com / Email : [email protected]

Dear Roman,

Good morning.

Thank you for your last email.

Referring to my yesterday message, I am pleased to inform you as follows :

- Please find enclosed the project of contract with you.

I kindly invite you to read it carefully and inform me concerning this project. If you would like some changes, feel free to ask me.

On another hand, I would be grateful if you could explain me first step of prospection you plan to lead : - Number and kind of shops targeted - Time allowed by week - Direct sale on the Internet (any website building project) or to shops - Will you display our boxes in your shp or elsewhere ?

On my side, and following experience on this point, I can propose you following commercial toolkit for Christmas season, which is a great one for our products : - Selection of 10 - 20 boxes (fancies, high class decoration, refined, casket, classical) - 10 printed catalogues - Authenticity certificate - Elegant individual blue gift boxes - Porcelain hand painted displays supports This commercial toolkit could be quoted at wholesale prices.

I hope that all these points will satisfy you and allow us to start to work together for Christmas season.

I am looking forward to reading from you and I remain at your disposal.

Best regards,

Emmanuel.

Emmanuel CLOT Sales Manager

------

Atelier d’Art de Limoges

3 Rue Thomas Edison Z.I. du Ponteix 87220 LIMOGES – FEYTIAT FRANCE Tel: +33 (0) 555 313 474 Fax : +33(0) 555 313 475 Website : atelier-limoges.com Email : [email protected]

AGENCY CONTRACT AGREEMENT

Object: The present contract is established to define the commercial relations between the ATELIER D’ART DE LIMOGES Company, Located ZI Ponteix, 3 rue Thomas Edison France named the exporter,

And,

Roman Justs, Latvia, named the agent.

Products: The contract is established to ensure the promotion of the ATELIER D’ART DE LIMOGES products as per its catalogue.

Also, this contract is established to ensure the promotion of future ATELIER D’ART DE LIMOGES products.

Territory: The contract is established to ensure the agency representation of ATELIER D’ART DE LIMOGES products by ROMAN JUSTS on following geographical area:

All Latvia, Lithuania and Estonia territories.

The contract is not exclusive and allows the exporter to contract with all other agents on same or different geographical area without any obligations beside ROMAN JUSTS.

Agent’s commitment: The agent by signing the contract takes commitment to:

Promote by all available measures and resources the ATELIER D’ART DE LIMOGES company and products. Send to the exporter regular market feed-back and written activity report (at least once a month). Support the exporter in his commercial activity in above described territory. Attend and participate to all required commercial show and exhibition.

Ensure the commercialization, sales and payment of all ATELIER D’ART DE LIMOGES products and all the related followings. To not communicate data, drawings, commercial and other information related to ATELIER D’ART DE LIMOGES products or Company of such a nature as to be prejudicial to the exporter.

Exporter’s commitment: The exporter by signing the contract takes commitment to:

 Support by all available measures and resources the commercial activity of the agent to promote ATELIER D’ART DE LIMOGES Company and products.  Provide TIF or JPG photos to agent of entire Limoges items range available from ATELIER D’ART DE LIMOGES (except exclusivities granted to other ATELIER D’ART DE LIMOGES clients, agents, or other partners) for promotional purpose and when required.  Keep informed the agent of all internal changes of such a nature to change the commercial relations between the parties  Keep informed the agent of all contracts signed for promotion of ATELIER D’ART DE LIMOGES products on agent’s territory  Remunerate the agent for all effective sales made thanks to his action under below conditions

Commission: Under reserve of all obligation respect, the exporter takes commitment to remunerate the agent as follows:

A free commission buying/selling basis. The commission for the agent will be the difference between exporter’s wholesale price granted to agent and agent’s final price granted to final customer.

The commission amount will be calculated on EXW wholesale prices granted to agent (annex 2).

As the commission is a free buying/selling basis, agent will be remunerated directly on his sales by final customer payment. Commission is due to agent during all period of contract validity. No commission are or will be due to agent for sales prior to contract validity and after contract ending, even if sales results from clients attracted by agent during the contract period.

Commercial promotion costs All the costs for prospecting and promotion engaged by the agent are at his own charge. His commission remuneration scale must include these costs and agent cannot claim reimbursement of costs beside the exporter.

All the costs engaged for the promotion of the exporter’s product which have an event aspect (fair, exhibiton or other) will be negotiated apart from this contract between the agent and the exporter.

Law and litigation: The contract is submitted to the French law for all relations between the agent and the exporter.

In case of any litigation between the exporter and the agent, the parties have obligation to try to settle their litigation by mutual mediation.

In case of mutual mediation failure, both parties have to try to settle their litigation by a third party mediation choose by common agreement of both parties. If no agreement is found by both parties, the exporter choice of third party will be considered.

In case of third party mediation failure, both parties have to settle their litigation beside French court of Limoges, France.

Contract duration: The contract is established for a duration period of 1 year from signature date.

The contract will be automatically renewed by both parties except otherwise stated and for a duration period of 1 year from contract’s birthday date.

Contract cancellation: The contract will be cancelled in following cases:  Non-respect of agent commitments  Non-respect of exporter commitments  Exporter or agent wish. In such a case, the party wishing cancellation has to send a letter by mail to other party stipulating contract’s ending. From date of letter, cancellation of contract will take effect in a 1 month time.

In any case of cancellation, no fees and or compensation could be claim by one of the party or both parties.

Language: Language of the contract and all relations will be made in English.

Copies: The contract is established in two (2) original copies.

Date and Signature: Established in 2 originals, on Tuesday, October, 05th 2004.

For and behalf of ROMAN JUSTS For and behalf of ATELIER D’ART DE LIMOGES Roman Justs Pascal Guinot President President

VI. WRITING CLEARLY: ACCURACY, PUNCTUATION, SUMMARIZING TEXT No one agrees with other people’s opinions, they merely agree with their own opinions expressed by someone else. – Sybil Taylor (Sydney Tremayne)

Professional Writing Style

Good grammar is only the first step towards good writing. To write effectively, you have to communicate clearly. Communication skills are vital to lawyers, especially in international or EU contexts. Indeed, it is probably true to say that the quality of lawyers is most often judged by their written communication skills.

Several reasons may explain why individuals’ professional writing skills are inadequate. These, summarized in brief, are that skills acquired during studies:  may not include writing skills at all, or  may consist of the kind of writing skills that are not appropriate to professional writing. A third factor is that much professional writing is itself of poor quality. For example, the “Fight the Fog” website contains examples of poor writing in EU contexts. It is not an easy task to improve professional writing. But the most successful writing is clear, logical, factual, concise, and persuasive.

1. Writing it Clearly A. Use variety in Sentence Structure. Structurally, sentences can be loose, periodic or balanced. Loose sentences are those with subject and predicate close together. The subject is who or what the sentence is about; the predicate tells what the subject did. The typical word order in a loose sentence is Subject – verb – object, e.g.: Subject Predicate Verb Object

The court/ will consider/ plaintiff’s proposal to postpone the case.

In long or complex sentences, loose sentence structure helps the reader to understand meaning.

Periodic sentences, on the other hand, contain interrupters – such as parenthesis – between subject and verb. Indeed, the verb may appear at the end, as in German. For example:

A statute or final judgment promulgated by any member state of the EU or any of its or their courts which offends against the European Convention on Human Rights (“ECHR”) on the ground of its being in violation of the provisions express or implied therein or otherwise contrary to the aims and intentions of the ECHR may be examined as to its validity by the European Court of Human Rights.

In this sentence the subject appears in line 1 but you had to read several more lines to find the verb and the rest of the predicate. This is just a small example. Only the need to understand the material would lead the reader to fight through to the end of the sentence.

How to reword this sentence? Answers 50

This is not to suggest that you should always avoid periodic sentences. If you use them strategically, and not too often, they can add interest, variety, even drama to your writing:

On that winter’s evening shortly before Christmas, when snow was falling outside and clients in the bar were relaxing, glass in hand, in front of a warm fire with happy thoughts and cheerful conversation, nobody knew that the defendant was planning a grenade attack at midnight.

However, you need interesting material to do this! It might be more appropriate in literature. Moreover, it could be effective in spoken legal English – e.g., an advocate in court.

Balanced sentence structure adds elegance to your writing. Consider this:

Judges have the power… though not the right, to ignore the terms of reference of a statute, and to give judgment despite its clear intent. They have the power, but not the right, to go beyond limits set by previous judicial decisions, by precedent, by custom. None the less, by abusing that power, they violate the law.

In this piece of text, periodic structure is used in the final sentence – and the important point appears at the end. We will deal with this in more detail when we come to placing and emphasizing ideas.

B. Appropriate language to show causality or logic In the following sentence, and is a bad choice: “If one party acts in bad faith and violates the contract and fails to pay on time, the other party may claim interest on late payment".

How to rewrite this? Answers 51

C. Replace unclear connecting words by specific words with clear meaning This text is grammatically correct. “Having breached human rights standards, the government was censured by the court”. How to make it look better? Answers 52

Another example – here a transition to a new paragraph; “Anyhow, the examples given clearly demonstrate the unsatisfactory state of the law”. How to improve this? Answers 53

D. Use affirmative language 1. Negative statements lack force Negative statements simply deny, or avoid reality, e.g.: “He did not carry out his legal responsibility”. Rewrite to add force: Answers 54

2. Negative statements can be confusing One example is enough: “Without negating the effect of the Convention, conduct, if not indicating intention to produce a result not in line with human rights norms, shall not be held insufficient to justify temporary non-compliance with its relevant provisions”. How to improve this sentence? Answers 55

General rule: if a sentence contains more than one negative, rewrite it.

3. Negative statements can be ambiguous The following statement has two possible meanings: “Britain’s crime problem is not being able to attract and hold its police officers”.

What are the two meanings? Answers 56

4. Don’t use all with negatives To say “All lawyers are liars” is clear in meaning – if inaccurate in fact! However, to say “All lawyers are not liars” suggests that some lawyers are. This assertion is synonymous with “Not all lawyers are liars”. The antonym of “All lawyers are liars” is “No lawyers are liars”, or “No lawyer is a liar”.

Imagine you see the following on the notice board: “On Tuesday August 27, all witnesssses need not attend” What the notice wants to say is that some witnesses must attend, others not. What should the notice say? Answers 57

E. Avoid expletives where possible In grammar, expletives are words used to complete a sentence only for grammatical reasons. That is, they are there only to satisfy grammar rules. For example, in: “There is no reason to delay” and “It is easy to draft position papers” The words ‘There’ and “It” are expletives. Note: this may be acceptable in spoken English, which follows different rules. How to rewrite these sentences more effectively? Answers 58

In professional writing, use of an expletive instead of the real subject may prevent the reader from knowing who or what the real subject is. Consider the following: (1) There was a copyright infringement because defendant used protected material without licence or payment. (2) It is a possibility that not enough countries will ratify the Convention. (3) It was indicated in Renault that public policy in one EU Member State cannot be invoked to block cross-border enforcement of judgments.

Missing from these sentences is the answer to the question Who? or What? Who infringed copyright? Who or what will (not) ratify – or be ratified? Who or what indicated? Rewrite these sentences. Remember, it is better to tell the reader who did what to whom. Answers 59

So far as you can, be sure to tell your reader “who did it”. Exceptions – where the subject is unknown, or the object is more important than the subject, or the

© Christopher Goddard 2015 57 Language Tools for Legal Writing 58 actor wants to remain unidentified. In these cases, use the passive [see example (2) above, also under Passives later in this compendium] or expletives, e.g., “There has been a terrible tragedy here”.

Be sure to make individuals, courts and other actors the “doers”, instead of things or ideas or rules.

F. Put modifiers where they belong Put modifiers next to the words they modify. Consider the following form of consent to hospital surgery:

I hereby authorize the Physician or Physicians in charge to administer such treatment and the surgeon to have administered such anesthetic as found necessary to perform this operation which is advisable in the treatment of this patient.

In this case, the patient’s widow sued after the surgeon amputated the wrong bits. What was the result – and why? Answers 60

Indeed, courts have so often been asked to construe modifying language that they have called it The Doctrine of the Last Antecedent. Under this doctrine, courts assume that drafters place modifying words and phrases next to what they want to modify. Sometimes it is enough to add a comma. Here are some examples:  The proposed statute was considered unsatisfactory due to failure to qualify with human rights norms by legislators.  Plaintiff was a passenger in a motorbus attacked by the chauffeur.  The robber entered the café and threatened the waiter standing by the wall with a pistol. Note: be careful where you put words like only and probably.

G. Variation: too much or too little Using different words for the same thing may be elegant - but confusing. Thus, elegant variation is unfriendly to good legal writing, which requires clarity. For example, a text referring to:  breaches of human rights,  human rights violations,  human rights abuses,  failure to observe human rights norms, and  non-compliance with human rights legislation … may be good literary writing, but it is poor legal writing. What should the author have done?

Answers 61

On the other hand, many words in legal English have two or more different meanings (e.g., execute, as we have already seen). To use both or all in one piece of text can be confusing, so that variation becomes necessary. Consider the following: “Sanctions may be applied to businesses that trade with Iraq without having applied for government sanction”. How to rewrite? Answers 62

Can you think of other words in legal English (or other legal languages) with two or more meanings? Answers 63

H. Avoid adjective buildup Long lines of adjectives before a noun are popular in business and official English. In this, they show the Germanic roots of the English language. Sometimes they succeed, but often they do not, especially where the adjectives are in fact nouns or verbs used as adjectives. Let’s see how it can happen…

A group of lawyers in the Baltic region are interested in human rights. They decide to form an association, the Baltic region human rights lawyers’ association. They appoint an executive committee, which becomes the Baltic region human rights lawyers’ association executive committee. The executive committee is going to form an agenda for the association’s annual meeting. This becomes the Baltic region human rights lawyers’ association executive committee annual planning agenda meeting. The committee decides to set up the agenda on Tuesday April 6 at the City Park Hotel in Vilnius. As a member of the committee, you receive the following:

The Baltic region human rights lawyers’ association executive committee annual planning agenda Tuesday April 6 meeting will take place at the City Park Hotel, Vilnius.

I. Don’t shift your point of view You must tell your readers if you change the subject or object of your sentence. You will cause confusion and misunderstanding if you do not. Here is an example (I have added the unanswered questions):

“Although building regulations should provide for owners of historic houses some relief from the financial burden of maintaining their property for public benefit, decline in market value and diminished expectations are not sufficient injuries to constitute a taking of property without fair compensation”.

What is the problem with this text? Answers 64

How to improve the text? Answers 65

In short, be sure to say who did what to whom in every sentence. Note: this last is a general suggestion – i.e., not always possible, or even advisable, to follow! – but nevertheless a useful basis.

Punctuation Marks REFLECTION Here are the names of the punctuation marks in English. When do we use them? Which are not appropriate in formal writing?

, comma . full stop (period) or dot ; semi-colon ? question mark : colon “” ‘’ quotation marks ’ apostrophe ! exclamation mark ( ) brackets/parentheses - hyphen -- dash … ellipsis

EXERCISE Punctuate the following sentences: 1) The european commission has concluded an agreement with the US department of homeland security dhs guaranteeing protection in the US for the personal data of EU transatlantic air passengers 2) The commission found that the dhs offered adequate protection pursuant to the EU data protection directive the Directive 3) The agreement aims to ensure that less personal data from passenger name records pnr held by airlines will be passed to the US authorities that such personal data will be kept for a shorter period of time and will be used for limited purposes notably the fight against terrorism 4) Furthermore the deal provides for reciprocity so that when the EU or its member states establish similar requirements the US authorities will cooperate accordingly.

5) It should be noted however that the european parliament EP adopted a resolution on 31 march 2004 rejecting the Commission’s decision and requesting that it adopt a more substantial agreement with the US. 6) On 21 april 2004 the EP asked the european court of justice ECJ for an opinion on whether the international agreement should have been approved on the grounds that it modifies the directive EC secures guarantees for protecting transatlantic air passenger personal data Adapted from Baker & Mackenzie Commecial newsletter June 2004.

Answers 66

PUNCTUATION PROBLEMS EXERCISE Can you add punctuation marks to the following sentences?

1. The EU formed with just six members had expanded its membership to twenty-five by 2004. 2. When the court convenes its first task will be to prioritize its caseload. 3. If the national court is unsure of how to apply EU law it may refer the case to the ECJ for a preliminary ruling. 4. The government having done all it could to stabilize the military situation turned to the next problem which was the humanitarian crisis. 5. The draft law that Parliament is debating this morning concerns the energy sector. 6. The draft law which Parliament is expected to pass in the near future will affect producers and consumers in the energy sector. [only one law] 7. She took up her position as judge which was a great experience in July 2003 and completed it three years later.

Answers 67

Commas

Commas are probably the most difficult punctuation mark to use correctly in English. This is largely because in many other languages, they are automatic in certain situations where they are optional or unnecessary in English. To further complicate matters, they are often a question of style in English. What follows is a general guide to help you use them correctly.

Commas must be used in the following situations:

1) Before or around non-defining relative clauses (see above for more information) e.g., Yesterday I met Lenka, who(m) I hadn’t seen for a long time. Lenka, who is a journalist, is an old friend.

2) After or around some linking words, e.g., The work was difficult. Nevertheless, they enjoyed themselves. The work was difficult. They did, however, enjoy themselves.

3) Between an introductory clause and the main part of the sentence (see linking words and style for more information). Having been trained as a shipping law specialist, she found human rights work challenging. Although the work was difficult, they enjoyed themselves. They enjoyed themselves although the work was difficult* *In this sentence, comma after although is optional, and would increase the contrast.

NOTE: In English, unlike in many other languages, we do not use commas in the following situations:

1) Before the word that I trust that you will return the money I lent you.

2) Before the word because I trust him because he has always paid me in the past.

3) After the word please Please do not hesitate to contact me if you have further questions.

Bullet Points REFLECTION Bullet points are often used – and often used inconsistently – in business correspondence. Do you know how to use them correctly? How to punctuate them? EXERCISE The following two lists have been incorrectly punctuated. Make the necessary changes to correct them.

Action at an EU level should, in particular, focus in three areas:

 improving the regulatory environment

 better mobilising different Community policies so they can work together to support competitiveness

 ensuring the impact of a European industrial policy in specific sectors involving stakeholders

The Communication seeks to pursue a proactive approach which means:

 An improvement of the regulatory framework for competition which facilitates business activity, wide dissemination of knowledge and efficient economic restructuring;

 An enforcement practice which actively removes barriers to entry and impediments to effective competition that most seriously harm competition in the internal market.

Adapted from IP/04/501 The Commission puts industry centre stage and reinforces competitiveness in an enlarged European Union

Answers 68

Test Your Writing Skills TASK You are one of a team that prepares reports and legal memoranda for Member State governments based on decisions of the European Court of Justice. Based on the two texts – one below, the other at Document file VI (p.) 53, prepare a short summary memorandum. To help, some of the key words and expressions are clearly marked. First, you will have to analyze the text of the judgment, as we did earlier. You will also need to identify the key words and terminology. We will discuss and agree criteria to follow in your written work.

Leading articles September 14, 2005

Legal trespass The European Court has gravely undermined the sovereignty of EU states

For the first time in its 53 year existence, the European Court of Justice has given the Commission in Brussels the power to impose criminal sanctions. In a landmark ruling that is as ominous as it is deluded, the Luxembourg based court yesterday overruled the governments of EU member states, removing from them the sole right to impose their own penalties on people or companies breaking the law, and giving the unelected EU Commission an unprecedented role in the administration of criminal justice.

The pretext for this transparent attempt at empire-building beyond the boundaries laid down for Europe’s bureaucrats was the claim by Brussels that it had the right to insert criminal penalties into laws to protect the environment. The Commission said that unless it did so, its attempt to halt cross-border pollution would be ineffective. But in 2001, 11 of the 15 members, including Britain, insisting that only a national government had the right to fine or jail its citizens, vigorously opposed this action. Instead they proposed a “framework decision”, excluding the Commission and including only governments, to deal with transgressors. The Commission called in the lawyers and, extraordinarily, the European Court agreed that it had the right to impose criminal sanctions. This is a dangerous step in the wrong direction. The Commission, chafing at criticism that it is too powerful and too interfering, has been itching to reassert its authority. It is not a sovereign power but a civil service executive, supposedly appointed to serve EU common interests. In recent years the Commission has

© Christopher Goddard 2015 64 Language Tools for Legal Writing 65 worried that its right to initiate legislation, under the Treaty of Rome, was being eroded. EU ministers, when discussing urgent issues such as terrorism, sometimes came up with their own proposals for new laws. But to retaliate by trespassing on the sole right of governments to imprison their citizens is a serious expansion of and misunderstanding of the Commission’s role. The ruling also reveals the mindset of the court, and confirms the lingering suspicion that, when faced with a choice between subsidiarity or strengthening the EU’s federal powers it will, invariably, choose the latter. The decision highlights the contradiction at the court’s very heart — of course a federal court will expand federal powers. It gives substance to all the worries in Britain and those countries that have voted against the EU constitution that any point vague enough to require legal clarification would always prompt a ruling reinforcing the EU’s central bureaucracy and federal power. This lamentable judgment strikes at the heart of national sovereignty and Britain’s ability to decide the law for itself. The Commission is entitled to argue that draft laws should be effective. But it is up to elected national governments to define and enforce the law. Already, elated Commission officials are proposing similar criminal penalties in other areas. It is not their right. Democracy yesterday suffered a grievous defeat in a court whose contempt for sovereignty verges on the criminal.

VII. WRITING WITH PROFESSIONAL STYLE: TECHNIQUES FOR LAWYERS

The Lawyer’s Progress – getting on, getting honour, getting honest. Sybil Taylor (Sydney Tremayne)

USING ACTION VERBS FOR EMPHASIS

A verb made into a noun is called a “nominalization”. For example, the verb connect can be made into the noun connection, and the verb investigate can be made into the noun investigation.

Nominalizations normally require a weak verb (such as make, as in make a connection, or conduct, as in conduct an investigation). This weak-verb/noun combination is less direct, less emphatic, and less energetic than its more concise action verb equivalent (connect or investigate).

Many writers choose nominalizations them over verbs whenever they are given the choice. Why might this be? And what might be the problem? Answers 69

Rewrite the following sentences in verb-energized style:

Noun-heavy style Verb-energized style

Make a revision in the contract.

We need to undertake a study of this issue.

Please take under consideration my proposal.

The bodyguard offered protection to his boss when the gunmen made an approach.

It is my recommendation that we make a change in our policy.

My suggestion is that we make a reduction in our overhead costs. Answers 70

Note: Choosing adjectives rather than verbs can also obscure action and depress energy. Look, for example, at “These figures are indicative that our trade deficit is dependent partly on the strength of the dollar”. How to improve this? Answers 71

EXERCISE In the following sentences, change the nominalizations to action verbs where appropriate. (In some instances, you should retain the nominalizations, for reasons discussed below).

1. The national court judge made the decision to arrange referral of the case to the ECJ. 2. The parties decided to reach a resolution out of court. 3. The political commentators made some speculation about the reason for the collapse of the government. 4. Our recommendation is that you make an application for security for costs as a protective measure against defendant’s inability to pay. 5. My suggestion is that you undergo registration on arrival. . Answers 72

Useful Nominalizations Under certain circumstances, however, the nominalized form of a verb can be useful. In fact, sometimes we cannot manage without them. There are four instances when nominalization works to your advantage.

1. When it is a subject that refers to a previously expressed topic or action. For example, in the sentence, “This decision can lead to costly consequences”, the nominalized word decision links the sentence to the one that precedes it, so creating a more cohesive flow.

Note the usefulness of the nominalization discussion in this sentence: “Although we debated the issue for hours, our discussion was inconclusive”.

2. When it replaces the awkward phrase “The fact that”. Compare “The fact that she denied what he accused her of impressed the committee” with “Her denial of his accusations impressed the committee”.

3. When it saves a few words by naming the object of a verb. Compare “I failed to do what my boss expected me to do” with “I failed to meet my boss’s expectations”.

4. When it refers to a familiar concept. Compare “I suggest you register when you arrive” with “I suggest you register on arrival”.

Compare “The Master’s candidate reviewed the material before she was examined orally” with “The Master’s candidate reviewed the material before her oral examinations”.

Compare “The right to speak freely is protected by law” with “Freedom of speech is protected by law”.

Compare “Being taxed when you’re not represented is unjust” with “Taxation without representation is unjust”.

Despite their usefulness in these four instances, nominalizations should be used cautiously. Remember: To energize your writing, don’t nominalize - verbalize.

Spoken v Written EXERCISE Write the more formal written equivalent to these spoken word or phrases:

To make easier To go up To go down OK, all right Chance Choice Thing Get in touch To tell A lot To ask for More information Let me know if the date is all right Enough To guess We are sorry To need To get To buy To be different To give Pluses and minuses Big problems Short chat About

Really Good for you Also Maybe Answers 73

COMMON PHRASAL VERBS

EXERCISE Write the more formal written equivalent to these spoken word or phrases: To weigh up

To set up

To run out (of money)

To cut down on (expenses)

To fill in (a form)

To come across (difficulties)

To find out

To keep up (machinery/a building)

To deal with (problems)

To take on (employees)

To lay off (employees)

Answers 74

Formality

EXERCISE

The following sentences are grammatically correct. However, several phrases are inappropriate for formal writing. Make the necessary changes.

1) Maybe this will make problems with the competition authorities. 2) During our investigation, we found the following mistakes. 3) We don’t think you will have to pay a penalty this time. 4) We were unable to get all the documentation we needed. 5) We are sure that these steps will cut down your corporate tax liability by about 20 per cent. 6) A lot of the so-called facts in the report were not correct. 7) You should get in touch with a good criminal lawyer to help you deal with these things. 8) We really hope the above answers all your questions about employment law. 9) Our corporate guy told me he went over those forms again and didn’t find any problems. 10) Normally the government gives tax breaks to companies who set up a business in the poorer areas of the country.

Answers 75

Informal to Formal EXERCISE What follows is an informal email to a client (Jakko Olafsson) that the business advisor (Marina Kamenskaya) knows well. It was typed quickly and, while it provides all the necessary information, could be better written. Make any changes you can think of to make it a formal, well-constructed letter.

Jakko

Thanks for getting us to do the work about you setting up in business. I’ll try hard to make sure that everything goes OK. I’ll do most of the work myself, but a man called Vitas Apenditsaitis who works here knows about your case and you can call either of us when you want.

We work out the charges on how much time I and other people here who help me take to do the work. My price is USD 130 each hour. I can’t say for sure how long it will take to do the work, but I reckon it’ll be around 10 hours, but this may change when I start and get a better idea of what needs doing. I’ll tell you if we’re going to take longer than I said.

You’ve asked us to do various things in relation to setting up your business. Here’s an idea of the priceof our work etc:

Help in doing a business plan= USD 250 + tax; doing the work about buying buildings=USD 400 + tax, making up the contracts for the workers=USD 170 + tax. You’ve also got to pay for extra things which are the Land Book fee of USD 100 and other official fees to do with the building you’re going to buy (USD 215).

If this deal collapses before the end,we’ll charge you for the work done up to then, as well as tax and extras. We usually get people to pay a bit before we start work, to pay for the costs and the extras that I talked about. So you have to send us USD 150 now. Tell me if you can’t pay for anything we ask for on time.

If all this is OK for you, can you digitally sign a copy of this email and send it back to me. If you want to know anything elase, please tell me. From Marina

Answers 76

Word Order and Style

In English the structure Subject/Verb/Object is usually preferred. Sentences structured in this way are easier for native speakers to follow and often more concise.

EXERCISE The following sentences are unclear and difficult because they use different structures. Please re-order these sentences along the SVO model and make other changes to make them clearer. Using modal verbs is often the best solution. Be careful of overusing the structure there is/are and the use of passives.

1) There was no evidence for the claimants’s allegation of bad faith provided. 2) There should be performed an investigation into the affairs of the company. 3) Assessed every ten years by the government is the rental value of the property. 4) It is necessary to complete the form by 15 April. 5) It is possible that it will be necessary for the firm to hire a part-time human resources consultant. 6) Exempt from the tax on movable capital of 32% are interest from bank deposits, government debentures and treasury bills. 7) Furthermore, for eligible firms, there is a possibility to deduct another 10%. 8) Subject to taxes is only 80% of net profits realized from industrial activities and if the industrial entity carries out export activities, then 70% only of the net profit attributable to this activity is subject.

Answers 77

EDITING FOR EMPHASIS: FIVE TECHNIQUES

Technique 1: “Omit needless words”.

Technique2: Cut sentence endings to create emphasis. Technique3: Use sentence beginnings as points of natural prominence. Technique4: Prefer action verbs to nominalizations. Technique5: Don’t trust modifiers.

EXERCISE: Rewrite these sentences by following the rules given. Technique 1: “Omit needless words”. (= Make every word count) a. The key thing to remember is that timing is a very important issue that must be taken into consideration. b. I hope and trust we will finish in a timely fashion. c. The wanted person is tall of stature, large in size, male in gender, white in colour, and dangerous in character. d. In order to qualify for EU structural funds, you must meet these criteria. e. During the course of his summing up, the judge carefully evaluated the evidence.

Technique 2: Cut sentence endings to create emphasis. (= Place important words at sentence endings for “VIP” emphasis). a. We need to do something now about the problems we are experiencing. b. Our commitment to our clients is a genuine and long-standing one. c. Restructuring is not an easy thing to do. d. An important factor that must be addressed is the age factor.

Technique 3: Use sentence beginnings as points of natural prominence. a. You have asked the court on two occasions so far to grant an adjournment on short notice. b. This Court has never had to deal with such a serious case.

Technique 4: Prefer action verbs to nominalizations. a. A revision needs to be made in the contract. b. Please take under consideration our proposal. c. We need to undertake a study of this issue. d. My suggestion is that the implementation of this policy be done with care. e. My recommendation is that we make a change in the per diem for travel expenses.

Technique 5: Don’t trust modifiers. a. We need to take very immediate action. b. We are having trouble establishing the true facts of the situation. c. This effectively limits our ability to respond quickly. d. When asked to adjourn the case for the fourth time, the judge literally exploded. Answers 78

AVOIDING UNNECESSARY WORDS Almost every writing handbook urges you to write in simple, natural language. There are five main problems; redundant pairs, redundant modifiers, redundant categories, meaningless modifiers and pompous diction. Here are some examples from each category.

Redundant Pairs English has a long tradition of doubling words. Do you know the origin of the habit? Answers 79

Examples of commonly used redundant pairs include:

at or about any and all one and only various and sundry first and foremost basic and fundamental full and complete questions and problems true and accurate precious and few hopes and desires few and far between hope and trust and so on and so forth each and every How to improve these phrases? Answers 80

Redundant Modifiers In the following examples, (except for “consensus of opinion”), the first word not only modifies but implies the meaning of the second. Only the second word is necessary to convey the meaning. How to improve these phrases?

completely finish personal beliefs past memories consensus of opinion various different sudden crisis each individual terrible tragedy basic fundamentals end result true facts final outcome important essentials initial preparation(s) future plans free gift Answers 81

Redundant Categories Because certain words imply categories, it isn’t necessary to state both the specific word and its general category.

How to improve these phrases?

period of time odd in appearance period in time of a cheap quality shiny in appearance honest in character accurate manner of an uncertain condition government systems in a confused state large in size unusual in nature pink in colour extreme in degree of a bright colour of a strange type heavy in weight economics field round in shape area of mathematics at an early time criminal problem educational process athletic activities Answers 82

AVOIDING WORDY EXPRESSIONS

Wordiness occurs where real meaning disappears because of unnecessary words. The secret of good writing is to reduce each sentence to its cleanest components. Think of a piece of writing like a meal, where meaning is the meat – but too much sauce can hide the flavour of the meat.

Effective writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentence. In the same way, a drawing has no unnecessary lines, a machine no unnecessary parts and an athlete no unnecessary fat – “lean and mean”. For the writer, every word should be important.

One way to achieve this is to learn how to recognize – and thus avoid using – wordy expressions. EXERCISE The following examples show how some commonly used expressions can be edited into more concise language.

EDIT THIS… …TO THIS on the grounds that for the reason that due to the fact that based on the fact that

in view of the fact that owing to the fact that in spite of the fact that at hand I have here before me in receipt of as of this date until such time as in due course prior to subsequent to at the conclusion of on a daily basis in this day and age at this point in time at the present time at an early date as soon as possible at your earliest convenience during the course of during the time that last but not least in the final analysis to make a long story short over and done with the bottom line is in order to so as to as a matter of fact in the event that relative to make reference to in connection with in regard to as regards with the possible exception of for the purpose of the question as to whether thanking you in advance take the liberty of have the capability to make a contribution to take into consideration of the understanding that

of the opinion that of the belief that can’t help feeling it is our understanding that it is our opinion that it is our belief that it is our recommendation that it is often the case that in the amount of a majority of a number of

Answers 83

SUMMARY OF ELEMENTS OF GOOD LEGAL STYLE

GRAMMAR, USAGE AND PUNCTUATION

Serial commas: always use the serial comma – the reason for preferring the final comma is that omitting it may cause ambiguity, whereas including it never will.

Vogue words: avoid.

Subject-verb agreement: make the verb agree in number with its subject… and keep your eye on the subject.

Ending sentences with prepositions: this is now acceptable.

Repeating numbers in parentheses: not normally necessary.

Contractions: are usually out of place in legal writing.

Enumerations: the best method for enumerating ideas is the straightforward first, second and third.

Legal terminology: try to avoid.

Foreignisms: try to use a native English expression – use foreign expressions as a last resort.

Use clichés with caution: these are once-clever phrases, now used as a formula. They may be used, especially to avoid a long sentence.

SUGGESTIONS FOR REVISING AND EDITING

1. Read out loud. 2. Omit needless words. 3. Rely primarily on action verbs and nouns. 4. Check for variety in sentence structure and length. 5. Make a topic sentence outline. 6. Check for transitional words and expressions. 7. Review the text’s visual design. 8. Check that your purpose is clear to the reader. 9. Proofread the entire document. 10. Ask a colleague to respond to your draft.

Revisiting some of the important rules

A. Use verbs, not nouns Rewrite the following paragraphs, avoiding (as far as possible) "nominalisations".

Through the introduction of measures aimed at the creation of employment, it is the intention of the Commission to facilitate the positive evolution of the economic and social situation.

A request will be made to a firm of consultants to carry out an evaluation of the resources needed to ensure the feasibility of the performance of these tasks by the research centre.

B. Concrete, not abstract Rewrite the following sentences, avoiding (as far as possible) abstract language.

This decisive innovation, which constitutes the outcome of research carried out at Community level, offers the perspective of averting the danger of the eventual disappearance of this species.

The objective established by the campaign is that of persuading Commission officials to eliminate excessive verbosity, prolixity, complexity and obscurity from their written communications.

C. Active or passive? What about the agent?

Can you improve the following sentences by eliminating passive verbs and/or by naming the agent? If not, why not?

Nothing has yet been done to tackle the drugs problem in the European Schools, where marijuana and cannabis are smoked.

E-mail is being used to inform staff employed by the Commission concerning the strategy being adopted under MAP 2000.

A decision has been taken at Council of Ministers level that a reduction should be effected in the salaries paid by the Commission to its officials.

D. Obscurity Simplify these verbose sentences.

1. It would be greatly appreciated if you could take steps to provide us with the appropriate assistance within the shortest possible timeframe. 2. You are strongly advised that the appropriation of assets which are the property of other natural or legal persons, and the removal of such assets without the consent of the said persons, is strictly forbidden and that any infringement of this provision will lead to the imposition of sanctions. Done at Sinai, for the High Celestial Authority. 3. The fish were observed to exhibit a 100% mortality response. 4. Excuse me for asking, but could you possibly indicate to me the route which, in your opinion, would optimally enable me to gain access to the hub of this conurbation?

Answers 84 Additional Tasks in-class Improve the following emails: Dear Mr XXX,

I am writing to you on behalf of partner XXXX. Upon his request, I am sending you an invoice specification. Please find it attached as a pdf file.

Please let me know if I can issue an invoice to ITS Testing Services (UK) Ltd? Thank you in advance for your help.

Kind regards, XX ______

Dear Mr. XXX,

Please find enclosed two invoices on behalf of (partner). Please note that we have also included timecards from 15.06-22.06.2006. I would kindly ask you to confirm both invoices, after your confirmation I will send original documents by regular mail to your office.

Kind regards, XX ______Dear Mr XXX,

Mr XXXX is looking forward to meet with your delegation next week in Riga. You will have dinner on Wendsday, 31 of May at 19:30.

Wheather in Latvia is quite springlike, variable clouds with some rainshowers, air temperature 12...18, on coastal areas locally 11...13ºC. Yet nights are quite chilly, air temperature 4...9ºC.

Kind regards, XX ------Dear Mr. XXXX

Hereby I would kindly ask is it suitable for you to meet with Mr. XXXX on Monday (03.10.05) at 16:00 in our office.

Best regards XX ------Dear Managers,

Hereby I would kindly ask on behalf of (managing partner) is it suitable for you to postpone the next managers’ group meeting to *30.10-01.11 in Riga*.

Best regards, XX ------Dear Mr. XXX YYY

Thank you for the message. Mr. XXX is currently on holiday. He asked me to forward you his best greetings and he gladly accepts the invitation to visit your office next time he shall come to

London.

Wishing you a pleasant summer.

Best regards XX ------Dear Mr. XXX,

Referring to our telephone conversation earlier today I confirm the meeting on 20 of October at 11:00 in your office with Mr. XXX YYYY and Mr. XXXX ZZZZZ, Partner from our Lithuanian office.

Best regards, XX ------Dear Sir/Madame

I am contacting you on behalf Mr. XXX YYYYY, the Honorary Consul of Moldova in Estonia. Mrs AAAA CCCCC from Estonian Encyclopedia Publishers forwarded us three photos about Malta and she would like to know how she should sign these photos. These photos will be published in Countries of the World as illustration to the article on Malta. Could you be so kind and send us the information? Photos are enclosed. Photo 027 fields in mountain-how is the name of the mountain? Photo 047 port - name of the port? Photo 063 castle?- name and where the castle situates.

Thank you in advance XX------Dear Mr. XXXX BBBB,

I am writing to you on behalf of (partner).

Have you received the engagement letter? The application to start the criminal case is almost ready. Please confirm us that you need our further assistance.

Please find also enclosed the list of outstanding invoices issued to you. I would kindly ask you inform us when we could expect the payment.

Sincerely, ------

Dear Mr. SSS PPP,

I am writing to you on behalf of Mr. (partner) regarding the building of (company) AS located at the address Bulimia tee 15b, Tallinn.

According to the Register of Constructions and the Immovable Property Register, there is no information on a building located at Bulimia tee 15b. But according to the Register of Constructions (the extract is attached) there are many buildings registered at Bulimia tee 15 and the building named "metropolis 2" might be the building in question (with the address Bulimia tee 15b). It is built this year and has 6 floors.

The land owner of Bulimia tee 15 is Tallinn University of Metrology but the building title (registered lease that is transferable & encumberable) is issued to Metropolis Tam AS for 24 years. The extract of the Immovable Property Register of Bulimia tee 15 is attached. According to the Commercial Register (please find attached the relevant extract), Metropolis Tam AS has the following stockholders: AS Mat (contribution EEK 500,010) and OÜ Tam (contribution EEK 499,990).

OÜ Tam has 5 local shareholders and AS Mat has one local stockholder (please find attached the relevant extracts).

If you need any further information, do not hesitate to contact us. ------

Dear HHH MMMM, Our office in Vilnius has issued some invoices to your company. I would kindly ask you to provide us your company VAT reg no.

With kind regards, XX ------Dear RRR BBBBB,

Thank you very much for your email!

Our partner Mr. (partner) and lawyer Mr. (associate) are pleased to meet Ms. JJJ FFFF on 8. March at 2:30 in our office. Our office address is (address) 20, 4th floor.

With kind regards, XX ------Dear Mr. BBBBB,

Hereby I am writing to you on behalf of Mr (senior partner) from our firm who is coming to Helsinki on Friday, 1 of September 2006. I would kindly ask if you are intrested to have meeting with him on that day at 12:00 in your office?

Mr. MMMM TTTTT recommended to contact with you.

Kind regards, XX ------Hi Wanda,

I think it would be better to send the documents together. I will delegate this duty to Ieva, so please send the documents to Ieva first and Ieva will send them to the client. Is that OK for you?

And please also inform us when you could send the documents next week.

Best regards, XX ------

Dear Mr. CCCC,

I´m contacting you on behalf of Mr. (name), the managing partner of our firm, and hereby I kindly ask you to register him to this workshop "Partner Performance and Remuneration Workshop" on 19 October 2006.

Please send written confirmation to my e-mail.

Kind regards, XX ------

Dear TTTT,

I'm writing you on behalf of (managing partner) and he will like to know why have you opened a case Establishment of Boditona UAB under Our Firm UAB. Should the client not be Boditona UAB?

BR, XX ------Dear JJJJ BBBBBB,

I`m contacting you on behalf of (partner) regarding the lost pension book. I have sent an e-mail with the copy of the document to the Social Insurance Board (they issue pension sertificates in Estonia) and they will treat this matter.

Kind regards,

XX ------Visas to Moldova

I’m writing on behalf of (managing partner).

I got one visa to Malta for JJJJ BBBB, already on May 22.

I am wondering if there are any problems with the other visa - a visa for JJJ SSSSS. Are there any documents missing?** Best regards, XX------Dear JJJJ BBBBB,

I am very sorry to inform you that our partner Mr. (partner) is unable to attend the meeting as agreed. Would it be convenient for you to purspone the meeting in our office to 17:00 on 23-05.

If the time is not suitable for you then we could arrange the meeting as agreed. Then only Ms. TTTT NNNNN and Mr. LLLLLL YYYYY can take part in it.

Please, let me know, which time suits you.

Best Regards,

XX ------

Further exercises: Test Your Vocabulary Skills EXERCISE Find synonyms (or antonyms, or meanings) for the words and phrases marked. Can you find ways to improve the text?

Adapted from “The Times” Law September 13 2005

Can one size really fit all the world’s economies? COMPETITION LAW: the hurdles facing convergence.

Market driven economies have become the accepted orthodoxy around the world. But markets can work efficiently and fairly only when regulated through a system of competition law. Otherwise, cartels will arise and monopolies will abuse consumers.

That is why most developed countries, typified by the members of the European Union, have introduced sophisticated competition regimes. But pressure is growing for competition law to be more than a luxury for the wealthy, but also to be part of the infrastructure of developing countries, too, as part of their drive for growth.

For developing countries — and many Commonwealth countries are in this group — competition will eliminate corruption, which is the bane of the poor.

Despite the enormous disparities in wealth and sophistication of global economies, there is a growing view of the benefits of adopting a similar system of competition law. While the idea of sacrificing national autonomy to a system of global competition rules enforced by supranational institutions would appear to be unpalatable to most in the current climate, there is a growing consensus that convergence of competition law in some form is needed in order to keep pace with the growth of international trade.

Yet how realistic is this ambition? Support for the notion of competition law is growing. As more and more developing countries embrace the market economy, they are recognising the need to have a competition law and set up a competition authority. Almost 100 countries have enacted modern competition laws.

Yet there is no clear consensus on what that law should look like. Even among the developed countries, there is no uniform model. For example, a recent analysis of the competition laws in 11 countries showed that there was an absence of uniformity in the way that their aims and objectives had been formulated.

US competition law is ahead of that of other countries and has became a role model for some countries, including, notably, Australia. The UK in some respects trailed behind until, within the context of the European Union, its Competition Act became an alternative world-leader, which has already spawned direct imitation in Singapore

In effect it seems that, while competition law is being welcomed, each country has its own specific analysis of what is right for its particular economic circumstances.

So what way forward for developing countries? Regarding the importance of competition law and policy in national economies, some market players have expressed the view that regulation of competition is nothing more than expansion of unnecessary bureaucracy in the management of economic affairs by the Government.

One positive factor in favour of consistency is the emergence of regional economic associations, or “common markets”. But this is still, often, at an embryonic stage. This situation continues, because while some countries are discussing the promulgation of a competition law, others are only beginning to envisage the creation of a competition law in the very near future. This suggests that there is no convergence.

Even so, despite the problems, some countries are pressing ahead and it is believed that model laws will soon be submitted for consideration. Ultimately, though, any competition law is only as good as the capacity of the local judiciary to enforce it. However, internationally led law reforms are almost always futile. You cannot impose solutions from outside. Whether success will crown such endeavours remains to be seen.

Sources Bhatia, V.K. (1993) Analysing Genre: Language in Professional Settings London: Longman. Block, G. Effective Legal Writing for Law Students and Lawyers. New York. Foundation Press. 1999. Baker & Mackenzie, Commercial law newsletter June 2004. The European Commission Hall, E. T. Beyond Culture. Garden City, N.Y.: Anchor Press, 1976. Legal Information Institute, Cornell Law School, Ithaca, NY. Mellinkoff. D., The Language of the Law. 1963

Rosch & Segler 1987 in Victor, David (1992). International Business Communication. HarperCollins: New York.

Selbourne, D. The Principle of Duty. Abacus. 1997.

Tremayne, S. (Sybil Taylor) Tatlings. David and Charles. 1974.

Tiersma, Peter, Legal Language, Chicago: U Chicago Press, 1999.

Wydick, R Plain English for Lawyers. Carolina Academic Press. 1998.

APPENDIX

E-mail

E-mail is used increasingly in the international world of business to replace letters, memos, faxes and telephone calls. The three main reasons are because it is convenient, inexpensive and because e-mail is easy to use within a networked system. The style of writing will depend upon the purpose for writing and the relationships of the correspondents. They are, however, more informal than any other types of written communication.

Why use e-mail?

E-mail is fast, reliable and, once you know how, easy to use. However, there are some points to consider:

 Always consider your audience, and what kind of response you hope to receive from them.  Think carefully about your purpose for writing, plan and organise your ideas.  Adapt your style and tone of writing according to whom you are writing.  Consider who else might read your message. Never assume an e-mail is private.  If you are sending something important, follow up with a fax and/or letter. Some people do not read their emails regularly.  Each page is clearly numbered.  Print out e-mails and /or file copies.  E-mails are often used as method of transmission with a formal document presented in a standard format as an attachment Email etiquette

It is amazing to find that in this day and age, some companies have still not realized how important their email communications are. Many companies send email replies late or not at all, or send replies that do not actually answer the questions you asked. Dealing professionally with email gives SLO that all- important competitive edge. Moreover, SLO staff who know what can and cannot be said in an email can protect SLO from awkward liability issues. This section discusses the main etiquette rules and provides advice on how to ensure that they are implemented.

'By requiring employees to use appropriate, businesslike language in all electronic communications, employers can limit their liability risks and improve the overall effectiveness of the organization's e-mail and Internet copy in the process' - Why do you need email etiquette? A company needs to implement etiquette rules for the following three reasons:

Professionalism: by using proper email language your company will convey a professional image. Efficiency: emails that get to the point are much more effective than poorly worded emails. Protection from liability: staff awareness of email risks will protect your firm from costly lawsuits. What are the etiquette rules? There are many etiquette guides and many different etiquette rules. Some rules will differ according to the nature of your business and the corporate culture. Below we list that could be considered as the 32 most important email etiquette rules that apply to nearly all companies.

32 most important email etiquette tips:

1. Be concise and to the point 2. Answer all questions, and pre-empt further questions 3. Use proper spelling, grammar & punctuation 4. Make it personal 5. Use templates for frequently used responses 6. Answer swiftly 7. Do not attach unnecessary files 8. Use proper structure & layout 9. Do not overuse the high priority option 10. Do not write in CAPITALS 11. Do not leave out the message thread 12. Add disclaimers to your emails 13. Read the email before you send it 14. Do not overuse Reply to All 15. Mailings > use the bcc: field or do a mail merge 16. Take care with abbreviations and emoticons 17. Be careful with formatting 18. Take care with rich text and HTML messages 19. Do not forward chain letters 20. Do not request delivery and read receipts 21. Do not ask to recall a message. 22. Do not copy a message or attachment without permission 23. Do not use email to discuss confidential information

24. Use a meaningful subject 25. Use active instead of passive 26. Avoid using URGENT and IMPORTANT 27. Avoid long sentences 28. Don't send or forward emails containing libellous, defamatory, offensive, racist or obscene remarks 29. Don't forward virus hoaxes and chain letters 30. Keep your language gender neutral 31. Don't reply to spam 32. Use cc: field sparingly

1. Be concise and to the point.

Do not make an e-mail longer than it needs to be. Remember that reading an e- mail is harder than reading printed communications and a long e-mail can be very discouraging to read.

2. Answer all questions, and pre-empt further questions.

An email reply must answer all questions, and pre-empt further questions – If you do not answer all the questions in the original email, you will receive further e-mails regarding the unanswered questions, which will not only waste your time and your client’s time but also cause considerable frustration. Moreover, if you are able to pre-empt relevant questions, your clientr will be grateful and impressed with your efficient and thoughtful client service. Imagine for instance that a client sends you an email asking which credit cards you accept. Instead of just listing the credit card types, you can guess that their next question will be about how they can pay, so you also include some payment information and a URL to your terms of business page. Clients will definitely appreciate this.

3. Use proper spelling, grammar & punctuation.

This is not only important because improper spelling, grammar and punctuation give a bad impression of your company, it is also important for conveying the message properly. E-mails with no full stops or commas are difficult to read and can sometimes even change the meaning of the text. And, if your program has a spell checking option, why not use it?

4. Make it personal.

Not only should the e-mail be personally addressed, it should also include personal i.e. customized content. For this reason auto replies are usually not very effective. However, templates can be used effectively in this way, see next tip.

5. Use templates for frequently used responses.

Some questions you get over and over again, such as directions to your office or how to subscribe to your newsletter. Save these texts as response templates and paste these into your message when you need them. You can save your templates in a Word document, or use pre-formatted emails. Even better is a tool such as ReplyMate for Outlook (allows you to use 10 templates for free).

6. Answer swiftly.

Clients send an e-mail because they wish to receive a quick response. If they did not want a quick response they would send a letter or a fax. Therefore, each e- mail should be replied to within at least 24 hours, and preferably within the same working day. If the email is complicated, just send an email back saying that you have received it and that you will get back to them. This will put the client's mind at rest and usually clients will then be very patient!

7. Do not attach unnecessary files.

By sending large attachments you can annoy clients and even bring down their e-mail system. Wherever possible, try to compress attachments and only send attachments when they are productive. Moreover, you need to have a good virus scanner in place since your clients will not be very happy if you send them documents full of viruses!

8. Use proper structure & layout.

Since reading from a screen is more difficult than reading from paper, the structure and layout is very important for e-mail messages. Use short paragraphs and blank lines between each paragraph. When making points, number them or mark each point as separate to keep the overview.

9. Do not overuse the high priority option.

We all know the story of the boy who cried wolf. If you overuse the high priority option, it will lose its function when you really need it. Moreover, even if a mail has high priority, your message will come across as slightly aggressive if you flag it as 'high priority'.

10. Do not write in CAPITALS.

IF YOU WRITE IN CAPITALS IT SEEMS AS IF YOU ARE SHOUTING. This can be highly annoying and might trigger an unwanted response in the form of a flame mail. Therefore, try not to send any email text in capitals.

Flame Mail…

11. Don't leave out the message thread.

When you reply to an email, you must include the original mail in your reply, in other words click 'Reply', instead of 'New Mail'. Some people say that you must remove the previous message since this has already been sent and is therefore unnecessary. However, if you receive many emails you obviously cannot remember each individual email. This means that a 'threadless email' will not provide enough information and you will have to spend a frustratingly long time to find out the context of the email in order to deal with it. Leaving the thread might take a fraction longer in download time, but it will save the recipient much more time and frustration in looking for the related emails in their inbox!

12. Add disclaimers to your emails.

It is important to add disclaimers to your internal and external mails, since this can help protect your firm from liability. Consider the following scenario: an employee accidentally forwards a virus to a client by email. The client decides to sue your firm for damages. If you add a disclaimer at the bottom of every external mail, saying that the recipient must check each email for viruses and that it cannot be held liable for any transmitted viruses, this will surely be of help to you in case of a claim. Another example: an employee sues the firm for allowing a racist email to circulate the office. If your firm has an email policy in place and adds an email disclaimer to every mail that states that employees are

© Christopher Goddard 2015 92 Language Tools for Legal Writing 93 expressly required not to make defamatory statements, you have a good case of proving that the firm did everything it could to prevent offensive emails.

13. Read the email before you send it.

Many people don't bother to read an email before they send it out, as can be seen from the many spelling and grammar mistakes contained in emails. Apart from this, reading your email through the eyes of the recipient will help you send a more effective message and avoid misunderstandings and inappropriate comments.

14. Do not overuse Reply to All.

Only use Reply to All if you really need your message to be seen by each person who received the original message.

15. Mailings > use the Bcc: field or do a mail merge.

When sending an email mailing, some people place all the email addresses in the To: field. There are two drawbacks to this practice: (1) the recipient knows that you have sent the same message to a large number of recipients, and (2) you are publicizing someone else's email address without their permission. One way to get round this is to place all addresses in the Bcc: field. However, the recipient will only see the address from the To: field in their email, so if this was empty, the To: field will be blank and this might look like spamming. You could include the mailing list email address in the To: field, or even better, if you have Microsoft Outlook and Word you can do a mail merge and create one message for each recipient. A mail merge also allows you to use fields in the message so that you can for instance address each recipient personally. For more information on how to do a Word mail merge, consult the Help in Word.

16. Take care with abbreviations and emoticons.

In business emails, try not to use abbreviations such as BTW (by the way) and LOL (laugh out loud). The recipient might not be aware of the meanings of the abbreviations and in business emails these are generally not appropriate. The same goes for emoticons, such as the smiley :-). If you are not sure whether your recipient knows what it means, it is better not to use it.

17. Be careful with formatting.

Remember that when you use formatting in your emails, the sender might not be able to view formatting, or might see different fonts than you had intended. When using colours, use a colour that is easy to read on the background.

18. Take care with rich text and HTML messages.

Be aware that when you send an email in rich text or HTML format, the sender might only be able to receive plain text emails. If this is the case, the recipient will receive your message as a .txt attachment. Most email clients however, including Microsoft Outlook, are able to receive HTML and rich text messages.

19. Do not forward chain letters.

Do not forward chain letters. We can safely say that all of them are hoaxes. Just delete the letters as soon as you receive them.

20. Do not request delivery and read receipts.

This will almost always annoy your recipient before he or she has even read your message. Besides, it usually does not work anyway since the recipient could have blocked that function, or his/her software might not support it, so what is the use of using it? If you want to know whether an email was received it is better to ask the recipient to let you know if it was received.

21. Do not ask to recall a message.

Biggest chances are that your message has already been delivered and read. A recall request would look very silly in that case wouldn't it? It is better just to send an email to say that you have made a mistake. This will look much more honest than trying to recall a message.

22. Do not copy a message or attachment without permission.

Do not copy a message or attachment belonging to another user without permission of the originator. If you do not ask permission first, you might be infringing on copyright laws.

23. Do not use email to discuss confidential information.

Sending an email is like sending a postcard. If you don't want your email to be displayed on a bulletin board, don't send it. Moreover, never make any libellous, sexist or racially discriminating comments in emails, even if they are meant as a joke.

24. Use a meaningful subject.

Try to use a subject that is meaningful to the recipient as well as yourself. For instance, when you send an email to a company requesting information about a product, it is better to mention the actual name of the product, e.g. 'Product A information' than to just say 'product information' or the company's name in the subject.

25. Use active instead of passive.

Try to use the active voice of a verb wherever possible. For instance, 'We will process your order today', sounds better than 'Your order will be processed today'. The first sounds more personal, whereas the latter, especially when used frequently, sounds unnecessarily formal.

26. Avoid using URGENT and IMPORTANT.

Even more so than the high-priority option, you must at all times try to avoid these types of words in an email or subject line. Only use this if it is a really, really urgent or important message.

27. Avoid long sentences.

Try to keep your sentences to a maximum of 15-20 words. Email is meant to be a quick medium and requires a different kind of writing than letters. Also take care not to send emails that are too long. If a person receives an email that looks like a dissertation, chances are that they will not even attempt to read it!

28. Don't send or forward emails containing libellous, defamatory, offensive, racist or obscene remarks.

By sending or even just forwarding one libelous, or offensive remark in an email, you and your firm can face court cases resulting in multi-million dollar penalties, or at best a damaged reputation. One well-known law firm in the City of London suffered damage to its reputation.1

29. Don't forward virus hoaxes and chain letters.

If you receive an email message warning you of a new unstoppable virus that will immediately delete everything from your computer, this is most probably a hoax. By forwarding hoaxes you use valuable bandwidth and sometimes virus hoaxes contain viruses themselves, by attaching a so-called file that will stop the dangerous virus. The same goes for chain letters that promise incredible riches or ask your help for a charitable cause. Even if the content seems to be bona fide, the senders are usually not. Since it is impossible to find out whether a chain letter is real or not, the best place for it is the recycle bin.

30. Keep your language gender neutral.

1 The Claire Swire e-mail of 2000 was supposedly a very personal e-mail from Claire Swire to Bradley Chait, who worked at Norton Rose, a law firm in London. He forwarded it to six friends, one of whom in turn forwarded it further with the subject line of "Do you know Claire Swire" until it spread worldwide within days, and received wide coverage in newspapers and television. The author of the original email is in doubt, as Chait later alleged that the email was a hoax perpetuated by colleagues.

In this day and age, avoid using sexist language such as: 'The user should add a signature by configuring his email program'. Apart from using he/she, you can also use the neutral gender: ''The user should add a signature by configuring the email program'.

31. Don't reply to spam.

By replying to spam or by unsubscribing, you are confirming that your email address is 'live'. Confirming this will only generate even more spam. Therefore, just hit the delete button or use email software to remove spam automatically.

32. Use cc: field sparingly.

Try not to use the cc: field unless the recipient in the cc: field knows why they are receiving a copy of the message. Using the cc: field can be confusing since the recipients might not know who is supposed to act on the message. Also, when responding to a cc: message, should you include the other recipient in the cc: field as well? This will depend on the situation. In general, do not include the person in the cc: field unless you have a particular reason for wanting this person to see your response. Again, make sure that this person will know why they are receiving a copy. How do you enforce email etiquette? The first step is to create a written email policy. This email policy should include all the do's and don'ts concerning the use of the company's email system and should be distributed amongst all employees. Secondly, employees must be trained to fully understand the importance of email etiquette. Finally, implementation of the rules can be monitored by using email management software and email response tools.