Consider the sentence: Until the court makes its ruling, the client’s exposure remains uncertain. Here, the concern is the client’s exposure so that phrase should come first: The client’s exposure remains uncertain until the court makes its ruling. Alternatively, in a longer sentence, put the important phrase last in the sentence to add emphasis.
Misplaced words and phrases create confusion. Consider the sentence: A judge who falls asleep often is not suited for the bench. Does it mean that a judge is not suited for the bench if he or she often falls asleep? Or does it mean that a judge who falls asleep may not always be suited for the bench—leaving open the possibility that our sleepy judge might sometimes be suited for the bench.
Only is also misleading if it is not placed next to the word it modifies. For example, Only Paul brought his books means that nobody but Paul brought books. Paul only brought his books means that Paul brought his books but didn’t do anything else with them—such as read them. And Paul brought only his books means that Paul didn’t bring anything but his books.
For example, when using names or proper nouns, put the explanatory information about the party before the name itself. Consider the sentence The Company reached an agreement with Local 200, our client’s union. The sentence leaves the reader wondering for a brief second what role Local 200 plays in the case. So put the general phrase, our client’s union, before the specific identification, Local 200, and say The Company reached an agreement with our client’s union, Local 200.
Use the Editing Workshop, rather than utilize it. Would you rather talk with someone or reach a human interface? Begin your argument rather than commence it. Focus on the beginning, rather than the inception. Explain your thoughts rather than elucidate them. End your memorandum rather than terminate it. Let your argument show rather than evidence your convictions. Use a term but avoid terminology. Follow the signs but ignore the signage. Get out of the car but don’t exit the vehicle. Go inside the house but don’t enter the residence. Remember that courts hold, explain and state but they do not indicate. If a proposal is feasible, it also doable. A statute that prohibits conduct also bans it. Additionally should be pared down to also. And would you ever voluntarily read a sentence that begins with Also of import to the arguments made . . . . ?
This, that or these should be used only as an adjective and not as a subject. Say I love these books, rather than These are the books I love. Instead of using this or that as the subject of your sentence, spell out what this or that refers to. For example, don’t begin a sentence with This means that . . . . Instead, say The defendant’s refusal to honor the contract means that . . . . Using this or that as a subject requires your readers to look back to the previous sentence to determine what this or that refers to and defeats the goal of keeping the readers’ eyes moving.
But you may use this or that as an adjective. Indeed, using phrases such as this theory or that contract to refer to material in the preceding sentence is a helpful transition technique. Thus, the theory of the corporate veil in one sentence can become that theory in the next sentence.
Avoid all legal jargon, such as in connection with, with respect to, on or about, the present or instant case (use here instead), pursuant to, said (as in said contract), same (as in paragraph 6 of the same) and such used as an adjective (as in such contract). If you find yourself stringing many words into one, as in heretofore, hereinafter, aforementioned, herewith or whereas, you have lapsed into legalese. Again, if you wouldn’t use a word in conversation with a colleague, don’t use it in your writing.
Passive voice is effective when you want to disguise the actor (Mistakes were made is more persuasive than Our client made mistakes), when the actor is hard to describe (such as when describing the legislative history of a statute), when dealing in abstractions (as in All men are created equal), when discussing many actors (as in The legislation was signed) or when you don’t know the actor (as in The building was vandalized).
But most passive constructions are simply wordy and impotent. Imagine if the anti-drug campaign Just Say No had been written in passive voice, as No Should Just Be Said. Contract language requiring that Notice must be given is ambiguous. Who should give the notice?
Search for by and of to weed out passive voice. Set Grammar check on your word-processing software to flag passive-voice constructions.