1

PART I

WRITING AND DRAFTING

2 Skills for Lawyers
 Writing and Drafting 3

CHAPTER 1

Writing and Drafting

1.1 Introduction to writing and drafting 3
1.2 Preparation and research 4
1.3 Planning 4
1.4 Drafting 10
1.5 Checking 18
1.6 Practical and ethical considerations 18
1.7 Writing letters 23
1.8 Writing reports and memoranda 24
1.9 Spelling and grammar 26

LEARNING OUTCOMES
After reading this chapter you will be able to:
• plan and draft a range of legal documents
• identify and use different structures when drafting a clause
• correctly use definitions within legal documents
• identify and avoid using archaic language, jargon, tautology and other common
errors
• draft clear, precise and unambiguous documents
• understand the critical importance of checking and proofreading documents.

1.1 INTRODUCTION TO WRITING AND DRAFTING

Much of your professional work will require you to communicate in writing. The ability to
write clearly, concisely and professionally under time pressure is a core skill for every solicitor.
Every type of written communication needs to be effective, unambiguous and well drafted,
whether it is an e-mail, letter or formal legal document.
Modern working practices mean that we often send tens of e-mails every day. You will have to
reply promptly to e-mails and letters, and will frequently be asked to draft legal documents
quickly. Set out below are some of the fundamental rules of good writing and drafting
practice, together with some of the most common errors. In each section, there are examples
and exercises with recommended times for completion. The answers to exercises can be
found in the Appendix to Part I.
Good writing and drafting requires a four-stage process:
(a) preparation and research take full instructions, undertake any further enquiries which
are needed, identify the objective(s)/purpose of the document, research the law;
(b) planning decide on the best structure and necessary content;
(c) drafting clearly and concisely set out the information/points following your plan;
(d) checking cross-check your document to ensure that it is correct, unambiguous and
meets the objectives you identified.
4 Skills for Lawyers

1.2 PREPARATION AND RESEARCH

1.2.1 Taking instructions
The first step will always be to take instructions from your client. You must have a clear
understanding of what your client wishes to achieve and of all the relevant facts. Part of your
role at this stage will be to ensure that you identify everything you need to know. Your client
may not be aware of all the information you might need.

EXAMPLE
Your client instructs you to impose an obligation on a buyer of part of her land to put up a
2.5 metre fence along what will become the common boundary. You must identify the
need for further information as to:
(a) the type of fence required (eg, materials, purpose)
(b) the time limit for construction of the fence;
(c) requirements for maintenance; and
(d) who will obtain planning permission and what happens if planning permission is not
granted.

1.2.2 Researching the law

Before you can decide how best to advise your client and/or how to draft any necessary
documentation, you must research the relevant law.

1.3 PLANNING
Once you have full instructions and have mastered the current legal position, you can begin to
plan your advice.
Identify your client’s objectives and decide how they can best be met. You will then need to
select the most appropriate structure.

1.3.1 Common document structure

Many documents will contain the following elements:
• commencement;
• date;
• parties;
• recitals;
• operative part;
• testimonium;
• schedules;
• execution and attestation.

[Link] Commencement, date and parties

A document will normally begin with a ‘commencement’ which describes the nature of the
document, for example ‘This Agreement’, ‘This Conveyance’. Alternatively, the document’s
title can simply be set out as a heading. Deeds may also use the word ‘deed’ in the title, for
example ‘This deed of Conveyance’.
A space should be left for insertion of the date when the document is completed.
The full names and addresses of the parties should be inserted. (In the case of a company, the
address of its registered office should be inserted.)
 Writing and Drafting 5

EXAMPLE
SERVICE AGREEMENT
DATE:
PARTIES: (1) Weyford Products Limited whose registered office is at 32 Bridge House,
Wharf Road, Milton, Berefordshire.
(2) Joan Alice Bennet of 8 High Street, Milton, Berefordshire.
A long and complicated document can benefit from an index or table of clauses
(preferably at the front).

[Link] Recitals
Recitals clauses are not essential and you should consider carefully whether or not to include
them. You can use them to set out the background facts to the document and so make it more
self-explanatory. For example, in a conveyance of land by a personal representative, the date
of the deceased’s death and the date on which a grant of representation was obtained could be
recited.
Recitals are also sometimes used to introduce and summarise the contents of the operative
part of the document but, except in complicated documents, this is generally not necessary
and increases the risk of introducing ambiguities.

[Link] Operative part

The operative part of a document is the part which creates the legal rights and obligations.
The contents of the operative part of a document depend on the nature of the document. For
example, a commercial agreement will generally contain:
(a) conditions precedent (conditions which have to be satisfied before the agreement
comes into force);
(b) agreements (the rights and obligations of the parties);
(c) representations and warranties (ie, statements about factual and legal matters which
one of the parties requires to be made to them in a legally binding way);
(d) ‘boiler-plate’ clauses (ie, standard clauses inserted into all agreements of such a type
and dealing with, for example, the service of notices under the agreement, or the
jurisdiction for action where the agreement has an international element).

[Link] Testimonium
A testimonium clause is not essential but, if used, it introduces the signatures of the parties
and may describe a particular method of executing where, for example, a company is using its
seal as part of its execution, or an attorney is signing on behalf of a party.

[Link] Schedules
Use schedules where appropriate to avoid breaking the continuity of a document with too
much detail. The operative part of the document then refers to the schedule, and the schedule
contains the detail.

EXAMPLE
TENANT’S COVENANTS
The Tenant covenants with the Landlord to observe and perform the covenants set out in
Schedule 1.
6 Skills for Lawyers

SCHEDULE 1
1. To pay the rent … etc.

Note that the obligation or right is created in the operative part of the document. Only the
detail of the obligation or right is put in the schedule.

[Link] Execution and attestation

A document will end with an execution clause. This will refer to the signatures of the parties
and any other formalities necessary to give the document legal effect. The wording of this
clause will vary depending on the nature of the party executing, whether the document is
executed as a deed, and whether the party’s signature is witnessed (‘attested’).
For a document executed by an individual and not intended to take effect as a deed, the clause
could read:
Signed by ALAN JONES) (Alan Jones signs here)
in the presence of: )
(Witness signs here)
If the document is intended to take effect as a deed the clause could read:
Executed as a deed ) (Alan Jones signs here)
by ALAN JONES )
in the presence of: )
(Witness signs here)

1.3.2 Order of clauses in the operative part

It is difficult to lay down rules as to the order of clauses. It will vary according to the nature of
the document, but it is often a matter of common sense and logic.

[Link] Common structures for operative clauses

Deciding on the best structure to adopt when drafting the operative clauses of a document is
the most important stage in planning your document.

[Link] Chronological order

One possibility is to list topics in chronological order. This is often particularly suitable for a
document that deals with one simple transaction.
Imagine a contract for the hire of a car. The order of topics could be:
• parties;
• definitions;
• agreement by Owner to hire out car to Hirer on the terms set out in the agreement;
• payment;
• insurance;
• promises by Owner as to the state of the car at the start of the hire;
• duration of hire;
• what the car can be used for;
• who may drive;
• Hirer’s promises as to the return of the car;
• remedies for breach of the agreement.
 Writing and Drafting 7

For a contract such as this, a chronological structure will produce a simpler and less
repetitious document than if you try to divide topics into Owner’s Obligations and Hirer’s
Obligations.

[Link] Categorical order

A categorical structure sets out the duties and responsibilities in categories. An example of
this is a lease.
The structure of a typical lease is:
• parties;
• definitions;
• the grant of the term by Landlord to Tenant;
• Tenant’s covenants;
• Landlord’s covenants;
• provisos, eg, the Landlord’s power to forfeit the lease.
Here, the division into landlord’s obligations and tenant’s obligations is essential. The
obligations have to be performed throughout the entire term of the lease. There is no
chronological order to them.

[Link] Order of importance

This could be the order used in a simple contract, where the obligations are not to be carried
out in any chronological order. An example could be an agreement between employer and
employee on severance of employment.

[Link] Combinations
A document may use a combination of the above structures. A contract with a firm of
furniture removers could list the firm’s obligations in chronological order, for example:
• to pack the contents of the house;
• to transport to storage;
• to store;
• to transport to new house;
• to unpack;
and then list the owner’s obligations.
In a lease, all the tenant’s covenants will be put together, but will appear in order of
importance.

1.3.3 Structuring a clause

[Link] Structuring clauses and sub-clauses within the operative part
(a) Use a separate clause for each separate matter.
(b) Use sub-paragraphing to avoid long, cumbersome clauses and provisos.
(c) Number each clause and sub-clause.
(d) Give each clause or group of clauses a heading that correctly defines the subject matter
of the clauses, eg:
Tenant’s Covenants
Look at the following two examples and decide which you think is easier to understand.
8 Skills for Lawyers

EXAMPLE 1
The Licensee shall purchase exclusively from the Grantor all materials used in making the
Invention provided that the licensee shall be entitled to relieve itself of its liability to
observe this obligation upon giving the Grantor three months’ notice in writing.

EXAMPLE 2
1. Subject to Clause 2, the Licensee must purchase exclusively from the Grantor all
materials used in making the Invention.
2. The Licensee may end the obligation contained in Clause 1 by giving the Grantor
three months’ notice in writing.
Both examples contain the same provisions, but the second is easier to understand because it
uses separate numbered clauses for each point.

[Link] Structuring a clause according to Coode

Read the following clause and think about the structure. Do you think the structure adopted
helps to make the meaning clear?

Clause X
The Company shall reimburse the Replacement Value of lost or damaged goods provided
that the value of the claim does not exceed £1,000 and the Policyholder notifies the loss
within 7 days from (but excluding) the date of its occurrence PROVIDED ALWAYS THAT the
above shall not apply to claims made under Clause 10 of this Policy.

This clause starts with a statement of a legal obligation which at first sight appears absolute.
The conditions and exceptions attaching to the obligation are not stated until afterwards, so
that it is necessary to reconsider the obligation in the light of them. This kind of clause
construction is very common in legal drafting, but it is not the most logical way to structure a
clause and it makes it more difficult to understand.
In 1843, George Coode wrote a treatise on ‘Legislative Expression’; or, ‘The Language of The
Written Law’. His general principle is that a clause should be structured in the following
order:
• circumstances/exceptions (ie, circumstances where the right or obligation does or does
not exist);
• conditions (ie, conditions on which the right or obligation depends);
• obligation or right (ie, who must do what or who may do what).
Words suitable for introducing an exception are ‘except where …’.
Words suitable for introducing circumstances are ‘where …’ ‘if … then’ or ‘when …’ or ‘on …’.
Words suitable for introducing conditions are ‘if …’ or ‘provided that …’.
These are two examples of Coode in legislation:
Section 2(1) of the Land Registration and Land Charges Act 1971
If any question arises as to whether a person is entitled to an indemnity under any provision of the
Land Registration Act 1925 [circumstance] […] he [person] may apply to the court to have that question
determined [the right].
Section 23(1) of the Matrimonial Causes Act 1973
On granting a decree of divorce … [circumstance] the court [person] may make any one or more of the
following orders … [right].

This is an example of Coode in a document:

 Writing and Drafting 9

15 Compensation on termination of contract

Except where otherwise provided [exception], if before 1 December 2020 this contract is
terminated by the Buyer [circumstance], then provided the Seller is not in breach of any of his
obligations under this contract [condition] the Buyer must pay the Seller the sum of £5000
[obligation].
The rule produces a logical and, to lawyers, a familiar structure, but it does not have to be
followed invariably.
Imagine that an owner of land has employed consultants to design and build an amusement
park. The consultants want to control the use of their name in any advertising material issued
by the landowner. Their name is to be used only if certain conditions are met.
If the clause were drafted using Coode’s rule, it would read:
Only where
(a) the Landowner has given the Consultants advance details of any advertising material it
plans to use; and
(b) the Consultants have given their express written approval; and
(c) the Consultants have not ended this Agreement under subclause 11(1)
may the Landowner use the Consultants’ name in advertising material.
The clause could make the point in a more natural and in a stronger manner if Coode were
ignored and the clause were drafted to read:
The Landowner may only use the Consultants’ name in advertising material where:
(a) the Landowner has given the Consultants advance details of any advertising materials it
plans to use; and
(b) the Consultants have given their express written approval; and
(c) the Consultants have not ended this Agreement under subclause 11(1).

EXAMPLE
Coode’s structure can be a useful tool in preparing documents. The clause set out at the
start of [Link] has been redrafted below using Coode’s structure and other techniques to
improve its clarity.
Clause X Claims for lost or damaged goods
Where:
(a) a claim does not exceed £1,000; and
(b) the Policyholder notifies the loss within 7 days from (but excluding) the date of its
occurrence; and
(c) the claim is not one made under Clause 10 of this Policy
the Company shall reimburse the Replacement Value.

1.3.4 Use of precedents

Using a precedent can help in the planning of your document by giving an example of:
(a) suitable structure;
(b) provisions that you have not thought of and that will benefit your client;
(c) suitable wording; and/or
(d) legal problems you had not considered.
However, precedents should be used with caution.
10 Skills for Lawyers

[Link] Guidelines for using precedents

(a) Look for a precedent only after you have researched and planned your document.
(b) Always check that the precedent is up to date and legally correct.
(c) Adapt the precedent to your transaction, not your transaction to the precedent.
(d) Do not copy words from a precedent unless you are sure of their legal effect.
(e) Do not change words in a precedent unless you are sure that the change will not have an
unexpected legal effect. This is particularly true of precedents for wills.
(f ) Never assume a precedent cannot be improved.
(g) Do not copy clauses that are irrelevant or, worse, are to the disadvantage of your client;
(h) Do not adopt inappropriate or archaic wording.

1.4 DRAFTING
Having carefully planned the content and structure of your document, you can confidently
begin to draft. Your document should be as easy as possible to read and understand. It is
essential that everything you draft is precise and unambiguous. You should try to be as concise
as possible. Concise documents are easier and quicker to read. Set out below are a number of
rules and guidelines which can help you to keep your documents precise and concise.

1.4.1 Use definitions

A definition can do two things.
First, it can create a ‘tag’ or ‘nickname’. This avoids repetition of lengthy names or phrases.
This use is often seen in the description of parties to a document.

EXAMPLE
This agreement is made between
(1) Everett Kingdom Finance plc (‘Everett’)
(2) Samuel Luke Stowe (‘SLS’)

In the rest of the document it is only necessary to refer to Everett and SLS.

EXAMPLE
In this agreement
1. ‘the Period of Hire’ means from 9am on 1 November 2009 until noon on 23
November 2009.
A subsequent clause might then say something such as ‘if the Hirer does not return the Car
at or before the end of the Period of Hire …’.

Secondly, a definition can also create a private dictionary for the document by giving a word
something other than its ordinary meaning, or by giving a word an unusually extended or
restricted meaning.

EXAMPLE
In this agreement
‘Boat’ includes a sailboard.

EXAMPLE
‘Notified’ means notice is given in writing by the insured, or its insurance agent, to the
insurer.
 Writing and Drafting 11

[Link] Where to put the definitions

Definitions that are to apply throughout the document should be put in alphabetical order in a
definitions clause at the start of the operative part of the document.

EXAMPLE
Definitions
In this Agreement
(1) ‘Arbitration’ means …
(2) ‘Balance Sheet’ means … etc.

If a definition will be used only in one part of a document or in one clause, you can put the
definition at the start of the relevant part or clause.

EXAMPLE
4.1 In this clause, ‘Promotional Material’ means …
4.2 The Landowner must ensure that all Promotional Material is …

In a simple document, a ‘tag’ may be given to a name or phrase the first time that it is used,
and the tag may then be used throughout the rest of the document. For example, in a contract
for the sale of land, a clause may say:
The Seller, for the benefit of his adjoining property, 10 Smith Avenue, Morton, N. Yorks (‘the
Retained Land’) reserves a right of way on foot …
Later clauses can then refer to the Retained Land.
This method should be used only for simple short documents. In a long document, it wastes
time to have to search through the clauses to find the one in which the tag was first adopted.

[Link] Guidelines for using definitions

(a) It is usual to give the definition a capital letter and to use it with the capital letter
throughout the document. This alerts anybody reading it to the fact that a particular
word or expression has been given a particular meaning by the document.
(b) A definition should only define. It should not be used to create a substantive right or
obligation. The right or obligation should be created in the clause that uses the
definition.
(c) If you have a definition, do not forget to use it when you are drafting the rest of the
document.
(d) When you use a defined term in a clause, check that it makes sense within the clause.
(e) In a definition, do not define by reference to other, undefined terms.

1.4.2 Padding/superfluous words

Cut out unnecessary phrases which lengthen the sentence while adding nothing to its
meaning. For example:
• ‘in the circumstances’;
• ‘in this instance’;
• ‘the fact that’;
• ‘of course’.

1.4.3 Tautology
Tautology or saying the same thing twice using different words should be avoided. For
example:
12 Skills for Lawyers

• ‘unfilled vacancy’;
• ‘true facts’;
• ‘now current’.
Similarly, avoid excessive use of adjectives which do not make the meaning more precise. For
example:
• ‘grave and fatal error’;
• ‘careful and detailed consideration’.

1.4.4 Compound prepositions

Use single prepositions instead of compound prepositions. For example:
Avoid Use instead
‘in accordance with’ under/by
‘by reason of ’ by/through
‘with reference to’ about
‘in order to’ to

1.4.5 Nouns derived from verbs

Use the verb itself rather than a noun derived from it. This helps create a more immediate
effect:
Avoid Use instead
‘make an admission’ admit
‘give consideration to’ consider
‘effect a termination’ terminate or end

1.4.6 Archaic language

Twenty-first century documents should be drafted using contemporary language. Delete or
replace archaic words and phrases such as:
• ‘crave leave’;
• ‘the said’;
• ‘hereinbefore’;
• ‘aforementioned’;
• ‘whereof ’.

1.4.7 Adverbs and adjectives

Only use adverbs and adjectives when essential to achieve your purpose. Their use is often
unnecessary and can be detrimental. Consider for example:
It was very wrong of you to take a copy of the document.
It was wrong of you to take a copy of the document.
By including the adverb ‘very’, the level of the allegation is raised from ‘wrong’ to ‘very wrong’.
This can raise expectations of the proof required to satisfy the allegation. Be as precise as
possible and remove emotive or inflating terms such as extremely, obviously, really, clearly and
very unless you have a specific reason for using them.

1.4.8 Keep sentences and paragraphs short

In long sentences, the verb, subject and object may be separated by too many subclauses. This
places a strain on the reader’s memory and understanding. Always try to keep the sentence
core together.
 Writing and Drafting 13

EXAMPLE
The evidence, including evidence from independent surveys as well as that gathered
personally by the writers of this report and the results of investigations formally
commissioned by this department, suggests that the public, while acknowledging an
overall increase in the actual level of government spending on health, by which is meant
on health care both at the doctor–patient level and in hospitals, still views the problems
and defects in the National Health Service and in particular in National Health hospitals as
the result of a general lack of funding.

The subclauses break up the main thought of the paragraph so that it is difficult to follow. The
paragraph would be better rewritten in separate sentences with the main thought first, even
though this may increase its length. Brackets may be used for subsidiary points where
appropriate. For example:

The evidence suggests that the public still views the problems and defects in the National
Health Service and in particular in National Health hospitals as the result of a general lack
of funding. This is so even though the public acknowledges an overall increase in the
actual level of government spending on health care both at the doctor–patient level and in
hospitals. (Evidence on this issue includes evidence from independent surveys, that
gathered personally by the writers of this report and the results of investigations formally
commissioned by this department.)

1.4.9 Use the active and not the passive tense where possible
In a sentence where the verb is in the active voice, the subject of the sentence acts upon the
object of the sentence. Where the verb is in the passive voice, the object of the sentence is
acted upon by the subject. Compare:
The defendant struck the claimant (active voice).
The claimant was struck by the defendant (passive voice).

[Link] Problems with the passive

Over-use of the passive voice lengthens a sentence and can make it sound weak. In the worst
cases, it obscures meaning. For example:
It is hoped that resources will be relocated so that changes may be made in the methods by
which the system is administered.
Where the verb is in the passive, you may accidentally omit the phrase which indicates who or
what is doing the acting. For example:
The claimant was struck.
In a legal context, the effect of this omission may be important. For example:
Notice will be served. By whom?

EXERCISE 1
Try rewriting the following using the active tense.
(i) A final warning letter is to be written by the line manager.
(ii) The matter will be considered by the committee at the next meeting.
(iii) Notice was given by the solicitor.
14 Skills for Lawyers

[Link] Some uses for the passive

The passive can sound more objective and detached, and therefore more appropriate in
certain legal contexts. For example:
The allegations are denied
sounds better than:
Our client denies the allegations (which introduces a personal note).
It is correct to use the passive where the subject of the legal action is irrelevant. For example:
The common seal of X Co was affixed … It does not matter who affixed it.
The passive may also be used in a legal context to cover the possibility of action by a number of
different persons, some of whom are unknown. For example:
If the goods are damaged we will refund the cost. This could cover damage by the supplier,
the carrier, or any third party.

1.4.10 Precision
It is particularly important to ensure that what you write is not ambiguous and expresses
exactly your client’s objectives. An ambiguous document may at best cause your client to have
to make further enquiries; at worst it can result in an expensive dispute and litigation.

[Link] Ambiguity
Take care with word order
Words or phrases in the wrong place may create ambiguity. Consider the sentence:
We undertake to repair or replace goods shown to be defective within six months of the date of
purchase.
It is not clear whether the phrase in italics governs the repair/replacement or the notification
of defect. It could be rewritten as:
Where, within six months of the date of purchase, goods are shown to be defective, we will
repair or replace them.
(assuming this was the intended meaning).

Do you mean ‘and’ or ‘or’?

Consider:
The Seller may serve notice of termination, recover goods already delivered and retain all
instalments already paid.
The use of ‘and’ in this sentence suggests that the list is conjunctive, ie that the seller may do
all of the things in it. But can the Seller choose to do only some of them?
Compare:
The Seller may serve notice of termination, recover goods already delivered or retain all
instalments already paid.
The use of ‘or’ here suggests that the list is disjunctive, ie that the seller may do only one of the
things in the list. But it could also mean that the Seller might both serve notice and either
recover goods or retain instalments.
To avoid such ambiguity, consider (depending on the meaning required) using phrases such as:
The Seller may do all or any of the following:
or
The Seller may exercise one only of the following rights:
 Writing and Drafting 15

The ‘undistributed middle’

Take care with provisions ‘before/after’ a particular date or ‘over/under’ a particular weight or
measure. Consider the following examples:
Where the company delivers the goods before 1 January … /Where the company delivers the
goods after 1 January …
What happens if it delivers them on 1 January?
Goods over 20kg must be sent by rail … /Goods under 20kg may be sent by air
What about goods weighing exactly 20kg?

Expressions of time
Take care to avoid ambiguity. Consider:
The Buyer must pay a deposit within 7 days of today’s date.
Does the 7 days include or exclude today?
For legal and practical reasons, avoid expressing periods of time in the following ways:
• from [a date];
• by [a date];
• within [so many days of ] or from [a date];
• until [a date].
It is safer to be clear by using one of the following:
• from but excluding/not including;
• from and including;
• on or after;
• on or before;
• within a period of 7 days commencing with;
• until but excluding/not including;
• until and including.

Are you creating an obligation or a discretion?

An obligation is created by the phrase:
The Customer shall pay a deposit on signing this Agreement.
A discretion is created by the phrase:
The Company may retain the deposit if the Customer does not collect the goods on or before
30 June.
Take care when using ‘shall’. It is grammatically correct to use it in the third person to indicate
an obligation (‘the Tenant shall pay the Rent’), but it is also used in the first person to indicate
simple future (‘I shall go to London’). Alternatively, you could use ‘must’ to create an
obligation.

Avoid words of similar sound or appearance

Words of similar sound or appearance are easily confused and may also confuse a lay client.
For example:
Avoid Use instead
‘mortgagee/mortgagor’ ‘lender/borrower’
‘lessor/lessee’ ‘landlord/tenant’
16 Skills for Lawyers

Ambiguous pronouns
Consider:
Where the Supplier fails to deliver the Goods to the Customer in accordance with Clause 9 or
the Goods delivered do not correspond with the sample he may terminate this Agreement.
Who may terminate the agreement?
Where it is not clear to which noun a pronoun refers, the noun should be repeated.

The ejusdem generis rule

Consider:
In consequence of war, disturbance or any other cause.
Unless a contrary intention appears, ‘any other cause’ will be construed as meaning only
causes in the same category as those previously listed.
To avoid ambiguity, add (as appropriate):
whether of the same kind as [the causes] previously listed or not
or
or any other [cause] provided it is of the same kind as the [causes] previously listed.

[Link] Shall/will
In the first person, ‘shall’ simply looks to the future. In the second and third person, ‘will’
looks to the future.
I shall interview the client tomorrow. I hope that you will sit in. Afterwards we shall discuss the
problem and consider the next steps.
In the first person, ‘will’ expresses determination. In the second or third person, ‘shall’
expresses determination or obligation.
I will make you do this.
The Buyer shall pay £500 on 1 December.
This means that you create problems if your document says ‘the Buyer will pay ...’. Is this what
the Buyer intends to do, or is it what they are obligated to do?
Many documents use expressions such as, ‘If the Company shall breach this term ...’. The
clause is looking to the future but is using ‘shall’ incorrectly. It could be redrafted to say, ‘In
the event of the company breaching ...’. Better still, ‘If the Company breaches ...’.

1.4.11 Layout and presentation

Use the layout and presentation of your document to enhance its readability and usefulness.
Use headings and bullet points to break up text. Use diagrams, tables, colours and different
fonts where they are necessary or helpful. Where a document is likely to be annotated, leave
wide margins and use double spacing. For many court documents there are very detailed
requirements as to how you should present your document. Check that you have followed any
relevant rules/guidelines. For example, under the Civil Procedure Rules (PD 32) it is
recommended that witness statements should be ‘produced on durable quality A4 paper with
a 3.5cm margin’.

[Link] Paragraphs
Using paragraphs makes prose more readable and helps to avoid cumbersome clauses and
subclauses. Always number your paragraphs if possible as this aids navigation and will help
anyone using the document.
 Writing and Drafting 17

[Link] Tabulation
Tabulation aids clarity and can help to avoid ambiguity. Consider the sentence:
Any trainee solicitor is entitled to paid leave to attend a conference, lecture, or seminar
provided by The Law Society.
How much of the sentence is the phrase in italics intended to qualify? Does it apply only to
‘seminar’, or to ‘conference’ and ‘lecture’ as well?
Compare:
Any trainee solicitor is entitled to paid leave to attend:
(a) a conference; or
(b) a lecture; or
(c) a seminar,
provided by The Law Society.
Care should be taken, however, not to indent the final phrase ‘provided by The Law Society’ to
the same margin as ‘a seminar’ or the ambiguity would remain.
A useful basic rule is that any sentence longer than three lines is a good candidate for
tabulation if it includes a compound or series.

[Link] Numbering
Where a series of points is being made, numbering may improve clarity and aid later cross-
referencing.
Examples of numbering systems:
4.5.1 The system adopted in this book and known as the decimal system.
4(5)(a)(i) A system based on the legislative approach and known as the alphanumeric
system.
4.5(a)(i) A combination system using elements of both decimal and alphanumeric
systems.

1.4.12 Jargon
Jargon is a broad term and may include specialised language of a professional, occupational
or other group which is often meaningless to outsiders. It may also include slang. While
jargon can be a useful professional shorthand, it should never be used where it might obscure
meaning.

EXAMPLE
• Bilateral probital hematoma medical terminology for a black eye
• Ab initio Latin/legal terminology for ‘at the beginning’
• HTH, web cookie computer/Internet jargon for ‘Hope this Helps’, and the name for a
small text file that is sent to your computer via your web browser when you visit
certain websites

Similarly, avoid using acronyms which might be unfamiliar or have several different
meanings, eg CPR (Civil Procedure Rules, cardiopulmonary resuscitation, Canadian Pacific
Railway, etc).
If appropriate, consider providing a plain English translation of any legal or technical terms. It
is worth noting that in June 2006 the Coroner Reform Bill became the first Bill to feature a
plain English explanation of every legal clause.
18 Skills for Lawyers

1.5 CHECKING
Always check your work.
(a) If possible leave the document for a while and then come back to it.
(b) Ideally get someone else to check it.
(c) Reading the document aloud can be a good way of identifying mistakes/poorly-drafted
material.
(d) Print out your work and read from hard copy rather than trying to check it on screen.
(e) Do not read from the beginning of the document. Try starting from the middle or towards
the end. The later parts of documents tend to be less familiar and less well checked.
(f ) Always confirm names, figures, dates, addresses and page numbers.
(g) Do not rely on automated spelling or grammar checks.
(h) Check all cross-references in the document to other clauses or to schedules.
(i) Above all check that your document reflects your client’s objectives.

1.6 PRACTICAL AND ETHICAL CONSIDERATIONS

1.6.1 Good practice when submitting a draft
Out of courtesy, you should always supply to the other side an additional copy of any draft sent
for approval.

1.6.2 Good practice when amending the other side’s draft

Make sure that all amendments are clearly identifiable.

1.6.3 Ethical considerations when negotiating a draft

The SRA Standards and Regulations set out the principles of professional conduct which
apply to all aspects of practice and include the requirement to act:
(a) in a way that upholds public trust and confidence in the solicitors’ profession and in
legal services provided by authorised persons;
(b) with honesty;
(c) with integrity.
Breach of these rules renders the solicitor liable to disciplinary action.
Do not attempt to mislead the other side by concealing amendments you have made to their
draft, for example by writing a covering letter which draws attention to some amendments
and not to others. Any deliberate attempt to mislead could be criminally fraudulent as well as
amounting to professional misconduct.
Do not attempt to take advantage of a mistake made by the other side. Point it out to them.
They may otherwise be able to claim rectification of the document to incorporate an omitted
provision or to allege that the agreement is a nullity, so enabling them to resist specific
performance.

1.6.4 Inclusive language

Use language that is inclusive and respectful. Only refer to personal characteristics if
necessary and relevant. Take an individual approach and ask about preferences. Using
inclusive language is an ethical obligation as well as good practice. Inclusive language avoids
use of words, expressions or assumptions that would stereotype, demean or exclude people.
Choice of language can be a sensitive area, and preferences are not necessarily universal.
There are some forms of language which are generally unacceptable, and examples of these
are set out below. Best practice and terminology have changed and will continue to evolve. You
 Writing and Drafting 19

should not assume that etiquette regarding inclusive language is international, and what is
acceptable will vary according to location and culture.
If you have concerns or questions about the most appropriate form of language, ask those you
are dealing with what their preferences are. Engage in open discussion where necessary about
the choice and use of language, particularly in some of the areas set out below.

[Link] Forms of address

Always use the preferred form of address etc when known. If addressing a woman when their
preference is not known, you should use Ms rather than Mrs if you wish to use a courtesy title.
Ms is more inclusive and can refer to any woman regardless of marital status. The new gender
neutral title ‘Mx’ is now recognised by the Government and many businesses in the UK and
can be used as a courtesy title regardless of gender. As an alternative, some writers use the
addressee’s full name, eg Dear Olivia Willis.
When you do not yet know which pronouns someone goes by, it is generally a good idea to use
‘they/them’ where necessary. The use of ‘they/them’ is gender neutral and has been commonly
used for a long time. Many organisations encourage employees to include their pronouns on
ID badges and email signatures to make preferences easier for others to adopt. The use of
pronouns is discussed further at [Link] below.
Be consistent in how you address people, for example if you refer to one person by their name,
last name, courtesy title or profession then others should be referred to in the same way.

EXAMPLE
Professor Rajesh Singh and Hester will both be attending the settlement meeting.
While the man has been given his first name, surname and professional title, the woman
has been referred to by first name only.
Professor Rajesh Singh and Dr Hester Rowe will both be attending the settlement meeting.
In this example both people attending are consistently referred to using the same forms of
address.

[Link] Characteristics
Careful consideration of language should always be made when reference to any of the
following characteristics is necessary:
• age;
• disabilities, medical conditions and mental health;
• race and ethnicity; and
• sex, gender and sexuality.
Age
Only refer to age if it is necessary to do so. Where possible, refer to specific ages, eg ‘The
benefits listed in 12(1)(a) are only available to people aged 65 and over.’ Avoid terms such as
elderly, senior, middle aged, OAP/old age pensioner. Avoid terminology that risks
stereotyping or assumptions.
Disabilities, medical conditions and mental health
Use positive language and avoid phrases such as suffering from, afflicted by, victim of,
confined to a wheelchair, handicapped, sick, diseased etc. Instead refer to the factual
situation without words which impute value or judgement, eg people with cancer, wheelchair
user. Use a people first approach to writing. Rather than referring to people as mentally ill,
you should refer to people with mental health conditions or problems.
20 Skills for Lawyers

Race and ethnicity

Race and ethnicity are often used interchangeably, and while there is some overlap in meaning
they are distinct terms. Race is a categorisation based on mainly physical characteristics or
traits such as skin colour. Race has no genetic basis and is a social construct. However, the
social concept of race continues to affect human experiences and can be used as a basis for
unity and action.
Ethnicity is a wider term and has been used to refer to long shared cultural experiences,
national origins, religious practices, traditions, language etc. There are numerous terms for
different ethnicities and nationalities, and people have different preferences. People can have
multiple racial and ethnic identities which may not be obvious. Do not make assumptions
about nationality or cultural background based on appearance. Do ask about preferences.
Racism, racial bias and racial prejudice continue to be serious problems, and you must work
to ensure that the language you use is anti-racist and as inclusive as possible.
In the UK, the terms BAME (Black, Asian and minority ethnic) and BME (Black and minority
ethnic) should be avoided. It is usually best to avoid umbrella terms or grouping large
numbers of very different people together. Refer to specific individual national and ethnic
groups when necessary, eg people from a black Caribbean background, people from a white
British background.
Use of the term ‘global majority’ is an increasingly common term and is a shortened version of
‘people of the global majority’. It is used to refer to all ethnic groups, except white British and
other white groups, who might previously have been referred to as ‘ethnic minority groups’.
People of mixed ethnic background should be referred to as people from a mixed ethnic group
or people from a mixed ethnic background. As in every category, ask about personal
preferences where possible.

Sex, gender and sexuality

Only refer to sex, gender or sexuality when it is necessary to do so. A person’s sex (sometimes
referred to as biological or anatomical sex) is comprised of chromosomes, body parts,
hormones etc and is distinct from gender. Sex can refer to male, female or intersex.
Gender identity is a psychological sense of self, based on how you see and describe yourself.
Individuals may see themselves as being of male, female or non-binary gender or being in
between genders. Genders may be fixed or fluid, and some people identify with a gender
opposite to the sex they were registered with at birth.
Cisgender is the term used to describe people who identify with the gender assigned to them
at birth. The term transgender is an umbrella term commonly used to describe people who
identify with a gender opposite to the sex they were registered with at birth. For those not
identifying as either male or female, the term non-binary is used. As always, ask about
preferred forms of address.
Sexuality or sexual orientation is a person’s physical, romantic and or emotional attachment
to others, eg bisexual, gay, lesbian, straight. Transgender people may identify as any of these.

[Link] Gender neutral language

As part of ensuring that you use inclusive language, you should aim to use gender neutral
language where possible. Avoid gender biased words and expressions which may reinforce
gender stereotypes.
Examples:
• chairman, statesman etc
 Writing and Drafting 21

• mankind
• manmade
• manpower.
The use of some gendered nouns referring to job title or position such as actress, manageress
etc is outdated, and words such as actor, manager etc should be used regardless of sex or
gender.
There are many techniques that may be used to achieve gender neutral language, and the
choice you make should be determined by identifying the most effective, clear and concise in
each circumstance. If redrafting documents to ensure they are gender neutral, take particular
care that meaning and clarity are not compromised.

Repeat the noun

One of the simplest options is to repeat the noun rather than using a pronoun. This can work
well but tends to add length and detract from fluency. You can also use a defined term.

EXAMPLE
Annual salary, in relation to a person, means sums payable to him in connection with his
employment over the course of a calendar year.
Annual salary, in relation to a person, means sums payable to a person in connection with
the person’s employment over the course of a calendar year.

Pairing
Pairing is the use of both male and female pronouns (‘she/he’, ‘her/his’). It is the best choice
when you want to explicitly include both women and men or draw attention to the inclusion of
both. It is not a generally recommended practice as it adds length and is distracting to the
reader, particularly in texts where narrative is important. It may also risk creating
inconsistencies and inaccuracies.
Some writers alternate placement of male and female pronouns in order to avoid giving
precedence to either male or female. Again, while this may be a useful technique in some
circumstances, it also risks confusing or distracting. Another disadvantage of pairing is that it
is not fully inclusive.

EXAMPLE
When an apprentice accepts an offer of employment, he or she must be able to provide
proof of address and identity. To qualify for overtime payments, she or he must provide
written authorisation from a manager.

Change the pronoun

There are several ways in which you may change the pronoun used. The most common is to
use ‘they/them’. Care needs to be taken that using the plural form does not change the
meaning or lead to ambiguity.

EXAMPLES
It is an offence for a person to carry a prohibited article into the building unless he can
prove that he has a valid reason as set out in 5.3 below.
It is an offence for a person to carry a prohibited article into the building unless they can
prove that they have a valid reason as set out in 5.3 below.
22 Skills for Lawyers

A judge is required to familiarise himself with the rules on equality and diversity.
A judge is required to familiarise themselves with the rules on equality and diversity.

Use the pronoun ‘one’

EXAMPLE
A member of staff located outside London earns less than he would in London.
A member of staff located outside London earns less than one would in London.

Use the relative pronoun ‘who’

EXAMPLE
A person commits a breach of the terms of the agreement if he does not comply with the
provisions of paragraph 5.2 of this agreement.
A person who does not comply with the provisions of paragraph 5.2 commits a breach of
this agreement.

Use the gender neutral pronoun ‘ze’

The gender neutral pronouns ‘ze/hir’ or ‘ze/zir’ are also available and have the advantage of
not adding length. Their use is increasing but is not currently standard practice. Use of these
gender neutral pronouns avoids many of the problems associated with other gender neutral
solutions in drafting.

Omit the gendered word

EXAMPLE
An officeholder may be removed from office if he is convicted of a criminal offence.
An officeholder may be removed from office if convicted of a criminal offence.

Use the passive voice

While using the passive voice has disadvantages and can lead to a lack of clarity (see [Link]
above), it is another way in which you can avoid including gendered language. When using the
passive voice, make sure that it is clear who has to do what.

EXAMPLE
A complainant must supply written evidence of the situation he is complaining about.
A complainant must supply written evidence of the situation complained about.

EXERCISE 2
Rewrite the following using inclusive language. There may be more than one correct
answer. One or two suggested answers can be found in the Appendix to Part I.
(i) Before he is formally appointed, the candidate must have written approval from the
Chairman.
(ii) A person must be a permanent employee at the firm for 20 years before he may
apply for a long-term service benefit.
 Writing and Drafting 23

(iii) In the event of an absence, mothers should contact the receptionist before 09:00
and give her details of the child’s cause of absence.
(iv) The Managing Partner may remove a Committee Member from office if he has failed
to attend a meeting for a period of six months or more. The Managing Partner may,
at his discretion, appoint a replacement Committee Member for the remainder of
the calendar year.
(v) The appellant is a middle-aged man who is suffering from cancer. Since the accident
in 2020, he has been confined to a wheelchair and has been diagnosed as epileptic.

1.7 WRITING LETTERS

1.7.1 Who is the addressee?
Consider the needs of the reader and try to adapt your style accordingly.

[Link] The lay client

Avoid jargon and legalese when writing to a lay client. Explain all unfamiliar terms, but do not
patronise. How familiar is the client with the subject?

[Link] The business client and other professionals

The business client will generally be familiar with solicitors’ letters. Avoid padding and get to
the point quickly. Where necessary, explain legal terminology or process.

[Link] Other solicitors

What kind of matter are you dealing with? Are you writing from a position of strength or
weakness? Do you want to adopt a conciliatory or non-conciliatory stance? Consider which is
more likely to persuade the addressee. Remember that the other solicitor may send a copy of
your letter to their client.

1.7.2 ‘Ghosting’
You may be asked to write letters to be signed in a partner’s name. Read the file and consider
the partner’s style. Check how well the partner knows the addressee; for example, if you are
writing to a client, is the partner on first-name terms with them?

1.7.3 Starting and ending the letter

Letters beginning ‘Dear Sirs/Sir/Madam’ all end ‘Yours faithfully’.
A letter addressed to a person by surname, for example ‘Dear Mr Smith’, ends with ‘Yours
sincerely’.
A letter beginning ‘Dear John’ may end with ‘Yours sincerely’ or ‘Yours’.

1.7.4 Content
[Link] Consider overall structure
An initial heading identifying the matter is conventional. For example:
Sale of 25 Acacia Avenue, Bristol
A complex letter will be easier to understand (and reply to) if you give each paragraph a
number and a heading.

[Link] Form and style

If you are writing in the firm’s name (eg, a formal letter to the other side), write in the first
person plural (‘we’) and be consistent.
24 Skills for Lawyers

Acknowledge the addressee’s last communication.

If it is your first letter to the addressee, explain your involvement.
State the purpose of the letter.
Carry out that purpose using:
• logical sequence;
• separate paragraphs;
• short sentences;
• active voice.
Write in a restrained tone. Avoid overemphasis (eg, unnecessary adverbs – ‘totally unhappy’,
‘completely inaccurate’). Use exclamation marks sparingly. Do not express surprise,
amazement, outrage, etc.
Avoid jokes and witticisms.

1.7.5 Some practical points

[Link] Second thoughts and editing
• Try to be detached about your document.
• How would it sound if read out in open court in the future?
• Try not to write in anger or when emotion is running high. If unavoidable do not send
anything until you or a colleague have had a chance to review it.
• Consider giving a deadline for a reply (eg, if the matter is urgent or if the letter might be
unwelcome).
• If you have asked a client to do something, make sure your instructions are clear.
Consider ending with a list or table summarising the action points.
• Check the grammar and spelling.

[Link] Final checks

Check that the letter:
• carries the correct references (ie, yours and those of the other side);
• is dated;
• is signed;
• is accompanied by the right enclosures;
• is put into the right envelope, and is properly addressed.

1.8 WRITING REPORTS AND MEMORANDA

1.8.1 Reports
[Link] Purpose
Reports usually cover a specific subject and serve a particular purpose. In the office, you may
have to write a report on some legal research or fact-finding you have been asked to
undertake.

[Link] Is your research complete?

Consider whether you have all the necessary information and identify any gaps.
 Writing and Drafting 25

[Link] Edit your material

Consider how much information should go into the report. Brevity increases the likelihood of
the report being read, but too little information and your conclusions may not be adequately
supported and the document may be less persuasive.

[Link] Planning your report

Plan the text of your report carefully to produce a logical argument.
Consider what will be the most useful structure for the reader. For example, if you were asked
to answer specific questions, could you use these to head paragraphs of your report?
Consider including:
• a contents page or an index;
• an introduction explaining why the report was commissioned;
• a brief summary of the report before the main text for quick reference;
• diagrams (if relevant);
• case or statute references (if relevant);
• a bibliography;
• appendices;
• acknowledgements of sources of information.

[Link] Style
For whom are you writing? Adapt your style appropriately.
Think about whether you should paraphrase or explain your source material, or whether you
can reproduce it word for word.

[Link] Layout and presentation

Make sure the report is well set out, with clear headings and numbered paragraphs and
subparagraphs if appropriate.
Is it to be used as a discussion document? If so, consider having it printed double-spaced with
wide margins to leave room for annotation.

[Link] Final checks

Print the report and read it through carefully, amending and rewriting where necessary.
Check that you have:
• done what you were asked to do;
• identified any relevant options;
• reached a conclusion.

1.8.2 Memoranda
[Link] Types of memoranda
Solicitors generally have to write two types of memoranda:
• attendance notes (as a record of their meetings or telephone calls with clients, other
solicitors, etc);
• internal memoranda (as a quick way of communicating with others in the firm).
26 Skills for Lawyers

[Link] Attendance notes

Attendance notes are put on a file as a record of an oral discussion, transaction or agreement
and must be clear and accurate in case of any later dispute.
They are essential for anyone who takes over a file and was not present for the meeting,
telephone call, etc.
They may also be needed when a client’s bill is prepared as part of the record of chargeable
time spent on the matter.
Write your attendance note as soon as possible after the event when everything is fresh in your
mind and you are less likely to have forgotten something.
Always try to take contemporaneous notes – in a simple case, you can put them straight on the
file. For more complicated matters, you can use your notes to compile your attendance note,
but do not destroy them: they are important additional evidence in any dispute.
An attendance note should normally contain the following:
• the client’s name;
• the subject matter;
• your reference;
• the date;
• the place (of any meeting);
• the people present (at a meeting);
• the starting and finishing times (of the meeting or phone call);
• a summary of what was discussed or agreed;
• any follow-up action to be taken by you or others.
If your attendance note records an important decision or agreement, always confirm it by
letter to avoid misunderstandings.

[Link] Internal memoranda

Keep internal memoranda brief and business-like, but take care with the tone. If a memo
sounds curt, you may cause offence to the recipient.
The format required is generally as follows:
MEMORANDUM
From:
To:
Fee earner’s reference:
Date:
Client’s name:
Client’s matter:
Most firms use printed forms on which these headings already appear.

1.9 SPELLING AND GRAMMAR

Poor spelling and grammar will undermine the authority of anything that you write. Poor
grammar is at best distracting and likely to leave a poor impression. At worst it may alter the
meaning of a document and render it ineffective. The following exercises allow you to test
your grammar. If you find that you have scored poorly then refresh your understanding using
any of the books contained in the further reading section or using one of the many Internet
resources on grammar which are freely available (eg, [Link]/skillswise/topic-group/
word-grammar).
 Writing and Drafting 27

EXERCISE 3
Spelling
Which one of the following is correctly spelt?

(i) acomodation accommodation accomodation

(ii) unneccessary unneccesary unnecessary
(iii) privilege priviledge privelige
(iv) embarrass embarras embarass
(v) professor proffessor profesor

Apostrophes
Add apostrophes where necessary in the following sentences:
(i) Whos likely to be delayed by a few minutes of rain?
(ii) Weve always valued both the local Gardening Institutes lectures.
(iii) Im sure he said its a ten oclock train we need to catch.
(iv) The childrens enjoyment of the fair was greater than ours.
(v) The girls football shirts hung on pegs in the cloakrooms main aisle.
Other punctuation
Add a comma or full stop beneath the *:
(i) MARY DAVENPORT WRITES WELL * HOWEVER, LUCIEN GRANT HATES WRITING.
(ii) MY PRINCIPAL AREA OF SPECIALITY IS TAX * MY SECOND SPECIALITY IS FINANCE.
Add full stops and capital letters to:
(iii) The trainee was quite clear that he needed to work harder if he wanted to get taken
on it was quite possible for the firm to hire all the trainees that year his friend had
already been given an indication that he would be offered a job and he had been
working really long hours.
Add commas to:
(iv) Edward O’Grady however always wanted to surf the Internet rather than do his
work.
(v) The solicitor walked up to her office opened the door took off her coat and slumped
into her chair.
(vi) For business meetings the firm offered tea coffee water fruit juices biscuits and
sandwiches.
Add semi-colons to:
(vii) I read the Legal Times before work every day it keeps me on top of changes in the
law.
(viii) The employer wrote to the employee to complain about his time keeping workers
ought to know that starting work on time is essential.
28 Skills for Lawyers

EXERCISE 4
(a) Identify the errors in the following paragraph.
(b) Then try rewriting the paragraph using the rules and recommendations set out in
this chapter.
I am writing with reference to your enquiry concerning the use of the entrance area and
hallway at the gallery for the purpose of displaying informational materials and presenting
visual displays on the subject of recycling. In the circumstances the central question will
be whether the internal content origins and visual qualities of the material hereinbefore
mentioned are to be felt to be appropriate after due consideration has be given by the
Gallery Board, such permissions are at the sole dicretion of the board. The Boards decision
concerning any such request will be made after it has met in session on the first Thursday
of each calendar month and notification will be sent within 14 days of the said meeting.