Handbook of Communication in the Legal Sphere

Jacqueline Visconti

• Publisher: De Gruyter Mouton
• Year: 2018
• Print ISBN: 9781614516699
• eBook ISBN: 9781501501104
• Edition: 1
• Topic: Languages & Linguistics
• Subtopic: Linguistics
• Index: Languages & Linguistics

This volume explores communication and its implications on interpretation, vagueness, multilingualism, and multiculturalism. It investigates cross-cultural perspectives with original methods, models, and arguments emphasizing national, EU, and international perspectives. Both traditional fields of investigations along with an emerging new field (Legal Visual Studies) are discussed. Communication addresses the necessity of an ongoing interaction between jurilinguists and legal professionals. This interaction requires persuasive, convincing, and acceptable reasons in justifying transparency, visual analyses, and dialogue with the relevant audience.
The book is divided into five complementary sections: Professional Legal Communication; Legal Language in a Multilingual and Multicultural Context; Legal Communication in the Courtroom; Laws on Language and Language Rights; and Visualizing Legal Communication. The book shows the diversity in the understanding and practicing of legal communication and paves the way to an interdisciplinary and cross-cultural operation in our common understanding of legal communication. This book is suitable for advanced students in Linguistics and Law, and for academics and researchers working in the field of Language and Law and jurilinguists.

Part I:The foundations of legal language

Christopher Williams

1Legal drafting

1Introduction

The history of legal drafting is as old as the history of written law itself, stretching back to at least 3000 BC in the case of Ancient Egyptian law. The Codex Hammurabi in Babylonia dates back to approximately 1760 BC. Ancient India and China also had flourishing legal systems centuries before the Roman Empire developed the system known today as Roman law (which in turn was heavily influenced by the Greek model), while Islamic law evolved from the early Middle Ages. The common law system is generally considered to have originated in the twelfth century.

The Western traditions of legal drafting largely evolved in the ecclesiastical, royal, feudal, and municipal chanceries and law courts of medieval Europe when the so-called ‘chancery style’ was forged. This style was characterized by many features which make legal documents hard for laypersons to understand. Reactions against the difficulties of reading legal documents are long-standing (especially during the Enlightenment period in German-speaking lands as far as legislative texts are concerned). However, some chancery-style features still linger in various countries such as the excessive length of texts, the complexity and excessive length of sentences, and the persistence of ritual features and archaisms (and Latin) in the vocabulary. For further details on the history of legal drafting see, e.g., Mellinkoff (1963) or Tiersma (2012).2

According to Black’s Law Dictionary (2004: 531), legal drafting refers to the “practice, technique, or skill involved in preparing legal documents – such as statutes, rules, regulations, contracts, and wills – that set forth the rights, duties, liabilities, and entitlements of persons and legal entities.” We are therefore dealing with a highly formal and complex style of writing that has developed over the centuries where extreme precision and detail are usually required, also because the text has to withstand critical scrutiny from legal practitioners, notably lawyers and judges. As Mellinkoff (1983: 15) observed: “Some day someone will read what you have written, trying to find something wrong with it. This is the special burden of legal writing, and the special incentive to be as precise as you can.” On the other hand, the text needs to be sufficiently flexible so as to apply to all manner of situations that may arise (Mattila 2013). Hence the recourse not merely to technical ‘terms of art’ which generally have a very specific meaning – even if such terms in actual fact “make up a negligible portion of legal documents” (Bivin 2008: 12) – but also to so-called ‘vague terms’ (Endicott 2011), particularly adjectives such as ‘reasonable’, ‘reckless’, ‘prompt’ or ‘fair’, or the abundant use in contracts of ‘any’ and ‘or’ (Adams 2008: 195–210; Burnham 2003: Chapter 7.4.2; Burnham 2009: 258; Coulthard and Johnson 2007: 40). Finding the right balance between the need for precision and flexibility is no easy matter: in contract drafting, for example, Barton, Haapio and Borisova (2015: 8) affirm that “[t]he wrong sort of flexibility in a contract may lead to higher costs and frustration; the right sort of flexibility may enable better commercial relationships.”

In Section 2 of this chapter I analyse in more detail some of the key features of legal drafting: in particular I examine some of the characteristics distinguishing legislative drafting from contract drafting.

In Section 3 I briefly outline some of the similarities and differences between the drafting style of the civil law system – which is based on Roman law – and that of the common law system which operates in most of the English-speaking world. For reasons of space other major legal systems such as Islamic law are not taken into consideration.

In Section 4 I examine the way legal drafting has evolved in the English-speaking world, largely as a result of the pressure exerted by proponents of the phenomenon known as ‘plain language’ which has impacted in many ways on how legal texts tend to be written these days. The case of legal drafting in the English-speaking world is especially interesting precisely because the style has changed noticeably over the last few decades, with a shift away from old-fashioned ‘legalese’ towards a more modern style based on standard formal English, whereas the change in drafting style in civil law countries (which includes most European nations) has, on the whole, tended to be less noticeable, arguably because the question of modernizing the legal language of civil law-based countries is perceived as being less urgent than it is in common law countries.

I also point out that within the sphere of legal drafting in the English-speaking world progress has not been uniform. For example, the precepts of plain language have generally affected legislative drafting to a greater degree than they have in the field of contracts (Williams 2011: 146). Moreover, within the realm of legislative drafting, it would appear that international bodies such as the European Union or the United Nations tend to adopt a rather more conservative drafting policy than individual nations, partly because of the complexities involved in drafting texts in a multilingual environment which may well encourage a more cautious approach among legal drafters (Williams 2011: 149).

In Section 5 I briefly analyse possible developments for the future of legal drafting, with particular reference to the impact of information technology on the way legal drafters write and how their work is increasingly under the scrutiny of growing numbers of experts and non-experts alike. I also draw my overall conclusions concerning legal drafting.

In the Appendix I attempt to identify some of the major strands in the vast literature on legal drafting which I have classified into five groups, namely, works dealing with

1)legal drafting in general;

2)legislative drafting;

3)contract drafting;

4)geographically-specific works on legal drafting (i.e. relating to a particular country or organization);

5)legal drafting and plain language.

Clearly, many works cut across more than one category, but I have tried to identify the aspect I deem to be key to each work.

2What legal drafting is about

The expression ‘legal drafting’ comes within the broader category of legal writing which in turn comes within the realm of specialized forms of written communication. Legal writing tends to be split into two categories: legal analysis and legal drafting. The former includes certain types of law-related documents such as memoranda (which may serve a variety of purposes, for example, as records of research carried out on a given legal question) or letters to clients, as well as more ‘persuasive’ forms of communication such as appellate briefs or negotiation letters written on behalf of clients in their defence. This type of legal analysis tends to be the variety of written communication most extensively taught in American law schools and is primarily carried out by (practising or would-be) lawyers.3 Legal drafting, on the other hand, is concerned with preparing texts which are drawn up to be legally binding by establishing sets of rules or laws designed to govern or regulate the conduct of a given group of individuals or community or, for example in the case of a contract, between two or more parties. Such texts may be enforced by a controlling authority, e.g. a court of law.

Another important distinction between legal drafting and legal writing is that “drafting has to be able to stand the test of time because drafting is a future-oriented endeavor whereas most legal writing deals with past events” (Espenschied and Luna 2013: 544).

Those actively involved in the legal drafting process are not only lawyers (generally the persons responsible for drawing up contracts or wills), but also professional drafters, especially in the preparation of legislative texts. If we include the preparation of court rulings within the category of legal drafting, given that a court decision is legally binding and needs to be written down, then to that extent judges may also be considered as carrying out the role of legal drafters. It should be borne in mind that in a common law jurisdiction such as that of England and Wales, as Bates (2009: 2) observes, “[j]udicial decisions may be the basis of significant areas of law, either solely or in conjunction with subsequent legislation. Judicial decisions are also often an important, although not necessarily exclusive, legal basis for the general principles applied in the interpretation of legislation, and they determine the interpretation of specific legislative provisions.”

Other definitions relating to legal drafting may differ with respect to the basic outline given above. For example, Xanthaki (2013c: 57) argues that “[l]egislative drafting must be distinguished from legal drafting, which involves the construction of a text used in the judicial process.” However, she later qualifies that statement by affirming (Xanthaki 2013c: 57–58) that “of course this does not mean to say that drafting is completely foreign to the legislative process. In fact, the drafting process is part of the legislative process, which in turn is part of the policy process.”

The exceptionally formal and often highly complex style of legal drafting has evolved over time. It requires special training and a combination of skills which, as mentioned above, include an attention to detail but also ensuring that the text may be valid in all foreseeable circumstances. These skills and the prestige attached to the profession have long been acknowledged, as is highlighted in this memorable quote from Mayer (1966: 50–51):

Intellectually, the draftsman’s skills are the highest in the practice of law. Judges at bottom need merely reach decisions […]; negotiators and advocates need understand only as much of a situation as will gain a victory for their clients; counselors can be bags of wind. […] But the documents survive, and to draw them up well requires an extraordinary understanding of everything they are supposed to accomplish. […] Probably the greatest compliment a lawyer can receive from his profession (a compliment never publicized) is an assignment to draft a major law.

A less idyllic view of the context in which the legislative drafter operates has been expressed recently by Widiss (2015: 96) who reiterates the famous simile attributed to Otto von Bismarck: “For well over a century, we have been warned that because laws are like sausages, it is better not to see them being made. The contemporary Congress – notorious for its gridlock and dysfunction – might seem to argue this approach all the more strongly.” And in contract drafting, Adams (2008: xxv) argues that “lawyers are coming to be seen as impediments to business rather than facilitators” given that a business contract “will almost certainly be cluttered with deficient usages that, collectively, turn prose into ‘legalese’”.

There is also an ongoing debate as whether legal drafting should be viewed as an art, a science, or a craft, and whether or not a drafter should be seen as essentially an expert ‘technician’ or as something more – see, for example, Adams (2007: 20); Bowman (2005); Haggard and Kuney (2007: 125); Markman (2001) – but a detailed analysis of this debate is beyond the scope of this chapter.

2.1Comparing legislative drafting and contract drafting

If legal drafting as a whole is concerned with writing texts that are legally binding and future-oriented, there are, however, some major differences in the professional contexts in which the various types of drafters operate. We can make a rough-and-ready distinction between legislative drafters on the one hand and contract drafters on the other. The precise duties and professional role of a legislative drafter tend to vary considerably between one country or organization and another, reflecting the specific legal culture and tradition of that country or organization. In the UK, for example, the legislative drafter is a civil servant working for the Office of the Parliamentary Counsel. Bates (2009: 5) points out that most legislative drafters began their careers as lawyers:

The drafters are traditionally recruited after some years in private practice. There is no formal induction course for new recruits and the drafters acquire their knowledge on an “apprenticeship” system. Drafting is most commonly undertaken in teams of two drafters, with a junior drafter and a more senior experienced drafter; and drafters do not specialise in substantive areas of law but are allocated instructions as they are received.

Seen from a worldwide perspective, however, not all legislative drafters come from a legal background. For example, Ehrenberg-Sundin notes (2004) that in Sweden legislative drafting is carried out by language experts and lawyers working as a team in the Division for Legal and Linguistic Draft Revision in the Ministry of Justice:

There are five language experts ...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• List of Figures
• Introduction
• Part I: The foundations of legal language
• Part II: Forensic linguistics and court setting
• Part III: Legal language outside of court
• Part IV: International legal settings
• Biographical notes
• Index