I’ve just read the best advice I’ve ever seen on this subject in Bryan A Garner’s book The Elements of Legal Style (2nd ed., OUP 2002, p.207). It’s worth quoting at some length:

Gender-neutral language isn’t about political correctness; it’s about credibility. Regardless of how you may feel about the old “rule” that the masculine he includes the feminine she – whether you detest it or you like it – you’ll need to handle the English language with some care to have credibility with a wide range of readers.

This isn’t an easy task. On the one hand [some] readers …. will think you’re crazy if you write he/she, s/he, or (s)he. They’ll know you’re crazy if you write – as one book author has – s/he/it. On the other hand, [readers of a different sort] will think you’re a troglodyte if you use he to refer to readers generally – as if the feminine were the unstated exception swept into the masculine rule of our language.

Is there no way to win over your readers, then?

Yes, there is. It takes some skill and a lot of effort. With those two things, you’ll be able to produce a style that never induces readers to consider your personal biases. If your point is that you want to induce this reaction, then you’re rebuffing some of your readers – something you may willingly do unless you have a client whose money and perhaps even freedom are on the line. If you’re trying to persuade someone on a point unrelated to sexist language, then the issue shouldn’t even arise.

Garner goes on to demonstrate various specific techniques: weeding out pronouns (e.g. ‘a claimant in this situation should do this or that’ instead of ‘if a claimant is in this situation, he should do this or that’); pluralising (‘if claimants are in this situation, they should do this or that’); using the 2nd person and imperative voice (‘if you are in this situation, do this or that’); and several others.

But his key insight is that – if you are writing on someone else’s behalf, and seeking to persuade – it doesn’t matter whether the feminists or the troglodytes are right. What matters is that if you side visibly with either, you’ll risk annoying someone. The only way to be reasonably sure not to annoy any reader is to make the issue disappear from sight.

The opposite of ‘unfair’ is ‘fair’. Not ‘not unfair’.

So write “The Respondent has not shown a fair reason for the dismissal”, rather than “The Respondent has not shown a not unfair reason for dismissal”.

Double negatives aren’t necessarily sinful, but they should not be used without care.

Often, while writing, you will leave gaps to fill in later.

It is useful to have a standard bit of text, such as ‘xxx’ to use as a placeholder. Every time you leave a gap, use a placeholder to mark it. Then you can use the ‘find’ or search function to quickly locate the gaps.

This has two useful functions. Firstly, you can quickly find out what you have left to do. Secondly, when you think you are finished, you can check that there is nothing left undone.

Quite a lot of material presented to tribunals is illegible.

There are good reasons for this. Many documents produced out in the real world are written under significant time pressure and in less than ideal circumstances. Notes written during, say, a disciplinary hearing are unlikely to be written in a clear round hand. Particularly if the meeting was tense.

On the other hand, a surprising number of ET1 and ET3’s require a magnifying glass and some time to decode.

If you have bad handwriting it is worth typing as much as possible. If this is not possible, you must just take as long as it takes to produce a legible document.

When dealing with existing documents that are particularly hard to read, the sensible approach is to produce a typed version. In most cases you should be able to agree its accuracy with the Respondent. Even if you can’t, it is worth doing. The tribunal can always check the accuracy against the original if there is a problem.

Intensifiers are adverbs intended to strengthen adjectives.

For example, writing ‘very unfair’ instead of ‘unfair’ should suggest that whatever you are referring to is more than ordinarily unfair. Similarly, you might write ‘extremely unfair’ or ‘astonishingly unfair’.

Unfortunately, due to a quirk of human psychology, this does not work. It actually has the reverse affect. To a reader sentences like:

Their behaviour was extremely unreasonable.
That was very unfair.
I was tremendously upset.

Are less convincing and less strong than:

Their behaviour was unreasonable.
That was unfair.
I was upset.

Most of us have words and phrases that we overuse.

For example, I have a tendency to start sentences with ‘clearly’ when writing submissions: as in ‘Clearly my client is right and should win his case’.

This is not a good idea. Either something is clear or it isn’t. If it is, it doesn’t need saying. If it isn’t, suggesting that it is will hinder rather than help. Even if, occasionally, ‘clearly’ is useful, overusing it is distracting and annoying.

So, during the editing phase, I go through and take out most of the ‘clearly’s

Different people have different ticks. It is worth figuring out what yours are and keeping an eye on them.

One of points made by the last post is that legal writing should be short.

The post itself is a good example of how much can be lost from most first drafts. The first attempt was 124 words. By judicious pruning and removing one unnecessary sentence it was cut to 78 words.

One common mistake in legal writing is excessive length. One of the causes of this is redundant phrasing.

For example:

We will provide a written witness statement.

This sentence is one word too long. There is no need to indicate that a witness statement will be written. What else could it possibly be?

This seems pernickety. In a sense it is, but if every other sentence is a word or two too long, the cumulative effect will be significant.

You will often hear people in tribunal saying ‘That begs the question’. Almost all of them are misusing the phrase.

‘Begging the question’ is a term from philosophy, specifically logic, that has a technical meaning. It means to advance an argument in which the conclusion is already contained within the premises.

This is easier to see in an example:

Only thieves steal things.
I am not a thief.
Therefore I didn’t steal that money.

Here I am trying to prove that I did not steal some money. But if you examine my statement ‘I am not a thief’ it means ‘I am not a person who has stolen things in the past’. It assumes the truth of the conclusion I am trying to prove. It begs the question.

The vast majority of people do not use it in this sense, but to mean ‘That leaves an important question unanswered’. For example: ‘That begs the question; why were you in the vault with a bag of money?’

Unfortunately, this is a no-win situation. If you use the phrase correctly, most people (including lawyers and judges) will not understand you properly. If you use it incorrectly, you may cause a wince if somebody does know the correct definition. At worse, some people will think you mean one thing and some will think you mean another.

Therefore, if you want to say that your opponent’s propositions presume his conclusion, say ‘His argument is circular’. If you want to say that your opponent has left important questions unanswered, say ‘He leaves important questions unanswered’.

Do not use them. You will look overexcited! Overeager! And quite possibly out of control!

Seriously, exclamation marks are not generally appropriate in legal writing.

They should never be used in pleadings or witness statements. You might occasionally use them in submissions, but very rarely. Unless you are reasonably experienced and confident you are a reasonably good writer it is best to swear off them altogether.