These posts have been filed under: ‘writing’.
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.
It is often useful to number issues or similar topics. It provides structure and organisation. For example, in a written submission it is common to see something like:
Issues
- Was Mr Smith an employee of Widget Makers Incorporated?
- Did the letter sent by Mr Jones to Mr Smith comply with the requirements of a Step 1 letter under the Standard Dismissal and Disciplinary Procedure?
- Did the decision to dismiss Mr Smith fall within the range of reasonable responses?
- Should Mr Smith’s compensatory award be reduced to reflect his contribution to his dismissal?
But always remember that the point of doing this is to make things easier, not to introduce a new source of potential confusion.
If your written submissions list a set of issues on page 2, then on page 11 you refer to ‘Issue 3′, there is a good chance that the person reading it will not remember what that issue is. They will have stop reading, break their train of thought, and flip back to page 2. Or they may press on, uncertain of what you are getting at, but hoping that it will become clear from what comes next. Neither of these possibilities is a good thing.
The solution is to refer to the nature of the issue as well as the number. For example:
Issue 3: Range of reasonable responses
Submissions arguing that dismissal fell outside the range of reasonable responses.