Oregon State Barplain english for lawyers
Oregon State Barplain english for lawyersDoesnt the writer really mean that neither partyis allowed toassign the agreement? If thats what she means, she should simply use the wordmay.
There are so many things wrong with that sentence, its almost hard to know where to begin. But lets set aside the bad advice and focus here the unnecessary proviso. Lawyers use provisos for a lot of things, but their result is often to turn a perfectly reasonable sentence into a long, almost indecipherable tangle.
Neither party shall assign this Agreement, directly or indirectly, without the prior written consent of the other party.
This last example is particularly bad because the first proviso meansind the second meansalso.
While some lawyers will tell you that wordnumeral doublets prevent discrepancies in numbers, Im not sure this is true. After all, what if a lessee agrees to pay a lessor one thousand and no/ dollars .. Doesnt this just open up a world of problems that didnt exist before you decided to double up? Of course, the possibility for getting the number wrong is still there if you use just the numeral which is a great reason to double and even triplecheck your work. But its just not a great reason to use a wordnumeral doublet.
Now that you know what my student meant by plain English, what do you think? Are we actually still in love with legalese?
Megan McAlpin teaches legal research and writing at the University of Oregon School of Law. You may contact her at . Shed love to hear your thoughts on legalese.
Provisos in legal writing are not necessary provided, however, that if a writer cannot find another way to express an exception, then the writer shall use a proviso to express said exception.
Note If you are having a panic attack about separating your rule and your exception with a period, take a deep breath. Its okay. The exception is still there and, better yet, its now expressed in a way
ExampleProvisos in legal writing are not necessary. However, if a writer cannot find another way to express an exception, the writer can use a proviso.
Of course, there are times whenshallreally does meanhas a duty to.But in that case, wouldntmust,will, oriswork? After all, courts in almost every jurisdiction have held at various times thatshallcan meanmust,may,will, andis. Wouldnt it be smarter for you to decide what you actually mean rather than waiting for a court to decide for you?
And it can meanalso.Employer will pay Employee on the st and th of each month, provided that Employee is a fulltime employee; and provided further that Employee signs her time sheet and delivers it to payroll by the th and th of each month.
None of these phrases has any legal significance. They can all be easily replaced. Just do it.
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The Family Medical Leave Act FMLA provides unpaid leave to employees under certain conditions.
Because provisos can mean different things, you just shouldnt use them. Rather than using provisos, simply say what you mean. If you meanexceptsayexceptor maybe even find a more precise word!
Midway through a recent conversation with a doctor, I realized that I had no idea what he was saying. At one point, I was convinced that he wasnt even speaking English. Well, he was speaking English, but it was so laced with medical jargon that I couldnt understand it.
For years, I assumed there was some magic in the wordnumeral doublet. After all, every contract I ever read contained them. And, besides, when I write checks, I write out both the numeral and the word, right? Must be magical.
Lawyers use the wordshallin writing, even when they would never speak the word in conversation. The most obvious reason the one on the tip of your tongue right now is thatshallis a mandatory word. And, while its true thatshallmeanshas a duty to, we dont always use it this way. Consider the following sentence
Giving your reader just this little extra help will ensure that she wont stumble on the acronym for even a moment.
Would you be confused if, three paragraphs from now, I referred to this article rather than Article? Would you wonder whether I really meant another article? Probably not. But, if you would if there is a genuine chance that your reader might be confused using a parenthetical shorthand name might be helpful.
Using a parenthetical shorthand name might also be useful where you are planning to use an acronym. Now, be careful here, too. No one likes to read a full of alphabet soup. But where you want to use a welleslished acronym, you may want to spell it out first. For example, if youre going to refer to the Family Medical Leave Act as FMLA, then you probably want to do this
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It can meanexceptas it does in that ugly sentence above.
Well, as it turns out, its not. The wordnumeral doublet probably began as a safeguard against altered documents, but legal documents are a lot less susceptible to manipulation today. Unlike checks, which are still handwritten. That initial numeral could still be changed pretty easily. But, really, who writes checks anymore anyway?
Recently, a student asked me what real lawyers would think of the plain English agreement he was drafting. He worried that prospective employers would question his abilities if they saw a document completely devoid of any. So, the question is, do lawyers actually like plain English? Or are we still in love with legalese? Take a look at these tips for avoiding legalese, and then decide do you really prefer plain English?
that your reader can more easily understand it.
Dont Habitually Use Parenthetical Shorthand Names.
It can meanif. Provided that the Employee meets the qualifications, she may participate in employee benefit programs eslished by Employer.
A proviso is any phrase that begins withprovided that.Take, for instance, the following dreadful proviso
This article hereinafter Article has attempted to list several of the more egregious forms of legalese hereinafter Legalese, but some s of Legalese arent really legalese at all, but just bad lawyer habits hereinafter Bad Habits.
We lawyers have a jargon of our own. The problem, especially for law students and new lawyers, is distinguishing between terms of art, which you cant replace, and legal jargon, which you can. Consider a few examples of replaceable jargon
While sometimes its useful or even necessary to use a parenthetical shorthand name, it isnt always.
Bryan A. Garner,Legal Writing in Plain English A Text with Exercises
In addition to a sentence unreasonably long, a proviso can be problematic because the phrase provided that can mean at least three different things.
One of the more puzzling habits of legal writers is the use of three words to say what one word could. Consider the employment agreement where the employer employs, engages, and hires an employee. Is there a reason that the employer cant just employ the employee? And what about the will in which the testators give, devise, and bequeath? Wouldnt just one of these do the trick?
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