The Grammar of Legal English
A misplaced comma may cost millions of dollars. Literally. This is the key takeaway from the famous contract dispute between two Canadian companies, Rogers v Aliant.
So how can you, a non-native lawyer working with English legal texts, ensure that your writing is grammatically correct and no comma is misplaced? In this post, we will:
So how can you, a non-native lawyer working with English legal texts, ensure that your writing is grammatically correct and no comma is misplaced? In this post, we will:
How the Grammar of Legal English is Different from the Grammar of Ordinary English
Grammar of Legal English
Being a sublanguage of ordinary English, Legal English twists and bends the grammatical forms of everyday language. Lawyers express their ideas using obscure or even archaic ways, as well as use well-known grammatical structures in unusual contexts.
Let's look at some examples:
Let's look at some examples:
- the verb 'shall'
- the present perfect tense
- hereof, whereof and other here-, where- and there- words.
The Verb 'Shall'
Consider, for example, the following sentence:
'This Agreement shall remain in full force until all the payments have been made in full',
which is a simplified version of a sentence from a real pledge agreement:
'This Agreement shall remain in full force until all the payments have been made in full',
which is a simplified version of a sentence from a real pledge agreement:
“
This Agreement shall create a continuing security interest in the Collateral and shall remain in full force and effect until all the Obligations have been paid in full in cash in accordance with the provisions of the Credit Agreement and the Commitments have expired or have been terminated.
First, we stumble upon the verb 'shall', which is rarely used in everyday language but is one of the most popular verbs of Legal English. Why do lawyers love 'shall'?
You may remember from your beginner-level English lessons that 'shall' is a modal verb used to express intentions of the speaker (as in 'I shall go the restaurant tomorrow') or someone else's obligations (as in, 'You shall go to school tomorrow'). It appears, however, that the majority of English speakers have never strictly followed these grammatical rules, and in modern everyday English, 'will' is more common in nearly all uses (see the usage guide on 'shall' in Merriam-Webster dictionary here).
Lawyers, being the most pedantic users of the English language, have decided that the grammatical rule cited above shall be followed strictly, and they use 'shall' in their writings extensively. So extensively that, in fact, many authorities on legal writing are now recommending to do away with 'shall' entirely (see, for example, US Government's guidelines on plain language, The Federal Register Documents Drafting Handbook or this article by the prominent US legal writing authority Brian A. Garner in the ABA Journal). Others, including another well-known US legal writing expert, Ken Adams, recommend keeping 'shall' in your contracts but limiting its use to several select situations.
You may remember from your beginner-level English lessons that 'shall' is a modal verb used to express intentions of the speaker (as in 'I shall go the restaurant tomorrow') or someone else's obligations (as in, 'You shall go to school tomorrow'). It appears, however, that the majority of English speakers have never strictly followed these grammatical rules, and in modern everyday English, 'will' is more common in nearly all uses (see the usage guide on 'shall' in Merriam-Webster dictionary here).
Lawyers, being the most pedantic users of the English language, have decided that the grammatical rule cited above shall be followed strictly, and they use 'shall' in their writings extensively. So extensively that, in fact, many authorities on legal writing are now recommending to do away with 'shall' entirely (see, for example, US Government's guidelines on plain language, The Federal Register Documents Drafting Handbook or this article by the prominent US legal writing authority Brian A. Garner in the ABA Journal). Others, including another well-known US legal writing expert, Ken Adams, recommend keeping 'shall' in your contracts but limiting its use to several select situations.
The Present Perfect Tense
Look again at the example sentence:
'This Agreement shall remain in full force until all the payments have been made in full.'
Note the use of 'have been made', which is the verb 'to make' in the present perfect tense. In ordinary English, present perfect is supposed to express an action or state begun in the past and completed at the time of speaking (as in, 'I have finished') or continuing in the present (as in, 'We have lived here for several years'). In this contract clause, however, it surely expresses a state in the future and is used to create a condition affecting the term of the agreement.
Note that it is also possible to use the present simple tense to convey the same meaning:
'This Agreement shall remain in full force until all the payments are made in full.'
'This Agreement shall remain in full force until all the payments have been made in full.'
Note the use of 'have been made', which is the verb 'to make' in the present perfect tense. In ordinary English, present perfect is supposed to express an action or state begun in the past and completed at the time of speaking (as in, 'I have finished') or continuing in the present (as in, 'We have lived here for several years'). In this contract clause, however, it surely expresses a state in the future and is used to create a condition affecting the term of the agreement.
Note that it is also possible to use the present simple tense to convey the same meaning:
'This Agreement shall remain in full force until all the payments are made in full.'
Hereof, whereof, and the others
As yet another example of the peculiar Legal English grammar, consider the following sentence often found before the signatures in traditional style contracts:
“
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written.
Note the use of 'whereof' and 'hereto' which are rarely used in ordinary English but feature prominently in Legal English. Their primary function is to replace wordy expressions like:
'the parties to this Agreement'
with their shorter equivalents:
'the parties hereto'.
Note also the unusual word order in 'the date first above written', which differs from the usual English word order. The reason for such unusual structure probably lies in history – Legal English has one of its roots in the Anglo-Norman language, which is a dialect of Old Norman French.
'the parties to this Agreement'
with their shorter equivalents:
'the parties hereto'.
Note also the unusual word order in 'the date first above written', which differs from the usual English word order. The reason for such unusual structure probably lies in history – Legal English has one of its roots in the Anglo-Norman language, which is a dialect of Old Norman French.
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Plain Language Movement and the Grammar of Legal English
Legal English is not legalese. As mentioned earlier, many authorities on legal writing recommend doing away with 'shall' and other peculiarities of Legal English. If legal language is getting closer to ordinary English, is there any point in studying the grammar of Legal English at all?
We believe that, despite all the successes of the plain language movement, it is still essential for international lawyers to master the grammar of traditional Legal English. There are two primary reasons for this:
In other words, it is a good idea to master traditional Legal English before embarking on the journey of making your legal writing conform to the Plain Language standards.
We believe that, despite all the successes of the plain language movement, it is still essential for international lawyers to master the grammar of traditional Legal English. There are two primary reasons for this:
- Although it may seem otherwise, writing legal texts in plain language is more challenging than writing them in traditional Legal English. It does not mean that you should not try writing in plain language, rather that it is almost impossible to master the rules of plain writing before learning traditional Legal English.
- It is nearly a certainty that in the real world, you will be working with traditional Legal English rather than with plain English. To be an effective lawyer, you need to be comfortable reading and writing in conventional Legal English.
In other words, it is a good idea to master traditional Legal English before embarking on the journey of making your legal writing conform to the Plain Language standards.
Exercises and Other Resources on Legal English Grammar
There is no lack of grammar advice out there. Below are some of our favourite resources on the grammar of Legal English:
- a convenient list of the English grammar rules. The website also provides grammar quizzes and exercises;
- an excellent punctuation guide from the CUNY School of Law;
- Purdue University's Online Writing Lab offers grammar exercises and other useful resources for international lawyers;
- writing exercises for law students by Dr Margaret McCallum, UNB Faculty of Law.
- a convenient list of the English grammar rules. The website also provides grammar quizzes and exercises;
- an excellent punctuation guide from the CUNY School of Law;
- Purdue University's Online Writing Lab offers grammar exercises and other useful resources for international lawyers;
- writing exercises for law students by Dr Margaret McCallum, UNB Faculty of Law.
How To Learn the Grammar of Legal English
The fastest way to master the grammar of Legal English is to read and write real legal texts in English. It is also essential to get regular feedback on your writing from a competent instructor to ensure that no mistakes are left uncorrected. If you are new to Legal English, it may be a good idea to take a course in Legal English where you will be taught the grammar necessary to write legal texts.
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About the author
Anton Osminkin
A jurilinguist and a lecturer of legal English and Russian at the Université Sorbonne Nouvelle Paris 3 and at the Institute of Intercultural Management, Communication and Training in Law (ISIT) in Paris.
