There are gremlins in the courthouse: It turns out that what a legal document says and what the lawyers who wrote it meant are often two different things. Here are three cases where the gremlins in law provide some rules for clear writing that you can follow.
When I teach either Learning Tree’s Business Writing or Technical Writing courses, participants tell me that they want their writing to be “clear.” And, by “clear,” they mean something like “The reader understands the words in my document the same way that I do.”
It would be hard to imagine a place where that definition of “clear writing” matters more than in the laws that govern the country: Legislators want judges to understand the words of a law the same way that the legislators understand the words when the legislators wrote the law. The same is true of legal contracts: it’s critical that everyone understand the terms of the contract the same way. Yet there are many times when the resulting law or contract isn’t clear…and people end up in court arguing about what the words really mean. This happens so often that judges have had to invent rules to help them decide what to do when a law or contract can be understood in two or more ways (the “Golden Rule,” for example, says that if one understanding of the law is absurd then the law shouldn’t be understood that way).
Here are three cases where failures in writing by legislators and lawyers provide some guidelines for you that will ensure that your readers understand your words the same way you do.
Even in law, it’s important to think about your audience. In Patrie v. Area Coop Education Services, this turned out to be critical for an injured employee trying to collect damages after being hurt on the job: A student had hurt a school employee by jumping playfully on the employee’s back – there was no intent on the part of the student to harm the employee.
The relevant law read that an employee could recover damages provided the employee was “injured as the result of an assault.” What turned out to be the issue was the definition of the word “assault” which has two meanings, depending on who you are. If you’re a civil or criminal lawyer then “assault” doesn’t require intent; If you’re an ordinary person then you probably only use the word “assault” in reference to a violent crime where there is an intent to hurt someone.
In the end, the court ruled that the law was aimed at school administrators who would understand the word in its common meaning: “assault” requires intent. Since the employee was hurt unintentionally, the employee could not recover damages from the school system. Of course, that decision still leaves open what the legislators who wrote the law meant.
There’s a rule here to learn: Where you have a word with multiple meanings, it doesn’t matter what you (or the dictionary) think the word means – the only definition that matters is the one your audience uses.
In another case, a telephone company in Canada recently saved itself one million dollars because of the way that a comma was interpreted. The telephone company wanted to cancel a contract in the first five years of the contract – eliminating about a million dollars the company would have had to pay if the contract ran the full five years. The relevant clause in the contract read:
This agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.
The issue is whether the one year notice clause applied to the initial five year term or just to the successive five year terms. The courts decided that the notice clause applied to both periods, allowing the telephone company to cancel the contract and save itself about a million dollars. Or, to put it another way, the other party in the contract lost about million dollars of revenue it had been counting on.
If the lawyers had wanted the one year termination to apply only to the second term then the simplest solution would have been to create two sentences: one about the first term and one about the second term. Something like this would have solved the problem:
This agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made. The agreement shall also be effective thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.
The rule here: Don’t try to save words by creating a more complex sentence (complex sentences create complex problems). If you’re going to talk about two things — in this case, two different terms with two differing sets of conditions — then talk about them separately.
Modifiers (like adjectives and adverbs) are sometimes used with lists of items. When used with a list, the problem is deciding how the modifiers should be distributed over the items in the list. For example, Arizona legislators wrote a law that says this:
A person shall not drive on or through any private property, road or driveway to avoid obedience to traffic rules or traffic control devices.
The driver who raised this question had pulled into the driveway of a police station as part of performing an otherwise illegal U turn. The driver claimed that, because he had driven on a public driveway, the law did not apply (of course, pulling into a police station when doing something potentially illegal isn’t a good idea, even if you think you have the law on your side).
The question here is what the modifier “private” applies to. Does it apply only to “property” or does it also apply to “road” and “driveway”? The driver pointed out that the word “any” that appears before “private” is assumed to apply to “property,” “road,” and “driveway.” Shouldn’t “private” also apply to all the words, also? In this case, the courts ruled that “private property” was a single phrase and that “private” did not apply to roads (most of which are public) or driveways. The driver lost and had to pay the fine.
To avoid the ambiguity, “private property” should have been isolated to just one item in the list. Using a list whenever you have two or more items is always a good idea and would have solved the problem:
A person shall not, to avoid obedience to traffic rules or traffic control devices, drive on or through any:
- Private property
The rule: Put modifiers right beside the word that they modify and far away from what they don’t modify.
Lawyers and legislators are paid to write laws that everyone understands the same way. Yet, on occasion, even they get it wrong. Fortunately, as these examples show, you can learn from those mistakes and ensure that your readers understand what you mean.