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Below is the Chapter titled " from Starting Law Edition II (Scribblers Publishing), which outlines some strategies for writing better documents. It is provided here as a resource for the internet community and students.

Good legal writing rewards its practitioners handsomely. We write now more than in any age. If so, and if writing is our main means of communication and persuasion, then we should hone and perfect the skill, just as an athlete trains zealously or a musician practises her instrument.

Yet we often characterise lawyers as long-winded, verbose and excessively complex in their language. People struggle to understand the documents that lawyers write. This "Accident Report" for the Jack and Jill nursery rhyme [1] parodies legal language.

Accident Report

The party of the first part hereinafter known as Jack and ... The party of the second part hereinafter known as Jill ... Ascended or caused to be ascended an elevation of undetermined height and degree of slope, hereinafter referred to as “hill”.

Whose purpose it was to obtain, attain, procure, secure, or otherwise, gain acquisition to, by any and/or all means available to them a receptacle or container, hereinafter known as “pail”, suitable for the transport of a liquid whose chemical properties shall be limited to hydrogen and oxygen, the proportions of which shall not be less than or exceed two parts for the first mentioned element and one part for the latter. Such combination will hereinafter be called “water”. On the occasion stated above, it has been established beyond reasonable doubt that Jack did plunge, tumble, topple, or otherwise was caused to lose his footing in a manner that caused his body to be thrust into a downward direction. As a direct result of these combined circumstances, Jack suffered fractures and contusions of his cranial regions. Jill, whether due to Jack’s misfortune or not, was known to also tumble in similar fashion after Jack. (Whether the term, “after”, shall be interpreted in a spatial or time passage sense, has not been determined).

Verbosity and unnecessary complexity have crept into our statutes. Using a computer measurement technique, the Victorian Law Reform Commission reckoned that you need over 22 years of formal education before you could understand the Australian Income Tax Assessment Act. In other words, you would need to have a couple of university doctoral degrees. Sir Harry Gibbs condemned the same statute: [2] "Such a law [as the ITAA] reflects no credit on the society which tolerates it." Gibbs quoted Professor Ross Parsons , who has likened the expanding tax statute to a super nova.

Bad effects of complexity?

St Paul asked (1 Corinthians, 14.9): "Except ye utter the words easy to be understood, how shall it be known what is spoken?"

What is the cost of obscure documents, poor instructions and long forms? The Victorian Law Reform Commission in its 1986 Discussion Paper on Plain English said that error rates in forms filled out by the public was, on average, 15-20%. With one of its customs declaration forms, the UK Department of Customs and Excise found that airline passengers filled in the form incorrectly 55% of the time. The Victorian Law Reform Commission concluded, "The financial gains that come from adopting plain English can be staggering". [3] The UK Department of Defence claims to be saving 400,000 pounds per year for an outlay of 12,000 pounds on one plain English project alone. The UK Department of Health redesigned three forms and claims it saved 2.5 million pounds each year. By redesigning one of its VAT forms, the UK office claims that it will save the retail industry 125,000 hours per year in completing the form.

Your message falls into disrepute, if people cannot understand you. In the mid-1990s the Australian government regulated the superannuation industry. The drafters wrote a monstrous piece of legislation. Arthur Andersen, the large accounting firm, pointed out in one of its newsletters that 599 pages of laws and explanatory memoranda were needed to do this: “multiple sledgehammers are being used to crack the odd peanut?" Few of the people with superannuation understand this legislation. The lawyers and accountants also struggle. This law is in disrepute.

Australia now passes over 10 times as much federal legislation each year than it did in 1960. The Income Tax Assessment Act is almost 50 times longer than it was when first introduced in 1936. The former 120 page document now bulges at an unwanted world record of 5,000 pages. It has an unfriendly numbering system. Puzzle over the ponderous s 159ZZZZH. Many of its terms defy understanding. [4] Try weighing the Corporations Act. It comes in at over 3 kgs. It fattens away in Canberra. Compare that to the mere 300 gms of the Canadian statute. The Tax Law Improvement Project is trying to clarify and shorten the tax law. Much can be done. The Goods and Services Tax legislation of 1999 [5] is hard labour. It is laced with jargon like “creditable acquisitions” and “input tax credits”. It is a young monster, with over 1,000 pages of legislation and explanatory memoranda, so far. In short time there have been hundreds of amendments to it. The legislatures are treating too lightly their great power and duty of drafting laws for the people. The power should be used sparingly. And the drafting should be of the highest quality.

Some old-fashioned remedies had appeal. In 1556, the Lord Chancellor resented a long 120 page document – a “replication” - that appeared in his court: [6]

The plaintiff for putting in a long replication was fined ten pounds, and imprisoned, and a hole to be made through the replication, and hanged about his neck, and he to go from bar to bar ...

At its best, good writing can be magical. William Manchester wrote that, "[Winston] Churchill 's prose, so rhythmic that it can be scanned, was vibrant with the terrific energy that can hold and sway vast audiences. Its vitality is remarkable..." [7] Read Churchill and other great writers. They set a standard. They teach the value of words, and of clear and precise writing.

The reason why words are so important is because words are the vehicle of thought. When you are working out a problem on your own - at your desk or walking home - you think in words, not in symbols or numbers. When you are advising your client - in writing or by word of mouth - you must use words. There is no other means available. To do it convincingly, do it simply and clearly. If others find it difficult to understand you, it will often be because you have not cleared your own mind on it. Obscurity in thought inexorably leads to obscurity in language. [8]

Sir Gerard Brennan wins no prizes for plain expression here, but he makes a strong point: [9] "Written material is often the most effective way of communicating information in a form which leads cogently to the conclusion advanced, predisposing the judicial mind to acceptance of that conclusion." Under the High Court Rule 69A, which governs the procedure for making applications for leave to appeal to the Court, written submissions to court are more important than ever. Cases can be decided on written evidence alone, without oral argument. [10] This follows United States practice. Your skill in writing will, more than ever, influence your client's cause. All the more reason to develop that skill.

How to write well

There are a few core principles of good writing. I put these as five commandments, half the number that Moses carried back on tablets from the mountain top.

“Say what you will about the Ten Commandments, you will always come back to the pleasant fact that there are only ten of them.”

“Jest has it that Moses, producing the tablets of the Lord’s instructions, boasted that he had ‘got Him down to ten. But adultery stays’.” Justice Michael Kirby

The Five Commandments of Effective Writing

· First – You shall write as plainly as possible. You shall write “end” not “termination”.

· Third – You shall use the active voice and shun the passive voice. You shall say, “The judge dismissed the case” and not, “The case was dismissed by the judge”.

· Fourth – You shall avoid archaic words. Words like “hereinbefore”, “aforesaid” and “ipso facto” shall not be in your vocabulary.

The first commandment – write as plainly as possible. Use words that have clear meanings and that are not complex. Complex words often have several syllables. Read this superb passage by the greatest of all writers:

There we have 45 words, by William Shakespeare. If we leave out "Juliet", only 4 of the 45 have more than one syllable. The message is, be simple and direct. Sometimes that is not easy. You may be tempted to be more complex and use a few important sounding words. Resist it. Strive for simplicity. When you draft a memorandum or a letter, think whether some words can be excised or be replaced by plain words. Can your meaning be expressed more directly?

Churchill 's writings and speeches were remarkable for their plain and effective style. They came from hard work. William Manchester describes the wartime Prime Minister’s writing technique: [11]

Prefer plain words. Use "end" instead of "termination". Use "hurry" not "expedite". Prefer "use" to "utilise". Also choose lively or active verbs. Compare, "He looked with disapproval at the accused" to "He glowered at the accused”.

The second commandment – avoid long sentences. Long sentences can overwhelm the reader. They can contain too many ideas. They can make your message hard to grasp. You will be less persuasive. Long sentences force the reader to analyse the sentences themselves and not just what they are trying to say.

Lord Denning wrote superbly. He resisted the long sentence: "I avoid long sentences like the plague: because they lead to obscurity. It is no good if the hearer cannot follow them. I strive at all costs to be clear." Listen to Lord Denning telling us about litigants who try to run their own cases in court: [12]

That is clear and it is interesting. The words are plain. The sentences are short.

Lord Denning made the short sentence his signature. He rarely crams two thoughts or ideas or independent clauses into one sentence. He uses few conjunction words (and, for, but, or, so, yet). He creates shorter sentences, instead. Consider the following start to one of his judgments, in Hinz v Berry: [13] “It happened on 19 April 1964. It was bluebell-time in Kent. Mr. and Mrs. Hinz had been married some ten years, and they had four children, all aged nine and under. The youngest was one. Mrs. Hinz was a remarkable woman. ...”. His short sentences, easily understood, speak to the litigants. He is not speaking only to experts, the lawyers. Lord Denning called his judgments “short stories”: “I state the facts, I give the merits, and then show the way to a just result.” [14]

An Australian judge complained in the High Court [15] of a sentence that went on for over 450 words of small print, spanning 25 lines. And it had no punctuation whatsoever to assist the reader. Analysts of language say that 25 words are enough for a sentence. One Australian publisher aims for 15 words as an average sentence length.

If you have many subsidiary thoughts, don't cram them into one sentence. Because short sentences are easier to understand, you should use them, unless the longer sentence sounds better, or it is too choppy to use lots of short sentences. Your writing should have variety. Sometimes long sentences are not dealing with complicated matters. But the length itself produces complexity. Your mind hangs on to the meaning of the whole sentence, in case something comes up at the end of the sentence that changes the meaning of the whole. Your reading mind must keep the meaning of the whole sentence suspended. If the object of the sentence appears in the early stages, and the verb, say, 20 words later, and the subject (actor) more or less at the next train station, you strain the reader's memory. You dull the reader’s comprehension. You waste your reader's time. The reader has to go back and re-read the passage to grasp its meaning.

The third commandment – use the active rather than the passive voice . In the active voice, the actor or subject comes first, then what he or she is doing, and then to whom. For example: God - created - the heaven. The passive voice is the other way round: The Heaven - was created - by God. The actor is at the end, not at the beginning, of the sentence.

If a barrister says "The witness lied to the Court", you have a direct and clear statement. "The Court was lied to by the witness" is a much less direct and forceful statement. The passive voice drains the sentence of its clarity and life - the subject of the sentence "passively" receives the action. Better to say "My client sued the driver" than "The driver was sued by my client". Or "The judge ruled that..." is better than "The ruling made by the judge was that..." Isn't it better to say; “I shall not forget Julie Christie’s eyes", than to say; “Julie Christie’s eyes shall not be forgotten by me". The latter is protracted and clumsy.

That great little book on writing, Strunk and White’s The Elements of Style, [16] now generously made available on the internet, [17] praises the active voice: “The habitual use of the active voice, however, makes for forcible writing. This is true not only in narrative concerned principally with action but in writing of any kind.” Also, the active voice uses fewer words than the passive.

Often, the users of the passive voice leave out who the actor or agent is. So we get sentences like “The Heaven was created.” You don't really know who created Heaven, although you have a hunch. Bureaucrats love the passive voice. It does not give too much away. Down with bureaucrats. “Before this organisation can accept or process your application of employment, your reputation, character and professional background will be thoroughly investigated.” This sounds like the investigation will be conducted by an almighty force, and you do not know who will be doing the investigating. It is a different story if the letter reads: “Before I employ you, I will be investigating your character and professional background.”

Some second rate journalists love the passive voice. How often do we read something like: "It is understood that the School does not have any good students." This sentence dishonestly implies that there is wide acceptance of the statement. But there is no actor or maker of the statement named in the sentence. Just who “understands”?

Great communicators such as Ronald Reagan, Lord Denning , Ernest Hemingway and the writers of The Bible all preferred the active voice. In The Bible we read; "In the beginning, God created the heaven and the earth". Would that message have been as clear if it had been written: "In the beginning, the heaven and the earth were created by God." Ronald Reagan said: "If you've seen one redwood, you've seen them all." In the passive that would have been; "If one redwood has been seen by you, they have all been seen by you”.

In summary, the active voice has advantages: (1) It states early who is doing the acting; (2) It is more concise; (3) It is more emphatic, lively and direct. [18]

Raymond Wacks encourages us to use the present not the past tense. Do not say, “The author said”. Instead say, “The author says”. Stresses Wacks, [19] “You must - unless the context requires otherwise - express the views of writers in the present tense - even if they are dead!” John de Groot and Kay Maxwell agree: [20] “Please sign the document and return it to the writer”. This is in the present tense. It is easy to understand. Compare: “Please ensure that you have signed the document before returning it to the writer.”

The fourth commandment – avoid archaic words. Some lawyers cherish archaic words. Old legal documents spawned "hereinafter", "aforesaid", "jointly and severally" and "hereby". Thomas Jefferson criticised his fellow lawyers for "making every other word a 'said' or 'aforesaid' and saying everything over two or three times, so that nobody but we of the craft can untwist the diction and find out what it means." Most of these legal phrases are redundant. Chop them out. Shun the classic lawyerisms. "Aforementioned", "hereinafter", "whereas" and most Latin sayings are not necessary. Latin and opaque classical references alienate clients, not to say fellow lawyers and other professionals.

Pioneer in plain English teaching, Richard Wydick , writes: [21] "Do not be too impressed by the Latin and archaic English words you read in law books. Their antiquity does not make them superior. When your pen is poised to write a lawyerism, stop to see if your meaning can be expressed as well or better in a word or two of ordinary English". Most lawyerisms have little meaning and certainly they have better replacements. What does "force and effect" really mean? What about a will that says "give, devise and bequeath"?

It was fashionable once to use several words that meant the same thing. This dates back to when we had several feeder languages - Celtic, English, French and Latin. The word from each language was used, to clarify meaning to users, not confuse. Now, one of the words will usually do, by itself. This is true and correct.

Lawyers often say "said" as in “the said property”. You will not sit next to each other in the hotel and say, "Please pass the said Fosters lager". Someone might tell you that "said" means "exactly the one mentioned before". But does it really give greater precision? Why not use "the" or "those" or "this”?

Another old chestnut is "aforementioned". You often see documents that say something like "the aforementioned property", or, more stunning, "the said property aforementioned". If the document deals with only one item of property, then it is obvious which property the document concerns. If there are more than one, then "aforementioned" is not precise enough. You should refer to the plot of land or property by number or paragraph, or something precise.

Some lawyers will cling to these sayings because, they argue, they are terms of art and concern secret lawyers' business. Other lawyers will be afraid to stop using them, because they have been used around the office for years. Others like the mystique and billing power of lawyerly language. That is not good enough, if clarity is the victim. Certainly, you should be cautious about killing off legal terms that have long histories. But if, after you have thought about them, you decide they are of little or no use, then scrub them from your vocabulary forever. That will be a boon to your readers and clients.

Perhaps the only esoteric document a lawyer should send to a client is her bill for services. By the way, don't call it a bill - it is a “statement for services rendered and undertaken”. Also be sure you do not say that you took more time than expected - instead you “suffered a mutually unanticipated expenditure of time”.

The fifth commandment – be concise. Most writers use far too many words. Lawyers sometimes write at appalling length. John Doyle, Chief Justice of South Australia, discovered that state and federal court judgments in Australia had tripled in average length over the 60 years from 1935: from 6 and 18 pages respectively, to their massive dictaphoned length today. [22] The dictaphone has much to answer for.

Australia’s top poet Les Murray is a legendary editor as well as author. His advice on writing poetry has wider relevance. “Cultivate concision, try to be more vivid … cultivate precision, avoid waffle, don’t rely on vague generalisations … avoid ancient poeticisms…”. [23]

For needless repetition and complexity try this one sentence indictment from R v M’Naghten , [25] (the famous case which set down the defence of insanity in murder cases):

Could it not be said in 25 or 30 words? At the parish of St Martin on the Fields, Middlesex, on 20 January 1843, Daniel McNaghten shot Edward Drummond. Drummond died of his wound on 25 April. McNaghten was indicted for murder.

Australia’s High Court judges, with the exception of Murphy J, are rarely feted for their brevity and plainness of language. Justice Bryan Beaumont is candid: “It is difficult to justify an increase in the size of our judgments. Length per se, let alone prolixity, is neither essential nor desirable, and may disguise the real basis for a conclusion. The essential quality of a judgment is clarity, with as much brevity as the subject will permit”. [26]

The official report of Mabo v Queensland (No 2 ) [27] goes on for 217 pages. Wik Peoples v Queensland [28] runs for a massive 265 pages. Like an overrated, repetitive Russian novel. These are pivotal cases. So clarity and avoidance of repetition are all the more important. They could be halved in length. Why not quartered? And the judgments overlap. Does the principle of judicial independence really require separate judgments from nearly all individual judges? [29]

Not only judges compose at length. The legislature also writes voluminously. Justice Peter Hayne of the High Court points out that the size of the annual volume of Acts of the Commonwealth Parliament increased from 488 pages in 1901 to an extraordinary 7521 pages in 1997.

Some writers gorge on adverbs or “qualifiers”. Typical qualifiers are words like “very”, “rather”, “clearly” and other words ending in “-ly”. Usually, they can be struck out or made redundant by an expressive verb. “He slowly walked” can become “He sauntered”?

How often have you heard public speakers say, “It is important to add that...”. Or, “In this regard it is significant that...”. Or, “It is interesting to point out that...”? They are unnecessary words. Delete them. A favourite throat-clearer is the word “clearly”. If it is clear, then why point it out? If it is not, then you should not say it is.

Removing surplus words is the easiest way to make your writing clearer. It can have a dramatic effect. Look at the following sentence: “A comprehensive hearing and trial by jury was requested by the person accused.” The underlined words we do not need. Try instead, “The accused requested trial by jury.” 13 words down to 6.

Let's try another example: “For the purpose of general use, the standard form will and testament is satisfactory insofar as the average person is concerned.” Why not, “Generally, the standard form will is best.” The sentence went from 20 words to 7. The meaning is less fuzzy, too.

Richard Wydick calls the unnecessary words “glue words”. These words add bulk but no meaning. Your sentences should have as many “working words” and as few glue words as possible.

Avoid compound prepositions. These often meaningless combinations of words fall off the tongue and pen too easily: “for the purpose of”, “in connection with”, “with reference to”, “with regard to”, “at this point in time”. They can all be replaced by a single word, or two at the most. Kill off that foolish favourite, “the fact that”. What does it mean? “The fact that the person had died was mentioned” - why not “They mentioned his death”? In the following examples, one word can replace several:

Thomas Jefferson , a genius by any stamp, drafted the American Declaration of Independence in 1776 when he was a young man. This document rises above the troubles of that time and that country to be a statement of democratic ideals and a creed of optimism for an emerging nation. A brilliant writer, Jefferson nonetheless had his drafts altered and improved. For example, Jefferson had written clumsily, “he [the King] has suffered the administration of justice totally to cease in some of these states”. Congress changed that to the more direct and balanced, “he has obstructed the administration of justice”. [30] Well done, Congress. The remarkable Jefferson kept a book in which he summarised important law cases. He urged students of law to “seek out the pith of the case” and to try for “the most valuable of all the talents, that of never using two words when one will do”. [31]

The great advocate FE Smith , later Lord Birkenhead, is celebrated for the wit and effectiveness of his oratory and writing: [32]

Distinguished disciples of the Five Commandments

We learn by observing the great writers. Thomas Babington Macaulay (1800-1859), historian and poet, was one of the first to study the components of good writing. School texts still carry his poem about the noble Roman warrior, Horatius, who with two others, defended a wooden bridge over the River Tiber against the whole Tuscan army – “thrice thirty thousand foes”. Its best verse goes:

Sidney Dark wrote that “Macaulay succeeds in conveying his meaning to his reader in short, clear sentences without the smallest subtlety of suggestion and without a single unnecessary adjective ... Macaulay can be properly regarded as the inventor of the short sentence. He delighted in the full stop. And it is these short, unornamented sentences that make his meaning so abundantly clear.” [33] Professor Saintbury adds: “What Macaulay meant the reader understands at once and to the very full; he feels with him or revolts against him with an instant response; there is not a foot-pound of effort lost, not a stroke thrown away!”

Lawyers and law students can learn, too, from the writing of Ernest Hemingway (1899-1961). He wrote several fine novels, including The Old Man and the Sea , a model of clear and concise writing. In the novel, the old man finally kills the great fish, far out at sea. He tries to drag it the long distance home, the fish lashed to his small boat. The old man feels guilty about what he has done, killing the mighty fish. Notice Hemingway’s plain words, his short sentences, his clarity of expression, his lack of pretentious language, his use of the active voice.

Perhaps it was a sin to kill the fish. I suppose it was even though I did it to keep me alive and feed many people. But then everything is a sin. Do not think about sin. It is much too late for that and there are people who are paid to do it. Let them think about it. You were born to be a fisherman as the fish was born to be a fish ... You killed him for pride and because you are a fisherman. You loved him when he was alive and you loved him after. If you love him, it is not a sin to kill him. Or is it more?

The Denning Report into the Profumo Scandal , that rocked Britain in 1963, displays writing excellence. Lord Denning took but three months to inquire and write his Report. It observes all five writing commandments. The sensational nature of the events in question and Lord Denning ’s writing flair, with his subliminal sense of mischief, made the Report a best seller. It began, “The story must start with Stephen Ward, aged 50”. It was a rattling good read, with sub-headings such as, “The ‘Darling’ Letter”, “The Cup of Tea”, “The Man in the Mask” and “The Man without a Head”. [34] The publishers printed 50,000 copies in the first run. 4,000 copies were sold in but one hour from the Government Stationery shop in London when it opened at midnight.

Lord Denning began many of his judgments in his trademark lucid and chatty style. Cummings v Grainger [35] begins: “This is the case of the barmaid who was badly bitten by a big dog”. Miller v Jackson [36] starts: “In summertime, village cricket is the delight of everyone.” Hinz v Berry : [37] “It happened on 19 April 1964. It was bluebell time in Kent.”

Well-written texts and judgments sparkle in law the more because they are rare. From Australia, Frank Costigan QC’s 1984 Report on the Activities of the Federated Ships Painters and Dockers Union, practically a gangland saga, is an admirable writing feat. The Dictionary of National Biography lauds revenue lawyer and King’s Bench justice Sir Sidney Rowlatt for his “clear reasoning and crisp style”, even in the parched lands of a tax statute. Justice Michael Kirby is a fine writer on the Australian High Court, although he does not always suffer from brevity. Chief Justice and poet John Bray of South Australia was the best writer of his time in the Australian Supreme Courts. That accolade now belongs to Justice Bruce McPherson of the Queensland Court of Appeal. He, along with Bray, is the most talented Australian jurist not to go to the High Court bench. Court of Appeal Justice Ken Keith graces New Zealand’s judgment writing and legislative drafting. Irving Younger , the great American law teacher and crusader for plain language, was an excellent writer and an even better lecturer. [38] Lee Stuesser’s An Introduction to Advocacy (LBC 1993) is a very well written manual. Australian law students are pleased by the succinct and clear explanations in Stephen Graw’s texts, including An Introduction to the Law of Contract (LBC). Regrettably, there is not space in this chapter to list those textbooks that have taunted the reader with their density and obscurity.

Avoid flippancy in your writing, unless you know your reader well. Breezy and over-familiar writings jar. A showy or inappropriate sentence draws attention away from the message. Flourishes can look foolish. Abraham Lincoln could get away with "Four score and seven years ago...". You will not. When you have a flutter with the language, it should be clever, original and rare.

You can use just the lightest touch of humour at times. Understatement is best. Do not use exclamation marks often. They draw attention to the sentence and may cause it to fall flat on its face! The reader may feel awkward if the writer is too fresh. So, too, if the writer is pretentious or brazen. Sometimes it is right to say, "He was gutless". Other times it is better to say, "He lacked courage". It is a matter of judgement and of balance.

Generally, business letters should be friendly to the reader, as well as accurate and clear. This is a difficult art. Warmth can emerge from disciplined writing - from structured, concise and plain expression, from a good choice of words. Clarity itself is a compliment to the reader. Readers feel well-intentioned towards the able communicator.

Make your writing flow Writing that flows is attractive. Each sentence should follow the previous one in a logical development. The thoughts should not be disjointed. This does not mean that you should use flowery or unnecessary “link” words. It means that you should fit your letters and memoranda together, so that they flow in logical sequence, like good melodies.

The greatest writings have a musical quality. They flow as if they were poetry or song. This quality elevates the speeches of civil rights activist Martin Luther King, the orations of US President John F Kennedy , the inspired wartime broadcasts of Winston Churchill and the finest passages of The Bible.

“And the Lord God said unto the woman, What is that thou has done?” Gen 3:13

Conclusion "Style to be good must be clear, as is proved by the fact that speech which fails to convey a plain meaning will fail to do just what speech has to do”, said Aristotle. “Clearness is secured by using the words ... that are current and ordinary.” [39]

Be alert to the evils of technical and pompous language. Strike out gobbledegook. It gets between you and your message. It gets between you and a complete understanding of things. Scorn obscurity. Cross out unnecessary sentences and words. Write more concisely. Choose plain words. Clarify your thoughts. Practise the use of plain language. You will be, and will be seen as, more clear-headed, decisive and competent.

The English novelist, George Orwell (1903-1950), author of Animal Farm (1945), Nineteen Eighty-Four (1949) and Politics and the English Language (1946), had six rules for writing:

1. Never use a metaphor, simile or other figure of speech which you are used to seeing in print.

5. Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.

Tips from the Internet on "How to write good"

by Miles Julian Heffernan:

· Don't be reluctant; don't use more words than necessary; it's highly superfluous.

· Eliminate quotations. As Ralph Waldo Emerson once said: "I hate quotations. Tell me what you know."

Fog index [41]

Robert Gunning devised what he called, appropriately, “The Fog Index”. It measures the clarity of a piece of writing. Follow these steps:

1. Highlight a block of writing and ask your computer for a word count (word count falls under the “Tools” heading).

2. Divide the number of words by the number of sentences in the block. This gives you the average number of words per sentence.

3. Now highlight a block of about 100 words. Count the number of difficult words in this section. Include as “difficult” every word that has three syllables or more - but not proper names, or words with a simple suffix at the end such as -es or -ed or -ing. This gives you the percentage of difficult words in this block of writing.

4. Add together the average number of words per sentence and the percentage of difficult words. Divide the result by 0.4.

5. The number you get will tell you how many years of schooling someone will need to read that piece of prose easily. If the number is 12 or more, only university level readers will find your writing at all clear. A score of 6 to 8 is good.

WRITING AN ANSWER TO A LEGAL PROBLEM

· As you read the problem slowly, underline, highlight or jot down what you think are the main issues in your question. Be prepared to change these. At the start, you will have only a rudimentary idea of the issues and the structure of your assignment.

· Read two or three of the main cases and one or two texts on the specific area. A shortcut to a sophisticated understanding of the area is to read a good journal article on it, even at this early stage.

· Start to rough out an answer, on your word processor. Stick to your issues. Use headings freely. These can be removed later. In the meantime, they keep you on the relevant points. Try framing your headings as questions. Then you are forced to think of the answer to that question, as you add new material. (The question would be framed to deal with the issue. For example, “Was there a sufficient level of professionalism in the taxpayer’s activities to constitute a business?”)

· When you have a skeleton answer, read widely and add to your answer as you go along, making the best use of the word processor. Do not try to complete all your reading and then sit down to write, in the hope that somehow it will all be retained and mixed properly in the cranium. It will not be. Add new insights, new authorities, better analysis, as you go. Polish and polish and polish some more.

As your understanding on the law and issues matures, you will change your emphasis. The issues may change, too. The more reading and polishing you do at this stage, the more sophisticated your final result will be. To repeat, do not read lots of material before you write and hope it will stick in one all-or-nothing draft at the end. Instead, add to your piece as you read. Your reading will be more focused. Your writing much more sophisticated.

Of course, use a spell checker. Poor spelling is inexcusable, today. Buy a grammar primer and improve your grammar. Try Michael Meehan and Graham Tulloch’s Grammar For Lawyers (Butterworths 2001), which talks about writing style as well as grammar. Strunk and White, The Elements of Style (Macmillan) is a little classic. Your expense and time on learning grammar and mproving style will be rewarded many times over. In a world of indifferent spellers, ungrammatical memoranda and poor writers, reasonable writers will be valued; good ones exalted.

Time spent in planning an answer is well spent. Every time you write you should have a plan of action, albeit brief. Your examiner will recognise good form and structure. It stands out.

Ranking intellectual abilities

Examiners, either deliberately or intuitively, are testing your intellectual skills . The most demanding skills are those of application and analysis. You use these skills when you interview a client and later reduce the client’s problems and possible solutions to one page. You use these skills when you stand before a court and argue about the applicability of previous law; or when you advocate law reform.

Legal writing is intellectually demanding. In 1956, Benjamin Bloom ranked intellectual activity into six levels: [42]

These six can be reduced to three major intellectual skills or abilities. In ascending order, they are:

· the ability to comprehend - the lowest level. You know what’s going on if you have comprehended what you read or hear. If you read a textbook or a will or a statute and can understand it, you show the skill of comprehension.

· the ability to apply - you not only understand what is going on, but can also point out that certain cases you have read are identical or similar to the problem’s facts. You apply those cases. “The taxpayer bet systematically and methodically using a computerised system, as the taxpayer did in Prince’s case.” You are applying Prince’s case to the facts.

· the ability to analyse and evaluate - here you hold cases up to scrutiny. You compare and contrast them. You look at legislation and see its weaknesses and strengths. We sometimes call this “critical writing”. “Prince’s case, while in step with Jones’ case, stands outside the main stream authorities. Smith CJ’s proposition is to be preferred.” This is analytical writing. It evaluates and judges the cases, one against another.

Examinees and writers of research assignments should spend as much time as they can in the second and third levels. Show your ability to apply the cases and statutes to the issues. This is the essence of a good answer.

Issues-Law-Evaluation (ILA) in the exam room

Use the ILA three-step process and guarantee yourself a good answer in your exam:

· First, set out the crucial issues in your introductory paragraph. Or start each paragraph of your answer with a statement of the issue that paragraph discusses.

· In the second and third steps, which ideally run together, you do two things; you set out the relevant law or rules and you apply them to the relevant facts.

Do not separate the second and third steps. Do not state the cases and statutory provisions that support your legal propositions, and then, after, in a separate paragraph, write about how they apply to the facts. That approach is too mechanical. It gives a stilted, sometimes irrelevant and less convincing result. It is better to run those two tasks together. For example, "In Amy Lugden’s case, it is likely that there was a business within the meaning of that term in the Income Tax Assessment Act. There was repetition of acts and regular receipts of money or gains, as in Smith v Tappen." Law and Application run together. This is more sophisticated than a mechanical statement of the rule, followed by an application of that rule as a separate item.

ILA is a good model for answering problems in the exam room, and, as suggested earlier, in prepared written papers, too. You will add sophistication to your writing and answering as you develop. Remember that relevance is important. Do not go off on tangents. Flights of fancy will be solo journeys.

Richard Krever’s Mastering Law Studies and Law Exam Techniques [43] supplies good tips on answering exams and includes some sample answers. Jerry Phillips [44] offers 13 “terrorist rules” for writing exams. These include: be ungrammatical; write “plaintiff” when you mean “defendant”, or “do” when you mean “do not” ; “one of the most basic rules of all; write illegibly” ; “never state an issue concisely” and; “never follow through on an issue”. The reverses of Jerry Phillip’s Rules would produce a fine answer.

SAMPLE WRITING EXERCISE

21 July 1950

CORKERY v CARPENTER

The defendant, Shane John Corkery, was charged before justices with being drunk in charge of a bicycle on a highway at Ilfracombe on January 18, 1950, contrary to s. 12 of the Licensing Act, 1872; and with maliciously causing damage to a police cell, contrary to s. 14, sub-s 1, of the Criminal Justice Administration Act, 1914. The justices found him guilty on both charges, sentencing him to one month’s imprisonment on the first charge and three month’s imprisonment on the second.

He appealed to quarter sessions, at the hearing before which the following facts were proved or admitted: At about 2.45 pm on January 18, 1950, the defendant was pushing his pedal bicycle along Broad Street, Ilfracombe. He was drunk and creating a disturbance and incapable of having proper control over his bicycle. A police constable then arrested him without warrant for being drunk in charge of a bicycle on the highway. The defendant resisted arrest. Two police constables took him to the police station, where he was charged with being drunk in charge of a bicycle, forcibly searched, and lodged in a cell. He wrenched the lavatory seat there from its hinges and smashed nineteen panes of glass in the cell window, and did other damage in the cell, continuing to bang and shout most of the night. On the following morning he was charged also with maliciously causing damage, and the justices convicted him on both charges.

It was contended for the defendant on his appeal to quarter sessions that a bicycle was not a “carriage” within the meaning of s. 12 of the Licensing Act, 1872; that his arrest without warrant and his confinement in the cell were therefore unlawful; that he was entitled to break out of such unlawful confinement; and that, as he had been brought before the justices solely by virtue of the unlawful arrest, no information having been preferred against him, he was never properly before them at all and the proceedings were a nullity.

Quarter sessions were of the opinion that a bicycle was a “carriage” within the meaning of s. 12 of the Licensing Act, 1872; that the defendant was drunk in charge of a bicycle; that his arrest without warrant was therefore lawful; that he had maliciously caused damage amounting to 17l. 10s. 0d. to the cell; and that the proceedings against him on both charges were regular. They therefore confirmed the convictions and the sentences imposed on him by the justices.

D. M. Scott for the defendant. The word “bicycle” does not appear in s. 12 of the Licensing Act, 1872. The only word at all applicable is “carriage”, which does not include a bicycle. The point has never been decided by a court of record. The editors of Stone’s Justices Manual express the opinion that a bicycle would be deemed a carriage within this section, but the cases referred to are all under other statutes and do not constitute authorities for the interpretation of the Licensing Act. A cardinal principle of interpretation is that in statutes concerning matters relating to the general public words are presumed to be used in their popular meaning. The popular meaning of “carriage” does not include a bicycle, as the words of the song “Daisy Bell”, show:

LORD GODDARD, C.J., stated the facts and continued: The point, though it seems trivial, is of some importance because a doubt has been expressed by textbook writers whether a bicycle is a carriage within the meaning of that word used in s. 12, and Mr Scott has called our attention to most of the cases decided on the word “carriage”.

The first thing to do in construing an Act of this sort is to see what was the purpose of the particular section. Obviously, it was passed for the protection of the public and the preservation of public order. Section 12 says: “Every person who in any highway or other public place, whether a building or not, is guilty while drunk of riotous or disorderly behaviour, or who is drunk while in charge on any highway or other public place of any carriage, horse, cattle, or steam engine, or who is drunk when in possession of any loaded fire-arms, may be apprehended, and shall be liable to a penalty not exceeding forty shillings, or in the discretion of the court to imprisonment with or without hard labour for any term not exceeding one month”.

In my opinion, and, I think, in the opinion of my brethren, it is clear that the word “carriage” is wide enough to include a bicycle for this purpose. It does not follow that in every Act of Parliament a bicycle is a carriage. That may depend on the particular words of the Act in question; and where the question has most commonly arisen is with regard to toll-bridges, because the proprietor of the toll-bridge has to show that the vehicle from which he seeks a toll is covered by the words of the Act of Parliament which allows him to impose a toll.

In this case the object of the Act is clear: it is the protection of the public and the preservation of public order; and for this purpose, I think, a carriage can include any sort of vehicle, certainly a vehicle which is capable of carrying a person; and, it may be, a vehicle capable of carrying goods. In my opinion this case is decided, so far as this court is concerned, by Taylor v. Goodwin. That case, it is true, arose under the Highway Act, 1935, but for this purpose there cannot be any distinction between a section in a highway statute passed for the protection of the public and a section in a licensing statute passed for the same purpose, both of them concerning the conduct of a person on the highway and the preservation of public order.

The headnote to Taylor v Goodwin, reads: “A person, riding a bicycle on a highway at such a pace as to be dangerous to the passers by, may be convicted of furiously driving a “carriage”. Section 78 of the Highway Act, 1835, provides that: “if any person riding any horse or beast, or driving any sort of carriage, shall ride or drive the same furiously so as to endanger the life or limb of any passenger”, he shall be guilty of an offence. It is true that the words there are “any sort of carriage”; but that does not carry the matter any further, as a carriage is a carriage of some sort; a bicycle is a carriage, and therefore it comes within the word “carriage”. It is a carriage in my opinion because it carries. The court, in giving judgment in that case, said: “The expressions used are as wide as possible. It may be that bicycles were unknown at the time when the Act was passed, but the legislature clearly desired to prohibit the use of any sort of carriage in a manner dangerous to the life or limb of any passenger”. Applying that case, nothing can be more dangerous than a drunken man with a bicycle on a highway: he is dangerous whether he is riding the bicycle or pushing it, because even if he is pushing it he has not proper control over it, and can be a danger to others and himself...

In spite of Mr Scott’s argument, I am clearly of opinion that the words of the Licensing Act are wide enough to embrace a bicycle under the expression “carriage”. Therefore, the doubt which has been expressed by textbook writers on the subject need no longer exist, as this court has now construed the word “carriage” in the Licensing Act, 1872, as including a bicycle, whether it be a tradesman’s bicycle or tricycle or the ordinary passenger bicycle - ordinarily called a push bicycle - as was the case here.

It follows that the defendant was lawfully arrested, and was accordingly in lawful custody at the police station. There was no excuse whatever for his breaking up the cell in the disgraceful manner in which he did, and he was properly sentenced to three months’ imprisonment. The first point being decided as it is, the second falls to the ground. This appeal is dismissed.

Let’s write an answer, using the ILA method

First, you must identify the Issues in the problem. Then you must identify the Law (the relevant rules) and Apply the law to the issues.

The problem, and a sample answer

Apply the law from the above law report in Corkery v Carpenter to the following facts involving Luke:

Luke had been on the traditional University Pub Crawl. His blood/alcohol reading was .09 and he was quite happy. On his way home from the Robina Tavern to the Student Residence he sees a shopping trolley on the footpath. He loads his small student friend, Celia, into the trolley and proceeds to push her home, along the footpath. He is stopped by the police and arrested and charged with an offence under the equivalent of s 12 of the Licensing Act 1872 (assume the drafting is identical to that in Corkery v Carpenter (above)). Luke seeks your advice as to whether he was drunk in charge of a “carriage” within s 12.

The facts are unusual, but not extreme (in 1997 a camel train driver was prosecuted for driving under the influence [46] ). It is, though, a typical enough examination question. Here we are using only one case as an authority. Usually, there would be four or five for you to apply.

The central issue is whether Luke's shopping trolley is a "carriage" within the meaning of that term in s 12 of the Licensing Act. Also at issue is whether Luke was "drunk in charge" of the trolley and whether pushing it on a Robina "footpath" comes within the wording of s 12, ie, "drunk while in charge on any highway or other public place".

Taking the latter issues first, a footpath might be a "highway" and would be a "public place", within the meaning of those terms in the statute. A "highway", according to the Shorter Oxford Dictionary, is "a public road open to all passengers", and a "road" is defined to include a line of communication used by horses and travellers on foot, as well as vehicles. So the Robina footpath would satisfy either the "highway" or the "public place" definitions.

Luke was as much in charge of the trolley as the prisoner was of the bicycle he was pushing in Corkery v Carpenter (compare Taylor v Goodwin, where the accused was riding a bicycle). By the standards of modern road traffic legislation in Australia and its uniform 0.05 blood/alcohol limit, if Luke had a 0.05 blood alcohol reading, or more, would "drunk" for the purposes of this case. The facts here are insufficient to offer any conclusion on this.

The second major issue is whether Luke, in pushing a shopping trolley, was in charge of a "carriage". Lord Goddard LC, obiter in Corkery v Carpenter , said: "a carriage can include any sort of vehicle, certainly a vehicle which is capable of carrying a person; and, it may be, a vehicle capable of carrying goods." A shopping trolley is designed to carry goods, and children, as well, where the trolley has a built-in child's seat. Luke's friend, Celia, was in the trolley, so it was "capable" of carrying her, at least. A court might well find that a shopping trolley, capable of carrying persons and goods, falls within Lord Goddard's obiter comment and thus falls within the meaning of "carriage" in s 12.

Further, the statute's intent is to preserve order and protect the public, according to Lord Goddard. Arguably, Luke threatened the public order by pushing a trolley containing Celia along the footpath while he was drunk. The intent of the legislature may also count against Luke.

Assessment of the answer: This would score 7 or 8 out of 10 in an introductory law examination. The examinee sorts out the issues, uses the few rules available to her, and applies the law to those issues in a logical manner, using plain language. You do not need to use case citations in an examination answer. Use abbreviations with caution. Poor handwriting and obscure abbreviations reduce your marks.

Now consider how the law from Corkery v Carpenter (including s 12 of the Licensing Act (UK)) might apply to this 1997, slightly-changed newspaper story:

Police in Darwin cracking down on drink driving have arrested a quadriplegic and her husband for being drunk in charge of a motorised wheelchair. Apparently, Amy, disabled since a driving accident in 1990, was stopped on her way home from the local hotel after "the usual eight or nine beers." Amy, who had her husband in her lap when pulled over, said: "I was just teaching the hubbie to drive." She told reporters: "Sometimes I am just too inebriated to operate a chair. We don't have enough money to fork out for taxis every time I have a drink - and I have to get home somehow." Amy told the Northern Territory News that police had confiscated the remainder of her beer, despite her best attempts to polish it off when apprehended.

By now it should be easier to write your opinion or examination answer. Recall the method: (1) What would the issues be? (2) What law or rules would apply? (3) Apply it to your facts. Amy would probably be caught under s 12, even though s 12 is law from another age?

An Australian statute, The Traffic Act 1949 (Qld) s 16 says any person commits an offence “who whilst under the influence of liquor or a drug … drives a motor vehicle, tram, train or vessel … or … is in charge of a motor vehicle, tram, train or vessel”. Section 9 defines “Motor vehicle”. It means “any vehicle propelled or designed for propulsion wholly or partly by gas, motor spirit, oil, electricity, steam, or other mechanical power…” Would Amy be caught by this s 16? [47]

Footnotes

Footnotes (and quotation marks) allow you to acknowledge and attribute words and ideas you have taken from others. Footnotes show the source of your legal statements. They tell the readers where to go for further discussion. Becker likes footnotes: “To one digging into the bowels of the law, a fat footnote is a mother lode, a vein of the purest gold.” [48]

Lord Denning was less thrilled with footnotes. He once wrote and article and submitted it for publication to the famous Professor Goodhart, editor of the top rated Law Quarterly Review. Said Denning: “[Professor Goodhart] then gave me some good advice: ‘When you state a proposition, always give an authority for it. Your readers will not check it up. That is what Coke did. He gave authorities for everything but, if you looked them up, they were authority for nothing. He got away with it time after time’.” [49]

Some law reviews and journals, especially those that originate from North American law schools, use too many footnotes. Any comment worth reading should be in the main text. Do not hide it in the small print.

It is, of course, dishonest to grab authorities off the Internet or an Index to Legal Periodicals, or an on-line Halsbury and paste them as footnotes into your composition. You should have read the authorities you cite. Skilful attribution of your sources is a mark of your academic integrity and professionalism.

Letter writing

Your professional life will be one of writing letters and memoranda. Ahead even of your advocacy ability, your adroitness in letter and opinion writing will be the most lasting mark of your professional skill. Some rules: [50]

· Be plain. Lack of clarity shows a cluttered and unclear, not a clever, mind.

· Be concise. How much time does a verbose letter waste? Not just your time, but the time of your client, your fellow practitioners, your secretary, any reader, as each of them stumbles through your words, searching for sense.

· Use a heading at the top of your letter. But do not use "Re" - it adds nothing.

· Use sub-headings, if you have a long letter. They help you order your thoughts. They give your letter structure.

· Ensure that the letter flows logically from one point to the next. Sub-headings help with this. They force you to group your ideas or statements.

· Number your paragraphs. In later correspondence or in discussion, you can easily refer to a specific point. Use the statutory system of numbering sub-parts: 1,2,3 ... then (a), (b), (c) ... then (i), (ii), (iii) ... Any more sub-categories would be unhelpful. The decimal point system (eg, 1.2.5:...) can be difficult to use.

· Always use a spell-checker. With computer spell-checks, there is no excuse for simple spelling errors. They show you up as careless.

· Beware the word processed look. If you are using a word processing precedent for your letter, do not let the previous letter dictate the mood and content of the later letter.

· Write to your readers. You will write a different letter to a professor of physics than you will to a professional boxer. Know your audience. Every recipient of a letter from the firm will be different. Sign your own letters. Knowing your audience helps you decide whether you use "Dear Madam", "Dear Professor Jones", "Dear client" or "Dear Lynne", or “Ms” or “Mrs”. Err on the side of caution with greetings and signing offs. Few of us dislike "Dear Madam" or "Dear Sir", although such a greeting from a friend might puzzle us. "Dear Fred", when an articled clerk writes to a judge, could be a career limiting presumption.

· Never write emotional or angry letters. With letters on personal or touchy emotional matters, allow your draft to cool off and revisit it the next day. Then refine it. It will always improve. The emotional letter may end up attached to affidavits in court - to the embarrassment of the authors. An air of patient strength is most persuasive.

· Never patronise your readers. Exclude statements like “of which you are no doubt aware” or “as you well know”. You are trying to persuade, not alienate.

Writing a Legal Opinion

A legal Opinion is a document written by a lawyer to explain the law on a particular matter. It reviews the relevant law and applies it to the facts of the problem. Some rules:

· Apply the Five Commandments of legal writing - be concise, avoid archaic language, avoid long sentences, use the active voice, write as plainly as possible. Take great pains in the writing. Recalls Lord Denning: “In chambers, if asked to advise, I took infinite pains in the writing of an opinion. I crossed out sentence after sentence. I wrote them again and again”.

· An Opinion gives answers, or a prediction of the answers, to the legal issues. It ought to recommend a clear course of action. “Seek to make your Opinions clear at all costs. Make them positive and definite. Not neutral and vacillating. My pupil master told me early on of the client’s complaint ‘I want your opinion and not your doubts’.” [51]

· This does not mean that you should write only what your client wants to hear. Your Opinion must be objective. David Jackson QC writes, [52] “I think it is a legitimate criticism of the Bar that too many vague or inconclusive Opinions are written in a way which appears to suit the client’s cause ... On the one hand you ought not create the impression of greater certainty of result than you can reliably predict. On the other hand vague expressions are difficult to interpret and can easily mislead.” If there are doubts - and generally there is the possibility of win or loss - express them in clear and concise language. Bullish advice on remedies and quantum of compensation or damages may haunt you later. You may be required to retract it. This upsets clients. You must strike the right balance.

· An Opinion usually appears as a series of short numbered paragraphs. Sub-headings are useful, too. Numbering helps for referring to specific parts of the Opinion later.

· Your Opinion must give reasons. They are a most valued part of the Opinion. Clients wish to know why they are entitled to a certain amount. Without reasons, subsequent argument, perhaps before a court, is difficult. Your clients want to know how you reached your conclusions, too.

· Thorough fact gathering is indispensable to writing any useful Opinion. The more facts you know, the more definite you can be. You find out this information as best you can, often in written statements obtained from interviews with witnesses and clients. The Opinion usually begins with a statement of the material facts. Set out your facts chronologically, unless there is good reason to do otherwise. Sometimes you may have to request a preliminary “advice” - that is, seek further facts - before you express a final view.

· An Opinion will go through several drafts. Most lawyers dictate their first draft. Dictated Opinions usually are too wordy and imprecise. Disciplined redrafting and editing are vital.

· Opinions look rather like a law report. Statements of principle should be supported by legal authorities. For example: “The director owes the company a duty to act in the best interests of the company: Ngurli v McCann (1953) 90 CLR 425 at 438.” Always give a specific page reference for quotes. Adopt a sound legal citation style. Most barristers put citations in the text rather than in the footnotes.

· If a quotation from a case, article or text is effective, then use it. But avoid using long quotations. Avoid, too, the string-of-sausages look, where the writer uses quote after quote, strung together with a few timid introductory and closing words. This flawed “technique” leaves most of the application of the law to the reader. It is the Opinion writer’s task to apply the law.

· An Opinion is a practical document. It should not be esoteric, evasive, or up in the air. In longer Opinions, use summaries on each issue, so your reader knows where you are going. A useful technique is to take the view of the other side - act as the devil’s advocate against your Opinion. This will help to identify weaknesses. Avoid posing questions in the Opinion and leaving them dangling. Do not pursue challenging but irrelevant lines of thought. Your client wants your Opinion and not your flights of academic fancy.

· Set out the range of remedies available to the client. This is often a weak part of Opinions. Yet few things are as important to the client.

· An Opinion should be professional in tone. Avoid slang or personal views - for example, “The driver of the car was a fool”. Avoid becoming too wrapped up in the client’s case and losing the vital quality of objectivity.

Written exercise on opinion writing

Amanda is a recent graduate. She wishes to become a barrister in Brisbane. As part of her training, her Pupil Master (an experienced barrister) asks her to write an Opinion on a file he has in his chambers. Here is her first draft. She needs your criticisms.

“In this case I have once again been asked to give written advice on the untimely death of Mr Michael Michaels, caused by one Mr Steven Stone.

Mr Stone owned the hotel, the Four Leaf Clover, my instructing solicitor tells me. He also tells me that the main hotel wooden bar was defective. Mr Michaels leaned on the bar, which gave way beneath him. He was impaled on a Guinness glass and died, blood seeping from his wound as he sang rebel songs. He appeared not to notice the wound until it was too late.

It is a rare and sad thing to behold this sort of senseless death and someone ought to pay, either the owner or the insurance company. An owner of an hotel must owe some sort of duty to customers. I think it is foreseeable that patrons will lean on the bar in a public bar of an hotel. At least, this is the case in my humble experience. Thus Mr Stone (“the owner”) is to blame for this death. Either he or the insurance company ought to pay damages of a high order. The instructing solicitor might be able to advise on a course of action and an amount of damages that might be claimed. The solicitor might find Halsbury’s Laws of England helpful.”

List the four most glaring faults and errors in this draft Opinion and explain why you think they are faults and errors.

[This draft is rather flawed. There are no clearly defined issues and no numbered paragraphs; it is verbose; it lacks objectivity (“senseless death”, “rare and sad thing”); there is no legal research (“find Halsbury’s”); it is speculative (“some sort of duty”); it gives no reasons; it is impractical ...]

[1] Jack and Jill went up the hill

To fetch a pail of water

Jack fell down and broke his crown

And Jill came tumbling after.

I cannot find the source of the legalese version for this nursery rhyme. My thanks to the unknown author.

[2] Gibbs CJ in a May 1993 speech to the Taxation Institute of Australia.

[3] In its 1986 Discussion Paper No 1 on Legislation, Legal Rights and Plain English at 14.

[4] Deane J in Hepples v FCT 91 ATC 4818 at 4819 called the ITAA a “legislative jungle”: Toohey J at 4824 thought the capital gains tax provisions were “unduly labyrinthine”.

[5] The main statute (there are several statutes, of course) is called A New Tax System (Goods and Services Tax) Act 1999.

[6] Milward v Welden (1565-1566) Tothill 101; 21 ER 136. RH Hickling, Malaysian Law (2^nd edn Pelanduk Press 2001) 143 reckons that the custom in the Isle of Man was for the people to gather on a hill one day each year when all the laws passed in the previous year were read. Should this frightening practice be adopted in Canberra, the day would be a long one indeed.

[7] The Caged Lion at 305.

[8] Lord Denning , The Discipline of Law (Butterworths) at 5.

[9] Paper to a conference of the Australian Institute of Judicial Administration, 21 September 1996 (Wellington, NZ).

[10] See also Practice Direction No 4 of 1996 which requires the filing of detailed written submissions to enable judges to better grasp the parties' arguments before the matter commences in court.

[12] The Family Story (Hamlyn 1982) at 223.

[15] National Bank of Australasia Ltd v Mason [1975] 133 CLR 191 at 203.

[17] www.columbia.edu/acis/bartleby/strunk/

[18] The passive voice does have its (few) uses. Sometimes you just do not know whom the actor or agent is, or it is unimportant. "X was fined for speeding". It doesn't really matter who did the fining. We know. Also, sometimes the passive is used to heighten tension in the reader. "To our horror, we were surrounded by a pack of ravenous, bellowing... "

[19] Jurisprudence (2nd edn Blackstone Press 1987) at 13.

[20] De Groot and Maxwell, Legal Letter Writing (Blackstone Press 1994) at 70-71.

[21] Richard C Wydick, Plain English for Lawyers (3rd edn Carolina Academic Press 1994).

[23] Les Murray, “Locum at Lyons Road - My Years at Poetry Australia” in Persistence in Folly at 136: cited in Peter F Alexander, Les Murray: A Life in Progress (Oxford U Press 2000) 165.

[24] Strunk and White, The Elements of Style (3^rd edn 1979) at 23.

[25] (1843) 10 Cl & F 200 at 200-201. This example of the alienating art of legalese was suggested by Professor RH Christie, "Plain Speaking in Law", in his fine inaugural lecture in the University College of Rhodesia, 21 Sept 1967. He said: “How easy and how wrong it is for justice to cloister herself by talking in language that ordinary men cannot understand.”

[29] George Williams (The Australian 25 Nov 1998) pleaded for the High Court and its judgments to be more accessible to the public. He called for the appointment of a public information officer to liaise with the media, better communication of the Court’s findings to the public (“The court writes only for a legal audience, and does not speak to the wider community. It should avoid repeating the facts of a case in several separate judgments. It should also make a greater effort to produce joint judgments.”), and plain language summaries of its judgments.

[30] Peterson, Merrill D, Thomas Jefferson and the New Nation (Oxford University Press 1970) at 91.

[31] Benson Bobrick, Angel In the Whirlwind (Penguin 1997) at 100.

[32] Heuston, Lives of the Lord Chancellors 1885-1940 (Clarendon Press 1964) at 363.

[33] Dark, Twelve Masters of English Prose.

[34] Lord Denning died in March 1999 aged 100. He, Lord Coke and Lord Mansfield, are England’s three finest judges. Lord Denning , with his wit, wisdom and lucid writing style, is also the law student’s greatest ever friend on the bench. So testify the numerous T-shirts, law review articles, reported speeches, obituaries, named judges’ rooms and Denning societies. Students, teachers of law, and those practitioners not unnerved by the great judge’s occasionally maverick treatment of the niceties of the rules of precedent, frequently thank God for Lord Denning .

[36] [1977] 3 All ER 338 at 340.

[38] Try Irving Younger ’s books such as The Advocate's Deskbook: The Essentials of Trying a Case; Hearsay : A Practical Guide Through the Thicket; Some Of My Life: An Autobiography.

[39] Rhetoric, 1404b in 11 The Works of Aristotle (ed W Ross 1946).

[40] Orwell, "Politics and the English Language" (1946).

[41] This summary of Gunning’s Fog Index comes from WordWatch with Kel Richards www.abc.net.au/newsradio/wordwatch.htm.

[42] Bloom, Taxonomy of Educational Objectives (1956).

[43] (1998 Butterworths 4th edn).

[44] In his chapter in Corkery (ed), A Career in Law (Federation Press 1989) at 150-154.

[45] [1951] 1 KB 102. To the best of his knowledge, the author is no relation to the bicycling appellant.

[46] In Police v Ricky Wilson Hall in the Magistrates Court at Coober Pedy, South Australia, No 97/1320, before Moss CM. The accused attempted to elude capture by the local sergeant of police by climbing on to a young camel’s back, calling out “Yahoo” a number of times, and then leaping onto a larger camel “in a John Wayne style leap”. The drunken driving charges were not made out because of insufficient evidence.

[47] The Road Transport (Safety and Traffic Management) Act 1999 (NSW) in s 12 makes it an offence to use a “vehicle” under the influence of alcohol or other drug. “Vehicle” is defined in Schedule 2 as “any description of vehicle on wheels (including a light rail vehicle)…” Would a foot powered scooter be included?

[48] Becker, “In Praise of Footnotes” (1996). See also Liz Fisher, "Some Notes on Footnotes" 1996 ALJ - WWW edition.

[49] Denning, Landmarks in the Law (Butterworths 1984) 173.

[50] John de Groot and Kay Maxwell, Legal Letter Writing (Blackstone Press 1994) offer comprehensive and well-presented advice on letter writing for lawyers.

[51] Lord Denning, The Discipline of Law (Butterworths 1979).

[52] In his paper entitled “Opinion Writing: Introduction” for the Bar Practice Course, QUT, Brisbane.