FELIX HOUPHOUET BOIGNY UNIVERSITY OF COCODY

Instructor : Dr. ATTA Kouamé François

[email protected]

COURSE : LEGAL ENGLISH COURSE

This course is aimed at legal professionals, law students and other persons
who regularly deal with legal documents written in English. It will help you
both understand English legal language as it appears in contemporary
written and oral context, and to use clear, accurate English in every legal
and business situations.

The course will focus on key aspects of legal English writing, contracts
drafting, legal documents, letters and memoranda. The following areas will
be covered:
1. Introduction to legal English 1-3
2. Elements of legal writing 6
3. Basic standards of legal writing 32
4. Elements of good styles : clarity, consistency, effectiveness 46
5. British and American English 76
6. Contracts : performance, termination and remedies 85
7. Court advocacy 198
8. Negotiation 208

CONTENTS

A-Introduction to legal English 1-3

Source of legal English : Legal English reflects the mixture of languages that
has produced the English languages generally. Modern legal English owes a
particular debt to French and Latin. Following the Norman invasion of
England in 1066, French became the official language of England for nearly
300 years, and therefore was used as the language of legal proceedings.
Many words in current legal use have their roots in this period. These
includes : property, estate, chattel, lease, executor and tenant.

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During this period, Latin remained the language of formal records and
statues, but not the language of legal pleading or debates since the majority
was not fluent in Latin. English remain the spoken language of the majority
of the population, but almost all writing was done in French or Latin.
English was not used in legal matters.

In 1356, the statute of pleading was enacted in French. All legal proceedings
should be in English, but recorded in Latin. But French continued to be used
into the 17th century in some areas of the law. Later new branches of- in
particular- Common law began to develop entirely in English and remain
relatively free of French-based terminology.

Some writers deliberately used Latin word order rather to impress than
inform. This led to an ornate style. However, Latin grammar is responsive
for some of the ornateness and unusual word order of legal documents.

English was adopted for different kinds of legal documents at different

times. Statutes were written in Latin until about 1300, in French for few
years, and in English alone from 1489.

WHAT MAKES LEGAL ENGLISH DIFFICULT?

Legal English is very different from ordinary English. It comprises two
issues:
1. The writing conventions are different: sentences often have peculiar
structures, punctuation is used insufficiently, foreign phrases are
used instead of English phrases (the same, the foresaid, etc), and
unusual set of phrases are found (null and void, all and sundry).

2. A large number of difficult words and phrases are use. These fall into
four categories as described below :

a-Legal terms of art: the legal terms of art are technical words and phrases
have fixed legal meanings and which connot usually be replaced by other
words. Some of these will be familiar such as, patent, share, royality. Others
are generally known to lawyers (e.g. bailment, abatement).
A number of frequently encountered terms of art are defined in the glossary
of legal terminology.

b-Legal Jargon: Term of art should be differentiated from legal jargon. Legal
jargon comprises words used by lawyers, which difficult for non-lawyer to
understand. Jargon words range from near-slang to almost technically

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precise words. Well-known examples of jargon include boilerplate clause
and corporate veil.

Jargon includes a number of archaic words no longer used in ordinary

English. These includes annul( to declare that something, such as a contract
or marriage is no longer legally valid) and bequest ( to hand down as an
inheritance property other than land).

It also includes certain obscure words which have highly specialised

meanings and are therefore not often encountered except in legal
documents. Examples include emoluments (a person’s earnings, including
salaries, fee, wage, profits and benefits in kind) and provenance (the origin
or history of something).

c-Jargon words should be replaced by plain language equivalents wherever

possible.

Legal meaning may differ from général meaning : There is also Small group
of words that have one meaning as a legal term of art and another meanig is
ordinary English. One example is the word distress, which as a legal term of
art refers to the vseizure of goods as security for the performance of an
obligation. In ordinary English it means anxiety, pain or exhaustion. Here
are some futher examples .

Words and its English legal meaning

Consideration in leagal English means an act, forebearance, or promoise
by one party to a contract that constitutes the price for which the promise
of the other party is bought. Consideration is essential to the validity of any
contract other than one made by deed.

Words and its ordinary English meaning

Consideration in ordinary English means (1) careful thought, (2) a fact
taken into account when making a décision, (3) thouhtfulness towards
others.

CLASS ACTIVITIES : Find the English legal meaning and the ordinary
English meaning of the following terms : Construction (3)ordinary
meanings) redemption, tender (5) ordinary meanings).
Examples of such words are includes in glossary dealing with obscure
words and phrases.

d-Words may be used in apprently peculiar contexts

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A number of words and phrases, which are used in ordinary English, are
also used in legal legal English but in unusual context. Examples includes
furnish, prefer, hold.
TASK : Find the deatails of the meanings of these terms.

B-Elements of legal writing 6

This chapter aimed at providing a compréhensive coverage of some aspect

of grammar as guidance on various issues that may cause dfficulties in
leagal writing.

B-1. ARTICLES
Articles in English includes the, a and an.
A few simple rules clarify the way in which thèse articles should be used.

A and an are indéfinite articles. A is used when mentioning something for

the first time (‘a client walk into the office’). An is used in the circumstances
but only where the following word begin with a vowel (‘an attorney walk
into the office’).

The is the definite article. It is used when referring to something that is the
only one of its kind (‘the sun’) or when referring to something in a général
rather specific wy ( the Internet has changed our way of life’).
In some circumstances, articles should be omitted. For example, when a
sentence links two parrallel adjectival phrases, the article should be
omitted from the second phrase.
Example :
The judge ruled that Cloakus Ltd was a valid registered and an existing
company.

In addidtion, when using certain abstravt nouns in a général, conceptual

sensé, it is not necessary to use an article to precede the noun.
Example :
In the event of conflict between the définitions given in appendix 1 and the
définitions given in the contract, the contract shall prevail.

There is no need here to precede conflict with a, since conflict is uded in a

général conceptual sensé. However, when referring to a specific conflict,
articles should be used, as in ‘ the opposing factions took part in the
conflict’).

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EXERCICE  1 : Correct these sentences by adding articles as appropriate.
a-Parties signed contract today after having discussed price.
b-Lawyers about whom I spoke arrived at meeting too late ta advise about
amount of damages company could get.
c-If there is telephone call for me about case, pit it through.
d-Client said that Roggins was inefficiently brun and unprofitable company.
e-Mobile phone has revolutionised way in which firm does business.

B-2. PREPOSITIONS
Prepositions are words used with a noun or pronoun, which show place,
position, time or method.

Prepositions such as to, in, from, after, before, etc. normally come before a
noun or pronoun and give information about how, when or where
something has happened (‘she arrived before lunch’, ‘Itravelled to London’).

The préposition between should be folloed by an object pronon like me,

him or us instead of a subject pronoun suc I, she, and we. It is therefore
correct to say ‘this matte ris between you and me’ and wrong to say ‘ this
matte ris between you and I’.

The main problems is for the non-native speaker is remembering which

préposition to use. There are no clear rules to follow in this respect, but
some examples of common usages are set out below :
 The parties to this agreement…
 The goods must be delivered to the punchaser.
 The commencement/termination of this agreement…
 The price list set ou in schedule1…
 Royalities will be paid in accordance with this agreement for a period
of five years.
 The good must be delivered within 14 days.

IN-CLASS ACTIVITIES : Complete the folowing sentences using the

appropriate préposition.
 The company agrees ……..provide training ……service personnel.
 The agreement may be terminated……..notice.
 An arrangement ………………………..the seller and the buyer (……..)
 It is agreed that the goods will be collected ……………from the seller’s
warehouse………./………….Redwoods road.
 Inters twill be chatged……………any unpaid instalments………the
expiration ……….a period………….28 days……………..the date hereof.
 He was charged ……………..murder.
 The propety……….2 Pound Road is sold………..vacant possession.

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It is important to note that in certain circumstances it may be possibl to use
more than one préposition, and that there may be Small but important
différences in meaning beteween them.
Example :
The goods must be dekivered within 7 days

Is subtly fifferent from

The goods must be delivered in 7 days.

The use of the within makes it clear that he goods may be delivered at any
time up to the senenth day, while the word in implies that the goods should
be delivered on the seventh day. This minor linguistic différence could be
critically important in a contract for the sale of goods.

EXERCICE  2 
Replace the missing prépositions in the gaps in the following
sentences.

a-Ten units must be delivered___________the buyer_____________30 November.

b-This arrangement can be terminated__________giving not less than 14 days’

notice _______writing.

c-Rent will be paid_________accordance_____________this agreement.

d-This is an agreement____________the parties to the contract.

e-The goods are to be moved______the defendant’s warehouse no

later__________28 days.

B-3.PRONOUNS
 A Prounon is a word used instead of a noun to indicate someone or
something already mentioned or knowned. Example : I, You, this, that.
Pronouns are used to avoid repeated use of a noun. They are usually used to
refer back to the last use noun.
Legal drafters have traditionally avoided using pesonal pronouns such as,
he, she, we, they, instead replacing them with formulations such as the said,
the foresaid, or the same. The reason for this is a fear of ambiguity in case
where it is unclear to which noun the pronoun might refer if a number of
parties are mentioned in the document.

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Example of a sentence made ambiguous by unclear use of pesonal
pronouns :
He married with James and John. John then continued his journey by car.
James stayed at the depot, and he followed john later.

Common gender-neutral pronouns and adjectives can be used to avoid

using sexist language : any, anybody, anyone, each, every, everybody,
nobody,none, no one, some, samebody, someone.

EXERCICE  3 :
Replace the missing pronoun in the following sentences.
a- I went to te office very early this morning and did not see____________there.

b-It is importan that________________be there to welcome Mr. Jones when he

arrives at the airport tomorrow evening.

c-These rules are very clear. Therefore________________should be in any doubt

as to what they mean.

d-If you feel the issues Mr. Smith wants yu to résolve are outside your field
of expetise, don’t hesitate to pass_______________ case to me.

e-The lawyers in that firm are rather old)fashioned in

_____________________approach. I’s time for_______________ to modernise.

B-4. ADJECTIVES

An adjective is a word used to describe a noun or make its meaning clearer

(e.g. excellent, as in ‘anexcellent horse’) Some words in the English
language have the ability to change parts of speech. For exmple the word
principal, often used in legal English, can be used as an adjective (‘the
principal sum’) or as a noun (‘the principal instructs the age,ts’).

Some adjectives are described as uncomparable adjectives, meaning that

thaey describe something that can only be absoluyte. Such adjectives
cannot be quelified by words like most, more, less, very, quite or largely.
For example, if provision in a contract is void it cannot be ‘ largely vois’ or ‘
more void’ – it is simply void.

Following is a short list of uncomparable adjectives : absolute, certain,

complete, definite, devoid, entire, essential, false, final, forst,impossible,

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inévitable, irrévocable, manifest, only, perfect, principal, stationary, tru,
uniform, unique, void, whole, etc.

B-5. ADVERBS
An adverb is a word that modifies or qualifies a verb (e.g. walk slowly), an
adjective (e.g. really smal) or another adverb (e.g. very quietly). Most
adverbs consist of an adjective and+ the ending-ly. There are a number of
words that act both as adjectives and adverbs, to which the suffix-ly connot
be added. These includes : alone, early, enough, far,fast, further, little,
long, low, much, still, straight.

EXERCISE 4 
Choose an appropriate adverb from the list below to complete the following
sentences :

a- My client accepts that he is ____________responsible for the difficult

Financial circumstances in which he find himself.

b- This clause is not_______________enforceable

c- The speaker droned on ________for over two hours.

d- We should be grateful if the documents were issued______________

e- The proposition, though_____________________attractive, was flawed.

Adverbs : superficially, legally, expeditiously, tediously, solely

B-6. PHRASAL VERBS

Phrasal verbs are phrases that consist of a verb used together with an
adverb (e.g. break down) or a préposition( e.g. call for) or both (e.g. put up
with). They are oftenfound in legal English. For example, account for, enter
into, serve upon, put down.

Phrasal verbs can cause particular problems for non-native speakers of

English where the verbs used have ordinary meanings when used without
an adverb or preposition, but form an idiom when used with an adverb or
preposition. In such cases the littéral meaning of the words. For example,
the phrasal verb to brush up on means to practise or study something in
order to get back the skill pr knowledge you has in the past but have not
used for some time. For example, ‘I must brush up on before visiting Pris’.

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The phrasal verbs glossary provides a range of most common phrasal verbs
in legal usage together with explanations of their meanings and exemples
showing how they are used.

B-6. NEGATIVE
Negatives are formed in English by using prefixes. The most common of
theseare : un-, in-, il-, im-, non- an anti-.

Here are some common négative forms often used in legal English :
unlawful, unfamiliar, impractical, illégal, unfair, invalid,independent,
injustice,impartiality, inéquitable, unwritten, impraticable,
unconstitutional, illicit.

C-Elements of good styles : clarity, consistency, effectiveness 46

GENERAL CONSIDERATIONS
Style in legal weitingis to some extent a matter of personal preferenceor
company Policy. The only unbreakable rules of style in legal document and
letters are that your writing should be easier to understand as possible and
that itavoid offensive terms.

In addition to drafting letters, emails and other communications , most

lawyers also spend a considérable amount of time creating legal documents
for a variety of purposes. These may either be intended for use in court
proceedings or for use in non-contentious business such as sales of land,
goods, or sévices.

Typical documents prepared by lawyers for non-contentious purposes

include transfers of land, contracts for sales of goods, articles of
associations for companies, licences and options.

The style of writing used in legal documents differs from the style used in
legalcorrespondance. This is because the purô se of legal documents is
different from that of legal correspondence.

Most legal documents used in court proceedings either act as évidence in

support or defence of clain. Most legal documents used in non-contentious
business generally record an agreement between parties. Sch documents
are intended primarily to regulate all aspects of agreement reached
between the parties.
They lay down the obligation each party musy carry out and specify the
consequences of failure. They are intended to be legally effective in court.

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Consequently, the language used in legal documents displays certain typical
features, which often make them difficult to read. These include:
o Use of terms of art. These are words that are have a precise and
defined legal meaning. They may not be familiar to the layperson, but
cannot be replaced by other words.
o Use of defined term. Many legal documents contain a definitions
section in which the parties agree that certain words used
repetitively throughout the document shall have agreed meaning.
o Use of obscure legal phrasing. This can be confusing to the layperson,
either simply because the language is unfamiliar, or because the
words used have different meaning in ordinary English.
o Repeated use of the words shall and must to express obligations, and
may to express discretions (where the parties are entitled to do
something but are not obliged to do it.)

The writing used in legal correspondence usually has a different purpose. It

is generally intended to provide information and advice, but to forward
proposals and to provide instructions to third parties.
However, all legal writing should aim at achieving three goals: clarity,
consistency and effectiveness.

CLARITY
Writing of all king should be easy to understand as possible. The key
elements of clarity are:
 Clear thinking. Clarity of writing usually follows clarity of thought,
 Say what you want to say as simply as possible,
 Saying it in such as that the people you are writing for will understant
t- consider the needs of the reader,
 Keep it short as possible.

Sentences: Keep sentences short as possible. It does not mean that every
sentence should be short.

Pay attention to phrases that might introduce new pieces of information or

argument. These can often be reduced to single word. Hre are some
examples:

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common used phrases Single word equialent
Be a significant factor in Affect, influence
Be in position to Can, may
Be inclined to the view that Think (that)
By dint of because
Give rise to cause
Have a detrimental effect on harm
Have a tendency to tend
Have an effect upon affect
Have the effect of (In most conexts) cause

CONSISTENCY
Legal English is full of synonyms. It is therefore all all too easy to start
within about something using certain words, and then later on in the
document or letter start using other words to describe it. This can lead to
lack of clarity or to ambiguity. It is crucial to be consistent in your use of
terminology.

For example, if you start off with buyer and seller, do not start using
vendor and purchaser later in the document. Never mix parts of different
pairs: for example landlord and lessee, vendor and buyer.

Here are examples of common use synonyms for legal concepts used in
legal documents. There are subtle differences in meaning or usage between
them:
 Assign is used in relation to intangible property (such as rights under
a contract) while transfer is generally used in relation to tangible
property (such as land and other physical items).
 Breach is used in relation to contract violation, while infringement is
used in relation to the violation of rights (particularly intellectual
property rights).
 Clause is frequently used in relation to specific contract, while article
is more often in relation to EC legislation and overarching or
framework agreements/ terms and conditions.
 Landlord and tenant are used in relation only to the lease of a real
estate, while lessor and lessee may also be used in relation to the
lease of other types of property.
 Void and invalid mean that something is not legally binding and has
no legal effect, while ineffective refers to something that fails to
achieve the required legal aim.

EFFECTIVENESS

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When drafting legal documents or letter, clarity and consistency are worth
noting if the document is not actually legally effective.

Effectiveness checklist
The following checklist will help focus your mind on how to achieve legal
effectiveness and relates particularly to the drafting of legal document such
as contracts.
 Does the language you use correctly state a condition, obligation,
authorisation, or limitation?
 Does it state it in such a way that it is clear to whom or what it
relates? A key point here is to avoid the passive- that is, do not write a
meeting must be called if…, but the managing Director must call a
meeting…
 Does it state it in such a way that: it is enforceable (1) under the
terms of the document itself, and (2) according to the law that
governs the documents?
 Have you set a clear time for the performance of any obligation?
 Is it in conflict with any other terms of the document?
 Does the document clearly state what will happen in the case of
breach of any obligation? It is important to define the nature of
innocent party’s rights and the nature of the penalty that will be
imposed on the breaching party.
 Are the obligations, authorisations, conditions and discretions
actually capable of being exercised in practise? A key point here is to
be careful with precedent documents- if used, they must be adapted
rigorously to the deal in hand.
 Is it precise enough? In particular, set clear time-frame rather than
using words like forthwith; specify precise standard rather than use
formulations like to a reasonable standard, state enforceable
obligations rather than use formulations like use their best
endeavours to, etc.

RESEARCH TOPICS:
-British and American English
-Contracts: performance, termination and remedies
-Court advocacy Structure of a civil trial
-Negotiation: negotiation style and strategies

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