The straightest path to good legal writing is to follow Bryan A. Garner’s advice.
And one of Garner’s goals is to promote legal writing in plain English, i.e., doing away with legalese. I suspect that Garner and I differ quite a bit politically, but I like to think we agree that the ideal of equal treatment under the law is best served when legal writing strives to be democratic (note the lower-case ‘d’ there) rather than exclusionary, and, legal terms of art aside, understandable by any literate person.
You can make a significant leap toward clear, concise legal writing by simply avoiding certain words. “Shall” is one.
But there are a number of others, including what Garner calls “Here-and-There Words.”
Avoid that musty smell
Here are some examples of Here-and-There Words:
Herein, heretofore, hereinafter, hereunder, thereof, thereto, therewith, thereunder, therefor, thereon, therefrom.
In Garner’s Dictionary of Legal Usage (a book you should own), Garner, in his inimitable understated style, writes of Here-and-There words:
These abound in legal writing (unfortunately, they do not occur just here and there), usually thrown in gratuitously to give legal documents that musty legal smell.
I hereby declare an exception
Garner gives “hereby” special attention. Sometimes it’s a surplusage, e.g., “I hereby declare” instead of simply, “I declare.”
But Garner does allow that “hereby” can be used to “denote that the sentence in which it appears constitutes the legally operative act by which something is done.” So, “hereby” can be effective in making it certain that if in a document one “hereby resigns,” that document itself serves as the resignation.
Other than that one exception, avoid these words like the plague. They do not clarify; they only confuse and frustrate. And confusion leads to disputes over meaning. As I’ve noted before, that’s exactly what we are paid to avoid.
The great British lawyer Lord Denning wrote, of lawyers and their writing:
They would rather be accurate than be clear. They would sooner be long than short. They seek to avoid two meanings, and end—on occasions—by having no meaning. And the worst of it all is that they claim to be the masters of the subject. The meaning of words, they say, is a matter of law for them and not a matter for the ordinary man.
Making your legal writing accessible and understandable strikes a blow for freedom. Because if people can’t understand legal documents that affect their lives in important ways, is the law helping to keep them free? Or just the opposite?