The topic links below take you to the updates lower down the page, where they appear in the book's page order in 4 columns:

col 1: the page number;
col 2: the topic;
col 3: the wording of the book to be updated;
col 4: the new comments.


Topic (latest updates first)


Chapter

Simple confusion added 24.8.24

17: Sentences
Plain Anglo-Saxon law added 13.8.24
5: Lawyers' concerns about plain language
Consistency in lists added 2.7.24
11: Format
Persuasive techniques added 20.6.24
19: Persuasion
Political correctness added 28.5.24
9: Be human
"And" can mean "or" (and vice versa) added 17.3.24
24: Ambiguity
More pedantic than me added 17.3.24 3: Who says what's right?
Gowers' Complete Plain Words added 8.1.24 Various
Stating the obvious added 9.8.23 18: Choosing words
Buried verbs added 5.8.23 18: Choosing words
Where no interpreter is available added 27.7.23 29: Translating and Interpreting
Interpreting for the deaf added 27.7.23 29: Translating and Interpreting
Semantic ambiguity updated 15.6.23 24: Ambiguity
Graphics added 20.5.23 11: Format
Mistakes induced by dishonesty added 24.10.22 18: Choosing words
Metaphor and cliché added 7.9.22 18: Choosing words
Hiding your wares from the public added 8.3.22 18: Choosing words
Choice of words (give, devise & bequeath) further updated 19.3.21 18: Choosing words
Whiz deletions added 27.2.21 18: Choosing words
Updated web address added 4.1.21 5: Lawyers’ concerns about plain language
Bibliography
The need for thought added 24.7.20 6: The need for thought
Unfortunate metaphors added 5.6.20 18: Choosing words
Is the possessive apostrophe-s too informal? added 16.2.20 3: Who says what's right?
Is the possessive apostrophe-s too informal? added 16.2.20 3: Who says what's right?
Is plain language new? added 12.10.19; link corrected 7.12.24 5: Lawyers' concerns about plain language
Social changes added 9.10.19 23: Vagueness
Sentence construction added 9.11.18 17: Sentences
Clichés added 7.10.18 18: Choosing words
Semantic ambiguity added 7.10.18 24: Ambiguity
Positive or negative thoughts added 4.9.18 17: Sentences
Misleading expectations added 23.8.18 27: Misleading expectations
Council of Mortgage Lenders added 18.7.18 Appendix C: Lease precedent
Service charges added 18.7.18 Appendix C: Lease precedent
Retail Prices Index added 11.5.18 9: Be human
Evolution of legal language added 7.5.18 3: Who says what's right?
Jurors' misunderstanding added 2.5.18 10: Organising your document; 11: Format
Choice of words added 4.4.18 18: Choosing words
Choice of words (incidence) added 24.2.18 18: Choosing words
Choice of words (vehicle) added 11.2.18 23: Vagueness
Oxford comma added 11.2.18 12: Punctuation
Oversimplifying added 6.11.17 5: Oversimplifying
Listening to criticism added 5.11.17 20: Editing
Context (how it misleads us) added 30.10.17 27: Misleading expectations
Choice of words (exited) added 6.10.17 18: Choosing words
Graphics added 22.9.17 11: Format
Precedents (dangers of) added 22.9.17 1: Why is traditional legal writing a bad thing?
Ambiguity (uses of) added 12.9.17 24: Ambiguity



PageTopicWhat we saidUpdate

4

Choice of words
pad(incidence)
pad

Added 24.2.18

Commas are omitted from the first incidence of the Bracknell Road address.

Martin Cutts has gently queried "in my pernickety way" the use of 'incidence' when we meant 'instance'. We think, and he has since agreed, that 'incidence' can have this meaning (at a pinch). But 'instance' would have been the better choice and we'd have changed it if we'd thought about it.

13

Mistakes induced by dishonesty
pad

Added 24.10.22

These mistakes can have savage consequences for solicitors as well as for the clients, since they are likely to be sued for negligence (or worse, if they have deliberately helped to create a misleading document).

Buried in standard leases was an anaesthetic rent review clause with a slightly unusual provision whose departure from the normal passed unnoticed.

Every three years the rent was increased — supposedly in line with the retail price index (RPI) — by the formula
a/b x c
(although it was much less succinctly expressed in the lease), where a was the RPI figure just before the review, b the RPI figure for the beginning of the term, and c the old rent.

What passed unnoticed was that the old rent (c) (defined near the beginning of the lease as the ‘Variable Factor’), multiplied (by clause 3 of the second schedule), was the rent payable immediately before the review, rather than that payable at the beginning of the term. So instead of the expected
new rent = new RPI/starting RPI x starting rent
the landlord charged
new rent = new RPI/starting RPI x rent as last revised
outrageously compounding the increases every three years and making the shop uneconomic. The landlord apparently added capital to his revenue gains by granting the leases for a substantial premium, charging another, reverse, premium when the floundering tenant had to surrender the lease, and then starting the cycle again.

In an interlocutory hearing of a tenant’s claim the landlord’s solicitor was accused in the Court of Appeal of deceit and fraud.

Unfortunately for our purposes, the case was compromised on confidential terms before trial and I've not been able to discover the outcome.

Whyfe v. Cullen & Blue Dolphin (unreported, 10 November 1993).
15 Precedents
pad(dangers of)


Added 22.9.17
Unfortunately, many solicitors prepare documents, often with onerous clauses, without consulting their clients. They just copy a precedent that they (or someone else) have used in the past. Similarly, many solicitors do not explain the incoming documents to their clients. Often neither party to a contract knows what the solicitors have arranged. The resulting document does not represent the bargain made by the clients and its provisions are innocently ignored – until there is a problem.

Another consequence is that the bargain is not properly thought through.
An example of this problem has recently been reported. Two well-known law firms agreed to extend time for negotiations. Mr Justice Coulson criticised them for using a template standstill contract “without perhaps fully understanding why they were doing so, and serially departing from the template”.

The resulting contract and its 5 extensions were, he said, a “muddle”. Although their main purpose was to extend the time limit, the parties did not agree, and the contract did not make it clear, how that had been done. At the end of the agreed extensions, did the original time limit expire, or did  it start running again from where it had left off?

Russell v Stone [2017]
[EWHC 1555 (TCC), 29 June 2017
35 Correction

Added 6.11.17
Part C The references to part C should have been to part D. We apologise for this mistake, which arose from a late reorganisation and survived what we thought were careful checks. It reinforces the point in chapter 20 that you can never edit enough.
37 More pedantic than me

Added 17.3.24
For example, most of us over 50 were taught to use "I" when we were the subject of the sentence and "me" when we were the object, or following a preposition. On second thoughts, I don’t think my primary school English teacher can have mentioned prepositions in this context, as she said that constructions like “She is as tall as me” and “I am more pedantic than him” were wrong.

She explained that “I” and “he” were correct because the sentences were contractions of “She is as tall as I am” and “I am more pedantic than he is”. It was many years before it occurred to me that the reason that “me” and “him” sound right — and are correct even if you are like her (or like she was) a prescriptivist — is that we treat them not as contractions but as the objects of a preposition.
38 Is the possessive apostrophe-s too informal?

Added 16.2.20
A consultant with many years’ experience as drafting counsel to the US Senate disapproved (in a 2014 LinkedIn discussion) of the possessive apostrophe-s in statutes. His view that this was unacceptably informal didn’t change even when he was shown the introductory words of the Administration of Estates Act 1925 (as a random example of long-accepted British formality):
Be it enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows :–
He and his colleagues, he said, would have replaced "the King’s most Excellent Majesty" with "the most Excellent Majesty of the King". He wasn’t joking.
It's been confirmed that this is indeed the policy of the Senate Office of the Legislative Counsel, although not of the US Government Publishing Office style manual, which the Senate's legislative drafters are supposed to use.
40, 185, 256 The Complete Plain Words

Added 8.1.24
I'm grateful to Nouf Alkhaja for pointing out that Sir Ernest Gowers' original (1954) edition is now in the public domain at www.plain-words.com. The latest revision, by Gowers' great-granddaughter, Rebercca Gowers, in 2014.
39 The evolution of legal language

Added 7.5.18
[E]ven legal language mutates more than we are taught. A selection of conveyancing documents from 1853 onwards and another of wills from about 1000 CE onwards appear in Mark Adler: Legal style through the ages.
48 Oversimplifying

Added 6.11.17
There remains the danger that a writer who does not know the purpose of a particular form of words might create a problem by omitting them. See our comment under Listening to criticism below.
51 Is plain legal language new?

Added 15.2.20
Our thanks go to Michelle Johnson-Weider, a legislative drafter for the US federal government, for this gem in Plain Language and the Rule of Law: King Sejong the Great and Modern Legislative and Regulatory Drafters, in The Loophole (Feb 2020):

At the time King Sejong became king in 1418, Korea had a spoken language of its own but had used the highly complicated Chinese character system for writing for over a thousand years. Chinese has no alphabet; reading and writing require memorizing a different character for each word. There are estimated to be about 50,000 unique characters, none of which contain any pronunciation clues. Reading at even a basic level requires knowing some 3,000 characters. To complicate matters further, the Korean spoken language is quite different from Chinese, meaning that many Korean words have no corresponding Chinese character. Mastering literacy took years ….

[King Sejong] felt that his people were poorly served by not being able to read the laws that governed them or to express their own ideas in writing, which limited their ability to seek official help. He expressed his concerns with a specific focus on the rule of law ….

To address the issue, King Sejong established a group of scholars who worked in secrecy for three years to develop a new written language. The King himself actively participated in the task, as did his eldest son. Their goal was to create a writing system with a phonetic alphabet that accurately represented spoken Korean and that the common people could learn easily. One remarkable feature of the new alphabet, eventually called Hangeul, was that the shapes of the consonants were designed to imitate the shape of the mouth, tongue, or lips when pronouncing the relevant sounds. In contrast to the thousands of Chinese characters, Hangeul only had 28 letters, which could be combined to write anything that could be said….

Today, both North and South Korea have nearly universal literacy, thanks in large part to the progressive vision of King Sejong, who worked determinedly so that his people would be able to understand the laws that bound them and to communicate their concerns to their government. Through Hangeul, King Sejong ensured that clarity and publicization of laws, as well as citizen participation, were possible throughout Korea, thus furthering the rule of law in very concrete ways.
52 Plain Anglo-Saxon law

Added 13.8.24
The waves of Germanic-language speakers who crossed the North Sea to fill the vacuum after the Romans left Britain had a tradition of plain law (and, having resisted the Romans and Christianity, no Latin). Justin Pollard writes:
Now [King Alfred] could begin his great work: of choosing the most important books in the world and translating them into a language that made them available not just to clerics and scholars but to all his people. ...

Secular documents in Latin, such as legal notices, further fettered an illiterate society, by requiring specialist intermediaries to interpret them. Now Alfred wanted to begin to open up this world of knowledge, first to the court and then beyond. Admittedly the peasants in the fields of Wessex would not be able either to read or write in English, but they could be read to, just as Alfred was, and if the language used was English they would not just hear but also understand. Amongst the higher echelons of society, whom Alfred was forcing to become literate, his choice of works would also further extend his influence and improve the perception of his administration, by providing what were essentially "handbooks for government" – manuals for how to behave when the king could not be there to hand down orders in person. Written orders that could be understood by everyone could take the will of the king anywhere and … could not … "be brought to naught by the assault of misty oblivion".

This was the beginning of a revolution in English life and it was in many ways centuries ahead of its time.
Alfred the Great: the man who made England 2005 (paperback edition 2006, pp 253-4)
52 New website address

Added 4.1.21
A typical Anglo-Saxon will ... can be downloaded from www.adler.demon. co.uk/saxon.docx The address has changed to www.mark-adler-law.uk/saxon.docx.
55 The need for thought

Added 24.7.20
The lawyer’s real job is not to translate ordinary language into ‘legal’ language but to think through the scheme you are creating to ensure that it does the job. ...

Many lawyers skip the thought stage and rely on hand-me-downs. They expect a precedent – or just their favoured form of words – to work, not only in general but for the case in hand.
MA:

A press report of an American criminal court hearing has quoted an allegation that abuse had run from "at least in or about 1994 to about 1997". This adopts the traditional mantra "in or about" (which is no more precise than the normal form "in about") but what does "at least" mean? And how wide a margin of error does "about" allow when there are only two intervening years?

In my experience the "or about" is usually unnecessary because the evidence clearly established the date. But unnecessary conformity trumps precision.

I once asked an opponent why he had alleged that something had not been done "adequately or at all" when the documents in his possession showed that it had been adequately done. He shrugged that "it was in the precedent". In those days before the Civil Procedure Rules would have condemned this as perjury he didn't think it mattered, but it wasted everyone's time and cost his client both money and face.
62 Good writing isn't easy

Added 12.10.19
There are many ways to improve legal writing and we hope we have covered most of them. But what if you have only a little time to devote to improving this essential skill? Which will give you the best quick results – that is, the most impact for the least effort? This is not to suggest good legal writing is easy. It is difficult to write anything well — that is, precisely, economically, clearly, persuasively, elegantly, and in a suitable tone. Legal writing (in particular legislating for an unpredictable future) is more difficult than most other forms, and part D explains why perfection is impossible.
71 Political correctness

Added 28.5.24
It is a pity that the desire to avoid giving offence sometimes leads to wordy and vague writing. Unfortunately, the political correctness movement has made itself absurd by imagining offence where none could reasonably be taken, and by tying us in linguistic knots to avoid it. In one psychiatric centre it was a sacking offence to wish a Christian client a Happy Christmas, leading bemused patients greeted with the mandatory "Happy midwinter festival" to wonder about role reversal. The confusion of roles wasn’t entirely fanciful. My wife, who worked there, narrowly avoided embarrassment when she was intercepted on her way to offer tea and counselling to the Director of Social Services.
72 Retail prices index

Added 11.5.18
On each rent review date the basic rent will change in line with the change in the RPI. The Retail Prices Index has been criticised as giving an unfairly high rate of increase and in a March 2018 report the Office for National Statistics wrote:
Our position on the RPI is clear: we do not think it is a good measure of inflation and discourage its use.
The Commons Treasury Committee's report on student loans has recommended using the Consumer Price Index instead of the RPI (for student loans, but in the context of more general criticisms of the "widely discredited" RPI).
81, 95 Jurors' misunderstanding

Added 2.5.18
In an account of his time on a jury, journalist Trevor Grove explains that it is difficult to remember and assess the evidence without knowing the point that counsel is trying to establish and before being told the law that the jurors are to apply to it. He quotes an unnamed federal judge writing (in an unspecified 1960 article in the American Bar Association Journal):
What manner of mind can go back over a stream of conflicting statements of alleged facts, recall the intonations, the demeanour, or even the existence of the witnesses, and retrospectively fit all these recollections into a pattern of evaluation and judgement given him for the first time after the events?
… [Steps are] increasingly used in English criminal trials to help jurors apply the law to the facts.
A study commissioned by the Scottish government has identified 8 methods of improving jurors' understanding of the legal issues and their memory of the law and evidence:
Trial transcripts, juror note-taking, audio-visual and digital presentation methods, juror questions, pre-instruction, plain language directions, written directions and structured decision aids (also known as routes [or steps] to verdict). …

Juror note-taking refers to the practice of encouraging jurors to take notes during the trial and providing them with materials to do so and there is evidence to suggest that this assists jurors to remember the evidence they have heard, especially if they are given trial-ordered notebooks (structured notebooks that help jurors to organise their notes). The evidence also suggests that juror note-taking is at least as effective — if not more so — than providing jurors with a full transcript of trial evidence. … [T]here is [also] evidence that pre-instruction — the practice of directing jurors on the substantive legal issues in the case before evidence is led — can also improve memory of the evidence. The reason for this may be that it assists jurors in identifying relevant evidence as it is led and provides a framework for organising this. Despite concerns that pre-instruction might cause jurors to reach their verdict decisions prematurely, there is no indication from the relevant studies that this is the case. …

There is also evidence that pre-instruction improves juror memory for legal directions — most likely for the straightforward reason that jurors hear the main points of the directions twice. … There is, however, a far more obvious method of improving recall of judicial directions, which is to provide directions to jurors in writing and, unsurprisingly, empirical research demonstrates that jurors who are provided with written directions are better able to remember and re-state those directions.
Report by Professors James Chalmers and Fiona Leverick, University of Glasgow School of Law, 30 April 2018
89 Lists

Added 2.7.24
Each list item must make good sense, in good English, when joined to the introductory words.

Each item should have the same grammatical structure. ...
I wondered why
Dr Imafidon has worked on a wide range of Stem projects, including writing books on the industry, hosting podcasts and appearing on television shows.…
sounded wrong — apart from the inelegant repetition in “including writing”.

The fault seems to be in the ungainly mid-stride leap from one grammatical form (the introductory noun “projects”) to another (the verbs “writing”, “hosting”, and “appearing”, given as examples of the noun).

Two ways to avoid this are
Dr Imafidon has been involved in a wide range of Stem projects, writing books on the industry, hosting podcasts, appearing on television shows, and so on …
and
Dr Imafidon has worked on a wide range of Stem projects about the industry, including books, podcasts, and television shows
although the “inert” noun version loses Dr Imafidon’s own role in these activities.
93 Graphics

Added 22.9.17
Now that photographs, graphs, and other images can be so easily imported into documents we might as well use them. They will sometimes make the point much more easily and effectively than words. This advice is now supported by a judgment of Mr Justice Carr on ways to shorten trials about registered designs. Instead of requesting written details, he says parties should produce images at an early stage to show the differences or similarities upon which they rely, and in the case of the defendant, those features which are wholly functional or in which design freedom is said to be limited.

Spin Master Ltd v PMS International Group
[2017] EWHC 1477 (Pat), 9 May 2017, paragraph 27
93 Graphics

Added 7.4.23
Now that photographs, graphs, and other images can be so easily imported into documents we might as well use them. They will sometimes make the point much more easily and effectively than words. As an example of what can be done here's a pdf extract from particulars of claim filed in 1998 under the County Court Rules 1981 shortly before they were replaced by the much more user-friendly Civil Procedure Rules 1998.
97, 100 Oxford comma

Added 11.2.18
An application for summary judgment in a class action between an employer and 75 of its truck drivers turned on whether an Oxford comma (see p.100) had been omitted from legislation. The amount at stake was estimated at over $10 million. The employer won at first instance but then lost on appeal (O’Connor v. Oakhurst Dairy (2017)). The New York Times reports that, according to "court documents", the drivers' claim has been settled for US$ 5m.

The problem arose because the usual statutory entitlement to overtime pay did not apply to
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of [certain goods].
The question was whether the Act meant "packing (for shipment or distribution)" or "packing (for shipment), or distribution".

Meanwhile, the Maine legislature has amended the ambiguous provision so that it now reads:
The canning; processing; preserving; freezing; drying; marketing; storing; packing for shipment; or distributing of….
New York Times, 9 February 2018

Title 26: Labor and Industry; chapter 7, subchapter 3, §664, cl 3

124 Sentence construction

Added 9.11.18
Most sentences that are suitably succinct will not have room for much more than the subject, verb, and object, preferably in that order….

[In the example replaced here by the ellipsis] subject, verb, and object are close together at the beginning of the sentence, interrupted only by a clause whose position there is essential and which is not long enough to derail the reader. The adverbial clauses at the end supplement, rather than interrupt, the sense, and are therefore easier to slot into our mental parsers as we read.
I've just come across this example of poor construction by a (usually) good writer:
Billy's eye had been drawn to a framed photograph of two men — one of them Edward Gibson, the other his brother — standing on a table near the window.
There is always a tendency — if not a canon of construction — to read phrases with the closest noun. In this case the digression naming the men and explaining their relationship increases the focus on the word "men" at the expense of "framed photograph". By the time I reached "standing" I'd forgotten about the photograph and continued reading with a misleading impression of inappropriate behaviour.
127 Positive or negative

Added 4.9.18
Using a positive phrase is generally more direct and may be shorter than the negative. In this example the underlying negative connotation of an ostensibly positive word causes confusion:
Few people, including the president himself, are interested in judicial philosophy.
Although those 11 words can stand alone to make the point, they were taken from a longer sentence made clumsier by its opening negative, extra length, and repetive use of the offending "few":
Aside possibly from a few members of the Federalist Society, which helped to put together President Trump’s master list of court nominees, few people, including the president himself, are interested in judicial philosophy.
Is the president one of the few people interested in judicial philosophy?
132 Simple confusion

Added 24.8.23
This rare quadruple negative was attributed on the radio to Boris
Johnson ... :
I could not fail to disagree with you less.
Such a simple sentence! But what does it mean?
This example of simple confusion was donated by Donald Trump about Robert Kennedy's conversion from rival to supporter:
We’ve been a little bit on the opposite side of the equation.
132 Buried verbs

Added 5.8.23
Buried verbs are those converted into nouns with a different, vaguer, verb added to tack the noun into the sentence. They are sometimes called ‘nominalisations. ...

A clue to detecting nominalisations and other wordy writing is the word of. Another is the verb to be.
When Daphne and I were writing this we thought that some verbs were buried in other parts of speech, notably adjectives, but we couldn't remember or find any examples. I've just come across this example of one verb buried under another:
He proceeded to [do something] (instead of "He did something")
Which reminds me of an affidavit I once saw in which every verb in the past tense (and there were many) was inflated from, for example, "I served" to "I did serve" — a fine example of pseudo-legal stilt.

And here are two adverbial ones (each flagged by both the clues offered in the text quoted in the column on the left):
...is productive of ... (= produces) and
... is demonstrative of ... (= demonstrates).
135 Choice of words
pad(whiz deletion)pad


Added 26.2.21
On the other hand, not all candidates for deletion really are redundant. That, who, and which are common victims of editors trying to squeeze text into a limited space. These words can often be omitted without loss of meaning (although it might affect the rhythm, and in this example slightly affects the formal register):
The Court of Appeal, upholding the arrangement, said [that] the obligation is equitable.
But if the omission creates an ambiguity or risks a miscue, "that" should be retained.
This omission of the relative pronouns is called whiz deletion because of its association with words beginning with wh.

Although it is very common, particularly in informal language, it can impede understanding. Robert and Veda Charrow found Making Legal Language Understandable: Psycholiguistic Study of Jury Intsructions, Columbia Law Review, 1979, p.1323 that mock jurors correctly interpreted only 1 in 4 whiz-deletions on average.

Unsurprisingly, non-native English-speakers find them particularly difficult.

Our thanks to Duncan Berry for the Charrow information.
135 Stating the obvious

Added 9.8.23
Lawyers particularly like describing the obvious:
...

The sum of one hundred pounds

The 29th day of September.
What else is £100, if not a sum, and what is 29 September if not a day?
But when people refer informally to their old house as "number 29", the word "number" signals the meaning in a way that "29" on its own would not. Similar expressions are "the no.1 bestseller", "Smith's number 2", and "number 8" (when referring to team players identified by their shirts). The phrase as a whole isn't the result of a count but a name or description.

This also seems to be obvious now I've thought of the answer, but the anomaly niggled me for some time.
137 Choice of words
pad(give, devise
padand bequeath
)


Added 22.9.17
(Updated 19.3.21)
We were taught that devise is appropriate for real property and bequeath for everything else .… The distinction may be quaint but it is not useful. The Law Commission, in its consultation on the law of wills, has asked if we need new legislation on interpreting wills. For example, it asks if "devise" and "bequeath" should both be interpreted as "give" unless a contrary intention appears. The consultation (on this and many other questions) ended on 10 November 2017.

The Commission's website says (on 19 March 2021) that they have been analysing the responses and developing a policy but that work has is on hold to comply with a government request to prioritise a review of the law concerning weddings.

Making a will
Law Commission Consultation paper 231, 13 July 2017
140 Choice of words
pad(exited)


Added 6.10.17
Here are some common examples [of complex words], with alternatives on the right Exited;padleft.
142 Choice of words
pad(shall)


Added 4.4.18
[P]rovided always that the … hedges to be erected by the Purchaser on the boundaries of the property shall be at least six feet in height.
… It would be difficult to plant a hedge that is already six feet high, even if you could get it back from the garden centre.
MA's note:

Gardening illiterate that I am, I have always thought of a hedge as a long single growth that would be inconveniently flexible if not secured to the ground by its many legs. But having just been asked by my wife to plant a row of six-foot saplings close together to form a hedge, and having checked the dictionary, I realise that we'll have to leave this joke out of the next edition.

A more serious comment about the use of shall in this example is that if it's interpreted in its future sense the hedge would be allowed time to grow to six feet.
145 Hiding your wares from the public

Added 8.3.22
Solutions has been used by all sorts of suppliers who sometimes mystify the public by failing to indicate their trade, which can’t be good for business. MA's note:

This reminds me of a very smart restaurant, so exclusive that a passer-by would not have known that it was there. It was not the sort of establishment that would normally have instructed me as an articled clerk in a deprived area but as I had been recommended they came to me, rather doubtfully, about a matter that arose while they were preparing their launch. Some time after the restaurant was opened by a heavily-titled member of the royal family, one of the proprietors admitted that business was disappointingly slow. The problem was solved by the erection of a sign outside saying "Restaurant".
146 Clichés
pad(put in place)


Added 7.10.18
MA's note:

My rant against put-in-place in the 2nd (2006) edition was squeezed out of the 3rd edition, but as this verbosity is still widely used I'll make another attempt to discredit it. This was the original text:
It is currently fashionable to refer to something as in place, and when claiming credit for it to say that you have put-in-place whatever it is (retaining this word order even when it is inappropriate): I have put in place arrangements for insurance (rather than the more natural I have put arrangements in place). Whichever the word order, putting in place skews the meaning by emphasising the wrong part of the sentence, in that it suggests that your job has been to move pre-existing arrangements from the wrong place to somewhere more useful. Putting in place is an example of nominalisation [p.132 of the 3rd edition].

Exhuming the buried verb in this example we find first I have placed arrangements for insurance. But this leaves us with the real verb still buried (beneath the verb placed rather than beneath a noun). Digging further we reach I have arranged insurance.
147 Unfortunate metaphors

Expanded 24.9.21
In the worst examples, the lack of thought is given away by careless metaphors, whose literal meaning distracts the reader:

Metaphor should be used to elucidate a difficult point, or to provide a memorable image, but it should not distract or mislead:
"Exports are beginning to turn round."


Attributed to the then prime minister by BBC Radio News 7.3.13.

"Couple who fell in love from balconies prepare for first date."

Newspaper headline 2020

Commenting on the failure of deliveries caused by the shortage of lorry drivers, the transport secretary said "he would 'move heaven and earth' to keep goods moving".

Reported in The Independent online, 24.9.21
147 Metaphor and cliché

Added 7.9.22
Metaphor should be used to elucidate a difficult point, or to provide a memorable image... . In contrast to the previous example, a Pakistani teenager, apparently not a native Anglophone, was asked in a GCSE English paper to complete the proverb "People in glass houses ...". His delightful answer, simultaneously avoiding cliché and creating a fresh and memorable image, was "... shouldn't hang pictures on the wall."

Letter from Steven Dorner in The Guardian, 29.6.21.
153-161 Persuasive techniques

Added 20.6.24
The whole chapter In his 2011 book Thinking, Fast and Slow the late Professor Daniel Kahneman explains how rapid, easy, and unconscious intuitive thought precedes and interferes with the more difficult rational thought, often without us realising it. Based on footnoted research, he offers these insights in a 5-page section How to write a persuasive message:
"The general principle is that anything you can do to reduce cognitive strain will help, so you should first maximize legibility. ...

"If you care about being thought credible and intelligent, do not use complex language where simpler language will do. ...

"In addition to making your message simple, try to make it memorable. ..."

Where possible, choose names that are easy to pronounce.
In support of the last point he quotes research showing that businesses with easily pronounced names do better than those with names that are difficult to pronounce.
163 Listening to criticism

Added 5.11.17
Look on suggestions and criticism not as a personal attack on your writing skills but as a constructive contribution to a team effort. After 36 years on the appellate bench, but in this case sitting as a trial judge, Judge Richard Posner confidently insisted that his proposed jury instruction was clear enough, and he rejected a joint request by prosecution and defence that he include a sentence they thought necessary.

The defendant was charged with witness tampering under 18 U.S.C. § 1512(b)(3), that is that she

corruptly attempted to persuade another person to hinder, delay, or prevent communication of information to federal criminal investigators.
The statute leaves the definition of “corruptly” to the judge.

Judge Posner instructed the jury that

you can find the defendant guilty only if the government proves the following four things beyond a reasonable doubt:
  1. The defendant attempted to persuade another person to interfere with the government’s investigation or prosecution of illegal activity;

  2. She did this deliberately, knowing what she was doing rather than acting in ignorance or by mistake;

  3. She intended to interfere with, delay, or prevent another person from giving information to a federal law enforcement officer;

  4. That information related to a federal offense that someone had committed, may have committed, or was planning to commit.
He insisted that this contained all the ingredients of corruption, so to add and explain that word would be otiose. But, as counsel had argued, and the Federal Court of Appeals later held, his formulation

could have allowed the jury to convict Edwards of engaging in conduct that, under Arthur Andersen LLP v. United States … did not constitute corrupt persuasion and therefore did not amount to criminal witness tampering.

In Andersen the US Supreme Court had offered examples of interference that was not inherently corrupt:

Consider, for instance, a mother who suggests to her son that he invoke his right against compelled self-incrimination…, or a wife who persuades her husband not to disclose marital confidences….

Nor is it necessarily corrupt for an attorney to [persuade a] client to [withhold] documents from the Government.

 A week after the conviction was overturned on this ground Judge Posner announced his immediate retirement.

USA v Edwards
USCA 7th circuit, 24 August 2017

Arthur Andersen v United States
31 May 2005


We are grateful to John Hightower for drawing our attention to this case.
179 Social changes
pad


padAdded 10.10.19
A rule should be worded in sufficiently general terms to apply, in the way the legislators want, in all the circumstances that might arise. But those circumstances are infinitely variableandoften unpredictable, so judges will always be needed to fine-tune the boundaries in borderline cases, and also in ‘hard’ cases – those where the strict application of a clear rule would produce an unwanted result. Only two genders were generally recognised when the United States passed the Civil Rights Act 1964. Now that gender is analogue rather than binary the Supreme Court is finding it difficult to decide whether Title VII — which bars employers from discriminating against workers "because of ... sex" — protects all shades of the rainbow.

Where Gorsuch Sees Ambiguity, Kagan Sees Clarity in LGBT Rights Case by Marcia Coyle (8 Oct 2019)
179 Choice of words
pad(vehicle)
pad


padAdded 11.2.18
Let’s consider H.L.A. Hart’s much discussed (1958) example of what he calls the open texture of language:
No vehicles are allowed in the park.
At the time of Hart’s article, the Shorter Oxford English Dictionary defined vehicle (in more or less the sense intended here) as:
A means of conveyance provided with wheels or runners and used for the carriage of persons or goods; a carriage, cart, wagon, sledge, etc.…A receptacle in which anything is placed in order to be moved.
The press (for example, The Sun, 9 August 2018) has criticised police officers for relying on a bye-law banning "any vehicle drawn or propelled … by mechanical power" to stop a small boy and his father from playing with battery-powered radio-controlled toy cars on a cycle path in London's Battersea Park.

But is a toy car a few centimetres long and incapable of carrying anything a "vehicle", just because it looks something like one? If so, must a fluffy dog-shaped toy be kept on a lead (and perhaps muzzled)?

(The park authority justified the officers' action on the ground that the toys were a dangerous nuisance at a busy junction, particularly as one of the toys could move at 40 mph.)
187 Semantic ambiguity
pad(professional)


Added 7.10.18

pad(faith)

Added 15.6.23
Everyone knows that many words have more than one meaning but it takes a dictionary to remind us just how many different meanings a word can have.

For instance, the Shorter Oxford English Dictionary has a column-and-a-half on house, including (among other uses):

• as a noun:
a building for human habitation,

the part of a building occupied by one tenant or family,

a place of worship,

a religious community,

a school or college subdivision (referring either to the building or the members) … .
An insidious form of ambiguity occurs when the difference between alternative meanings is blurred in a way which confuses an argument. For example, a professional can be:
a member of one of the learned or skilled professions; or

an unqualified person working to earn a living.
So someone without a professional qualification can claim to be a professional, truthfully in the second sense, but without the skill, knowledge, or commitment to a code of conduct usually implied by the first sense.

A subtler example is the specious argument that religious faith is as valid as faith in science: "faith is faith". But it isn't. Again, the sleight of tongue is hidden by the use of the same word to mean slightly different things. In one case, a particular belief is held regardless of any reason or evidence that undermines it; in the other, reason and evidence are trusted as the most reliable basis for any particular belief, coupled with a willingness (even if temporarily delayed by stubbornness) to change that belief accordingly.
188 Semantic ambiguity
pad("and" can mean "or" and vice versa)


Added 17.3.24
• And can mean or ...

• Or can mean and
More than 10,000 people sentenced to long terms of imprisonment will have been disappointed by the Supreme Court’s decision in Pulsifer v. United States (according to an earlier report by Douglas Berman of Ohio State University's law school).

The problem arose from this wording of 18 U.S. Code § 3553 :
... [T]he court shall impose a sentence ... without regard to any statutory minimum sentence, if the court finds ... that—

(1) The defendant does not have—

(A) more than 4 criminal history points...;

(B) a prior 3-point offense, as determined under the sentencing guidelines; and

(C) a prior 2-point violent offense, as determined under the sentencing guidelines; ...
Must the defendant satisfy all 3 conditions (A), (B), and (C) or only one of them?

The “and” between paragraphs (B) and (C) suggests that all the conditions must be satisfied if the defendant is to have a chance of a term shorter than the prescribed minimum — in Mark Pulsifer's case, 15 years "for distributing at least 50 grams of methamphetamine". But the context gave him an argument that here “and” means “or”, persuasive enough for appellate courts in various states to have reached inconsistent decisions on the point, and for 3 Supreme Court justices to dissent from the majority which has found for the prosecution. (The minority opinion was written by Justice Gorsuch, a Trump nominee).
193 Ambiguity
pad(uses of)


Added 12.9.17
Lawyers sometimes create ambiguity deliberately to avoid trouble (at least in the short term). We might have added the obvious point that ambiguity and vagueness can be exploited for less acceptable purposes.

Does the right to charge "up to 15%" justify a standard charge of 15% regardless of circumstances? "No", said His Honour Judge Waksman QC (sitting as a High Court judge). It confers "a discretion [that] … must be exercised in a way which is not arbitrary, capricious or irrational in the public law sense".

BHL v Leumi ABL Ltd
[2017] EWHC 1871 (QB), 28 July 2017
200 Why we are misled

Added 23.8.18
Our brains have to learn how to translate the code of internal electrochemical events into coherent and accurate messages from the outside world. …

In all our perceptions and thoughts we can easily jump to the wrong conclusion, unaware that we have jumped anywhere. We see and hear what isn’t there, and miss or misinterpret what is, baffling and sometimes infuriating those affected by the misunderstanding.
In an entertaining, 17-minute Ted talk, Your brain hallucinates your conscious reality, aimed at non-scientists, neuroscientist Professor Anil Seth explains why
perception — figuring out what's there — has to be a process of informed guesswork in which the brain combines … sensory signals with its prior expectations or beliefs about the way the world is to form its best guess of what caused those signals. …

Instead of perception depending largely on signals coming into the brain from the outside world, it depends as much, if not more, on perceptual predictions flowing in the opposite direction.
We should take special care to minimise the guesswork when exercising professional judgement.
201 Context
pad(how it misleads us)


Added 30.10.17
Figure 27.1 … shows how context primes us to see … either a letter or a number. This excerpt from today's newspaper shows how the meaning of words can shepherd us down the wrong path (in this case about the consequences of Brexit):
11 per cent of global data flows pass through the UK and 75 per cent of that traffic is with the EU.
First we have to realise that flows is not a verb but part of the perhaps unfamiliar compound noun data flows.

But then the that in that traffic suggests that the amount of data business at risk is "only" 75% of 11%, which is 8.25%. It takes some thought for alert readers to realise that the 11% of global data that flows through the UK might represent anything up to 100% of the global data, and that it is three-quarters of that which is at risk.
214 Where no interpreter is available
pad


Added 27.7.23
A particular danger lies in interpretation by someone whose apparent competence in the language is misleading, or (similarly) by someone operating without an interpreter in a language not their own.

I had personal experience of this when summoned to a French police station in connection with a minor traffic incident involving a cyclist and my dog.

Did I want to wait there indefinitely for an interpreter of unknown competence, or do as best I could with my limited knowledge of the law and culture, and with my poor French eroded by the stress caused by doubts about my ability to cope?

As the affair was trivial and Daisy had a good case I took a chance, and happily she was released without charge. But:
I felt enough pressure to imagine that many people in real need of a lawyer or interpreter would be wrongly convicted as a result of waiving their rights; and

I didn't take Daisy to watch the Tour de France pass by.
215 Interpreting for the deaf
pad


Added 27.7.23
Sharing a language that has spread worldwide by empire or commerce does not imply sharing a culture.

Nor does sharing a country. Australian courts, for example, have had to learn that in some aboriginal cultures courtesy requires people to appear to assent to statements with which they disagree. This signals respect, not dishonesty.

Similarly, Dr Diana Eades states ...:
Silence in Aboriginal English is seen as a valuable and positive part of interaction, and is not taken as an indication that something is wrong, or that the speaker is evasive, lying or ignorant.
A related problem arises when interpreting for the "Deaf" (the capitalisation indicating "those who use British Sign Language", though presumably the comments also apply to other sign languages):
There is a need for the questioner to continue to look at the Deaf person when the person is answering the question. This is an interesting point. When a solicitor or police officer asks a question of the Deaf person, the Deaf person has to watch the interpreter (who should be positioned ideally next to the solicitor); the solicitor while asking the question should be looking at the Deaf person (not the interpreter). When the Deaf person answers the question, he/she will now look at the solicitor (not the interpreter). This means that the solicitor cannot write down at the same time as listening to the interpreter. If the solicitor tries to look away, a BSL user will stop the conversation as this is a sign of disinterest. In a Deaf conversation, the viewer never looks away, unless he/she wishes to be rude or when the participants are in an argument. A Deaf person answering a question, therefore, needs eye contact with the person who asked the question. Without this the answer will be problematic.
Jim Kyle: Witnesses who use British Sign Language in Witness Testimony Anthony Heaton-Armstrong, Eric Shepherd, Gisli Gudjonsson, & David Wolchover (para 13.33).
245 Lease precedent
(Council of Mortgage Lenders)


Added 30.6.18
Insure … against the perils required of borrowers by the Council of Mortgage Lenders The Council of Mortgage Lenders is now UK Finance and this announcement appears on its website:
The Lenders’ Handbook [has been] renamed the "UK Finance Mortgage Lenders’ Handbook"… . All references to the CML Lenders’ Handbook shall be deemed to mean the UK Finance Mortgage Lenders’ Handbook. Any associated documents which refer to the CML shall be deemed to mean UK Finance. A set of FAQs and responses has been prepared to assist users of the Handbook during the transition from the Council of Mortgage Lenders to UK Finance.
246 Lease precedent
pad(Service charge)


Added 30.6.18
In line with the suggestion here that we clarify and extend the landlord company's money-raising powers if the articles of association don't make adequate provision we suggest expanding clause 8 to read:
A. By the end of November each year, the landlord will estimate the service charge for the next year and notify the tenants.

B. As soon as practicable after 31 December, the landlord must produce accounts for the year then ending.

C. The tenant must pay by banker’s order one-fortieth of the landlord’s estimate (adjusted by bringing forward any balance from the previous year) by equal instalments on the 1st of each month.

D. If the landlord needs, or reasonably expects to need, additional funds, it may [on passage of a special resolution] serve demands on the tenants, and the tenant of each flat must pay 1/40th of the amount needed within [28] days.
253 New website address

Added 4.1.21
www.adler.demon.co.uk ... The domain name has changed to www.mark-adler-law.uk ... .
w