This column originally appeared in the November 2016 edition of North Carolina Lawyer.

By Laura Graham

In the most recent installment of Writing that Works, I introduced a fairly new resource for legal writers whose work includes drafting statutes and rules. The book, Plain English for Drafting Statutes and Rules,[1] is a slim volume, but it covers a lot of ground. In that column, I drew from the book to highlight three central principles of effective legislative drafting: (1) use simple declarative sentences; (2) punctuate with care; and (3) tabulate with clarity. In this follow-up column, I’ve chosen to highlight two additional principles.

Use “common and known words.” This principle is apparently one of the very first—and most enduring—legislative drafting principles. According to the authors of Plain English for Drafting Statutes and Rules, one of the most influential statements of this principle came in the late eighteenth century, when English jurist and philosopher and Jeremy Bentham wrote:

  1. It is proper, as much as possible, not to put into a code of laws any other legal terms than such as are familiar to the people.
  2. If it be necessary to employ technical terms, care ought to be taken to define them in the body of the laws themselves.
  3. The terms of such definitions ought to be common and known words . . . .[2]

Even where a statute or rule regulates the conduct of only a specific industry or profession, “common and known words” are preferable to technical terms. While the group regulated by the statute may be small, the beneficiaries of the regulation—often clients or consumers—may be very broad. Thus, “common and known words” (dig instead of excavate, buy instead of purchase, and road instead of thoroughfare, for example) are most effective.

There is often debate about what level of education should be the basis for determining what are “common and known words,” but the authors of Plain English for Drafting Statutes and Rules suggest that drafters should assume their readers are able to function in society (including using a computer, searching the internet, and using email) and are capable of reading a respected, nationally circulated newspaper.[3] 

Avoid ambiguous words. “The most common criticism of a statute or rule is [probably] that it contains words that are labeled as ambiguous.”[4] However, the authors of Plain English for Drafting Statutes and Rules assert that this criticism is often unjustified. They believe that many critics confuse ambiguity with vagueness, generality, and other drafting defects.[5]  Certainly, vague or general terms are undesirable in statutes and rules, but true ambiguity must be avoided at all costs.

The authors describe two primary types of ambiguity: syntactic ambiguity and semantic ambiguity.[6] Syntactic ambiguity “arises when it is unclear what a word modifies or refers back to in a statute or rule.”[7] Often the ambiguous word is a pronoun, as in this sentence: When a parent is accused of abusing a child, the investigator shall interview him. The word him in this sentence is meant to refer to the parent but could be misconstrued to refer to the child. This kind of ambiguity can be easily avoided by repeating the specific noun instead of using the pronoun: When a parent is accused of abusing a child, the investigator shall interview the parent.

Semantic ambiguity occurs most often “when a modifier precedes or follows a series of nouns.”[8] Poor drafting can make it hard to tell whether the modifier applies to all of the nouns in the list or to only the noun it immediately precedes or follows. Consider this poorly drafted provision: The reporting requirement applies to owners, employees, and contractors engaged in a hazardous activity. Does the modifying phrase engaged in a hazardous activity apply to all three categories of persons who engage in a hazardous activity, or only to contractors who do so?  This kind of ambiguity can result in countless hours of litigation over which interpretation is correct. The authors suggest that the best way to avoid this kind of ambiguity is to use tabulation:[9]

The reporting requirement applies to the following if they are engaged in a hazardous activity:

  • owners,
  • employees, and
  • contractors.

As I’ve been writing this particular column, I’ve been thinking back to one of the very first columns I wrote, Precision, Clarity, Conciseness: Three Interrelated Hallmarks of Effective Legal Writing.[10] These three hallmarks are consistently front and center in Plain English for Drafting Statutes and Rules. And unlike some legal cynics who claim that legislators intentionally draft statutes that are vague and confusing,[11] I think most legislators try hard to craft statutes that reflect these hallmarks. It certainly benefits us, as lawyers who serve the public interest, to do what we can to assist our legislative colleagues in this endeavor; I hope these two columns make a modest contribution toward that end.

Laura Graham, Assistant Director of Legal Analysis, Writing & Research, is a professor of legal writing at Wake Forest University School of Law, where she has taught for 17 years. She welcomes email from readers at grahamlp@wfu.edu.

 

[1] Robert J. Martineau & Robert J. Martineau, Jr., Plain English for Drafting Statutes and Rules (LexisNexis 2012).

[2] Id. at 89 (citing J. Bentham, Works 208 (Bowring ed. 1843)).

[3] Id.

[4] Id. at 97.

[5] Id.

[6] Id. at 97-98. A third type of ambiguity is contextual ambiguity, where “there are two or more meanings of a word and it is not clear which meaning is intended.”  Id. at 98.

[7] Id. at 97.

[8] Id. at 98.

[9] Id.

[10] N.C. Lawyer, May-June 2010.

[11] One 2013 story in NPR’s All Things Considered went one step further, stating that much legislation is written not by lawmakers, but by lobbyists who have little incentive to make the drafting process transparent. Alisa Chang, NPR, When Lobbyists Literally Write the Bill, available at http://www.npr.org/sections/itsallpolitics/2013/11/11/243973620/when-lobbyists-literally-write-the-bill.