Drafting and Pleading

Drafting of administrative rules

Delegation of Power

Legislative bodies delegate rulemaking power to administrative agencies by statute, either by authorizing rules on specific topics or by a general provision that the agency may make rules necessary to carry out the purpose of statutorily assigned duties. Historically, a legislature could not delegate its lawmaking authority to administrative bodies. Because society has become increasingly complex, the courts have recognized the difficulty for legislatures to develop comprehensive regulations and, therefore, have allowed legislative bodies considerable flexibility in delegating authority. However, legislative delegation of authority to an administrative agency will be sustained only if the delegation was accompanied by “ascertainable” or “adequate standards” or “intelligible principles” necessary to guide the agency.

A “rule” is the product of a rulemaking. “Rulemaking” is the part of the administrative process that resembles a legislature’s enactment of a statute. As such, it is an executive branch quasi-legislative practice to formulate policy necessary to administer a legislatively created program and to fill any gap left, implicitly or explicitly, by the legislature. Administrative agencies are perceived to have knowledge and experience to regulate and supervise programs of highly specialized or rapidly changing subject matter. [Minnesota Rulemaking Manual 2012- Minnesota Department of Health]

Guiding Principles

Montesquie  in his Sprit of Law  published in 1748, lays down seven succinct rules , which were are summarized by C.K. Allen [Law in the Making-1964] as follows:

(1) the style should be both concise and simple; grandiose or rhetorical phrases are merely distracting surplusage;
(2) the terms chosen should, as far as possible, be absolute and not relative, so as to leave the minimum of opportunity for individual differences of opinion;
(3) laws should confine themselves to the real and the actual, avoiding the metaphorical or hypothetical; they should not be subtle “for they are made for people of mediocre understanding; they are not an exercise in logic, but in the simple reasoning of the average man”;
(5) they should not confuse the main issue by any exceptions, limitations or modifications save such as are absolutely necessary;
(6) they should not be argumentative; it is dangerous to give detailed reasons for laws, for this merely opens the door to controversy;
(7) above all, they should maturely considered and of practical utility and they should not shock elementary reason and justice and la nature des cboses; for weak, unnecessary and unjust laws bring the whole system of legislation into disrepute and undermine the authority of the State

What a Rule Is ?

A rule, by law, is every agency/court/institutional statement of general applicability and future effect, including amendments, suspensions, and repeals of rules, adopted to implement or make specific the law enforced or administered by that agency or to govern its organization or procedure. In English, you are writing a rule if you are writing

  • a statement of your agency
  • that will be binding on everybody that fits its terms
  • from the time it takes effect
  • that is meant to relate to your agency’s LAW in a specific way:
    to IMPLEMENT it, or put it into practice, or to make its
    requirement SPECIFIC.

Whenever this sort of statement is adopted, amended, suspended, or repealed, you are doing rulemaking.

Although the definition has many parts, for most drafters the stress is on the word “specific.” Your task is to begin with the law and to give readers enough specific information to comply with it.

In order to begin with the law, you have to know what it is. The legislature may have given your agency/court a specific mandate to write rules to address a particular situation – say, establishing a procedure for accrediting continuing education courses for real estate brokers. If the statute establishes time limits, the rules must be consistent with them. If the statute establishes requirements for course content, the rules cannot require less, or more. If it sets special procedures, the rules must fit them.

What Makes a Law Unclear?

Although judges can declare any statute plain, they will always have a rich fund of ways to declare it unclear. English has a multitude of ways to be vague, or over-general, or ambiguous, or all three, although the differences are important.

Ambiguity exists when words can be interpreted in more than one way. For example, is a “light truck” light in weight or light in color? Vagueness exists when there is doubt about where a word’s boundaries are. If a law applies to the blind, who exactly is blind? What degree of impairment counts? Over-generality exists when the term chosen covers more than it should. If a law applies to “communicable diseases,” is it really meant to cover the common cold? Legislatures sometimes choose to be vague or general and to let administrative agencies supply the specifics. They rarely choose to be ambiguous.

Readings on ambiguity and vagueness:

  1. Dickerson, Reed. “The Diseases of Legal Language,” 1 Harvard Journal on Legislation 5 (1964).
  2. Christie, George C. “Vagueness and Legal Language,” 48 Minnesota Law Review 885 (1964).
  3. Evans, Jim. “Ambiguity” (chapter 4) and “Vagueness” (chapter 5), in Statutory Interpretation: Problems of Communication, Oxford University Press 1988.

Readings on specific problems leading to ambiguity:

  1. Dickerson, Reed. “Substantive Clarity: Avoiding Ambiguity” in Fundamentals of Legal Drafting, 2nd ed., 1986.
  2. Child, Barbara. “Choosing Language: Vagueness, Generality, and Ambiguity,” in Drafting Legal Documents: Materials and Problems, West Pub. Co., 1988.

Of course, not every case of ambiguity, vagueness, or over-generality arises from drafting errors. The many participants in the legislative process, and the need for compromise among them, sometimes produce indefinite wording. A case in point is the 1991 Civil Rights Act (105 Stat. 1070, 1991); its passage was complicated by a fight to create competing legislative histories to bend later interpretation of language left uncertain (New York Times, Nov. 18, 1991).

Sometimes, too, new ideas, inventions, and situations appear that the legislature did not foresee, so that they are not clearly included under a statute, or are included when reason says they should not be. A classic example of this sort of unclarity is an ancient law of Bologna, forbidding the spilling of blood in the streets. Logically it forbids emergency surgery at the scene of an accident, but history tells us that violence, not surgery, is what its drafters had in mind.

Language-related Canons of Construction

Besides the text of the laws itself, judges can make use of canons of construction. Some of the language-related canons are codified others are not codified, but are useful for drafters to know:

  1. Noscitur a sociis (associated words). The meaning of doubtful words may be determined by their reference to associated words.
  2. Readings: Sutherland Statutory Construction, sec. 47.16; State v. Suess 236 Minn. 174 52 N.W.2d 409 (1952).
  3. Ejusdem generis. General words following a listing of specific words are interpreted to be limited to the same sort of words specifically listed. This canon is codified at section 645.08.
  4. Readings: Sutherland Statutory Construction, sec. 47.17 to 47.22; State v. Walsh 43 Minn. 444 45 N.W. 721 (1890); but see also Olson v. Griffith Wheel Company, 218 Minn. 48, 15 N.W.2d 511 (1944).

When a series of words of general meaning is followed by words of limitation – grammatically, a relative clause or phrase – their limitation will apply to the last antecedent on the list. For instance, in a statute providing “Licensees may hunt moose, deer, geese, and ducks which are not on the endangered species list,” the words “which are not on the endangered species list” will apply only to ducks, the last antecedent on the list.

Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another.

Readings: Sutherland Statutory Construction, sec. 47.24; Northern Pacific Ry. Co. v. Duluth, 243 Minn. 84, 67 N.W.2d 635 (1954).

By now it should be clear that sentences in law can be slippery and that drafters always run the risk of being misunderstood. Knowing this is an excellent inducement to ask for assistance in drafting rules.

Rules of Construction

Besides drafting basics and definitions,there exist well-known rules about statutory construction. These rules are of three basic types: rules about language, rules about the application of laws, and rules about legislative intent.

Mandates on language use in drafting.

Some of the rules of construction are purely linguistic or grammatical – for example, “Roman and Arabic numerals are parts of the English language”  and “Provisos [expressions that begin with “provided that”] shall be construed to limit rather than to extend the operation of the clauses to which they refer” . A number of these provisions are sometimes cited as mandates governing drafting, but not all drafters see them as absolutes. Here are the most important linguistic or grammatical concepts, with some annotations to show how they actually apply:

“The singular includes the plural, and the plural, the singular…” . Most drafting texts advise drafters to use the singular when possible. See Reed Dickerson, The Fundamentals of Legal Drafting, pp. 124-125.

“Words of one gender include the other genders”. The policy of the government office is to draft in a gender-neutral style. They  have the authority to change statutes and rules editorially to remove gender-specific words that are not essential to meaning. Drafters are advised to avoid the various forms of “he” and “she” unless they are essential.

“Shall” is mandatory; “may” is permissive . In practice, some drafters also use “must” as a verb of mandate even though it is not defined by statute.

A complication that is almost a contradiction is that “shall” is often construed as directory rather than mandatory; and “may” in some contexts is construed as mandatory. Context nearly always determines the meaning more surely than does the verb alone. While drafters should know that the definitions in chapter 645 exist, they should not rely on them as a substitute for care in drafting. For advice on choosing wording for mandates, directions, permissions, and entitlements, [Reed Dickerson, Materials on Legal Drafting (West Publishing, 1981), p. 182]

Provisos and exceptions – Even though the statute tells how to construe them, drafters would do well not to draft provisos. Most of them are really conditions, which should begin with “if”, or exceptions, which should begin with “except that.” [ Dickerson, Fundamentals, pp. 128-129]

Headnotes are catchwords, not part of the statute, but in the Uniform Commercial Code, the headnotes are made part of the act by section 336.1-107 and are available as an aid to statutory construction.

Readers make use of headnotes even if judges may not, and the point of having a headnote is to use it as a finding aid. Drafters should write headnotes that help readers. There is no rule that headnotes should be single words. For advice about writing headnotes, [Chapter 3 of this manual; and Daniel Felker et al., Guidelines for Document Designers, (Washington, 1981), pp. 17-20]

Status and application of laws

Another group of issues deals with legal ideas about the status and application of laws.

Among these are:

  1. Severability (the question of whether sections that were passed together remain valid individually if one of them is declared unconstitutional).
  2. Retroactivity (the question of whether a section can apply to cases that arose before it was passed).

Saving clauses (clauses designed to preserve certain rights, duties, or privileges that would otherwise be destroyed by an enactment).

Dos and Don’t

Don’t Use Obsolete or Vague Words and Phrases

Try not to use the words on the list below: they are often unclear and nearly always unnecessary.

Don’t Use

Use

above, aforesaid, aforementioned, beforementioned, hereby, herein, hereinafter, hereinbefore, herewith, therefor, therein, thereinafter, thereinbefore, thereof name a specific section or part.
thereupon, whereupon when, at that time
to wit namely

Use the following words sparingly: allanyeacheverysome. Substitute aan, and the. Instead of the legalisms suchsaid, and same, use aantheitthatthem, or some other noun or pronoun or nothing.

Limit Your Use of “Shall”

The revisor’s office recommends using must, not shall, to impose duties. Most speakers of English stopped using shall to mean “is ordered to” in the seventeenth century. Dictionaries show that we generally use shall as a formal form of will so to most readers the lawyer’s shall is an obsolete legalism.

If you prefer the traditional shall, minimize its use as follows:

Shall. Use shall only when you are imposing a duty on a person or body:

“The licensee shall give the debtor a copy of the signed contract.”

or

“An association that issues shares by series shall keep a record of every certificate that it issues.”

In conditions, don’t use shall at all. Use present perfect tense, not future perfect. Don’t write, “If it shall have been established…”

Write, “If it has been established…” Don’t write, “When the officers shall have completed their investigation…” Write, “When the officers have completed their investigation…”

Must. Use must, not shall, to talk about a thing rather than a person:

“A copy of the signed contract must be given to the debtor,”

or

“A record must be kept whenever a certificate is issued.”

Use must to express requirements, that is, statements about what people or things must be rather than what they must do:

“Public members of the board must be broadly representative of the public interest and must not be members of health professions licensed by the state of…”

Need not. Use need not or is not required to, to say that a thing is not required:

“If fewer than seven people object to the rule, a hearing need not be held,” or “no hearing is required.”

Should. Do not use should in rules. A statement that a person should do something is not a rule.

May. Use may to mean “is permitted to” or “is authorized to” or “has power to”:

“The commissioner may call a special meeting of the board when necessary.”

When you use may, be sure that your sentence does not grant impermissibly broad discretion to any agency or official. The amount of discretion permitted depends on the matter being regulated and on the statutory language that grants the rulemaking authority.

Must not. Use must not to mean “is forbidden to” or “is prohibited from.” Don’t use shall not. Say “no person may” or “a person must not,” not “no person shall.”

Means. In definitions, write means, not shall mean. Write “have the meanings given them,” instead of “shall have the meanings given them.”

Is. Don’t use shall to say what the law is, to make a statement that is true by operation of law. For example, say that a person is eligible for a grant under certain conditions, not that he or she shall be eligible.

Write in the Third Person

Rule drafters need to compromise between the needs of statutory drafting and the requirements of plain English. Most plain English drafting instructions call for the use of the second and first person – addressing the consumer as “you” and calling the company “we.” Using “we” and “you” is probably impractical in rules, which usually have to deal with several different sets of people and their duties. Write in terms of “the commissioner,” “the department,” and so on.

Use Familiar Words

Use “speaking vocabulary,” not writing vocabulary, as much as you can without being slangy. The list below mentions some words to avoid and suggests some plainer words to replace them with, but there are many other words that should be avoided.

Use the list, but remember the principle: prefer the most familiar words. It is not the length of the word that matters, but the number of readers who understand it.

Don’t Use

Use

accorded given
afforded given
approximately about
as to about, concerning
attempt try
cease stop
commence begin, start
deem consider, judge
effect (as a verb) make
effectuate carry out, do
employ use
endeavor (verb) try
evince show
expedite hasten, speed up
expend spend
expiration end
formulate make
forthwith immediately
furnish give
impact on influence
indicate show (or more specific verb)
inform tell
initiate begin (depends on use)
inquire ask
institute begin, start, set up
interrogate question
modify change
necessitate require
negotiate (in the sense of “enter into a contract with”) make
obtain get
occasion cause
portion part
possess have
preserve keep
procure get, obtain
prior to before
promulgate publish, make, adopt
proceed go, go ahead
purchase buy
pursuant to under
remainder rest
render (“cause to be”) make
render (“give”) give
request ask for
require need
retain keep
specified (“listed, expressly mentioned”) named
subsequent to after
suffer (“permit”) permit, allow
summon (verb) send for, call
terminate end
(be) unable to cannot
utilize use

Replace Wordy Expressions With Shorter Substitutes

Avoid the wordy phrases in the list below. Use the shorter, simpler expressions in the left column.

Don’t Use

Use

absolutely null and void and of no effect void
adequate number of enough
all of the the
attains the age of becomes…years old
at the time, at such time as when
at that (this) point in time then (now)
by means of by
corporation organized and existing under Minnesota laws Minnesota corporation
does not operate to does not
due to the fact that because
during such time as while
during the course of during
excessive number of too many
for the duration of during
for the purpose of holding (or other gerund) to hold (or other infinitive)
for the reason that because
from and after after
from July 1 after June 30
full force and effect force, effect
in case if
in order to to
in the event that if
in the interest of for
is able to can
is applicable applies
is authorized and empowered to may
is binding upon binds
is entitled (in the sense of “has the name”) is called
is unable to cannot
means and includes means
not later than June 30, 1981 before July 1, 1981
not less than at least
not to exceed not more than
null and void void
of a technical nature technical
on and after July 1, 1981 after June 30, 1981
on or before June 30, 1981 before July 1, 1981
or, in the alternative or
party (person, individual) person (but keep in mind the statutory definition of person)
per annum, per day, per foot a year, a day, a foot
per centum percent
period of time period, time
pursuant to under, according to
remainder rest
sole and exclusive sole
sufficient number of enough
the manner in which how
to the effect that that
true and correct true, correct
under the provisions of under
unless and until unless, until
until such time as until
whatsoever whatever
whensoever when, if
whenever when, if
wheresoever wherever
whosoever whoever
with the object of changing (or other gerund) to change (or other infinitive

Avoid Nominal Style

Many verbs have related nouns: you can decide or make a decision complain or make a complaint speak or make a speech know or have knowledge.

Writing that uses verbs (verbal style) is usually brief and clear. Writing that uses nouns (nominal style) can be too formal and wordy. Most drafters overuse nominal style and need to be trained to prefer verbal style.

Don’t Use

Use
to implement pupil behavior management techniques… to manage pupils’ behavior
established a contractual relationship with… contracted with
has knowledge or suspicion that… knows or suspects that…
make application for apply for
make payment for pay for
make provision for provide for
upon X’s request to Y if X asks Y
upon a determination by X that if X determines that

There are many other possibilities. The suffixes -ance-ancy-ant-ence-ency-ent-ion, and -ment often mark nouns derived from verbs, so check for nominal style whenever you see these suffixes. Not all nominals, however, show how they are related to specific verbs. For example, “to have an adverse impact on the environment” could mean “to harm the environment” or “to disturb the environment” or any of a number of verbs. Nominals of this kind are harder to spot and correct, so learn to concentrate meaning in your verbs in the very first draft.

Avoid Creating Jargon

Jargon has neutral and negative meanings. It refers to the useful technical vocabulary of a trade or profession, but it is also used for unclear expressions that have a technical ring. Real technical language can save time and space; if your audience understands it and expects it, then use it. Jargon-like terms created to dignify your subject are simply hard to read. Learn to recognize them and weed them out.

If you must create a general term, don’t make it more general than necessary. Government writing is said to be full of buzzwords, phrases that sound imposing but mean little. It’s not hard to see why we write them. In rules especially, drafters have to create names that cover broad classes. For example, the phrase “health care facility” in a rule might cover hospitals, clinics, and nursing homes.

To avoid creating buzzwords when you write broad terms, don’t depend on abstract words like facilityentityorganization, and structure. Phrases like “regional channel entity,” “entity operational structure,” or “parallel policy options” are meaningless unless the reader looks back at the definitions. Be as specific as possible. Don’t call something a “programming entity” if you can call it a programming company. If certain boards grant licenses, don’t call them “credentialling organizations.” Call them licensing boards.

This advice is part of a larger rule: use concrete words. Watch out for fuzzy words like areaaspectfacetdegree, and matter.

What if the jargon already exists in the law? Drafters are conservative by nature; they often repeat any language that works legally in order to avoid lawsuits. For example, the phrase “Flesch scale analysis readability score,” which would horrify Dr. Flesch by its unreadability, was copied into Minnesota law from another state’s draft. It is certainly not the clearest or briefest way to refer to the Flesch test. Let your guide be communication with your readers, and don’t preserve bad wording unless you have a compelling legal reason. Consistency is valuable, but so is clarity.

Avoid Strings of Nouns and Adjectives

Strings of nouns, all modifying one another, are hard to read because they mask relationships between words. For example, does “early childhood program alternative case load” mean an alternative case load for an early childhood program or a case load for an early childhood program alternative? You may need more words in order to make their relationships clear, as these examples show:

Don’t Use Use
electronic financial terminal authorization application application for the right to use an electronic financial terminal
Flesch scale analysis readability score Flesch test score, or read-ability score on the Flesch scale
early childhood program alternative case loads case loads for early childhood programs

Avoid Strings of Initials

Initials are hard to read because they force a lay reader to go back to the definitions and to make repeated mental substitutions. If you don’t want to write the phrase “home improvement loan application form” over and over, don’t call it a HILAF. Instead, define a short substitute like “application form” or just “form.”

Be On Guard Against Euphemisms

When you feel the need to make up a new, neutral term, remember a few truths about people, language, and the reputation of government writing. An obvious euphemism will offend just as many people as an emotionally charged word. When it becomes familiar it will be just as offensive as the phrase it replaced. The euphemism you write will add to the abundant evidence that government writing tries to hide the truth; it will lessen public respect for rules. It may not even get through to your readers if it differs from the terms they understand.

Don’t Try to Squeeze Everything into One Sentence

Many of Minnesota’s statutes are written in an archaic single-sentence form:

In the prosecution of any offense committed upon, or in relation to, or in any way affecting real estate, or any offense committed in stealing, destroying, injuring, or fraudulently receiving or concealing any money, goods, or other personal estate, it shall be sufficient, and shall not be deemed a variance, if it shall be proved on trial that, at the time when such offense was committed, either the actual or constructive possession, of the general or special property, in the whole or any part of such real or personal estate, was in the person or community alleged in the indictment or other accusation to be the owner thereof.

This sentence is hard to read because the most important parts are buried in separate phrases near the end. The recommendations suggest ways to break up long sentences so that you can keep your average sentence length under 25 words.

If your subject forces you to use terms of art or other difficult words, make your sentences proportionately shorter.

Put the Subject Up Front and Make it a Person

The first difficulty readers meet in the example above is in finding the main thought of the sentence. The main clause starts with “it shall be sufficient… ” There are 39 words in front of it; they describe circumstances but force us to wait a long time to find out what the circumstances relate to. When we finally find the main clause, we have to wade through even more information.

To avoid losing your audience, limit your introductory phrases or clauses to 20 words. If the information will not fit into 20 words, put it in a separate sentence:

This part applies to a prosecution of an offense affecting real estate or committed in stealing, destroying, injuring, or fraudulently receiving or concealing personal property. At a trial for these offenses, to prove ownership of the property, the plaintiff must prove that the person or community named in the indictment or other accusation as owner of the property had actual or constructive possession of the general or special property, in whole or in part, when the offense was committed. Proof of this type is not a variance.

Don’t Use “Which + Noun”

The following sentences contain types of relative clauses that sound archaic to modern ears:

All parties have the right to a hearing before the hearing examiner at which hearing the parties may cross-examine witnesses….

Changing the relative clauses to separate sentences produces more modern English and shorter sentences:

Before any special meeting, the executive secretary shall give all board members as much notice as possible. The notice must state the time, place, and subject matter of the meeting.

All parties have the right to a hearing before the hearing examiner. At this hearing, the parties may cross-examine witnesses….

Keep the Parts of a Verb Close Together

Most sentences in rules and bills have verbs with more than one part: shall + (verb), may + (verb), must + (verb), and so on. Sometimes a word is placed between these parts, as in “The commissioner shall immediately order an investigation of a reported epidemic.”

One-word adverbs in this position do no harm; sometimes they are necessary. But longer divisions are difficult to read, as this sentence demonstrates:

“Within ten days after service of the notice of appeal, the appealing party shall in writing, with a copy to the executive secretary of the Public Employment Relations Board and all parties or their representatives of record, order from the Bureau of Mediation Services a transcript of any parts of the proceedings it deems necessary…”

The interrupting words make no sense without the verb order, but the reader must struggle through 20 words to reach it. The interrupting words would serve better as a separate sentence:

“…the appealing party shall order from the Bureau of Mediation Services a transcript of any parts of the proceedings it considers necessary. The transcript order must be in writing. The appealing party must give a copy of the transcript order to the executive secretary of the Public Employment Relations Board and all parties or their representatives of record.”

Again, the interrupting words should be a separate sentence.

Never Use the Passive When You Can Use the Active

This advice is quoted from George Orwell’s Politics and the English Language, an essay that first appeared in 1945. The advice has been repeated for 52 years, but it never seems to take hold. Maybe it needs to be better explained.

What does voice mean here? A sentence is in the active voice when the subject “does” the verb: “Agencies publish rules in the State Register,” is in the active voice. “Rules are published in the State Register by agencies,” is in the passive voice because the subject rules is not the doer of the verb are published. The doer shows up in the words by agencies. “Rules are published in the State Register” is still in the passive voice, although the doer of the action does not show up at all.

Another way to recognize passive voice is to look for the verbs beisarewaswerehas beenhave been, and had been followed by words that end in –ed, –t, or –en. Here are some examples:

is taken

shall be arithmetically averaged

are taught

have been reduced

Clauses or sentences that contain verbs like these are in the passive voice.

What’s wrong with passive voice? In laws and rules, passive sentences without phrases containing “by” are dangerous because they do not say what duties are assigned to whom. Wydick’s Plain English for Lawyers demonstrates the problem with this sentence from a patent license:

All improvements of the patented invention which are made hereafter shall promptly be disclosed, and failure to do so shall be deemed a material breach of this license agreement.

Nothing in the sentence tells us who must disclose improvements to whom. If rules and laws exist to explain people’s responsibilities, then drafters must avoid sentences that don’t assign responsibilities clearly.

When is it safe to use passive voice? Passive voice lets you begin the sentence with the word the sentence is really “about.” It also lets you put old or repeated information at the beginning of the sentence where it demands less attention and new information at the end of the sentence where it stands out.

The indictment, information, or affidavit must charge the person with having committed a crime. The indictment, information, or affidavit must be authenticated by the executive authority making the demand.

Passive voice can also let you put a long series of nouns at the end of a sentence so that your reader will not have to work through the series before coming to the verb:

The application may be made by the prosecuting attorney of the county in which the offense was committed the parole board or the chief executive officer of the facility or sheriff of the county from which the person escaped.

Sometimes passive voice will help you avoid using he or she.

When you use passive voice for any of these reasons, be certain that the duty or permission is assigned clearly, either in the passive sentence or in one of the sentences nearby.

When is the passive voice unnecessary? When the passive voice does not solve these specific problems, it is probably needless. When a sentence contains a phrase beginning with by (“by the commissioner”) and that phrase is not at the end of the sentence, you can safely change the sentence to active voice.

Passive: The required monitoring frequency may be reduced by the commissioner to a minimum of one sample analyzed for total trihalomethanes per quarter.

Active: The commissioner may reduce the required monitoring frequency to a minimum of one sample analyzed for total trihalomethanes per quarter.

Passive: When a demand shall be made upon the governor of this state by the executive authority of another state for the surrender of a person charged with crime…

Active: When the executive authority of another state demands that the governor of this state surrender a person charged with crime…

Drafters use the passive voice needlessly when they concentrate on things and requirements rather than on people and duties. For example, the passive sentences above concentrate on “the required monitoring frequency” and “a demand.” Remember that it’s better to impose a duty or grant a permission in the active voice than to state a requirement in the passive.

Cut Needless Words

There are five ways to cut out words:

1. Avoid starting a sentence or clause with There is or There are or There shall be or There may be. Often these words are needless, as in this example:

There shall be excluded in computing the percentage of voting power or value any stock owned directly by the other corporations.

The sentence is shorter if turned around:

Any stock owned directly by the other corporations is excluded in computing the percentage of voting power or value.

If you want to put different information at the end of the sentence, you can write:

In computing the percentage of voting power or value, any stock owned directly by the other corporations is excluded.

If you know who is to do the computing and the excluding, you can put the verb in the active voice and make the sentence shorter still.

2. Cut clauses down to phrases. Clauses that contain whowhich, or that plus have beenhas been, or had been will sometimes work as well if those words are stricken:

“applicants who have been declared ineligible”

can become

“applicants declared ineligible.”

But cut words carefully. Research shows that cuts of this sort can make sentences harder to understand.

3. Remove redundant words. Don’t repeat words or elements of meaning. Most drafters don’t see their own repetitions, so have another reader check for these errors. Here is an example:

The purpose of vision screening is to screen each applicant to guarantee that those individuals with substandard vision are required to take the necessary steps required to achieve the best vision possible.

Without repetition, the example reads this way:

The purpose of vision screening is to guarantee that individuals with substandard vision take the necessary steps to achieve the best vision possible.

4. Avoid all wordy expressions, not only the ones peculiar to the law. Here are some examples:

Don’t Use

Use

round in shape round
red in color red
sweet in taste sweet
the condition of despair despair
the fact that the defendant was young the defendant’s youth
despite the fact that although
because of the fact that because
in many cases often
in some cases sometimes

5. Don’t overdraft. Usually this guide tells you to be as specific as possible. This advice does not mean that you should name every single thing you are forbidding or requiring.

This National Park Service rule has been called the classic example of trying to cover all the possibilities:

Put Modifiers Near the Things They Modify

A modifier is a word or group of words that tells more about another word’s meaning. In these examples, the modifiers are shown in italics:

  • the escaped prisoner
  • the executive officer of the county
  • an order that has been signed by the governor
  • an order signed by the governor
  • a document stating the accused’s name

Modifiers should appear right next to the words they modify. When they don’t, sentences at best look silly and at worst look confusing, as in this rule:

“The public school district or intermediary service area shall inform the nonpublic school of the type, level, and location of health services that are to be made available to the nonpublic school students by August 15.”

Are the services to be made available by August 15, or is the district to inform the school by August 15? The drafter probably meant “…shall inform the nonpublic school by August 15…” and should have said it.

Some misplaced modifiers are unintentionally funny:

“Card issuer means a financial institution… providing use of a terminal to a customer to be activated by a card.”

“The goals of food service in each facility shall be to provide food and beverages to clients that are nutritionally adequate.”

Limit Your Use of Parentheses

Generally, avoid parenthetical phrases in text. Parenthetical phrases lengthen and complicate sentences. Commas or rephrasing will usually do as well to separate a parenthetical expression.

Example of needless parentheses:

Emergency assistance shall be granted only to a family that includes a child (under age 21) who is (or within six months before application has been) living with a relative eligible as a caretaker, and that is completely without resources to solve the emergency.

Rephrased without parentheses:

To receive emergency assistance a family must be completely without resources to solve the emergency. It must also include a child under age 21 who lives with a relative eligible as a caretaker or who has lived with an eligible relative within six months before application.

Of course, some special uses of parentheses are permissible:

  1. Use parentheses around subitem numbers and unit letters. See Subitem and Unit.
  2. Use parentheses where needed in mathematical expressions.Example: w = y(a) + z(b)
  3. Use parentheses to set off place of publication, publisher, and date in references.

Write Paragraphs, Not Outlines

Some authorities on drafting maintain that long sentences are clearer if they are set out in outline form. This example is from Richard Wydick’s Plain English For Lawyers:

“We lawyers do not write plain English. We use eight words to say what could be said in two. We use arcane phrases to express commonplace ideas. Seeking to be precise, we become redundant. Seeking to be cautious, we become verbose. Our sentences twist on, phrase within clause within clause, glazing the eyes and numbing the minds of our readers. The result is a writing style that has, according to one critic, four outstanding characteristics. It is ” ( 1) wordy, (2) unclear, (3) pompous, and (4) dull.” 

Therefore good legal writing should not differ, without good reason, from ordinary well-written English.

One who is liable to another for interference with a contract of prospective advantageous economic relation is liable for damages for:

(a) the pecuniary loss of the benefits of the contract of the prospective relation;

(b) other pecuniary loss for which the interference is a legal cause; and

(c) emotional distress or actual harm to reputation, if they are reasonably to be expected to result from the interference.

For this example, the advice is true; outline style helps. Outlining can, however, be taken too far. Most long, tabulated sentences do not need to be as long as they are. Here is a case in which outlining has created a monster:

A. “Firefighter” includes an employee whose primary duties, as set forth in the official position description, require the performance of work directly connected with the control and extinguishment of fires, or the maintenance and use of firefighting apparatus and equipment.

B. “Firefighter” also includes an employee who is transferred to a position the primary duties of which are not the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment, or from such a position to another such position, if:

(1) Service in the position transferred to follows service in a firefighter position without:

(a) a break in service of more than three days; or

(b) intervening employment that was not as a firefighter;

(2) The duties of the position transferred to are in the firefighting line of work in an organization with firefighting responsibilities; and

(3) The position transferred to is –

(a) Supervisory – one which requires a duty of supervising subordinate employees who are directly engaged in firefighting and/or in the maintenance and use of firefighting apparatus and equipment; or

(b) Administrative – one which includes an executive or managerial position and may include a clerical, technical, semiprofessional, or professional position of a type also found in organizations with not firefighting responsibilities; provided, that experience as a firefighter is a basic qualification for the administrative position.

True, outline style makes it possible to read this otherwise unreadable sentence, but it does not make the sentence easy to read. Every numbered or lettered part is a sentence fragment, meaningless unless the reader works backward in the sentence to see how the part relates to the other parts. By the time readers get to (2), they have to survey the letters and numbers to be sure that (2) is one of the conditions governed by if.

The drafter could have made the same points more clearly in sentences like these:

“Firefighter” includes employees whose primary duties, as shown in their official job descriptions, are controlling and putting out fires or maintaining and using firefighting equipment.

“Firefighter” also includes employees transferred from firefighting jobs to other jobs. To be considered firefighters, transferred employees must be supervisors of firefighters or must hold jobs that require previous firefighting experience. They must work for organizations with firefighting responsibilities and their duties must be in the firefighting line of work. Between the firefighting jobs and the supervisory or other jobs, they must not have spent more than three days out of work or worked at any job other than firefighting.

These rewritten sentences use brevity and clarity rather than white space to get their meaning across. They omit needless words and turn subordinate clauses and noun phrases into sentences. There will be times when you must use an outline or even a table, but choose these as last resorts when you can’t break up sentences any further.

Be Careful with Lists

Lists are so common in rule drafting that they deserve discussion even of basic matter. Here, then are the basics.1. Write a series of short items in paragraph form without enumeration (that is, without numbers or letters marking each item). Separate the items with commas. Use a comma between the next-to-last item and the conjunction.

Example:

Butter, fortified margarine, cream, or salad oil may be used in moderate amounts to make food palatable.

Example:

The administrator shall draw up rules that govern work hours, vacations, illness, sick leave, holidays, retirement, employee health services, group insurance evaluation procedures, promotions, personal hygiene practices, attire, conduct, disciplinary actions, and other matters that need to be regulated so that employees can do their jobs properly.

2. If you use an introductory expression, follow it with a colon.

Example:

The administrator shall have the following records kept: registers, daily logs, medical records, dental records, programming records, and good time records.

3. If some of the items in a list contain commas, separate the items with semicolons.

Example:

….the following: soups; sweets such as desserts, sugar, or jellies; or fats such as bacon, cream, and salad dressings.

4. When several of the items in a list are about one typed line long each, when they have complex internal punctuation, or when they are subordinate clauses, the list needs to be tabulated and enumerated for ease of reading.

The next sentence describes and illustrates the punctuation rules for a tabulated list.

Example:

If you list verb phrases, you must:

  1. end the introductory expression with a colon;
  2. begin each item in the list with a lower case letter;
  3. use a conjunction after the next-to-last item in the list;
  4. end each item except the last with a semicolon; and
  5. end the last item with a period.

Example:

The entrance salary may be above the minimum rate only if:

  1. the individual’s exceptional qualifications justify an appointment at a higher rate;
  2. others with similar qualifications are offered the same rate; and
  3. the appointment at a higher rate is made at one of the established steps of the salary range.

5. The items in a tabulated list need not always be parts of one sentence; they can be independent sentences. Full sentences should have their first words capitalized and end in periods.

Example:

The designation must use one of the following terms:

A. “Fee paid” or “employer-paid fee” must be used if the employer has agreed to pay the entire fee directly to the agency.

B. “Fee reimbursed” must be used if the applicant must pay the fee to the agency and be paid back later by the employer.

Some Special Problems with Lists

Lists of single words and lists of sentences rarely cause problems. Lists of sentence parts cause serious problems. Avoid lists of sentence parts if you can, and if you can’t, at least observe these rules:

Don’t insert whole sentences into your listed sentence parts. For example, don’t write:

“Excluded stock” for a brother-sister controlled group means:

  1. stock in a member corporation held by an employee’s trust if the trust is for the benefit of the employees;
  2. stock in a member corporation owned by an employee of the corporation, but only if substantial limits or restrictions are imposed on the employee’s right to dispose of the stock. A bona fide reciprocal stock repurchase arrangement will not be considered one that restricts or limits the employee’s right to dispose of stock; or
  3. stock in a member corporation that is held by a nonprofitable educational or charitable organization.

If only one item has an inserted sentence, you can move that item to the end of the list. That will solve the problem temporarily, but an amendment may add a new item and make the sentence an interrupter again. You can also move the sentence to a paragraph after the list and refer to the item that the sentence applies to: “In item B, a bona fide reciprocal stock repurchase arrangement will not be considered one that restricts or limits the employee’s right to dispose of stock.” That will add an internal reference, and internal references should be avoided if possible. The best solution is to turn your list of sentence parts into a list of sentences, so that the inserted sentence can be left next to the item it explains:

“Excluded stock” for a brother-sister controlled group has the following meanings:

  1. It means stock in a member corporation held by an employee’s trust if the trust is for the benefit of the employees.
  2. It means stock in a member corporation owned by an employee of the corporation, but only if substantial limits or restrictions are imposed on the employee’s right to dispose of the stock. A bona fide reciprocal stock repurchase arrangement is not be considered one that restricts or limits the employee’s right to dispose of stock.
  3. It means stock in a member corporation that is held by a nonprofit educational or charitable organization.

Don’t write lists within lists. There is one exception to this rule: in a list of sentences, the sentences may contain simple series of words without enumeration or tabulation.

Be careful with and and or. Normally and means that the items are to be taken together, and or means that one is to be chosen from the list. But these examples adopted from Reed Dickerson’s Fundamentals of Legal Drafting show how a choice of and or or can depend on the wording of your items:

The security roll includes:

  1. each person who is 70 years of age or older;
  2. each person who is permanently, physically disabled; and
  3. each person who has been declared mentally incompetent.
The security roll includes each person who:

  1. is 70 years of age or older;
  2. is permanently physically disabled; or
  3. has been declared mentally incompetent.

State Conditions Clearly

The usual way to express a condition or hypothetical situation is to begin the sentence with an if or when clause: “If the person under arrest refuses to permit chemical testing, none may be given.” Use if or when, not the legalism where.

Sometimes more than one condition introduces a sentence. When this happens, keep the main clause as short as possible:

If the basic member and the surviving dependent spouse are killed in a common disaster, and if the total of all survivor’s benefits paid under this subpart is less than the accumulated deductions plus interest payable, the surviving children shall receive the difference in a lump-sum payment.

If you can’t keep the main clause short, put the conditions after the main clause:

Example:

D. A supplier using the reduced monitoring frequency prescribed under items B and C must go back to using the monitoring requirements of item B if:

(1) the results from an analysis exceed 0.10 milligrams per liter of total trihalomethanes and are confirmed by at least one check sample taken promptly after the results are received; or

(2) the supplier significantly changes its source of water or water treatment program.

In either case, the supplier must continue monitoring according to the requirements of item B for at least one year before the frequency may be reduced again.

If the conditions are complex, divide them into separate sentences. A condition that takes more than two lines of type signals that you should be using several sentences, as in this example:

D. Corporations are members of a parent-subsidiary controlled group if they satisfy these conditions:

(1) One or more of the corporations must own more than 50 percent of the total combined voting power or more than 50 percent of the total value of shares of all classes of stock of each corporation, except the common parent corporation.

(2) The common parent corporation must own stock with more than 50 percent of the total combined voting power of at least one of the other corporations. Stock owned directly by these other corporations is excluded in computing the percent of voting power or value.

If there are more than two conditions, make a list of subordinate clauses after the main clause.

Example:

A. The city is eligible for a proportional share of the subsidy provided for the counties if:

(1) the city has a population of 40,000 persons or more;

(2) the city has a board of health organized under Minnesota Statutes, section 145.913; and

If you have a long list of conditions, make it a list of sentences.

Example:

A. The city is eligible for a proportional share of the subsidy provided for the counties if it satisfies these conditions:

(1) It must have a population of 40,000 persons or more.

(2) It must have a board of health organized under Minnesota Statutes, section 145.913.

(3) It must provide local matching funds to support the community health services as provided in Minnesota Statutes, section 145.92.

The words “these conditions” and the colon end the first sentence. The phrases “under these conditions,” “under the following conditions,” or “unless X satisfies these requirements” are good introductory expressions for sentences like these. The sentences that state the conditions all use the verb must have or must be, not shall have or shall be, and not has or is.

Avoid Provisos

Don’t use the words provided that. You can accomplish the same thing with if or with a new sentence or clause.

Example: (an unnecessary provided that)

Failure to enter a program is grounds for revocation of supervised release; provided, however that if no community program is available at the time of supervised release, the board may order that the supervised releasee enter the first available community program.

Example: (a clearer version, without such, nominal style, or provided that)

The board may revoke supervised release if the supervised releasee fails to enter a program. If no community program is available at the time of supervised release, the board may order the supervised releasee to enter the first available community program.

Keep Parallel Ideas in Parallel Form

Drafters often pair or group similar ideas, but they are not always careful to keep similar ideas in similar, or “parallel,” form. Bad parallels show up often in lists, as they do here:

No applicant may be hired who has any of the following conditions:

(1) blood pressure over 160/60;

(2) any communicable disease as listed in chapter 4605; or

(3) applicant not of good general health.

The key word is “conditions.” “Applicant not of good general health” is not the name of a condition in the way that “blood pressure” and “disease” are. Subitem (3) should be rewritten as “poor general health.”

Example:

A person shall not drain, throw, or deposit upon the lands and waters within a state park any substance that would mar the appearance, create a stench, or destroy the cleanliness or safety of the park.

“Appearance,” cleanliness,” and “safety” all go with “of the par,” but “stench” doesn’t. The last part of the sentence needs to be rearranged this way:

….anything that would mar the park’s appearance, destroy its cleanliness or safety, or create a stench.

When you write a series or list, make sure that every item in it does the same job in the sentence.

Untangle Computations

Computations probably cause more headaches than any other feature of rules. In the standard phrasing for computations, the sentences are often long: they include long multiple conditions; they include references that block sentence flow and delay the arrival of the next sentence elements; they have long subordinate clauses that separate modifiers from the things they modify. On top of all this, computations are usually in the passive voice and they almost always misuse shall.

We need a more readable way to describe computations. Reed Dickerson recommends the “cookbook” approach, that is, describing the steps, one by one, that produce the right figure.

Applying Dickerson’s principle to the original bad example, we get a test like this:

“If only a portion…the resident is a claimant for purposes of this chapter but the refund calculated according to Minnesota Statutes, section 290A.04, must be changed according to the following directions:

(1) Compute income as defined in subdivision 3. This is figure 1.

(2) Compute the total amount of income from the above sources other than vendor payments under the medical assistance program or the general assistance medical care program. This is figure 2.

(3) Subtract figure 2 from figure 1. This is figure 3.

(4) Compute the amount of vendor payments under the medical assistance program or the general medical program. This is figure 4.

(5) Add figure 1 to figure 4. This sum is figure 5.

(6) Create a fraction whose numerator is figure 3 and whose denominator is figure 5.

(7) Multiply this fraction by the refund calculated under Minnesota Statutes, section 290A.04, to determine the refund allowable under this chapter.

The advantages of this method are short sentences, information delivered in small amounts, and active voice.

Avoid Gender-Specific Language Without Sacrificing Clarity

There are many ways to avoid gender-specific nouns like workman or man hours. A list of substitutes follows:

Don’t Use

Use

Brother, sister Sibling
Businessman Business person, executive, member of the business community, business manager
Crewman Crew member
Daughter, son Child, children
Draftsman Drafter
Enlisted man Enlisted personnel, enlisted member, enlistee
Father, mother Parent, parents
Female, male Person, individual
Fireman Firefighter
Foreman Supervisor
Grandfather, grandmother Grandparents
Husband and wife Married couple
Mailman Mail carrier
Man Person, human, human being
Manhours Person hours, hours worked, workers hours
Mankind Humanity, human beings, humankind
Manmade Artificial, of human origin, synthetic manufactured
Manpower Personnel, workforce, worker, human resources
Midshipman Cadet
Per man Per person
Policeman Police officer
Seaman Sailor, crew member
Serviceman, servicemen Service member service members
Six-man commission Six-member commission
She, her (reference to a ship) It, its
To man a vessel To staff a vessel
Trained manpower Trained workforce, staff, personnel
Widower, widow Surviving spouse
Wife, wives, husbands, husband’s Spouse, spouses, spouse’s
Workmen’s compensation Workers’ compensation

Avoiding pronouns like he or she is much harder, but it can be done; the unnecessary pronouns have been removed from Minnesota Statutes. Try these methods for avoiding pronouns:

1. Use the plural: “Applicants are eligible if they meet the following requirements…”

2. Repeat the noun: “If the commissioner finds…the commissioner may order…”

3. Rearrange the sentences: “To learn whether the sampling frequency may be safely reduced, the commissioner may order a sanitary survey. If it would be safe to reduce the sampling frequency, the commissioner…”

4. Use a relative clause: “An applicant who meets the requirements in items A to D is eligible…”

5. Use a modifier without an expressed subject: “On finding that the sampling frequency can be safely reduced, the commissioner may…”

6. Use the passive voice: “If it is found that the sampling frequency may be safely reduced, the commissioner may order…” but remember the dangers of passive voice; those dangers make this a less-than-perfect solution to the gender problem.

Don’t Draft What You Don’t Need

Citations or Short Titles

Popular names and short titles are considered unnecessary; try not to use them. If you must assign a citation, popular name, or short title to rules, capitalize all the important words in the title: nouns, adjectives, the word rules or the like. Put the title in quotation marks in the part in which you assign the title; in later references, omit the quotation marks. The title will usually be at the end of the sentence; if it is, put the terminal period inside the quotation marks. Example: Parts 1300.0100 to 1365.9900 may be cited as the “State Building Code.”

Cross-References

Cross-references can make a provision difficult to read and understand. Readers miss the information behind the numbers unless they look up each reference or know the subject well. Repeat words and short phrases instead of referring to another section that contains them. When cross-references are vital, try adding a short phrase that gives information about the subject of that statute or rule.

The forms for references in rules appear in chapter 4.

Effective Dates

Properly adopted rules, other than exempt rules, are effective by giving some working days after the notice of adoption is published in the State Register unless a later date is required by law or specified in the rules. Therefore, it is not necessary to draft an effective date provision unless you want the rules to become effective  after publication.

Closing Line

Donoughmore Committee on Minister’s Powers (1932) has observed:

“A man may either be a solicitor or counsel (to which the author would like to add a judge) and yet not have had the training which is essential to make a good draftsman, for good draftsmanship is an art which calls for special qualifications and long experience. By it we mean the power of clear, lucid and simple expression of the intended purport.”

Austin makes the following observations in his Lectures on Jurisprudence.” To conceive distincdy the general purpose of a statute, to conceive distincdy the subordinate provisions through which its general purpose must be accomplished and to express that general purpose and those subordinate provisions is perfecdy adequate and not unambiguous language is a business of extreme delicacy and of extreme difficulty, though it is frequendy tossed by legislators to inferior and incompetent workmen. I will venture to affirm that what is commonly called the technical part of legislation is incomparably more difficulty than what would be useful law than so to construct that same law that it may accomplish the design of the lawgiver.”

Speaker of the Indian Lok Sabha (Shri Mavlankar) had this to say about draftsmen in one of his minutes.

“Drafting of a Bill is not an easy matter as it may appear at first sight. It requires men who are not only well conversant with law and are besides jurists, but men who have an amount of experience in drafting. It is necessary that they should not only possess thorough mastery of the requisite technique but must have knowledge of judicial precedents and legal principles as well as important statutory provisions for they have to understand and weigh the implications of ever)- word used in a Bill. Above all they should have enough time to digest their own drafts and consider the implications of what they have drafted.”


Refer: Rulemaking in Minnesota: A Guide by Paul M. Marinac

More:

  1. The American Heritage Dictionary of the English Language. Houghton Mifflin, 1987.
  2. The Chicago Manual of Style. University of Chicago Press, 1982.
  3. C.K. Allen’s Law in the Making
  4. Cook, Claire Kehrwald, Line by Line: How to Improve Your Own Writing. Houghton Mifflin, 1985.
  5. Dickerson, Reed, The Fundamentals of Legal Drafting, 2nd ed. Little, Brown, 1986.
  6. Ebbitt, Wilma R., and David R. Ebbitt, Index to English, 7th ed. Scott Foresman, 1982.
  7. Government Printing Office Style Manual. Government Printing Office, 1973.
  8. Guidelines for Document Designers. American Institutes for Research, 1981.
  9. Hart, Henry M., and Albert M. Sacks. The Legal Process: Basic Problems in the Making and Application of Law. Cambridge: tentative edition 1958.
  10. The Mechanics of Law Making, Sir Alison Russell’s Legislative Drafting and Forms 4th, Ed. (1938)
  11. Webster’s Third New International Dictionary. G. and C. Merriam Co., 1976.
  12. Wydick, Richard. Plain English for Lawyers. Carolina Academic Press, 1985.

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