LPU 2972

LEGAL WRITING MODULE

The Module aims at introducing you to the basics of legal writing and to

assist you in tackling problem scenarios. It is not an English course. It is a

legal course. However, mastery of English is required to successfully

complete the course. Being a legal course, you will be required to:

1. Know the law governing the legal text;

2. Know the institutional context of the legal text;

3. Construct a legally sound and valid text.

MODULE OBJECTIVES

On completion of this module you should be able to write legal essays with ease

and to the acceptable standards.

TIMEFRAME

You are expected to complete this module in 13 weeks.

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STUDY TIPS

 As you go through the module you will come across margin icons

that serve as signposts. These icons are intended to assist you

navigate through the module.

 There are several activities interspaced in the learning activities

that will allow you to reflect on the topics in the units.

 A list recommended and prescribed books has been attached to

enable you access the detailed data.

STUDY SKILLS

As a distant learner, you will be taking control of your learning

environment. You will therefore need to balance you use of time. You

also need to reacquaint yourself in areas such as essay writing as well as

coping with examination pressure.

NEED HELP

In case you have any problems and questions, you may use the services of

the Institute of Distance Education at the University of Zambia or contact

the Course Coordinator.

ASSESSMENTS

 Continuous Assessment

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 o 1 Test 25%

o 1 Assignment 15%

 Take Home Examination 60%

ACKNOWLEDGES

This is a brief summary of the context for the module you are about to

begin. It was prepared by faculty members from the School of Law. This

module was prepared by Chipo Mushota Nkhata.

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UNIT ONE: CRITICISMS OF LEGAL WRITING

INTRODUCTION

This unit will introduce you to the concept of using “plain language” and the

criticisms of current legal writing and drafting. Under this topic we will discuss

the criticisms levelled against the traditional style of legal writing and the use

and importance of plain language.

OBJECTIVE

By the end of this Unit, you should be able to:

 Critically discuss the criticisms levelled against legal writing.

 Define plain language.

 Critically discuss what plain language is.

READING:

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Chapter 2-4 of “Opinion Writing” by the Inns of Court School of Law

2001/2002.

1.1 Criticisms of Legal Writing

ACTIVITY

 Why are lawyers criticised for their writing?

 Are these criticisms fair or justified?

Over the years legal writing has received criticism from virtually all sectors of

society-from members of society, members of the media, law students and even

members of the legal profession. The Law Reform Commission of Victoria

states:

The language of the law has long been a source of concern to the

community. It has been the subject of continuous literary criticism

and satire. Critics have highlighted its technical terms, its

convolutions and its prolixity. These faults have been noted by

judges and by practising and academic lawyers as well. Calls have

regularly been made for the use of a more simple and straightforward

style. Some improvements have been made in response to those

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 calls. But legal language remains largely unintelligible to most

members of the community. It even causes problems for members of

the legal profession. In some cases, the obscurity may arise from the

complexity of the law and of its subject-matter. In other cases,

however, it is due to the complexity of the language in which the law

is expressed. Some lawyers do not take sufficient care to

communicate clearly with their audience. Letters, private legal

documents and legislation itself are still drafted in a style which

poses unnecessary barriers to understanding. (Legal Language,

paragraph 14).

You will not from the above quotation that legal writing has been criticised for

use of technical terms and failure to acknowledge its audience. This means that

many people who write legal documents write without thinking about the

people who are most likely to read their documents.

Other criticisms of legal writing include the following:

 Legal writing is wordy, unclear and pompus. It is written in such a way

that only lawyers can understand the content of legal documents;

 Legal writing is difficult to understand because it often differs from

ordinary well-written English without justification;

 Legal writing is often poorly structured and often contains phrases within

phrases, which affects their comprehension.

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  Legal writing does not take into account the different audiences of legal

documents. This does not only make comprehension difficult, but

increases the cost of doing business for clients and governments.

 Bad legal writing is costly in that more money has to be spent in staff

time explaining the documents to users and rectifying mistakes that occur

as a result of misunderstanding a document’s instructions.

Again, the Law Reform Commission of Victoria writes to this effect:

Many legal documents are unnecessarily lengthy, overwritten, self-

conscious and repetitious. They consist of lengthy sentences and

involved sentence construction. They are poorly structured and

poorly designed. They suffer from elaborate and often unnecessary

cross-referencing. They use confusing tautologies…They are

unintelligible to the ordinary reader and barely intelligible to many

lawyers. (Legal Language, Paragraph 17)

It is evident from the above discussion that there is a problem with legal

language. As a student of law, you need to be aware of the criticisms levelled

against legal writing and ensure that you master the skills of good legal writing

that avoids attracting these criticisms.

The criticisms levelled against the traditional style of legal writing have not

been accepted by all legal scholars. This has sparked a debate as to whether

these criticisms are justified or not. One of the most interesting debates has been

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between a law professor, Professor Joseph Kimble and a legal practitioner, Mr.

W.O. Caldwell. At the end of this unit, you will find two readings attachment,

that is to say, Annex A and Annex B, on the writings of Kimble and Caldwell.

Read the arguments to fully understand the debate.

ACTIVITY

 How did you find the readings by Kimble and Caldwell?

 How would you summarize Kimble’s arguments?

 How would you summarize Caldwell’s arguments?

 Do you agree with Kimble or Caldwell’s arguments? Why?

1.2 Examples of Bad Legal Writing

A number of legal documents are poorly written in the sense that they do not

communicate with their intended audience. The following are examples of bad

legal writing gotten from excerpts of judgements, Acts of Parliament, legal

correspondence, contracts and related documents.

Excerpts of Judgements

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In Davies v. Mann (1842) the Court was describing an accident that had

happened between the plaintiff’s donkey and the defendant’s horse-driven

wagon. The Court stated as follows:

The declaration stated, that the plaintiff theretofore, and at the time

of the committing of the grievance thereinafter mentioned, to wit, on

etc., was lawfully possessed of a certain donkey, which said donkey

of the plaintiff was then lawfully in a certain highway, and the

defendant was possessed of a certain wagon and certain horses

drawing same, which said wagon and horses of the defendant were

then under the care, government, and direction of a certain then

servant to the defendant, in and along the said highway; nevertheless

the defendant by his said servant, so carelessly, negligently,

unskilfully, and improperly governed and directed his said wagon

and horses, that by and through the carelessness, negligence,

unskillfulness, and improper conduct of the defendant the said

wagon and horses of the defendant then ran and struck with great

violence against the said donkey of the plaintiff, and thereby then

wounded, crushed, and killed the same, etc.”

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ACTIVITY

 What is wrong with the above quotation from Davies v.

Mann?

 Compare this quote with the excerpt from Lyons v. Turner

(1881) 6 QB 523 as per Annex C

The People v. Charles Kakonkanya HKS/25/2011 (Unreported)

This excerpt is from a judgment in a case involving a murder charge. The Judge

in this matter writes:

In the circumstances of the case above, I ask myself the question

whether in the case before me, the accused can then be held to have

committed the offence of murder, and that if he did, would the

defence of provocation be available to him and whether on the

evidence before me the charge of murder can be reduced to

manslaughter.

In the above quotation, simple and clear language is used. This is a good quality

of legal writing. However, the whole paragraph is one long sentence, consisting

of sixty one (61) words. The sentence is thus too long and likely to be un-

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understandable by a reader. The normal word limit in an English sentence is

between 25-30 words.

In The People v. Charles Kakonkanya the Judge further stated:

I would therefore, in answering the question, that I paused to myself

in determining the guilty of the accused say that considering the

force that was used, the charge in this matter cannot be reduced to

manslaughter.

In the case of The People v. Muchabi (1) it was held that:

“the discovery of one’s spouse in flagrante delicto constitutes grave

provocation.”

There is no doubt according to the evidence before this Court that the

accused found his house in flagrant delicto and could plead the

defence of provocation in this matter.

ACTIVITY

 What do you under by the second quotation in the Kakonkanya Case?

 In your opinion, would Charles Kakonkanya (the accused person in this

murder trial) understand this portion of the judgment? Explain your

reason.

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Hargraves v. Bretherton (1958) 3 All ER 122

In the law of torts there is a debate between two schools of thought as to

whether it should be referred to as “The Law of Tort”or the “The Law of

Torts”. The first one is the general tort theory and the latter is the specific

torts theory. You have covered this in your law of torts hence I will not

belabour the point.

The excerpt below is evidence of the Court’s reluctance to create new

torts, in line with the general principle of liable theory.

Lord Goddard CJ stated in this case:

This simple point that I have to decide is whether or not an action lies at

the suit of a person who says that he has been damnified by a person who

has given false evidence against him. In my oinion, it is clear beyond

peradventure that an action will not lie. It would be most unfortunate if an

action for damages for alleged perjury could be brought when nobody had

been convicted of perjury, but, quite apart from that, merely on the

allegations of a person who says that somebody has committed perjury,

which led to him being damified etiher by being convicted or not. Half the

prisoners in England would be trying to bring actions in these days where

the state provides legal aid, and there would be an abundance of these

matters in these courts, which would be a most unfortunate procedure. One

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has to remember that people are brought to give evidence, sometimes by

subpoena, and cannot be compelled to give evidence. That does not excuse

them for committing perjury, but the penalty for committing perjury is not

that they should be asked to pay damages, but they should be sentenced

for the crime which has been committed, and sentenced by a court of law.

I hope counsel for the plaintiff will not think that I have been discourteous

to him if I say that it seems to me that this is an obvious ‘try on’.

ACTIVITY

 What is wrong with the above quotation from Hargraves v.

Bretherton?

 How can it be improved?

Excerpts from Acts of Parliament

The law relating to stay of executions of Judgements.

“Execution” is a legal right, granted by a court of law, which entitles a person to

enforce a judgement made in their favour against another person. A stay of

execution of judgments, on the other hand, is an order of the court that

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temporarily prevents the person with a legal right from enforcing a judgment.

Sometimes a person who has lost a case in a court of law may want to appeal

the decision of that court. At this time however, the person that has won the

case has already acquired the right to enforce the judgment. The law in Zambia

is that the mere fact that one has appealed the decision of the court does not

mean that the court decision has been stayed. This position of the law is

stipulated in the excerpt below, gotten from the High Court Rules. These Rules

are found in Order XLVII, of the High Court Act, Chapter 27 of the Laws of

Zambia. Rule 5 states as follows:

An appeal shall not operate as a stay of execution, or proceedings

under the judgment, or a decision appealed from, except so far as the

Court below or the Court may order, and no immediate act, or

proceedings shall be invalidated, except so far as the Court below

may direct.

The legal provision cited in Rule 5 above is that an appeal does not operate

as a stay of execution. Therefore, in order for a court decision to be stayed,

the court is required to make an order to this effect.

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 ACTIVITY

 Is the above quotation comprehendible about the law relating to stay

of execution of High Court decision if one wants to appeal such a

decision?

 How would you re-draft this provision?

Section 6 of the Defamation Act, Chapter 68 of the Laws of Zambia

“Defamation” is a term use in law to refer to a situation where someone’s

reputation is unjustifiably tarnished. The law on defamation seeks to protect all

individuals from unwarranted attacks on their reputations. Damage to reputation

can occur in a transient form (known as slander) or in a permanent form (known

as libel). Both of these forms of defamation are outlawed.

The law however recognises that in certain instances it is justifiable to lower or

tarnish someone’s reputation. Section 6 of the Defamation Act, Chapter 68 of

the Laws of Zambia provides for the defence of justification. It states that:

In an action for libel, or slander in respect of words contained in two,

or more distinct charges against the plaintiff, a defence of

justification shall not fail by reason only that the truth of every

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 charge is not proved, if the words not proved to be true, do not

materially injure the plaintiff’s reputation having regard to the truth

of the remaining charges.

The law on defamation in Zambia is regulated both by common law and statute.

The provision cited above can be improved by firstly discussing when the

defence of justification is clearly applicable before discussing instances in

which it is debateable. That way there is less confusing and the law is clear.

Higher Education Act, act No. 4 of 2013

This Act provides the establishment and regulation of higher education in

Zambia. The preamble to the Act states:

An Act to provide for the establishment of the Higher Education

Authority and define its functions and powers; provide for quality

assurance and quality promotion in higher education ; provide for the

establishment, governance and regulation of public higher education

institutions; provide for registration and regulation of private higher

education institutions; repeal and replace the University Act 1999

and provide for matters connected with, or incidental to, the

foregoing.

Section 13 of this Act further grants powers to the Minister responsible for

Education to:

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  Issue directives that are consistent with national policies and the Higher

Education Act;

 Request for any information concerning the higher education institution

which is in the interest of the public; and the higher education institution

is mandated to supply this information.

 Take any steps which the Minister believes to be in the best interest of

the higher education institution.

Section 14(1) states:

The Minister may, by Statutory Instrument establish or declare and

educational institution as a public higher education institution.

Section 53 of the Act States:

(1) The University Act, 1999 is hereby repealed.

(2) Notwithstanding subsection (1), a council of a higher education

institution existing under the repealed Act shall within a period of

one year from the date of commencement of this Act, comply

with the provisions of this Act

From the above, you can see that Higher Education Act is enacted to create and

regulate institutions of higher education. Section 13 of the Act states the powers

that the Minister responsible for Education can do in this regard. However, none

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of these powers include the power to establish or declare an educational

institution as a public higher education institution. This is strange considering

that in the following section, Section 14, the power to establish or declare an

educational institution as a public higher education institution is the preserve of

the Minister. The effect of this is that the Act is not easily assessable by a

reader. That is to say, a person who wants to know the powers of the Minister

in relation to the Act would have to read the entire Act, irrespective of the

section on this subject. This is evidence of poor structuring and poor

presentation of the document.

Further, section 14 is the “Establishment and Registration Clause”, that is to

say, it establishes and registers institutions of higher education. In effect, it has

not established or registered any institution of higher education. Instead, it has

referred such establishment and registration to the Minister who is to exercise

such power by Statutory Instrument. You can see the impact of this provision

more clearly when you read Section 14 together with Section 53 which repeals

the University Act of 1999. If, for example, the Minister has not established the

University of Zambia as an institution of higher education by Statutory

Instrument, then the University cannot operate as such. Currently, there is no

such Statutory Instrument and yet the University of Zambia is still operating as

an institution of higher education.

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Another point to note from the provision in Section 14 as read together with

Section 53 is that the Act implies, in S.53(2), that a Council of an institution of

higher education that was created under the repealed University Act has an

obligation to comply with the provisions of the Higher Education Act. Section

53(2) further gives such Council one year from date of its commencement to

comply with the provisions contained in it. This is strange considering that the

effect of enactment of the Higher Education Act is to de-register the existing

institutions of higher education that have not been permitted to continue in

existence pursuant to a statutory instrument enacted by the Minister. This can be

rectified by qualifying the statement to refer only to those institutions of higher

education that the Minister has allowed to continue by Statutory Instrument.

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ACTIVITY

 Can you see a better way of drafting the preamble of the

Higher Education Act?

o Think about what the Act addresses and the order in

which this is presented in the preamble.

o Think also about readability aids, i.e. things that

would make the document accessible to its audience.

 Taking into account the above discussion on the weakness of

the Act, do you think that a continuation clause for existing

higher education institutions would the identified defects.

o If no, why not.

o If yes, how would you draft such a clause?

Contracts and Related Documents

Assignment of Land

Consider the following excerpt from document, referred to as “an assignment”

in law. This is a document drafted when one is assigning land to another person,

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i.e. when a person is selling land to another person. This assignment is drafted

for land which is granted by the President for a period of 99 years. It reverts to

the President after 99years. Thus the assignment is said to be “an assignment for

a Presidential Lease”.

CHIPO MUSHOTA…….......................................................... VENDOR

FELICITY KALUNGA…………...................................... PURCHASER

________________________________________________________________

ASSIGNMENT

THIS INDENTURE made the ______________day of _____________Two

Thousand and Twelve BETWEEN Chipo Mushota both of Lusaka in the

Lusaka Province of Republic of Zambia (hereinafter called “the Vendor”) of the

one part and Felicity Kalunga of Lusaka in the Lusaka Province of the Republic

of Zambia, of the other part (hereinafter called “the Purchaser”) WHEREAS

1. By a lease (hereinafter called “the Lease”) dated 1 ST January Two

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 Thousand and Eleven made between The President of the one part and

Chipo Mushota Nkhata of the other part ALL THAT the hereditaments

and premises more particularly described in the schedule hereto

(hereinafter called “the Premises”) were demised to the said and Chipo

Mushota for the term of 99years from the 1 st day of January Two

Thousand and Eleven at the rent reserved and the covenants conditions

and stipulations contained in the said lease.

2. The Premises comprised in and demised by the Lease are now vested in

the Vendors for the residue of the term of years creased by the Lease

subject to the rent covenants and conditions contained in the Lease.

3. The Vendors have agreed to sell the said premises for the sum of Two

Hundred and Eighty Thousand Kwacha (K280, 000).

NOW THIS DEED WITNESSETH as follows:

1. In pursuance of the said agreement and in consideration of the sum of

Two Hundred and Eighty Thousand Kwacha (K280,000) paid by the

Purchaser to the Vendors (the receipt whereof the Vendors hereby

acknowledges) the Vendors as Beneficial Owners HEREBY ASSIGN

unto the Purchaser ALL THAT the premises described in the Schedule

TO HOLD the same unto the Purchaser for the residue of the term of

years created by the Lease SUBJECT to the payment of the rent and to

the covenants on the part of the Lessee and the conditions and stipulation

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 in the lease reserved and contained henceforth on the part of the Lessee

to be paid performed and observed.

2. The purchaser HEREBY COVENANTS with the Vendors that the

Purchaser will at all times henceforth duly pay all such rent becoming

due and observe and perform the said covenants and conditions on the

part of the lease to be observed and preformed and also will at all times

henceforth save harmless and keep indemnified the Vendors from and

against all proceedings costs claims and expenses on account of any

omission to pay the said rent or any breach of the said covenants

conditions.

3. The necessary consent in writing to the Assignment hereby made has

been duly obtained and Property Transfer Tax paid to the Collector of

Taxes.

4. It is hereby certified that for purposes of any fee and Property Transfer

Tax payable the aggregate amount of value for this transaction does not

exceed Two Hundred and Eighty Thousand Kwacha (K280,000).

IN WITNESS whereof the parties hereto have set their hands and seals the day

and year first before written

THIS SCHEDULE hereinbefore referred to:

ALL THAT piece of land in extent 414 Square Metres more or less being

Subdivision 28/01 of Stand No. 4586 situated in the Lusaka City Council in the

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Lusaka Province of Zambia which piece of land is more particularly delineated

and described on Diagram No. NC2 of 1996 annexed to the Certificate of Title

issued in respect of this piece of land EXCEPT and RESERVED all minerals,

oils and precious stones whatsoever upon or under the said land ALL THAT

piece of land in extent of 1786 square meters of land more or less being

subdivision No. 387 of Farm No. 401a situate in the Lusaka Province of Zambia

which piece of land is more particularly delineated and described on Diagram

No. 1204 of 1994 except and reserved all minerals oils and precious stones

whatsoever upon or under the said land.

Considering that land transactions are often done by ordinary citizens, it is very

important that such citizens can understand these documents whether they are

represented by a lawyer or not. Because of public perception of freelance estate

agencies and the increasing land scandals in the Country currently, access to

such legal documents by everyone is particularly important. The document, in

their current state, entails that one must engage an estate agent or lawyer if they

are to engage in a sale of land.

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ACTIVITY

 Is this assignment reader-friendly? Explain.

 How can it be improved?

Employment Contract

An employment contract is a contract in which one offers their services in exchange for money. The

contract states the kind of services envisaged by the persons who contract with one another. Below

is an excerpt from an Employment Contract.

2 Duties

2.1 The Employee will during her employment under this agreement:

2.1.1 Provide the services listed in Appendix 1 of this contract.

2.1.2 Perform any additional duties that the Board may from time to time

assign to her in her capacity as Director for Legal Affairs and in

connection with the business of the Employer.

2.1.3 Work an average of 40 hours weekly, from 08:00hrs until 17:00hrs

from Monday to Friday. In cases where the Employee is required to

work for longer than 40 hours weekly, she may not claim overtime

payment. However, the Employee may take time off during normal

working hours in lieu of overtime payment for work done over the

weekend or outside one’s usual workstation. The Employee may also

be required to work outside normal working hours where necessary.

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 2.1.4 Do all in her power to promote, develop and extend the business of

the Employer and at all times comply with the proper and

reasonable directions of the Board.

This excerpt leaves two major questions unresolved:

i. Clause 2.1.3 is silent on whether the employee would be entitled to

overtime payment for work done outside normal working hours. It only

proscribes overtime pay for work done over the weekend or outside

one’s normal work station. This is most likely because the clause is

crowded with too many rules. This style of writing could be improved by

creating sub-paragraphs of all the provisions relating to working hours

and overtime payments.

ii. Clause 2.1.4 does not really impose any real obligation on the employee.

It requires an employee to do all that she can to promote, develop and

extend the employer’s business. There is nothing much the employer can

do to hold the employee to this provision as it is too subjective. The

choice of words in this clause renders the provision redundant. The

provision can be improved by using words that create an objective

standard by which an employee’s efforts in this regard could be

measured.

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 UNIT SUMMARY

This unit has discussed the numerous criticisms that are levelled against the

traditional style of legal writing. We also discussed arguments for and against

traditional legal writing. Finally, the unit gave examples of bad legal writing,

and to some extent discussed the why these samples qualify as bad legal

writing.

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UNIT TWO: BASIC RULES OF GOOD LEGAL WRITING

2.0 INTRODUCTION

This Unit seeks to introduce you to the basics of good legal writing. It starts by

discussing the use of plain language in writing legal texts. Under this it

discusses the importance of writing in plain language and avoiding legalese. It

then discusses writing styles and habits that make legal writing

incomprehensible, that is to say, it discussing structuring of legal documents,

punctuation and presentation.

OBJECTIVE

At the end of this Unit, you should be able to:

 Explainthe meaning plain language

 Critically discuss the importance of writing in plain language.

 Critically discuss the basic rules of good writing.

 Apply the basic rules of good writing.

 Successfully write a legal sentence

 Successfully write a legal option

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 2.1 Basic Principles of Good Legal Writing

In order to write a good legal document, you must adhere to the following rules:

i. Know your audience;

ii. Write in plain language and avoid legalese;

iii. Use proper grammar;

iv. Structure your document well;

v. Use the correct punctuation marks

vi. Ensure that you prepare a presentable and easy to read document.

ACTIVITY

Discuss what each of the basic prinicples of good legal writing entails.

2.2 Know your Audience

When writing, you should always have your reader in mind. Your potential

readers are your audience. If you are a Judge, the potential readers of your

judgement are lawyers, litigants and other members of the public who may be

affected by the judgement, legal researchers and law students. When you write

you write your judgement, you must have all these people in mind and ensure

that all of them will be able to understand your judgement. You write your

judgement in such a way as to balance the different levels of knowledge of the

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law. If you are a parliamentary drafts person, you bear in mind members of the

public as they are most likely to be affected by the laws passed, lawyers as they

are likely to be consulted on the legal provisions, judges as they have to

interpret the law, legal researchers, academics and law students. As a student,

you have to fit in a particular character assigned to you be questions that you are

responding to. Sometimes you are asked to write a legal opinion for your client

who is a lay person, sometimes you are put in the position of a judge and are

asked to write and deliver a judgement, and sometimes you are asked to advise

a professional client who is a lawyer. In all of these characters, you must write

for an intelligent but ignorant reader, i.e. someone who is intelligent enough to

understand a well written document, but is ignorant of the subject matter of the

legal document.

Do not use legal terminology when you are writing to a non-lawyer and you can easily substitute for

words for simpler terms. In the same way, do not write to a lawyer as if the lawyer were a lay

person, incapable of understanding legal terms.

ACTIVITY

How can you ensure that readers understand the legal documents you have

prepared?

2.3 Writing in Plain Language and Avoiding Legalese

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Plain Language

Plain language is about writing in a manner which is easily understandable by

the audience that it is intended for. Plain language is not about conversion of a

badly writing legal document. It entails rewriting the document; drafting from

scratch. Plain language recognises the various audiences of legal writing, that is

to say, courts, clients, law students, law professors and legal researchers. Plain

language requires any one writing a legal document to ensure that is it clear and

precise. It looks at the aspects of clarity and precision as complementary and not

opposites.

Plain language is the opposite of traditional legal writing. It does not support the

use of traditional legal writing. This is because traditional legal writing does not

take into account all of its audience. Traditional legal writing focuses on the

courts as the sole audience. This has attracted criticism of legal writing from

people within and outside the legal profession.

Plain language proponents reject the notion that words used in traditional legal

writing are authoritative. They reject this notion on the following grounds:

i. Few traditional words have judicially settled meaning;

ii. Traditional words could also be subject to interpretation and thus are not

iron clad.

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 iii. Substitution of one’s own words, although in common use, is a

substitution of personal understanding bereft of judicial authority.

Richard C. Wydick, an advocate of plain language, discusses the importance of

writing in plain language. He states that plain language is important for the

following:

i. It improves the writing styles of lawyers. As discussed in Unit 1, legal

writing has been said to be wordy, pompous, unclear and dull. It is also

characterised by surplus and arcane words; and long and complex

sentences. Since plain language does not support this style of writing,

anyone who applies the tenets of plain language is sure to write better

than one who adheres to the traditional form of legal writing.

ii. Plain language is also important because it improves comprehension of

legal documents. This is done by focussing on basic forms of writing

beyond words and sentences-a tendency of traditional legal writing. It

also encourages the practice of testing legal documents for clarity and

precision before they are finalised and circulated. This helps to gauge

how well those documents are understood by the intended audience.Plain

language is thus important as it aids the audiences of its writing to

understand what has been written.

iii. Plain languages uses simple language to express common place ideas, as

opposed to the traditional legal writing which uses secret, mysterious and

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 difficult to understand phases to meet this objective. Lawyers who use

traditional legal writing are often verbose and their writing is often

irrelevant to the audience. Plain language is important because it helps

lawyers to meet the goals of clarity and precision.

iv. Plain language also helps governments serve time and resources.

Advocates of plain language argue that lawyers who serve businesses and

government agencies have learned that using plain language has the

following advantages:

a. It serves on staff time to explain the documents and reduces the

number of errors made by those who fill them out;

b. Understandable warranties help to sell products better.

v. Plain language is also important as it reduces unnecessary litigation. This is particularly

important for a country like Zambia where the judiciary is overburdened with court cases

due to insufficient staff and backlog of court cases.

33
ACTIVITY

i. Re-write the following in plain English:

ii. Nothing expressed or implied in this Agreement is intended or shall

be construed to give to any person or entity, other than the parties

and the Buyer’s permitted assignees, any rights or remedies under

or by reason of this Agreement.

iii. On information and belief, Defendants Newton and Kautz,

immediately prior to operating their vehicles on the aforesaid

Route 315, had attended a party sponsored by Defendant Roach

Incorporation on Powell Road, in Powell Ohio; said Defendants

left the party at approximately the same time ; said Defendants

Newton and Kautz were racing their automobiles pursuant to an

agreement reached at said party shortly prior to the aforesaid

collision... (

iv. In testimony whereof, I have hereunto subscribed my name and

affixed my seal, this 20th day of February, in the year of our Lord,

One Thousand Nine Hundred and Ninety Nine.

34
 Recognising and Re-writing Legalese

For you to recognise and re-write legalese, you need to know what legalese is.

A Dictionary of Modern Legal Usage’ by Brian Garner, 2 nd Ed. Newyork

Oxford, Oxford university Press 1995 on page 516 states the following:

“Ironically, many dictionaries label ‘legalese’ a “colloquialism”. It denotes what

is perhaps the least colloquial of all forms of English writing: the complicated

language of legal documents.”

The Oxford English Dictionary traces legalese-the word, not the thing- back to

the 2nd decade of the 20th century, with this example: “He signed his name at the

foot of a bald formal agreement, written in the most incomprehensible

legalese.” CJC Hyne, Firemen Hot 189 (1914).

Though the name for it is fairly new, legalese itself has, throughout the history

of Anglo-American law, been a scourge of the profession. Thomas Jefferson

railed against statutes ‘which from their verbosity, their endless tautologies,

their involutions of case within case, and parenthesis within parenthesis, and

their multiplied efforts at certainty, by saids and aforesaids, by ‘ors’ and ‘ands’,

to make perplexed and incomprehensible, not only to readers, but to the lawyers

themselves.

The same is true of all types of legal writing, not just statutes or even just

DRAFTING. Consider the 19th Century example describing a collision in

35
Davies v. Mann (1842) 10 M&W 546 152 Eng. Rep 588. Even in the 20th

Century collisions have sounded much the same in legalese e.g the pleading in

the case of Baird v. Roach Inc. 462 NE 2d 1229, 1231 (Ohio Ct.App 1983):

On information and belief, Defendants Newton and Kautz,

immediately prior to operating their vehicles on the aforesaid Route

315, had attended a party sponsored by Defendant Roach

Incorporation on Powell Road, in Powell Ohio; said Defendants left

the party at approximately the same time ; said Defendants Newton

and Kautz were racing their automobiles pursuant to an agreement

reached at said party shortly prior to the aforesaid collision...

Merriam Webster’s dictionary defines legalese as ‘ the speiclaised

language of the legal profession.’ It is often highly compressed e.g “The

question here is whether service of citation was proper in the face of the

writ of error attack on a default judgment.” Such writing flaunts legal

ceremony, which arguably has a place in some documents. The effect of

the passages and examples cited above should eliminate legal writers of

any attraction to legalese. Legalese makes it very difficult for people to

understand legal texts.

36
ACTIVITY:

 Research legal dictionary entries on the following words:

o Legalese

o Doublets, triplets and synonym-strings

o Legalism and lawyerism

o Jargon

o Jargon mongering

o Initialese

You must avoid legalese as much as possible. Legalese must be avoided in legal

texts because:

 The words used make it difficult for most readers to understand. For

example, legalese would encourage the use of redundant terms and terms

that are not used in common parlance (also known as jargon). Redundant

doubling of words has been traditionally used in legal documents for

clarity, emphasis and literacy fashion.

37
  The words used make sentences that are ordinarily short to be long. For

example, legalese would encourage the use of doublets and synonym

strings such as “null and void” and “carelessness, negligence and

unskillfulness”.

2.4 Use Proper Grammar

A lawyer’s writing should be impeccable. It must be free from grammatical

error. Rules of grammar dictate the forms of words, the order in which words

must appear in a sentence and the sentence structure. Grammar is particularly

important when you are writing a long sentence.

When writing, it is very important to use language that is appropriate, that is to

say, it must fit your audience and match the purpose for which it is used.

Inappropriate language can damage your credibility, weaken your argument and

alienate your audience.

Grammatically correct sentences never end in prepositions. For example,

instead of saying “what does this go with?” , say “ with what does this go?” .

Instead of saying “The expert witnesses could not determine where the evidence

came from”, say “ The expert witnesses could not deter from where the

evidence came.”

Further, grammatically correct sentences follow the structure for basic English

sentences. The basic English sentence structure is as follows:

38
 i. Subject and verb. For example, “Lynn sued”.

ii. Subject, verb and direct object. For example, “ Lynn sued for unfair

dismissal.”

iii. Subject verb, indirect object, direct object. For example, “Lynn sued her

employer for unfair dismissal.”

iv. Prepositional phrase, subject, verb, direct object. For example, “To seek

legal redress, Lynn sued for unfair dismissal.”

From the above discussion, you will note that three main things stand out in

constructing a grammatically correct sentence: word choice, clause or

sentence construction and structure.

2.4.1 Word choice

Words are the basic units of expression. They form the basic elements of a

sentence that helps convey a message or idea. If you use words carelessly, you

are likely to distort the meaning that you actually intend to communicate. The

choice of words is thus important to legal writing. Below are a few examples of

words that are often misused:

i. The word “disinterested” means that one is impartial, whereas the word

“uninterested” means that one is bored. Thus whereas you can say that “It
39
 is better to have a dispute determined by a Judge because a Judge is a

disinterested referee”, you cannot say “ I am disinterested in alternative

forms of dispute resolutions.”

ii. The word “infer” means to reach a conclusion based upon evidence or

words or others whereas the word “imply” means to suggest something

without expressly stating it. Thus whereas you can say “After reading the

Act, she inferred that an offense had been committed”, you cannot say

“She was too timid to tell her mother that she had committed an offense,

but she implied it.”

iii. The word “since” means between a particular past time and the present.

You can say “ He has not committed another offence since the last time

he was imprisoned.” However, you cannot say “Since he is on probation,

he may not commit another crime.”

iv. The word “fewer” is used with a countable noun such as “buildings”,

“cars”, “people”, “fruits” etc. The word “less” on the other hand is used

with degrees or non-countable nouns. Thus, whereas you can say “Use

fewer words in your writing,” you cannot say “There are 10 words in my

sentence but Ken has less.”

Below is an illustration of the importance of using appropriate words. It is

an excerpt from a book entitled “Legislative Drafting.”

40
Does the expression ‘agricultural product’, for example, include the

expression ‘diary product’? The answer hinges on the meaning of

agriculture and diary. Agriculture is defined by the Concise Oxford

Dictionary as the science or practice of cultivating the soil and rearing

animals. A number of statutes have also defined agriculture along the

same lines. It provides in subsection (1) of section 61 that:

‘agriculture’ shall include horticulture, and the use of land for any

purpose of husbandry, inclusive of the keeping or breeding of

livestock, poultry or bees, and the growth of fruits, vegetables, and

the like.

‘diary’ means farming concerned with diary products.

In the definition of diary the dictionary lists milk, cream, butter and

cheese as diary products. It is pertinent to observe that cream, butter

and cheese are made from milk which itself is produced by animals

such as a cow or a goat. Diary farming is thus concerned with the

rearing of animals for the purpose of producing milk which in turn

may be processed into diary products such as cream, butter or

cheese.

Thus both agriculture and diary are concerned with the breeding or

keeping of animals. The distinction is that in agriculture the

41
 keeping or breeding of animals is not just for diary purposes.

Agriculture is thus broader in scope than diary. Indeed agriculture

encompasses diary.

From the above quotation, it is clear that you need to be very careful

when you are using words that are synonymous with each other. This

means that you must use words that fit the purpose.

Words are the basic unit in every sentence. 1 Every sentence has two types of

words the working and glue words. Working words are words that give meaning

to a sentence. On the other hand, glue words are words used to construct a

grammatically correct sentence. Both the working words and glue words are

important as they aid in achieving comprehension. Proportion of glue word to

working words should be in such a way that the meaning of the sentence should

not be weighed down, or oversized. In short, the meaning of the sentence should

not be defeated. For example consider the sentence below:

 A marriage is terminated by divorce order upon proof that there was a

marriage between the parties.

In the sentence above, the working words are marriage, terminated, divorce

order, proof. On the other hand, the glue words are A, is, by, upon, that and

there.

1
Lisa Webley, Legal Writing, London: Cavendish Publishing Limited, 2008, pg.34.

42
The Legal Writing Course through its focus on words enables students to know

the difference between the two types of words that make up a sentence. It makes

it possible for students to be conscious of the proportion of working words and

glue words when drafting a sentence. However, the course does not provide a

mechanism of knowing that, a particular sentence has more glue words or

working words than required to maintain the proportion.

2.4.2 Clause and Sentence construction

The process of constructing clauses and sentences starts with selecting the

appropriate words, subject, verb and object. Thus, legal sentences must be short.

It is difficult to pull out the meaning of the legal rule if it is embodied in a

“paragraph-long” sentence. Hence a legal sentence should be between 25-30

words. If the words are more than thirty, the sentence must be broken down into

two sentences that are properly linked. The legal sentence is discussed below in

more detail. For now, we will focus on clause and sentence construction. In

legal writing, the rules of construction are the same for both clauses and

sentences.

The first thing to note in clause and sentence construction is that you must avoid

redundant legal phrases. Thus avoid phrases like “null and void’ as they mean

the same thing. This phrase is an example of coupled synonyms. Redundant

43
doubling of words was sometimes used for clarity, emphasis and literacy

fashion. Doubling of words is not a term of art as most lawyers would like to

believe. A term of art is a short expression that conveys a fairly well-agreed

meaning and saves the many words that would otherwise be needed to convey

that meaning. The term “hearsay” for example is a term of the art. It enables a

lawyer to use one word instead of many to say that a statement is being offered

into evidence to prove that what it asserts is true, and that the statement is not

one made by the declarant while testifying at the trial or hearing. The use of

doubling or tripling words that are not considered the term of art thus confuses

the reader and makes comprehension difficult.

Another aspect of clause and sentence construction that is important is legal

writing is the avoidance of surplus words. Surplus words are words that don’t

add any value to the sentence. In every English sentence there are two kinds of

words-working words and glue words. Working words carry the meaning of the

sentence where as glue words hold the working words together. glue wording

are important for constructing a grammatically correct sentence. The proportion

of working words to glue words must always be higher. If the proportion of glue

words is too high then the clause or sentence is poorly constructed.

Another important aspect of clause and sentence construction in legal writing is

to avoid compound constructions, that is, using three or four words to do the

work of one or two words. For example, “With respect to...” instead of saying

44
“on”or “regarding”; and “for the reason that”instead of saying “because”. The

point on avoiding compound constructions is similar to that of word-wasting

idioms such as “The fact that the defendant was young may have influenced the

Judge.” In this sentence, “The fact that” is a word-wasting idiom. The sentence

could be redrafted to read “The defendant’s youth may have influenced the

Judge.”

Another important aspect of clause and sentence construction in legal writing is

the focus of the clause or sentence. A clause or sentence must focus on the

actor, the action and the object. This helps to remedy a wordy sentence. You

should ask yourself “who is doing what to whom?” To construct a good clause

or sentence, you must first state the actor, then the action. The action must be

stated used the strongest verb that will fit the action. Consider the following

example: “It is possible for the court to modify the judgement.” In this sentence,

“the court”is the actor, “modify” is the action and “judgement” is the object.

When you re-write the sentence taking into account the proposed formula, your

sentence will read “The court can modify the judgement.”

A further aspect of clause and sentence construction in legal writing is the use

of the active voice. As much as possible, use the active as opposed to the

passive voice. Unless it is absolutely undesirable or impractical, avoid

beginning sentences with ‘it’ or ‘there’ followed by a form of the verb ‘to be’.

For example, if you say “It is obvious that the summons was not properly

45
served”, to whom was this fact obvious? The sentence does not indicate to

whom it is referring to. The use of ‘it’ in this sentence does not refer to anything

specific.

2.4.3 The Legal Sentence

Constructing sentences using the traditional subject-verb-object technique is not

always the ideal structure for legal sentences and clauses. There have been

various attempts to formulate an acceptable technique for legal sentence

constructions. The Logical Proposition technique was proposed 2. According to

the Logical Proposition, a legal sentence always gives preposition to a legal

rule. This means that a legal sentence must give expression to a legal rule and a

legal rule must exist as a logical proposition. The legal rules may have

conditions and exceptions. The conditions and exceptions are referred to as

premises or modifiers because they modify the legal rule. These must be

properly expressed in a legal sentence. The preferred structure is “If..., then...”.

However, because legal sentences can be complex, this preferred structure may

not always be appropriate. If the premises are simple, they can be included in

one sentence. If they are complex, consider creating separate, but linked

sentences to house them. You must be able to deal with multiple subjects,

multiple verbs or objects. Consider the examples below:

2
G. William and Smith. Learning The Law. 13 th Edition. (London: sweet and Maxwell,2006)

46
 If you have two subjects you can name them as follows:

o The Minister and the Director General may....

 If you have several subjects you can phrase you sentence as follows:

o Instead of “The professors, associate professors, senior lecturers

and lecturers may...”, you could state that “The academic staff

may...”.

 If you have multiple verbs or objects, you could list them as sub-

paragraphs as follows:

o Everyone who is arrested for allegedly committing an offence has

the right-

(a) to remain silent;

(b) to be informed promptly-

(i) of the right to remain silent;

(ii) of the consequences of not

remaining silent;

(c) not to be compelled to make a confession or

admission that could be used in evidence against that person;

(d)...; (e)…; and (f)….

47
It is important to also note that a condition is added to a main legal rule to

switch it on. This means that the main rule is dormant until the condition is

satisfied. An exception, on the other hand, turns off the main rule. This means

that the rule is continually active until the exception occurs and suppresses it

completely. An exception can also be used to suppress the main rule from

applying in certain circumstances only. That is, the main rule is always active,

but its effect is limited.

When using modifiers, make sure that they are next to the parts of the speech to

which they apply. For example, rather than saying “The Minister may, after

consulting the public, make regulations under this Act”, you must write “The

Minister, after consulting the public, may make regulations under this Act.

ACTIVITY
Look at statutory provisions of your choice and identify the following:

o Simple premises

o Complex premises

48
The legal subject and the legal action must always be present in a legal

sentence. These must be properly captured to avoid ambiguity of powers,

functions, rights ascribed in the legal rule.

The rules that apply to clause and sentence construction are also applicable to

construction of legal sentences. However, it is important to note that

constructing legal sentences in plain English is not always possible. Sometimes

it is necessary to use longer sentences, or legalese. The Inns of Court School of

Law writes to this effect:

Nevertheless, you are a lawyer and what you are writing may serve a

specialised legal purpose rather than a general one. Plain English

involves using the simples and clearest language possible in the

circumstances, not the simplest and clearest language available. A

lawyer cannot sacrifice precision for simplicity, or clarity for the

sake of shorter words. It is more important that what you are writing

should fulfil its function than that it should make sense to someone

who has no need to understand it.

There are times, therefore, when technical terms are preferable to lay

terms; when uncommon words carry precisely the meaning you want

while everyday ones do not,; when a long complex sentence gives

the right emphasis while a short simple one does not. The rule is to

use plain English wherever possible but not at all cost.

49
ACTIVITY

 What is plain English?

 Why should lawyers use plain English?

 What is the problem with the legal language?

 How can you address the language problems inherent in the

traditional way of legal writing?

2.5 Structure Your Document Well

In drafting legal documents, it is important to organize the material in a manner

that makes it easy for the reader to understand the document. The success of a

document in communicating with the reader depends greatly on the careful

organization of the material in it.3 A writer must ensure that similar ideas are

put together. Furthermore, the facts of a case must be carefully selected to

ensure that they are put in an order that shows interconnections between the

facts. This way, one fact will support the other. A number of factors must be

3
ChristopherBamford.“Getting the Structure Right: Process, Paradigm and Persistence”. Clarity. ( May,1999)
No.42, 43.

50
taken into consideration to ensure a well-structured document. For example one

must be clear about the subject matter of the writing, sensitively consider the

audience, skilfully choose their words and strategically deliver their message.

Poor structure often reflects muddled thinking and this causes effective

communication to fail.

One of the things to note when structuring a document is that the main message

should be put first. This means that the most important information ought to

appear first in order for the reader to appreciate the nature or focus of the

document. Secondly, closely related material should be put together. This shows

good organization of materials and makes it easy for the reader to follow the

arguments in the document. This means putting Material in an order that makes

the best sense to the reader. Further, it is very important to use headings because

this enables the reader to know what the document is going to talk about. It

gives the reader foresight of what to expect in the document. Heading a

document also helps to organize it. Many problems associated with

understanding legal documents are emanate from the poor structure of the

document.

In “Getting the structure right”, an article written by Chistopher Balmford,

Balmford refers to the work of Dr. Betty S. Flowers. Flowers’ paradigm for

structuring a document is called “madman-architect-carpenter-judge.” Under

this very interesting paradigm, the writing process is separated into 4 distinct

51
stages. These require a writer to take on several personalities-the madman, the

architect-the carpenter and the judge.

The madman: brainstorms, takes notes and is enthusiastic, experimental, and

creative. He collects all the information that is related to the subject matter.

Thus, the madman stage is the stage where the writer is expected to be

innovative and creative and collects all the relevant information to the topic at

hand.

The architect: reviews the information that the madman has created and

gathered and uses it to develop an outline of the document. The architect stage

is thus the planning stage. The architect is expected to use the information

collected by the madman to man a plan for constructing the document. At this

stage, the irrelevant information collected by the madman will be discarded and

only the useful information retained.

The carpenter: fleshes out the structure by writing the text and producing the

first draft. The carpenter refines the work of the architect and prepares a draft

document.

The judge: edits and reviews draft prepared by the carpenter. The judge adds

what has been left out and decides whether the document is ready for

publication.

52
Flowers argues that when using this paradigm, it is important to keep the roles

separate, to give each personality room to carry out their role, without allowing

the personalities to interrupt each other. Thus each personality must die when it

completes its work.

ACTIVITY

Read the attached article by Christopher Bamford on structuring a document.

ANNEX C

What are the guidelines about sequencing a document given in the Bamford

article?

53
 2.6 Use the Correct Punctuation Marks

Good writing must be properly punctuated. Punctuation may not affect the

meaning of the words you use but it certainly affects your readers’

comprehension of what you have written. A comma or full stop can

significantly affect your reader’s understanding of your writing. It is particularly

important when drafting documents. A number of legal document a complex to

draft. It is thus important to adhere to correct punctuation marks when drafting

such documents. Punctuation marks are also important when drafting long

sentences. A single punctuation mark can distort the entire sprit of the document

if not used correctly.

2.7 Ensure that you prepare a presentable and easy to read

document.

Presentation aids, sometimes also called sensory aids are the resources beyond

the speech or writing itself that are used to enhance the message conveyed to the

audience4. As such, they can help a reader to understand and remember key

points from a particular piece of writing. Furthermore, presentation aids will

help the reader connect pieces of information when reading a document that

might be conveying a complex set of concepts. Presentation aids are also

4
Wrench Jason S, Stand Up, Speak Out: The Practice and Ethics of Public Speaking (New York: Flat World
Knowledge, 2011), 222.

54
important as they can help organize a document. They also help to sustain the

interest of the reader.

The presentation of a document does not affect its meaning but helps it be more

accessible and understandable. A well-presented document shows the necessary

respect to the reader and as such will attract the reader.

We will now discuss the three aids to presentation. These are accessibility,

readability and referrability.

Accessibility of a document entails visible organisation of a document, that is to

say, the document clearly shows how the information is organised or structured.

Christopher Balmford5 states that this can be achieved by the rigorous approach

of sorting and ordering the information in the document. Hence to aid

accessibility of a document, a table of contents is necessary. Pagination also

aids in making a document accessible. This entails inserting page numbers for

ease of reference. Headers, footers and notes in the margin are sometimes

necessary to guide the reader through the document. These too increase

accessibility.

Readability refers to assisting the reader read through the document. This is

achieved by placing clear identifiers on headings as well as using a standard

font consistently. If you use a font size that is too small, the majority of your

readers will be unable to easily read it. If you use a font size that is too big, your
5
Balmford Christopher, “Getting the Structure Right: Process, Paradigm and Persistence,” 16.

55
document will not be presentable, and may affect the interest in your document

of the majority of your readers. Clauses and sections should be divided into sub-

sections in order to help the reader differentiate information and internalise the

material. Numerical and alphabetical identifiers should also be used to aid in

readability.

Referrability is concerned with the ease with which the reader can refer to a

particular document. This is enhanced by use of table of contents, page

numbers, index, clause and section numbers, headings, side notes etc. All these

are necessary for they promote not only readability but also accessibility and

referability.

2.8 UNIT SUMMARY

In this Unit, you has learnt the basic rules of good legal writing. These are that

you must know the audience you are writing for in order to determine the level

of your writing. You must also ensure that you avoid legalese and write in plain

language to enhance comprehension. We also discussed the importance of using

correct grammar, structuring your document well and using correct punctuation

marks. The key points to note in ensuring that your grammar is correct is to

choice the appropriate words, avoid ending sentences with prepositions and

follow the correct sentence structure.

regarding structuring a document, the following are important to note:

56
 a) Put materials in an order that makes the best sense to the reader.

b) Put the main massage first.

c) Put closely related material together.

d) Use headings liberally and rigorously.

e) Make sure that pieces of information with comparable heading levels

have comparable weight, and comparable level of importance.

f) Use a numbering system that forces to draft clearly.

You also learnt that the presentation of a document may not affect meaning but

a poorly presented document affects its readability.

57
UNIT 3: CONTEXTS FOR LEGAL WRITING AND DRAFTING

3.1INTRODUCTION

3.2OBJECTIVES

At the end of this unit, you should be able to:

o Explain the different contexts for writing and drafting.

o Explain the rules of interpretation

o Adequately respond to situational examination questions

In this lecture, we shall focus on three main areas of writing and drafting: words

of authority, gender-free writing and various drafting contexts. However, it is

important for you to note the following general rules about writing and drafting:

58
 i. You must always think of the reader: your audience is important and

therefore you must bear this in mind as you are preparing to write or

draft a legal document;

ii. You must think of the efficacy and legality of the instructions you are

given either in an assignment, examination question or indeed by a

real client in the practice of law;

iii. You must strive to write in the present unless the situation demands

otherwise; and

iv. You must strive to write in the singular unless the situation demands

otherwise.

Bearing these in mind, we will now specifically discuss the three broad

areas of legal writing and drafting.

3.3Words of Authority

This refers to words of authority such as “shall”, “shall not”, “must”, “must

not”, “may”, “may not”, “is’, “should” and “will”. The words of authority are

also called modal verbs. These are referred to as words of authority, because

they are often used in a legal rule to impose a duty, a directive, a declaration, a

right or entitlement etc. The effect of the rule expressed in a document depends

on the choice of the word. In legal writing there are words which are

authoritative whose use affects the consequence of a particular action. The

importance of these words when properly used is that, they help to determine

59
what the action the writer is expecting. For instance, a writer must use shall to

impose a duty and must when giving a directive, i.e. ‘must’ is used to when the

subject is required to act or do something. The word ‘must’ should not be used

to impose an obligation, as it is commonly but mistakenly used. The word Will

is used to express future ideas or things to be done in the future while should is

used to direct someone to do something or to act in a particular manner. It is a

softer version of “must”. The phrase is entitled to is used to establish the rights.

Therefore it is wrong to say, “Every person shall be entitled to the right to life”.

Instead say, “Every person is entitled to the right to life.”

The force of the word depends on whether the voice is active or passive. For

example, the word shall carries more authority when used in active voice. The

use of a word of authority in the passive voice is more appropriate when the

actor is not important.

The word “shall” is used to impose an obligation. It means that it is mandatory

for the subject of the legal rule to carry out the action stated in the legal rule.

The word “may”on the other hand, is discretionary. It means that the subject of

the action is an option to adhere to a stipulated legal action or not. Such a

subject is not compelled but may decide whether to be bound by it or not. In

practice however, many writers interchange the words “shall”and “may”. In

Environment Affairs v Paper Bay,6 the Court was stated that the word “shall”

6
2004 SA 308 (SCA)

60
should not be used in a directory sense, but it should be used in a mandatory

sense. It further stated that word “May” is permissive on the other hand it has

been used traditionally to grant discretion, power or permission.

Many writers experience problems when using the words of authority. This is

because these words have so many meanings attached to them. They are

therefore likely to confuse a reader if a writer does not use them consistently

throughout the document. For example, the meaning of shall changes according

to the context in which it is used. Garner observed that, shall is a chameleon

hue word and because of its nature, it violates the principle of drafting regarding

the consistency. The drafting principle on consistency entails that if a word is

used in a legal document, it must maintain the same meaning throughout the

document7.

As noted above, the word shall runs afoul of several basic principles of good

drafting. The first is that a word used repeatedly in a given context is presumed

to bear the same meaning throughout. However, the word shall shifts its

meaning even in midsentence. The second principle is strongly allied with the

first: When a word takes on too many senses and cannot be confined to one

sense in a given document, it becomes useless to the drafter. The third principle

is that good drafting ought to be in the present tense, not the future. The word

shall is commonly used as a future tense modal verb. The word shall has been

7
Bryan A. Garner, Dictionary of Modern Legal Usage(2 nd ed) (New York: Oxford University press, 1995), 113.

61
subject to litigation because of the confusion it has caused. What is important is

to understand that the word shalldenotes a mandatory action and this entails that

when it is used, it means the person is under an obligation to do the particular

task. The other problem is that most drafters are ignorant as to when they can

properly use these words of authority. The word ‘shall’for example has been

abused in many legal documents, particularly contracts. Adams observed that,

“It sometimes seems as if drafters suspect that a contract provision won’t be

enforceable unless it features shall.”8

ACTIVITY
Read Annex D on words of authority. Discuss the appropriate words to use
when you are:

a) Imposing a duty;

b) Granting a rights;

c) Making a directive;

d) Drafting terms of a contract between parties with equal bargaining power

e) Drafting terms of a contract between parties with different bargaining

8
Kenneth Adams, Making Sense of Shall. “New York Law Journal” (October 18th 2007) www.almreprints.com
#070099-10-07-0001

62
3.4Gender-Free Writing

Gender free writing is an important aspect of the legal writing and drafting. It is

the type of writing that recognises that the law affects both men and women.

The law applies to persons, a notion that embraces individuals of both sexes and

a variety of entities such as corporations. Some statements about the law by

their nature are capable of application to one particular sex or to natural or

artificial persons. When a statement of any complexity is made about a person,

the maker of the statement may face decision about how further reference

should be framed. However, this may pose no problem if the maker of the

statement can appropriately use any pronouns such as he, she, it, him, her,

among others. Proper usage of pronouns becomes more problematic when a

person has no characteristics that dictate the use of a particular pronoun. A

Gender Free Style of Writing is one that avoids the use of pronouns entirely.9

Some laws affect only men whereas others affect only women, but the majority

of laws affect both men and women. Therefore the most appropriate pronoun

must be used in writing legal documents. In this new era of gender equality, it is

is undesirable to retain interpretation statutes that state something to the effect

that “In this Act, any reference to ‘he’ is a reference to ‘she’ and any reference

to a male refers to a female.” This is also undesirable as it could produce absurd

results if a particular legal provision was prepared with a particular sex in mind.

Most words used to designate a person who has a particular legal status are not
9
Gender Free Legal Writing: Managing the Personal Pronouns, British Columbia Law Institute, 1998, pg.1.

63
concerned with the characteristics of sex or artificiality 10. An example is the

word ‘employee’ which can be used to designate a person who is male or female

or a corporation.

However there are instances where there is need to specify the particular gender

that is being referred to. Therefore, the use of personal pronouns (he, she, him,

her hers, himself, herself, it, its, itself) can be appropriate when the statement

can only apply to a particular sex of kind of person. For example:

 A married woman has a legal personality that is distinct from

that of her husband.

 An unwed father now has the same legal relationship to his

child that would have resulted if he had been married to the

child’s mother.

 A company must fulfill its obligation under a contract or it is

liable for breach of contract.

As stated above, use of personal pronouns is difficult when a person has no

inherent characteristics unless one is sure that there is a specific group of people

or things being referred to. The traditional solution has been to understand that

the masculine character also includes a female. Under the Interpretation Act,

Section 4(2) of Chapter 2 of the Laws of Zambia11, it is stated that:

10
Gender- Free Legal Writing: Managing the Personal Pronouns. British Columbia Law Institute. July, (1998) 1
11
Interpretations and General provisions Act, CAP 2 of the Laws of Zambia, sections 4 (2)

64
 Words and expressions in a written law expressing a masculine

gender include females.”

The word Gender free writing refers to a manner of writing free from gender

bias. It is different from gender-neutral writing. Gender-neutral writing sets out

both forms of the singular pronoun e.g he/she, him/her. In as much as this

approach may be satisfactory in certain instances, this results in a document that

is so “self-consciously” gender neutral that this distracts the reader. The

approach of using his or her proves so clumsy and cumbersome. Gender-free

writing is thus preferable as it specifically refers to the pronoun most affected

by the rule and is inclusive of both sexes if the rule applies to both of them.

The following is an example to illustrate the gender free style of writing:

 GENDER BIASED: It is assumed that when property cannot

be found in the testator’s estate after his death, he intended to

revoke the gift of it in his will.

 GENDER FREE: It is assumed that a testator intends to

revoke a gift made in a will when the property given cannot be

found in the estate after death.

The following are various ways through which the use of personal pronouns can

be avoided;

(a)Dealing with possessives

65
This involves identifying a person (performer) with the reference to an

object associated with the performer. This entails dealing with “his (object).”

The following are a number of techniques that can be used;

(i) By eliminating the reference to the Object

If the object is not really necessary, there is no need to keep it. It must

therefore be eliminated. For example:

 GENDER BIASED: A well- advised testator will do his best to

provide for anticipated changes

 GENDER FREE: A well-advised testator will provide for anticipated

changes

This is an example of how the object could be eliminated but still retains the

meaning of the sentence. In the above example, ‘doing his best’ does not add

value to the sentence and eliminating it does not alter the sense of the

sentence.

(ii) By eliminating the possessive relationship

If the possessive relationship is not necessary, it must be eliminated.

Possessive relationship is that which is between the performer and the

object.

66
 GENDER BIASED: If the seal is attached at, or close to the time of

execution, then it is likely the maker of the instrument directed his

mind to the process of sealing.

GENDER FREE: If the seal is attached at, or close to the time of

execution, then it is likely the maker of the instrument had in mind

the process of sealing.

In the above sentences, it is clear that by eliminating “directed his mind”, the

possessive relationship is eliminated and hence making the sentence more

precise and clear without changing the meaning of the sentence.

(b) Leave the possessive relationship for implication

(i)Eliminate “his”

Sometimes the possessive ‘his’ is unnecessary and can be eliminated from

the passage. It can be left to be implied. For example;

GENDER BIASED: At common law, a will operated to pass real

property belonging to the testator when the will was made and

personal property owned at his death.

GENDER FREE: At common law, a will operated to pass real

property belonging to the testator when the will was made and

personal property owned at death.

67
 (ii) Replace “his” with “the” or “a”

If it is clear from the context that the object belongs to the performer, or the

performer is no person in particular, a replacement may be made. Again, this

shows that the possessive is by implication.

GENDER BIASED: A well-advised testator will review his will

from time to time to ensure that it continues to provide for an

appropriate distribution of his estate.

GENDER FREE: A well-advised testator will review the will from

time to time to ensure that it continues to provide for an appropriate

distribution of the estate.

The above example shows that the personal pronoun “his” is not always

necessary and can be replaced with “the” or “a” but still retains the necessary

meaning in the sentence because the possessive is left for implication.

(iii)The “Whose” Solution

In this vain, it is possible to use the gender -free “whose” to resolve a

drafting problem. For example;

GENDER BIASED: Any third party would be justified in exercising

great caution in dealings with an attorney who derives his authority

from an instrument framed in his fashion.

68
 GENDER FREE: Any party would be justified in exercising great

caution in dealings with an attorney whose authority is based on an

instrument framed in this fashion.

There are many ways in which personal pronouns may be avoided too

numerous to mention. These among others include dealing with the

reference back, dealing with the self –referential “himself” as well as

moving away from third person singular references.

ACTIVITY

 What is the difference between gender-free writing and

gender-neutral writing.

 How can you write in a gender-free manner?

3.5Factual Context for Writing and Drafting

Factual context is concerned with writing or drafting based on the information

gathered from the client or facts of a case given in an assignment or exam. The

first part of factual context of writing is to look at the writing process. The

second part will look more specifically at the facts of the case before you.

69
Writing in the factual context is entirely based on the information provided by

the client or a lecturer. It is important that, the writer should pay attention and

understand the narrations and/or instructions. These narrations or instructions

form the basis of the facts.

After having the facts, the writer should research. This entails collecting

information relevant to the facts given, and organising the information collected

in a manner that is easily understood by a client or lecturer. In an examination

situation, a student is assumed to have already undertaken the research and to

know the law.

The writer should then prepare a working draft for the information collected

and present the draft to the client who will decide whether the facts have been

accurately captured. Not everything that a client or lecturer provides is

necessary. It is during this process of listening to the narration or instructions

given that you decide which information in relevant.

As a writer, you must always ensure that your work is proof-read and contains

no mistakes.

When you are given facts of a case, you must always ensure that you work with

those facts. Do not fabricate additional facts or alter the facts given. You must

work with the facts given to identify the concerned areas of law. Your writing

should only focus on the relevant facts given. Further, your analysis should be

70
informed by the area of law that most closely affects the facts given; you could

make reference to areas of law that closely affect the facts but this should be

minimized and must be relevant to the question or facts given. When giving a

legal opinion, you must always demonstrate the relevance of your legal

arguments to the facts given. Do not refer to the law unless it is relevant to the

facts given. How far you go in demonstrating the relevance of your arguments is

also dependant on your audience, i.e. For who are you writing the legal opinion?

3.6Institutional and Legal Context for Drafting

This concerns writing within a specific institutional and legal context.

Institutional context concerns the legal frame work of different institutions. It is

concerned with the rules that govern institutions. Before drafting any document

which concerns a particular institution, the drafter must have knowledge of the

laws that govern that institution. For instance, if the client wants to take an

action against a particular institution, the lawyer should know whether the

institution has a separate legal personality from its members and thus, whether

it can be sued in its own name or not. Also when an aggrieved person is seeking

legal redress from a particular institution, they must know what the institution is

set up to do and whether they can grant the legal redress sought by the

aggrieved person. Equally, as a law student, you must know the different

powers, duties and rights of key institutions in order to give an accurate legal

opinion to your client. Don’t refer a client who is seeking to sue for a human

71
rights violation to the Human Rights Commission of Zambia because the

Human Rights Commission is not mandated by law to litigate cases. The

jurisdiction of many public and private institutions is stipulated by law and their

independent constitutive documents such as constitutions, articles of association

and other incorporation or registration document. You must know these very

well if you are giving an opinion based on the jurisdiction of an institution.

On the other hand, the legal context concerns the laws that govern a particular

set of facts. When drafting a legal document, the drafter should have in mind the

legal context in which the document will operate. For example, if you are

requested to draft a contract that will affect parties that are in two different

countries, you should know the laws which would govern such a contract. You

should be conversant with the law that will apply to this contract by default and

ask the parties if they want the default law to apply or if they would like to

change it.

Also, if you are instructed to assess whether a human right violation has

occurred of in a particular country, you must understand the constitutional

protection of human rights in that country. You must also have in mind the

public international law which affects that country and another other national

laws that are applicable to the context. The national laws may constitute statute,

statutory instruments, common law and judicial precedents. In short all sources

72
of law must be considered. This constitutes the legal context for drafting your

legal opinion or any other legal document.

73
3.7Linguistic Context for Drafting

The linguistic context takes account the context in which particular words can

be used and how sentences should be constructed. In other ways, linguistic

context concerns attaching meaning to the words in the context in which they

are used. What do you think when you read a poster on UNZA campus which

is advertising accommodation for female students as follows: “Female bed

spaces available in Kalundu, call 098881111111 for more information”. This

advertisement means that the bed spaces are female. However such an

interpretation is absurb in that there is no such thing as a female bed space. The

advertisement should read, “Bed spaces available for female students...”.

74
ACTIVITY

Consider the notice below:

No vehicles allowed in the park.

 Does this cover a cow-driven cart?

 Would it include a child’s tricycle?

 What does the word “vehicle” cover?

 Do you think your interpretation of the word vehicle is reasonable or

absurd? Why?

75
Words is a legal document must be used within an immediate context. Ordinary

meaning must be attached to the words used, but were possible and appropriate

the word should to attribute to a particular meaning. In other words, you must

draft your text in such a way as to interpret it within its linguistic context. The

immediate context includes its ordinary meaning, the other words which it is

associated with and the context in which the likely reader will interpret it.

Documents must also be drafted in the context of the language used in the

document as a whole and in the language of the law generally. For example, if

the writer says, …animals like dogs, chicken, cats and other animals, the

word others in the context in which it is used, would mean that the writer is

talking about domestic animals. But if the writer says...other animals such as

dogs, chickens, cats etc, then the list refers to all types of animals-domestic and wild.

76
ACTIVITY
 Revisit your legal process notes on statutory interpretation and discuss the

linguistic context of draft in the light of the following rules:

o Noscitur a sociis

o Ejusdem generis

o Expression unius est exclusion alterius.

 A Constitution states:

The State may not unfairly discriminate...against anyone on one or more

grounds, including race, gender, sex, pregnancy, marital status, ethnic or

social origin, colour, sexual orientation, age, disability, religion,

conscience, belief, culture, language and birth.

 What is defined the defined anti-discrimination class?

 Would a person who has been discriminated against based on their

HIV status fall will this class?

 Would a non-citizen of this Country fall within this class?

77
UNIT SUMMARY

This Unit has discussed the different contexts for writing and drafting legal

documents. It started with a discussion on the general rules for writing and

drafting, then discussed the three main areas of contexts for writing and

drafting. These three main areas are words of authority and known as modal

verbs, gender-free writing and the various specific contexts for writing and

drafting. These specific contexts are the factual context, the legal context, the

institutional context and the linguistic context.

78
UNIT 4: RESEARCH AND PLANNING

4.1INTRODUCTION

4.2OBJECTIVES

At the end of this lecture, you should be able to

79
  Explain how research is undertaken

 Explain the importance of a research plan

4.3WHAT IS RESEARCH?

ACTIVITY
 What is Research?

 What do researchers think about it?

Research is a very important part of a lawyer’s day to day activities.

Every time a lawyer is approached for legal advice or representation,

he or she must research of varying types and levels in order to take

any action.12

Research means inquiring on a particular subject in order to gain knowledge or

enhance one’s understanding of the subject. According to the Guidelines to

Research Students prepared by the North West University in South Africa,

research includes all of the following:

 The creation and development of the intellectual

infrastructure of subjects and disciplines.

80
 The invention or generation of ideas, images, performances

and artifacts where these manifestly embody new or

substantially developed insights. However, the facts

investigated need not necessarily need to be new or original.

 Building on existing knowledge to produce new or

substantially improved materials, devices, products, policies

or processes.

 Research is empirical. It involves studying the world around

ourselves. It involves a systematic collection and analysis of

data with the aim of understanding the phenomenon of

interests. It is an objective, methodical or systematic process

of enquiry and investigation, of gathering, recording and

analysing data. (Hussey and Hussey, 1997:1; Thomas,

2004:32).

 Research specifically excludes routine testing and analysis of

materials, components, instruments and process, as distinct

from the development of new analytical techniques.

 Hussey and Hussey, 1997:2, observe that if research is to be

conducted in an efficient manner and make the best use of the

opportunities and resources available, it must be organised. If

81
 it is to provide a coherent and logical route to a reliable

outcome, it must be conducted systematically, using

appropriate methods to collect and analyse the data.

It is clear from the above that research entails the investigation or inquiry

into an area or subject matter that is new or under-developed. It is also

evident from the above that research can be conducted in a number of

ways.

4.4WHY IS RESEARCH IMPORTANT?

It is important because it generates knowledge. It helps us inquire into an area

that may need a solution. Research helps us devised evidence-based solutions to

social and other problems. Research may be conducted formally or informally.

It may involve the determination of the existence of a legal provision or the

adequacy of an existing legal provision. Research entails reading widely beyond

what is given by lecturers.

Research is a scholarly investigation into a topic in order to discover,

revise, or report facts, theories, and applications. In research, there

are formal and informal sources.

82
 4.5THE RESEARCH PROCESS

The following is a broad description of the stages of research. When conducting

a research, you should formulate and know your topic. You should then

formulate a question which the research seeks to answer. Ensure that the

research question is clear and is reflected in the research topic.

After that, formulate a hypothesis. A hypothesis is simply what you think is the

answer to the topic. It is your working theory. Your research results may either

validate or nullify your hypothesis. Thus the aim of the research is to test the

hypothesis rather than prove it right or wrong.

The next stage is to gather information both informal and formal. This can be

done in a number of ways-interviews, desk research, etc. This is followed by the

actual research, which is engaging with the information gathered. Engaging

with the sources of information is another important step in carrying out of

research as it aids in understanding the source of the information. This enables

you to analyse the materials and develop a sound opinion about a particular

source. Engaging with the sources of information also entails having the ability

to judge where each source is relevant to the research.

83
The next stage in research is to plan your report. This helps you document your

research finding accurately and fully. You must plan for intial drafts before

producing a final copy of the report.

It is very easy to lose sight of what you are doing when engaging in a long or

complicated research. Thus a research plan is always handy in that it helps you

stay focussed. The research plan must contain objectives of the research and

details of what the research sets out to achieve. It must thus have clear

indicators or action points and timelines. The plan could be revised from time to

time provided this flexibility does not hinder the ultimate goals of what you set

out to research on.

ACTIVITY

Outline the steps for conducting legal research.

4.6THE RESEARCH CONSIDERATIONS

When carrying out research, it is important to consider the following issues:

 The organisational materials that you need to meet your research

objectives and where you can find them;

84
 Whether you can easily access these organisational materials or not, and

the available alternatives if you cannot access them;

 How soon can you get the materials and how long would it take you to

analyse the materials.

 Where will you store the materials and how will you ensure that the

quality of materials is not tampered with during the research process.

 Which research methods will you use to collect the materials and which

data analysis packages will you need?

 Do you know enough about data storage and analysis methods and

packages to make an effective choice on the one best suitable for your

research?

 How much time do you have to complete the research?

 What resources do you need to complete the research?

 Have you prepared a work plan that will help you complete your research

on time?

 Do you have the requisite ethical clearance, if applicable?

85
 4.7UNIT SUMMARY

This unit has discussed research and planning. It has looked at the importance of

research and how research can be conducted. Below is a summary of the steps

to be followed when conducting research:

 Formulate a research topic

 Develop a research question from your topic

 Develop a working hypothesis

 Finding useful sources

 Engaging sources

 Planning your argument

 Planning a first Draft

 Revising your draft

It is important to note that research is a very broad topic and cannot be

exhaustively discussed in this course. However, as there are a lot of publications

on research, you could carry out independent reading on this subject. It is also

important to note that research skills are developed over time so the more you

practice them, the better you get at conducting research.

5.1INTRODUCTION

This lecture focuses on writing and referencing. It discusses the stages to follow

when writing. For you to maximise the writing skills discussed in this lecture,

you need to fully understand the earlier lectures on writing in plain English,

structuring a document, presentation and punctuation. The lecture on writing is

not detailed as this is not an English class. It is a basic lecture that helps you

think through your writing process. This lecture also discusses the importance

of referencing your work. You cannot write a legally sound document without

references. For any writing to be credible, but must cite sources which are an

indication of the extent of research.

5.2OBJECTIVES

By the end of this lecture, you must be able to:

o Write more clearly.

o Explain the writing process

87
 o Discuss why referencing is important

o Explain how one can use the Chicago Style of referencing

5.3WRITING

There are four steps to be followed in the writing process. The four steps

include: pre-writing; drafting; revising; and proof-reading.

Pre-writing is the first step in the writing process. The first thing at this stage is

to get the instructions right by listening or reading, internalising and

understanding. You must be clear about the subject of your writing and whom

you are writing. Brainstorming of ideas about the subject is also done at this

stage. Lastly, you must carrying out research to enable you gather as much

information as possible on the subject.13

The second step is the drafting stage. At this stage, you have to organise the

information collected and arrange it in a manner that communicates your main

message first. The lecture on structuring a document becomes important at this

stage. The information must be properly sorted. Use the most accurate and

reliable information to support your case, i.e. sort the information by level of

importance. The sentences and paragraphs written at this stage need not be

perfect, but you must be conscious of the need to adhere to the principles of

13
“Five Steps of The Writing Process”, Google, Last modified July 27, 2013,
http://www.lewis.cpsb.org

88
good sentence construction and good structure. You must read through what has

been written to ascertain that the relevant information that has been captured.

In the third stage, which is the stage for revising the document, you should read

through the first draft and perfect your sentences. At this stage, you should also

decide whether the document is flowing, that is to say, if it is well structured. If

not, perfect the structure of the document. Revising can be done by adding

more information, or replacing overused or unclear words.14

The last stage is to proof-read the document. This stage requires you to verify

the information and ensure that all sentences are complete, necessary and well-

constructed. This is done by correcting wrong spelling, capitalizing words

where applicable, punctuating sentences correctly and changing words that are

not used correctly. It is important to have someone else check the work. A

writing support group is thus useful for this purpose. In fact, plain English

proponents believe in testing documents to ensure that they pass the readability

test. In the last stage of this process, you can prepare a final copy of the

document for publication and circulation.15

5.4 ANSWERING PROBLEM-TYPE EXAM QUESTIONS

The formula for successfully answering factual exam question is called

I.R.A.C. “I” stands for Issue. This means that you must identify the legal issue
14
“Five Steps of The Writing Process”, Google, Last modified July 27, 2013,
http://www.lewis.cpsb.org
15
“Five Steps of The Writing Process”, Google, Last modified July 27, 2013,
http://www.lewis.cpsb.org

89
in the question, using the facts given. The issue is the most important step in the

formula and must be stated in a way that shows the controversy. It can be stated

as a question or as a statement. When stating the issue, you must be specific, not

general.

“R” stands for Rule. This means that you must know the law that is applicable

to the issue you have identified. For example, if the issue identified is a dispute

on whether an accused person should be convicted for murder or not, the

relevant rule is the law on murder. You will have to know that law that provides

for the offence of murder, decided cases on the subject and any other relevant

authorities, e.g the common law position (so far as it is not altered by statute),

authored works of renowned authors, etc.

“A” stands for Application or Analysis. You need to analyze the law in the light

of the facts given in the question. That is to say, to determine whether the facts

given satisfy the rule. For example, if the issue identified is that of murder and

you have discussed the law on murder, you then have to decide whether what

happened (as stated in the facts) falls within the proscribed conducted that

amounts to murder. This determination requires you to analyze both the law and

the facts.

“C” stands for Conclusion. This last stage requires you to draw a conclusion on

the issues identified and analysed. In this stage, you give a prediction of the

outcome of the issue given.

90
I.R.A.C is successful because it helps you organize your legal arguments in a

logical manner. This helps the reader to follow your argument.

5.5REFERENCING

Referencing is an important requirement in all forms of writing as it makes a

particular piece of writing credible. It enhances the credibility of a document by

trying to persuade the readers that the author shares a particular view with

others who are cited in the document, or that the author departs from a view

held by others for reasons stipulated in document. Referencing also enhances

the credibility of a document by showing the extent of research.

Referencing is an important aspect of academic writing. This requirement

demands that you acknowledge other authors for their work and contribution to

literary works. Referencing shows that the researcher gives credit to the author

of the original work. Failing to acknowledge the work of others is an offence as

it constitutes intellectual property theft. It is also known as plagiarism. You

commit the offence of plagiarism if you do not acknowledge other people’s

work16.

Referencing is also important as it helps readers to verify sources of information

16
DLA PIPER, General Principles Of Legal Writing.
17
Lisa webley, Legal Writing (London: Cavendish Publishing Limited, 2005), 63.

91
interested in information that has been cited in the document and would want to

look for its details. They can only get this when the document makes reference

to the source.

Many institutions have preferred choices of referencing style. If you are writing

for a particular institution, you must know which reference style they prefer

before you embark on the writing process. This is particularly true for academic

writing and research. For purposes of the University of Zambia, School of Law,

the preferred referencing is the Chicago style of referencing.

5.6Referencing: Chicago Style

The Chicago referencing style is the recommended style of referencing in the

School of law. There are many styles of referencing but the legal documents

have their own way of referencing to ensure uniformity and precision. When

citing a source of work, certain information is important. This includes the

authors of the publication, title of the publication, the date of publication, the

publishers and place of publication. It is also important to know the sequence in

which these should be captured and the applicable punctuation marks.

The following examples show the foot notes and bibliography entries under the

Chicago style of referencing:

Authored Books-Note Citations

92
 Author’s first name, Title of book (Place of publication: Name of

publisher, Year of publication), page number.

o e.g Chipo Mushota Nkhata, An Analysis of the Right to Public

Participation in Governance: The Zambian Case (Cape Town:

University of Cape Town Press, 2010), 95.

o Patrick Eba, The Pandora’s Box: The criminalisation of HIV

transmission or exposure and its potential or actual impact on

marginalised and vulnerable groups-A Southern African

Perspective (Pretoria, Centre for the Study of AIDS, 2006) 3

 If you cite the same work again, you shorten the subsequent notes as

follows: Author’s last name, Title of the book, page number.

o e.g Nkhata, An Analysis of the Right to Public Participation, 39-

40.

 If the book is authored by two people, your citation will be as follows:

o Liz Wily and Sue Mbaya, Land, People, and Forests in Eastern

and Southern Afrcia at the Begining of the 21 st Century (Nairobi:

World Conservation Union, 2001) 12

93
  If the book is authored by three or more people, your citation will be as

follows:

o John Hatchard, et al, Comparative Constitutionalism and Good

Governance in the Commonwealth: An Eastern and Southern

African Perspective (Cambridge: Cambridge University Press,

2004)

Authored Books-Biliography Citations

 Nkhata, Chipo. An Analysis of the Right to Public Participation in

Governance: The Zambian Case. Cape Town: University of Cape Town

Press, 2010.

Book Editors-Notes

 Edwin J Bernard .ed., HIV & the criminal law ( London: NAM Lincoln

House. 2010) 13-14

 Matebu Tadesse and Abiye Daniel, eds., Gender Mainstreaming

Experiences from Eastern and Southern Africa (Ethiopia: OSSREA,

2010) 6

Periodicals

94
 News Articles

o Criminal, Deliberate and Reckless HIV Transmission.

http/www.avert.org/criminal –transmission.htm, March 2008

accessed on 10/05/2011

o Kombe Chimpinde, “SADC urges implementation of national

policies,”The Post, May 24, 2013, accessed May 25, 2013,

http://www.postzambia.com/post-readarticle.php?articleId=33149

 Law Reviews and Journals

o S.E. Kulusika. “Legislative and Criminal Justice Responses to

Sexual Violence in Zambia.”Zambia Law Journal. 38 (2006): 6

o A. W. Chanda, “Freedom of Expression and the Law in

Zambia,”30 Zambia Law Journal. 41 (1998)

95
ACTIVITY

Prepare a write-up that shows bibliography entries under the Chicago Style of

referencing for information obtained from the following sources:

1. Authored book with one author;

2. Authored book with multiple authors;

3. Website

4. Law journal

5. Unpublished book

In your write up;

1. explain how each bibliography entry must be done; and

2. demonstrate such referencing with a practical example.

ACTIVITY

Explain the stages in the writing process.

Explain the importance of referencing in legal writing.

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 5.7UNIT SUMMARY

This unit has discussed writing and referencing. It has looked at the writing

process and has discussed the importance of referencing in any form of writing.

It has also illustrated how various literary works are cited under the Chicago

style of referencing used by the School of Law at the University of Zambia.

REFERENCES

Adams, K. Making Sense of Shall. “New York Law Journal” .October 18th

2007) www.almreprints.com #070099-10-07-0001

Balmford, C. article “Getting the Structure Right: Process, Paradigm and

Persistence”. Clarity. May,1999. No.42, 43.

97
British Columbia Law Institute, Gender Free Legal Writing: Managing the

Personal Pronouns. 1998

Caldwell, W.O. Against Plain Language

DLA PIPER, General Principles Of Legal Writing.

Garner, B. Dictionary of Modern Legal Usage. 2nd ed. New York: Oxford

University press, 1995.

Inns of Court School of Law. OpinionWriting. London. Blackstone

Press.2001/2002

Kimble, J. Answering the Critics of Plain Language

Munalula, M.M. Legal Process: Zambian Cases, Legislation and Commentaries.

Lusaka. UNZA Press. 2004.

Turabian, K. A Manual for Writers of Research Papers, Theses and

Dissertations. 7th ed.

Webley, L. Legal Writing. London: Cavendish Publishing Limited.2008

William, G. and Smith, A.T.H. Learning the Law: 13th Edition. London: Sweet

& Maxwell. 2006

Wrench Jason S, Stand Up, Speak Out: The Practice and Ethics of Public

Speaking .New York: Flat World Knowledge, 2011.

98
“Five Steps of The Writing Process”, Google, Last modified July 27, 2013,

http://www.lewis.cpsb.org

99