Introduction

The traditional style of legal writing is the product of many influences. Some influences are constant, some are sporadic. They rarely exist in isolation; usually, many operate together. This chapter reviews the main influences on traditional legal drafting:

• familiarity and habit – the security that comes from adopting forms and words that have been used before and seen to be effective

• conservatism in the legal profession, allied to the common law tradition of precedent

• fear of negligence claims

• the means of production

• pressures to conform to professional norms

• the desire to avoid ambiguity

• the mixture of languages from which the law derives its vocabulary

• payment by length of document

• payment by time

• the litigious environment of legal practice.

Some of these influences, such as the mixture of languages and payment by length of document, are largely historical, with little direct effect today. Others, however, remain relevant.

The stylistic hallmarks of traditional legal drafting are apparent in many types of documents. Some of the best (or worst) examples are leases, their dense prose and ‘torrential’ style intimidating even the hardiest reader. But other documents exhibit a similar style: conveyances, wills, trust deeds, insurance policies, mortgages, and shipping documents, to name but a few. The common thread pervading them all is tradition, going back hundreds of years. This tradition is so powerful that it has been impervious to reform through the centuries and continues to resist reform even today, when change might be thought an easy option. A tradition so persistent merits detailed scrutiny.