Curs 5 Engleza anul III - Drept

8/13/2019 Curs 5 Engleza anul III - Drept

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Drafting Legal Documents


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1. Prepare an outline. Before you start to draft a set ofregulations, prepare an outline to organize the subjectmatter of the regulations. The amount of effort that youput into this startup phase of a drafting project has

great impact on the usefulness of the final product.Without proper organization and arrangement, and theclarity that results from the use of good draftingprinciples, the major topics of a document can easilybe lost. Use of the following principles should makeyour outline a beneficial tool.

.


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Types of Meetings

2. Establish a single principle of division and use thatprinciple to divide the subject matter into major topics.

First, establish a principle of division. Consider the one ormore audiences that the regulations address. For example, if

you are addressing a problem about cats, you would organizethe material differently, depending on the audience you areaddressing.

After establishing the basic principle of division based on the

audience addressed, you should organize the subject matterof the document by major topics. In many cases, the majortopics are apparent and may influence you to change yourprinciple of division.


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3. Arrange the items within a topic in a logical sequence.Once you have established your classifications, you mustarrange them in a sequence that is helpful to the audience youare addressing.

Here are some suggestions to help you arrange theinformation in your regulations:

Place general provisions before specific provisions.

Place more important provisions before less important

provisions.

Place more frequently used provisions before less frequentlyused provisions.


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Place permanent provisions before temporary provisions.

Place administrative provisions (such as effective dateprovisions) and penalty provisions at the end.

Headings

Use a heading for each designated component of theregulations. A heading is a catch line that describes thesubject matter of a particular component of your regulations.Descriptive headings should illustrate the logic and

arrangement of your regulations. Descriptive headings helpreaders locate the provisions of the regulations that apply tothem.


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Use headings to indicate that a group of related subjects istreated together in a single section.

EXAMPLE:

2.6 Filing complaints; time limits; action by the Board.


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Purpose Clause1. Include a purpose clause only when necessary. A

purpose clause is a simple statement of intent that appears atthe beginning of a part or subpart. The purpose clause is used

to help the reader interpret the regulations. Use a purposeclause only when you know that some of your sections, due totheir complex substance, are difficult to understand. If youneed a purpose clause, draft it after you draft your regulations.Otherwise, it can become a crutch used to avoid resolvingdifficult substantive issues in the regulations.


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2. Do not include a substantive rule within a purposeclause. A substantive rule belongs in the main body of theregulations. A reader may miss a rule tucked away in whatshould be limited to a simple statement of purpose.


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1. Write in the active voice. The active voice eliminatesconfusion by forcing you to name the actor in a sentence.This construction makes clear to the reader whois toperform the duty.The passive voice makes sentences longer androundabout. Who is responsible is much less obvious.

The passive voice reverses the natural, active order ofEnglish sentences. In the following passive example thereceiver of the action comes before the actor.

Passive: The regulation [receiver] was written [verb] by thedrafter [actor].


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Active: The drafter [actor] wrote [verb] the regulation [receiver].

Passive constructions are confusing when used in regulations.Active sentences must have actors, but passive ones are

incomplete without them.

The material will be delivered. By whom?

The start date is to be decided. By whom?

The figures must be approved. By whom?


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Putting the actor before the verb forces you to be clear aboutresponsibility.

The messenger will deliver the material.

The contractor will decide the start date.

The administrator must approve the figures.

The passive voice is appropriate when the actor is

unknown, unimportant, or obvious. This does not usually

apply in regulatory text.Small items are often stolen.

The applications have been mailed.


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DON'T SAY SAY

give consideration to consider

is applicable to applies to

make payment pay

give recognition to recognize

is concerned with concerns


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2. These are called action verbsThey are called "nominals" - nouns with verbs inside. They are

hard to read and make sentences longer. Action verbs areshorter and more direct

shallimposes an obligation to act, but may be

confused with prediction of future action

will predicts future action

must imposes obligation, indicates a necessity to act

should infers obligation, but not absolute necessity

may indicates discretion to act

may not indicates a prohibition


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To impose a legal obligation, use "must."

To predict future action, use "will."

DON'T SAY: The Governor shall approve it.

SAY:The Governor must approve it. [obligation]

OR: The Governor will approve it. [future action]


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5. Use the present tense. A regulation of continuing effectspeaks as of the time you apply it, not as of the time you draft itor when it becomes effective. For this reason, you should draftregulations in the present tense. By drafting in the presenttense, you avoid complicated and awkward verb forms.

DON'T SAY: The fine for driving without a license shall be$10.00.

SAY: The fine for driving without a license is $10.00.


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6. Write positively. If you can accurately express an ideaeither positively or negatively, express it positively.

DON'T SAY: The Governor may not appoint persons otherthan those qualified by the Personnel Management

Agency.

SAY: The Governor must appoint a person qualified by thePersonnel Management Agency.

A negative statement can be clear. Use it if you'recautioning the reader.


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DON'T WALKDON'T SMOKEBut avoid several negatives in one sentence.

DON'T SAY: A demonstration project will not be approved

unless all application requirements are met.

SAY:A demonstration project will be approved only if theapplicant meets all requirements.

It's better to express even a negative in positive form.


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DON'T SAY SAY

not honest dishonest

did not remember forgot

did not pay any attention to ignored

did not remain at the meeting left the meeting

did not comply withor

failed to comply withviolated


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7. Avoid use of exceptions. If possible, state a rule or categorydirectly rather than describing that rule or category by stating itsexceptions.

DON'T SAY: All persons except those 18 years or older must...

SAY: Each person under 18 years of age must...

However, you may use an exception if it avoids a long andcumbersome list or elaborate description. When you use anexception, state the rule or category first then state its exception.


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8. Avoid split infinitives. The split infinitive offends manyreaders, so avoid it if you can.

DON'T SAY: Be sure to promptly replyto the invitation.

SAY:Be sure to reply promptlyto the invitation. or SAY:Besure to replyto the invitation promptly.

9. Use the singular noun rather than the plural noun. To the

extent your meaning allows, use a singular noun instead of aplural noun. You will avoid the problem of whether the ruleapplies separately to each member of a class or jointly to theclass as a whole.


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DON'T SAY: The guard will issue security badges to theemployees who work in Building D and Building E.

SAY:The guard will issue a security badge to each employeewho works in Building D and each employee who works inBuilding E.

unless you meanThe guard will issue a security badge to each employee who

works in both Building D and Building E. (There are otherpossible meanings.)


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10. Be consistent. Don't use different words to denote the

same things. Variation for the sake of variation has noplace in regulation writing. Using a synonym rather thanrepeating the precise term you intend just confuses thereader.

DON'T SAY: Each motor vehicleowner must register hisor her carwith the AutomobileDivision of the MetropolitanPolice Department.

SAY: Each automobileowner must register his or her

automobilewith the AutomobileDivision of theMetropolitan Police Department.


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Don't use the same word to denote different things.

DON'T SAY: The tankhad a 200-gallon tankfor fuel.

SAY: The tank had a 200-gallon fuel container.


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11. Use parallel structure. Arrange sentences so that parallelideas look parallel. This is important when you use a list.Nonparallel construction:

The duties of the Executive Secretary of the AdministrativeCommittee are:

To take minutes of all the meetings; (phrase)

The Executive Secretary answers all the correspondence;

and (clause)Writing of monthly reports. (topic)


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Video conferencing

Parallel construction:To take minutes of all the meetings;

To answer all the correspondence; and

To write the monthly reports.12. Prefer simple words. Government writing should bedignified, but doesn't have to be pompous. Writing can bedignified when the language is simple, direct, and strong. To

make your writing clearer and easier to read -- and thus moreeffective -- prefer the simple word.


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DON'T SAY SAY

construct, fabricate make

initiate, commence begin

terminate end

utilize use

substantial portion large part

afforded an opportunity allow


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13. Omit needless words. Don't use compound prepositionsand other wordy expressions when the same meaning can beconveyed with one or two words.


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DON'T SAY SAY

because of the fact that since (because)

call your attention to the fact that remind you

for the period of for

in many cases often

in many instances sometimes

in the nature of like

the fact that he had not succeeded his failure

the question as to whether whether


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14. Avoid redundancies. Don't use word pairs, if the wordshave the same effect or where the meaning of one includedthe other.

Examples: Word pairs to avoid


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any and all

authorize and direct

cease and desist

each and every

full and complete

order and direct

means and includesnecessary and desirable


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USE WORDS

LIKE

ability achieve benefit guarantee

please reasonable reliable service

useful you

RATHER THAN

THESE WORDS

alibi allege blame complaint

impossible liable oversight unfortunate

waste wrong

USE WORDS

LIKE

ability achieve benefit guarantee

please reasonable reliable service

useful you


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RATHER THAN

THESE WORDS

alibi allege blame complaint

impossible liable oversight unfortunate

waste wrong


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Avoid noun sandwiches. Administrative writing uses toomany noun clusters -- groups of nouns "sandwiched" together.Avoid these confusing constructions by using moreprepositions.DON'T SAY:Underground mine worker safety protection

procedures development.

SAY:Development of underground procedures for theprotection of the safety of mine workers.

OR MORE LIKELY:Development of procedures for theprotection of the safety of workers in underground mines.


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DON'T SAY SAY

Crewman Crew member

Draftsman Drafter

Enlisted men Enlisted personnel

Fireman Firefighter

Foreman Supervisor

Manhours Hours workedManpower Personnel, workforce


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Don't use gender-specific terminology(the previous table)DON'T SAY:The administrator or his designee must

complete the evaluation form.SAY:The administrator or the administrator's designee must

complete the evaluation form.Be careful when you rewrite to avoid the problem. Thefollowing examples don't necessarily have the same meaningEach Regional Director will announce his or herrecommendations at the conference.

The Regional Directors will announce their recommendationat the conference.


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Write short sentences. Readable sentences are simple,active, affirmative, and declarative.

The more a sentence deviates from this structure, the harderthe sentence is to understand.

Long, run-on sentences are a basic weakness in legaldocuments.Legal documents often contain conditions which result incomplex sentences with many clauses.

The more complex the sentence, the greater the possibility fordifficulty in determining the intended meaning of the sentence.


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SolutionsState one thing and only one thing in each sentence.

Divide long sentences into two or three short sentences.

Remove all unnecessary words. Strive for a simple sentencewith a subject and verb. Eliminate unnecessary modifiers.

If only one or two simple conditions must be met before a ruleapplies, state the conditions first and then state the rule.


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If two or more complex conditions must be met before a ruleapplies, state the rule first and then state the conditions.

If several conditions or subordinate provisions must be metbefore a rule applies, use a list.

Make lists clear and logical in structure. Listing provideswhite space that separates the various conditions. Listing canhelp you avoid the problems of ambiguity caused by the words

"and" and "or".


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Use short paragraphs. A writer may improve the clarity of aregulation by using short, compact paragraphs. Eachparagraph should deal with a single, unified topic. Lengthy,complex, or technical discussions should be presented in aseries of related paragraphs.


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DON'T SAY SAY

accorded given

adequate number of enough

afford an opportunity allow, let

afforded given

all of the all the

approximately about

attains the age of become... years old

at the time when

attempt [as a verb] try

by means of by

calculate compute

category kind, class, groupcease stop

commence begin, start

complete [as a verb] finish

conceal hide


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DON'T SAY SAY

expiration end

feasible possible

for the duration of during

for the purpose of holding[or other gerund]

to hold or comparable infinitive

for the reason that because

forthwith immediately

frequently often

hereafter after this... takes effect

heretofore before this... takes effect

implement carry out, do follow

portion part

possess have

preserve keep

prior earlier

prior to before

proceed go, go ahead


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DON'T SAY SAY

procure obtain, get

prosecute its business carry on its business

provides guidance for provides

provision of law law

purchase [as a verb] buy

pursuant to under

remainder restrender [in the sense of "cause to be"] make

render [in the sense of "give"] give

require [in the sense of "need"] need

retain keep

specified [in the sense of "expresslymentioned" or "listet"]

named

State of Kansas Kansas

subsequent to after

suffer [in the sense of "permit"] permit

sufficient number of enough

summon send for, call


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How to Write a Legal Letter of IntentA legal letter of intent, also known as a Memoranda ofUnderstanding or Memoranda of Agreement, is a legaldocument in which a buyer states his intentions to pursue

negotiations to purchase your business. The letter of intentserves as a signal that you and a buyer are in seriousnegotiations, and it normally comes into play after both partiessign a Confidentiality Agreement, which is a legal documentthat says neither you nor the buyer will disclose certain

confidential information about the business transaction andfuture business dealings.


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Instruct ions1 Start the letter by using a professional business letter

template. This means you should include a formal heading anda date at the top of the letter, as well as the recipient's

business address. Your legal letter of intent should be on plainwhite paper, and should use a basic serif font such as TimesNew Roman with a font size of 10 or 12. Be sure your marginsare set at 1 inch on each side, and try not to fit it on one page.

2 Write the introductory paragraph of the letter. State yourpurpose or interest, and provide an overview of your business.Include your name and the name of your buyer or buyers.


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3. Write a paragraph that includes a confidentiality and non-disclosure clause. Even though you likely signed a confidentialityagreement, including this clause in your letter of intent is an extrastep to ensure the buyer doesn't disclose any confidentialinformation that he learns during the negotiation process.

4.Include an "acceptance paragraph" in the legal letter of intent,which is a statement in which you indicate your intent to pursuegood faith negotiations with the buyer. Include a line in theacceptance paragraph that you won't pursue negotiations with

other interested parties while you are working with the currentbuyer. Give written permission for the buyer to reach out to yourbanker or your accountant to get certain information about yourbusiness.


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5. Specify a time period for the completing the deal. This will helpyou keep the negotiation process on track, and give you and youbuyer a documented time frame from which to work by.


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How to Write a Legal Business LetterLearning how to write a formal legal business letter may benecessary at some point in a professional's life. Not every legalbusiness letter will be the same, but there are basic guidelines

a user can follow to write a successful professional legalbusiness letter.


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Instruct ions1. Set up the layout of the legal business letter. Set the

margins at one inch (from every direction). Use the font ofTimes New Roman, 12 point. Paragraph headings can be used

if the letter is longer than one page. Paragraph headingsseparate different subjects, adding clarity to new topics. Writethe paragraph headings in bold.

2. Address the letter. The sender's return address will be

placed in the upper left corner. If using paper that hascompany stationary or a letterhead, a return address will notbe needed. The address will appear as:


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Full name and titleCompany name

Company address


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3. Begin the letter with a salutation. Dear (name) (add a last nameif you do not know the addressee very well). Add a comma orcolon, whichever is preferred. A comma is less formal than a colon.Skip the next line.

4. Write the body of the letter in full block style, aligning the letteralong the left margin. Do not indent the beginning of paragraphs.Skip one line between each paragraph. Add one space followingpunctuation. Do not use colons or semi-colons in the body of theletter. Sentences should be less than twenty words long. Be clearand concise.


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5. Sign the letter. This format is a matter of personalpreference. Possibilities include: Sincerely, Regard, BestRegards or Best Wishes. Then leave space for adding thehand-written signature at the end of the letter.

6. Proofread the letter carefully. Make sure all punctuation,spelling and grammar are correct. It helps to read the letteraloud; it is easier to catch mistakes this way. Have someoneelse proofread the letter before it is sent.

7. Print the letter on high-quality stock paper. Use neutralcolors like white or off-white.


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8. Address the envelope. A typed envelope is the best formfor a business letter as it adds a professional quality to thecorrespondence. The return address will be located at the topleft of the envelope. The receiver's address will be located atthe center bottom of the envelope. Place a stamp in the upper

right corner, and the letter will be ready to send.


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Rule One - Keep in mind that no matter how upset you are,don't let your hostility spill over into your writing. To be takenseriously it is essential to keep a calm and professional tonein your letter. This means no blaming, no name calling, anddefinitely no foul language.

Rule Two - Use a three point approach. This approach breaksdown your letter into three paragraphs with each one havinga specific purpose.


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Paragraph one - needs to clearly explain the transaction orsituation you had expected. Use as much detail as possible inthis paragraph. Be certain to list dates, dollar amounts (bothby unit and total), names, and any other pertinent information.This will give the reader an idea of your perspective on the

situation.

Paragraph two - explains the problem. Remember, don'tblame. Everyone makes mistakes so keep this assumption inyour mind as you write. Mention any copies of documentation

which substantiates your claim. For example, if you have acopy of the advertisement showing a $150 rebate and thecheck that you received for only $50.


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Paragraph three - is the resolution. Many people have a badhabit of stopping after the second paragraph. They can easilystate what they wanted and even more easily point out theflaws, but the third paragraph is critical. This is where you tellthe reader exactly what you want them to do. Don't ever

assume that a complaint alone is enough. Many times it isn't. Ifyou want a check sent, say so! If you need a replacement ofpoor quality merchandise, tell them!

\


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\

Rule Three - Give contact information. If there are questionsregarding your letter, who should be contacted and how? Lista valid phone number or email address. This should be at theend of the third paragraph.

Rule Four - Use a professional business letter format. Thiswill help bring the reader's respect and add credibility to yourwriting.

Rule Five - As you close your letter thank the reader for their

assistance. People respond better when they feel they arebeing asked and appreciated, rather than ordered.


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Thank you!