Irrespective of how long you have been in practice, and how many legal notices, documents, and pleadings you have drafted, spelling errors, typos and grammar mistakes still creep into legal writing. I am sure you will see some in this very article. Although simple writing mistakes or a misplaced comma or decimal will not affect the physical appearance of a legal document or pleading, prima facie professional and well drafted, it may have serious unintended consequences, costing you your client and his or her case[i]
There are 4 main types of mistakes in written language: spelling, punctuation, grammar and usage.[ii] The most common writing mistakes include: use of the wrong word; comma omission after an introductory element; incomplete or no citation, vague pronouns, spelling errors, incorrect use of quotation marks, too many comma’s, missing capitalizations, omission of words, poor sentence construction, changes in verb tenses, incorrect use of the apostrophe, fused sentences, comma splices, incorrect pronoun use, sentence fragmentation and under or overuse of the hyphen – to mention but a few.
In the case of legal drafting, common drafting errors include verbosity, double negatives, convoluted sentences, poor punctuation, assigning purely legal definitions to common words, passages full of passive verbs and poor graphic and typeface layouts.[iii]
Apart from sneaky writing errors and mistakes, fallacy may also present a problem in legal writing. When your argument fails to provide a good premises on which your conclusion is based, fails to address the most important or relevant aspects of the case with claims that are too strong or vague to have any real evidence in support of same, resulting in a disorderly presentation of facts and arguments for a reader to logically follow, there is a fallacy in your argument.[iv]
So why does the brain, given it being the highest functioning organ in the human body, fail to identify, correct, and eliminate writing errors and fallacies. Surely if you are the writer, you should be able to identify your own writing errors and mistakes.
Research shows that the answer lies in the fact that our brain functions in such a manner to reserve brain power for more tedious tasks. The human brain is a specialist in focusing through the white noise and filtering important information needed for day-to-day functioning and survival. As with all higher-level tasks it undertakes, the brain is programmed to generalize simple, component parts so that more focus and attention can be directed at more complex tasks. We are not focused on every detail, rather our brains take in the sensory information from our surroundings and combines that with what we expect, which we develop over time from routines and habits, and extract information from it. This process is reflected in our writing and proof-reading skills. When we proofread our own work and writing, we know what we want to convey and expect that meaning to be present. As the brain expects what is in our head to be reflected in our writing, it tends to gleam over the finer details, epitomized in typos’; grammar and punctuation errors.[v]
When taking in sensory information for the first time, our brains are programmed to take in more detail, as it is experiencing a first; and not a routine or habitual task. This explains why someone else will easily identify misspelled words, grammar, and punctuation errors as they are reading the document or pleading for the first time and thus the brain is focused on the minor details. However, if you are the author and have drafted and written various legal opinions, court documents and pleadings, it is an established routine for your brain. This means that it gleams over the finer details represented by the component parts of writing, turning letters into words and words into sentences, and focuses more on the tedious task of combining sentences into complex ideas and arguments.[vi]
There are various ways in which you can trick your brain into thinking it is seeing your written work for the first time. Tom Stafford, lecturer in psychology and cognitive science at the UK’s University of Sheffield, suggests that you make your work look as unfamiliar and unknown as possible. “Change the font or background color or print it out and edit by hand. Once you've learned something in a particular way, it's hard to see the details without changing the visual form."
Apart from the reputational damage a poorly drafted document or pleading can bring about, future litigation may be inevitable where a contractual clause is ambiguous or written in archaic, legal jargon creating more uncertainty as to the parties intention than was intended, defeating the aim of providing legal certainty by capturing their intention in a written agreement or contract.
Furthermore, a recent survey found that 42.5% of clients reported they would be influenced not to proceed with services where spelling mistakes were present. As research has shown that it takes only 6 seconds to capture a reader’s attention when they read your work, it is vital to ensure that their first impression is not of a spelling, grammar, or punctuation error.[vii] Particularly important where the reader is the presiding officer and needs to make a ruling on the arguments presented.
Getting someone objective to edit and proofread your work remains an invaluable means to eliminate typos, incorrect spelling, grammar, and punctuation mistakes, while simultaneously ensuring your arguments are well presented and set out logically.
An objective editor can assist in creating the best first impression, eliminating errors in referencing, inconsistencies in headings and capitalisation and fallacies presented in your argument. Court documents or pleadings with errors will most certainly not inspire confidence and may very well lead to a dismissal of your case, reputational damage, and loss of client for future legal matters. An editor can furthermore assist in ensuring the argument or claim you are trying to bring forth on paper is well communicated, clearly and concisely. Thereby ensuring the argument or claim is well expressed and understood, refining the quality of writing to ensure certainty, clarity and consistency in court notices and documents, leading to greater confidence in the arguments being presented and saving time and costs, not only for you and your client but also for the court.[viii]
[i] .( Byte of Prevention Blog - by Jay Reeves | November 2, 2016 - Simple Typo Causes Billion Dollar Legal Error - https://www.lawyersmutualnc.com/blog/simple-typo-causes-billion-dollar-legal-error) [ii] Frankfurt International School - Understanding writing mistakes - http://esl.fis.edu/learners/advice/mistakes.htm [iii] (Bhumesh Verma - Legal Drafting - Shortcomings and way forward - Part I - December 9, 2020 - https://www.linkedin.com/pulse/legal-drafting-shortcomings-way-forward-part-i-bhumesh-verma/?trk=portfolio_article-card_title [iv] (The Writing Centre – University of North Carolina at Chapel Hill - https://writingcenter.unc.edu/tips-and-tools/fallacies/) [v] (Nick Stockton - 08 – 12 – 2014 – Whats Up With That: Why It’s So Hard to Catch Your Own Typos (https://www.wired.com/2014/08/wuwt-typos/) [vi] (Nick Stockton - 08 – 12 – 2014 – Whats Up With That: Why It’s So Hard to Your Own Typos (https://www.wired.com/2014/08/wuwt-typos/) [vii] Alex Birkett - Are Grammar Mistakes Costing You Money? – 17 September 2021 - https://cxl.com/blog/grammar-mistakes-costing-money/ ; https://www.qualitylogoproducts.com/blog/why-spelling-errors-affect-business/ [viii] (Dr. R Kerin – Capestone Editing – Why is Academic Editing Important – 17 August 2017 - https://www.capstoneediting.com.au/blog/why-is-academic-editing-important)