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Features - Plain Language in Law

By Sandeep Dave, Published on November 18, 2002

Sandeep Dave is a solicitor in Mumbai, India. Working solo since 1995, he specializes in banking, corporate and commercial laws. He maintains the Global Law Review, which has a focus on India law and international resources. He is India representative for Clarity (www.clarity-international.net) and Member, Advisory Board, ALWD Citation Manual (www.alwd.org) 

S-7A Oricon House, K Dubhash Road, Rampart Row, Mumbai 400023, India 
Tel +9122-2353471/72 Fax +9122-2844688 Email,
info@globallawreview.com 


Table of Contents

       

                                    Introduction
                                    Books
                                    Web Material
                                    Some Fundamentals
                                    Plain Language Vocabulary
                                    Proponents
                                    

Introduction

It is difficult for me to communicate in plain English. Why? Because I am a lawyer!

My everyday correspondence is peppered with make an application, as you deem fit, in respect of, notwithstanding and hereinafter.

Clients (and good ones at that) come with specific mandates. Give your opinion on this area of law. Draft that document. Summarize this commercial arrangement. Speak to our colleagues on …….

Readers delight in legalese and jargon - and jump with joy facing old French, Latin and Roman words. Their ears ring with history and adventure – and they pay handsomely for that momentary journey to the past.

Am I serious? No, I am not. Clients abhor legalese. They want lawyers to communicate like ordinary mortals – in plain and understandable language. Tongue in cheek, they repeatedly remind us lawyers to shun jargon. But who cares? After all, we are sentries to a thousand year old heritage.

Imagine the plight of thousands of people reading home loan agreements, insurance policies, credit card documents and routine legislation. They cry and plead for some sensibility in legal writing. They revolt. They litigate. BUT NOTHING HAPPENS. On the contrary, some believe that this approach differentiates lawyers – and adds value to their work. What rubbish!

I drafted a client-document some years ago. The usual ending (Latin is testimonium) was –

“In witness whereof the parties have executed these presents the day and year first hereinabove written”

The client cancelled this ending, kept some space for signatures and date, and asked me if this change diluted the legal position. There was lesson enough for me. The burden of history and precedent was ruining my thoughts and ability to communicate. While law school taught me law, it apparently forgot the practical aspects of legal life – language, communication, client skills, management, marketing, competition, technology and profits. What should I do?

Now, I am determined to avoid verbal and visual mess. I try to be simple and direct. I focus on the reader and listener. I plan document layout. Most importantly, I think it all through - FIRST.

But all this takes time. It is difficult to un-learn years of legal drilling.

We have help at hand. Several resources assist me – and will assist you. Here, I share some of them with you. There are books. You don’t need all of them. But do get some. Read them back to back. There is also growing web material. Download some of it. Refer regularly. And let us change the way we communicate as lawyers

I summarize some plain language principles – plan, design, organize, write clearly and test the document

I also list a plain language vocabulary. Print it, pin it on your board and use the alternatives in everyday communication. Your clients will bless you – with more work.

A caveat (I just can’t improve!). I work in English – these resources therefore focus on improving English communication. But similar principles apply to any other language – French, German or Italian. As Bryan Garner says, make your writing clear, concise, down-to-earth, and powerful.

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Books

These address lawyers and legal writing –

1. The Language of the Law, David Mellinkoff, 1963
2. Legal Writing: Sense and Nonsense, David Mellinkoff
3. The Redbook: A Manual on Legal Style, Bryan Garner, 2002
4. A Dictionary of Modern Legal Usage, Bryan Garner, 1995
5. The Elements of Legal Style, Bryan Garner, 1991
6. The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, Bryan Garner
7. Securities Disclosure in Plain English, Bryan Garner
8. Guidelines for Drafting and Editing Court Rules, Bryan Garner, 1996
9. Plain English and the Law, Law Reform Commission of Victoria, 1990
10. Modern Legal Drafting: A Guide to Using Clearer Language, Peter Butt and Richard Castle, 2001
11. Legal Drafting in Plain Language, R. Dick, 1995
12. Legal Language, Peter Tiersma, 1999
13. Plain Language for Lawyers, Michele Asprey, 1996
14. Plain English for Lawyers, Richard Wydick, 1998
15. Clarity for Lawyers: The Use of Plain English in Legal Writing, Mark Adler, 1990
16. Lucid Law, Martin Cutts, 1994
17. Plain and Accurate Style in Court Papers, Alterman, 1987
18. The Lawyer's Guide to Writing Well, Tom Goldstein and Jethro Lieberman, 1991
19. The Costs of Obscurity: a discussion paper on the costs and benefits of plain legal language, M. Duckworth and G. Mills, 1994
20. Law Words: 30 essays on legal words & phrases, Centre for Plain Legal Language, 1995
21. A Plain Language Handbook for Legal Writers, Christine Mowat, 1999 
22. Drafting Legal Documents, Barbara Child, 1992
23. The Fundamentals of Legal Drafting, Reed Dickerson, 1986
24. How to Write Regulations and Other Legal Documents in Clear English, Janice Redish, 1991
25. Clear & Effective Legal Writing, V.R. Charrow and M.K. Erhardt, 1986
26. Piesse: The Elements of Drafting, J.K. Aitken, 1991
27. Drafting, Dr. S Robinson, 1973
28. Legislative Drafting, G.C. Thornton, 1996
29. Essays on Legislative Drafting, edited by David St. L. Kelly, 1988
30. Grammar for Lawyers, Michael Meehan and Graham Tulloch, 2001

These consider general writing –

1.  The Plain English Guide, Martin Cutts, 1995
2.  Effective Writing, C. Turk and J. Kirkman
3.  Style: Ten Lessons in Clarity and Grace, Williams, 1985
4.  Simple & Direct: A Rhetoric for Writers, Barzun, 1985
5.  The Productivity of Plain English, Office of Consumer Affairs, U.S. Department of Commerce, 1983
6.  How Plain English Works for Business - Twelve Case Studies, Office of Consumer Affairs, U.S. Department of Commerce, 1984
7.  Plain English for Better Business, Council of Better Business Bureaus, Tenth Annual Washington Forum : A Summary of Proceedings, 1986
8.  Plain Language: Principles and Practice, edited by Erwin Steinberg, 1991
9.  Writing in Plain English, Robert Eagleson, 1998
10. The Gains from Clarity, Gordon Mills and Mark Duckworth
11. The Plain English Story, The Plain English Campaign, 1993
12. On Writing Well, William Zinsser, 1995
13. The Use of English, Randolph Quirk, 1968
14. Gowers's The Complete Plain Words, edited by Greenbaum and Whitcut, 1987
15. The Art of Readable Writing, Rudolf Flesch, 1962
16. How to Write Plain English, Rudolf Flesch, 1979
17. Mightier than the Sword, C.E. Good
18. An Introduction to English Grammar, S. Greenbaum
19. The Good English Guide, G. Howard
20. The Handbook for Non-Sexist Writing, C. Miller and K. Swift
21. Style, J.M. Williams

There is more helpful material on the plain English movement in the USA at http://www.english.udel.edu/dandrews/bcq/plainenglish.html

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Web Material

I have chosen my favourites. Search the web, and you will find more.

1. Writings from The Law Society Journal, Law Society of New South Wales (htp://www.lawsociety.com.au)

    a. Non-sexist language and the Law, (1995) 33 (9) LSJ 30
    b. Non-sexist language and the Law II, (1995) 33 (10) LSJ 26
    c. Non-sexist language and the Law III, (1995) 33 (11) LSJ 32
    d. Plain English in Law: Why does the debate continue? by David Kelly, (1996) 34 (10) LSJ 61
    e. Is law poorly written? A view from the bench by Justice Michael Kirby, (1995) 33 (2) LSJ 56
    f.  A judge's attitude to plain language by The Honourable Mr. Justice Mahoney, (1996) 34 (8) LSJ 52

2. Writings from Michigan Bar Journal (http://www.michbar.org)  

    a. The Best Test of a New Lawyer's Writing, Joseph Kimble, July 2001
    b. Plain Words (Part I), Joseph Kimble, August 2001
    c. Plain Words (Part II), Joseph Kimble, September 2001
    d. The Ambiguous And and Or, Thomas Haggard, November 2001
    e. Good Writing as a Professional Responsibility, Thomas Haggard, October 2001
    f. When Your Boss Wants It the Old Way, Wayne Schiess, June 2001
    g. The Headless Snake of Law-Firm Editing, Frederick Doherty, May 2001
    h. Attorneys: Cause or Cure? by Susan Benjamin, March 2001
    i. Welcome to the Real World - From Law School to Bureaucracy, Peggy Miller, February 2001
    j. Now Comes the Unbending Boss, Richard Bingler, January 2001
    k. Writing for Your Audience: The Client, Wayne Schiess, June 2002
    l. Looking at the Numbers, Stuart M. Israel, February 2002
    m. Beloved are the Storytellers, N.O. Stockmeyer, Jr., January 2002

3. Writings by Ms. Christine Mowat (www.wordsmithassociates.com

    a. Plain Language: gone underground?
    b. A plain language writer considers consideration
    c. With all due respect to legalese
    d. Do Universities breed illiteracy?

4.  Plain Language: What is it? www.sba.gov/plain/whatis.html  
5.  Introducing Plain Language (www.web.ca/~plain/PlainTrain/Digest.html)   
6.  Plain Language Association International (www.plainlanguagenetwork.org) - articles by prominent lawyers and academics
7.  Fight the Fog - Write Clearly (for all writers of English at the European Commission) (www.europa.eu.int/comm/sdt/en/ftfog/index.htm)
8.  Dictionary of Plain Language (www.techcommunicators.com/diction.html)    
9.  Plain English Campaign (www.plainenglishcampaign.com); free guides; The A to Z of alternative words 
10. How to Write for Judges, not like Judges (www.judgepainter.org)    
11. Plain English Guide at http://www.gopdg.com/plainlanguage/intro.html from the Practice Development Group
12. Order a free copy of Plain English at Work from http://www.dest.gov.au/archive/publications/plain_en 
13. Plain Language Action Network at www.plainlanguage.gov  
14. Clarity at www.clarity-international.net  
15. Lawyer as Writer at http://www.wvu.edu/~lawfac/jelkins/writeshop/critique2.html  
16. Garbl's Plain Language Resources at http://garbl.home.attbi.com/writing/plaineng.htm  - and lots more
17. Online Writing Lab (OWL) at http://owl.english.purdue.edu  
18. A Plain English Glossary of legalese at http://www.uchelp.com/database/law/glossary.htm  
19. Plain Language Law Newsletter (free bimonthly) from Law & Justice Foundation of New South Wales (http://www.lawfoundation.net.au/information/pll/index.html)   
20. LegalWriting.net by Wayne Schiess (http://www.legalwriting.net)  
21. Gender-Free Legal Writing from the British Columbia Law Institute (http://www.bcli.org/pages/projects/genderfree/genderfree.html)  
22. The Legal Writing Institute (http://www.lwionline.org/)  
23. Barger on Legal Writing - Law School Websites for Legal Writing (http://www.ualr.edu/~cmbarger/otherpeople.html)  
24. The Association of Legal Writing Directors (www.alwd.org) - ALWD (pronounced all-wid) 
25. A Plain English Handbook: How to Create Clear SEC Disclosure Documents (http://www.sec.gov/news/extra/handbook.htm)  

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Some Fundamentals

The fact is that -

  • it is possible to express legal concepts in plain language

  • plain language is legally effective and precise

  • plain language is effective for lawyers and clients

  • readers prefer plain language

Lawyers depend on language. They earn from it. General grammar rules govern their language use. They think otherwise. Let us see some common principles that lawyers should use - 

1. Write in the present tense - and not the future. Law speaks constantly
2. Use active voice - and not passive, unless for a particular reason. The prospectus may be issued by the Company becomes The Company may issue the prospectus
3. Be positive - and not negative! Persons without a passport may becomes Only persons with a passport may 
4. Do not nominalize - do not convert verbs into nouns. Instead of Make a statement, write State
5. Shift citations in footnotes - don't clutter flowing text
6. Avoid sexist usage - it is rude
7. Avoid word/numeral doublets - only numerals are enough
8. Avoid all capitals sentences - the text looks crude and hinders reading

Some more principles are - 

Secret of plain language drafting

 

CONSIDER YOUR READER – whether client, opponent lawyer, barrister, judge, corporate official, lay person 

One more secret of plain language drafting

 

TONE, COURTESY AND FORMALITY – adopt them to suit each occasion

 

Dignified language

 

AVOID POMPOSITY -  no wordy, verbose writing

 

Do you need to write?

 

KNOW WHEN NOT TO WRITE AT ALL

Document structure

 

THINK, PLAN, ORGANIZE –  Basic answer first, details and exceptions later 

for example, Opinion letter – client query and your opinion, first; the law and citation to follow 

for example, Loan and Security document – loan amount, security, interest rate and repayment dates, first; other details to follow

 

Paragraphs, Sentences

 

BITE-SIZE CHUNKS – do not write a paragraph with 100 lines and no period or comma (William Zinsser says “There’s not much to be said about the period except that most writers don’t reach it soon enough”, On Writing Well, 1995) 

PUNCTUATION – use it sensibly 

AVERAGE SENTENCE LENGTH – 15-20 words; note that it is “average” and not “every”. Keep one thought per sentence 

SENTENCE STRUCTURE – subject, verb, object.

Schedules, Appendixes, Annexures

 

USE ANY ONE TERM THROUGHOUT THE DOCUMENT 

If it contains primary material – put the schedule at the beginning of the document 

for example, in Home Loans, these details form the schedule – names of employer/employee, addresses, job title, period of employment, annual salary, other benefits, desired property 

If it contains secondary material – put the schedule at the end of the document, before signature clauses 

for example, in Property Sale Agreements, the description of the property forms the schedule

Terms of Art – Legal Words

 

IS THERE A PLAIN LANGUAGE ALTERNATIVE? If not, use the technical term 

FOREIGN AND LATIN WORDS – please do not use them 

DEFINITIONS – do not use many of them

 

 Document design

 

Use serif type styles; with font size of 10-14 points. Justify the text to the left margin and leave it right-ragged. Keep plenty of white space around your text 

Use diagrams, tables and charts. Yes, I am talking to lawyers 

Use headings, numbering, bullets, highlighting, indexes and table of contents 

Avoid underlining or only upper case

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Plain Language Vocabulary

Here is an assorted list of problem words and phrases. I suggest you substitute those in the left column with the ones in the right
 

 

Bad

 

 

Good

Accordingly

So, therefore

Afforded

Given

Aforesaid

Omit

All and singular

All

And/or

And, or, either …… or, both

As a result of

Because of

At this point in time

Now

Bring an action against

Sue

By virtue of

Because of, under

Consequently

So

Contained in

In

Covenant and agree

Agree

The day and year first hereinabove written

State the date

Devise

Give

Enclosed please find

We enclose

Endeavour

Try

Estop

Stop

Et al

And the others, the rest

Expeditiously

Quickly, state a time limit

Fails to

Does not

For and on behalf of

For

Fortwith

 Immediately, now, state a time limit

From time to time

Omit

Furnish

Give

He/She/It/They

They (as singular and plural)

Give consideration to

Consider

Grant

Give

Henceforth

From now on

Hereby, hereinafter called, hereunto, howsoever

Omit

Implement

Carry out, fulfill

In respect of

About, for, as to

Instrument

Document

In the event of

If

Last will and testament

Will

Make an application

Apply

Make payment

Pay

Means and includes

Means, includes

Nothing in this clause

This clause does not

Not less than

At least

Not more than

At most

Notwithstanding

Even if

Now therefore this agreement witnesseth

Omit

Null void and of no effect

Of no effect

Party of the first part/Party of the other part

Use client names

Prior to

Before

Provided that

But, if

Pursuant to

Under, according to

Request

Ask

Shall (future)

Will

Shall (imperative)

Must

Subsequent to

After

Terms and conditions

Terms

Until such time as

Until

Whatsoever, wheresoever, whosoever

Omit

With the result that

So that

Jettison words and phrases on the left and use those on the right.

 

Bad

 

Good

 

Ab initio

From the start

Amicus curiae

Friend of the court

A priori

From assumed principles

Bona fide

Good faith, genuine, honest

Chattels

Goods

Et al

And the others, the rest

Et seq

And those following

In personam

Personal, personally

Inter alia

Among other things

Inter se

Among themselves

Mens rea

State of mind

Mutatis mutandis

With necessary changes

Obiter dictum

Part of the judgment not essential to case decision

Prima facie

At first glance

Res ipsa loquitor

It speaks for itself

Sui generic

The only one of its kind

Sui juris

Of full legal capacity

To wit

Namely

Uberrimae fide

Utmost good faith

Do not use several words when some will do (Robert Dick describes this as killing one bird with three stones, Legal Drafting in Plain Language, 1995)

 

Bad

 

 

Good

Alienate transfer and convey

Transfer

Due and payable

Due

Each and every

Every

Fit and proper

Proper

Free and clear

Free

From and after

From

Give devise and bequeath

Give

Goods and chattels

Goods

Have and hold

Have

Had and received

Received

Indemnify and hold harmless

Indemnify

Keep and maintain

Maintain

Null void and of no effect

Of no effect

Rest residue and remainder

Rest, balance

Remise release and quitclaim

Release

Save and except

Except

Will and testament

Will

Proponents

There is a growing list of individuals who push lawyers to change for the better. 

1.  The late Mr. David Mellinkoff, author of The Language of the Law, 1963
2.  Mr. Bryan Garner, the guru of them all; more at Law Prose (www.lawprose.org); several titles
3.  Mr. Joseph Kimble, Professor, Thomas Cooley Law School; editor-in-chief, The Scribes Journal of Legal Writing (www.scribes.org); many path-breaking articles
4.  "Mr. Clarity" Mark Adler, author of Clarity for Lawyers; more at www.adler.demon.co.uk  
5.   Mr. Peter Butt, co-author of Modern Legal Drafting; Associate Professor of Law, University of Sydney; more at Plain Language (www.plainlanguage.org)  
6.  Ms. Michele Asprey, author of Plain Language for Lawyers
7.  Mr. Martin Cutts, director of Plain Language Commission, UK; more at www.clearest.co.uk 
8.  Mr. David Elliott; drafting legislation in Canada; more at www.davidelliott.ca  
9.  Mr. David Jackisch; more at Fog-Free (www.fog-free.com
10. Ms. Cheryl Stephens (www.cherylystephens.com)  

Many law firms, consulting agencies and commercial institutions realize the benefits of using plain language - and draft documents, correspondence and pleadings keeping the reader in mind

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