Lynda Harris
The plain English movement has finally got legs and it’s moving fast. Does plain English have something to offer lawyers?
Things are getting plainer.
Plain insurance policies, plain tax forms, plain health information — even a plain English guide to the Local Government Act 2002. A Google search for New Zealand websites mentioning ‘plain English’ brought up 20,000 pages.
When expanded to worldwide websites, the phrase ‘plain English’ returned over 4 million pages. There’s a plain English guide to almost everything you can think of — including the law. The 1 million webpages that include the words ‘plain English law’ show that something is changing.
I can feel the alarm of many reading this. Change is threatening. Isn’t the law too complex and specialised to be put into plain English? And what about the risks of changing tried and true precedent documents?
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While some practitioners continue to debate the merits of adopting a plain English style, others are making the change — to the benefit of readers, writers, and the firm’s bottom line.
The need for plain legal language — and the commercial opportunity for lawyers — came sharply clear to me several years ago. I met with a lawyer recommended to me to set up my family trust. During the early pleasantries he seemed quite interested in plain English. What a nasty surprise I got when my completely unintelligible trust deed arrived full of herebys, hereinuntos, and huge paragraphs that were single sentences. Despite my best intent I could not understand large parts of it.
Following my own advice to others — to politely challenge writers of jargon-ridden documents — I asked if he could please give me a plainer version. His earnest response was, ‘Lynda, I can explain it to you and you can trust me’. He wasn’t pleased when I replied that he was asking me to ignore the sensible advice of never signing something I couldn’t understand, and that instead I should trust someone I had known for only 5 minutes. He said it would take him at least a week to rewrite the deed, which I would have to pay for. And even then, in his words ‘it wouldn’t be very plain’. The clear message was that I was being unreasonable. My pocketbook forced me to give in — I was not happy.
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In this story lies the antithesis of good business values — and a potential breach of a lawyer’s ethical duty. Clients have a right to understand what they are paying for — a 10-minute explanation of an impenetrable 20-page document just doesn’t do it. Clients want to be treated with respect and courtesy. Clients want to feel in control — not excluded or inferior. Small wonder that the world can be a little cynical about lawyers.
For many firms, legalese remains the norm because of habit, inertia, fear of change, the use of precedents, notions of ‘rightness’, and lack of skill. Some suggest that plain language must result in a lack of accuracy and precision. This false assumption is nicely countered by Joseph Kimble, past President of Clarity (the international association promoting plain language for lawyers), when he says ‘Plain English and precision are complementary goals—not antagonists. Countless projects worldwide have shown that even complex subjects can be translated into plain language with no loss of accuracy or precision … Writing in plain language almost always improves the content. By improving the structure and style, you improve the substance.’ (Kimble, J. ‘Writing for Dollars, Writing to Please.’ Scribes Journal of Legal Writing, Vol 6, 1996–97)
Yet while many firms cling to their objections, others have seen the light. Many legal firms here and internationally are using plain English as their point of difference — and as a source of competitive advantage. Those that do can easily excel over the competition. Clients want to feel confident in their lawyer's abilities. There is no better way to show your clients they can trust you and rely on you than by drafting material they can understand easily.
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Improving client relationships is reason enough for a firm to embrace plain English. But there’s more — plain English improves communication with the courts, government, and other professionals.
Ready to consider a change? Start small. On the next document you draft, try a few simple plain English techniques:
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put yourself in your reader’s shoes and try to eliminate, or at least explain, legal terms
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write shorter sentences — average of 15 to 20 words
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put the most important information first (that means answering the opinion in the first paragraph not the last paragraph, and putting the condition before the consequence)
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use plenty of white space
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use bullets for long lists.
In some ways, New Zealand has led the world in bringing the law closer to the ordinary citizen — most notably in its comprehensive rewrite of tax law and in adopting some plain language guidelines for the drafting of legislation. It now remains for the practitioner to seize the opportunity that plain English presents.
Lynda Harris is founder and director of Write Limited
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