Version published in Law Institute Journal Oct 2014 88 (10) p77
Why does plain language matter?
What lawyers do most of all is write. Yet of all writing, legal writing has an unenviable reputation. Complaints about lawyers often involve poor communication and legal writing has been the butt of jokes for centuries. “There are two things wrong with almost all legal writing. One is its style. The other is its content." (Rodell)
This Blog look at the use of clear, plain legal writing, the why and the how. Plain legal language is no longer a movement but mainstream, with majority acceptance of its benefits and legal effectiveness. Clear legal documents are about respect: both for the law and for the people using them. “Absence of clarity … is destructive of the rule of law; it is unfair to those who wish to preserve the rule of law; it encourages those who wish to undermine it”. (Lord Diplock)
Cost-benefit studies show clear legal documents make good economic sense by saving time, money and energy: information and purpose are communicated effectively, accurately and swiftly with reduced risk of misunderstandings, errors and frustration. Clients - and their clients - can read the legal document once and understand their rights and obligations. Lawyers can check the accuracy and intent of the documents rather than translate legalese. “With a plain language lease I had over 50% of my tenants return their lease before the completion date. This is unprecedented!” (Counsel, LendLease)
Australian law requires that legal documents be clearly expressed and legible. For example, the Corporations Act requires prospectuses to “be expressed in clear plain language”, Legal Profession Acts require costs disclosures to “be expressed in clear plain language”, and the Australian Consumer Law in assessing whether contracts are unfair, includes “the extent to which a term is transparent”.
Parliamentary Counsels support clear drafting in legislation and user-friendly layout. Courts are critical of legalese and find legalese-filled documents may be legally ineffective.
Law firms see clear legal writing as good for their reputation and valued by clients. “Plain language is a win-win relationship builder.” (Partner, Top 100 law firm)
An essential professional skill
As well as content knowledge, competency as a lawyer requires communication skills. Increasingly in today’s world there is a premium on these soft skills.
So why are lawyers often poor writers? Legal history gives some clues with its history of Latin and Norman French. Also our legal education does not emphasise communication skills. We absorb writing styles by exposure to legal documents that are badly written, poorly structured, overly technical and archaic in tone. Indeed linguists have identified legalese as a distinctive dialect.
Yet it is possible to express complex legal concepts and “terms of art” clearly and legally. Research shows these form only three per cent of legal documents and are mostly redundant, best used with a clearer term, or replaced with a precise, legally accurate alternative. For example; will not last will and testament; must not shall; give, not give, devise, and bequeath; together and individually, not jointly and severally; and of no legal effect not "absolutely null and void and of no further force or effect whatsoever"
How to write clearly and effectively
While there are no inviolate rules, there are some fundamental concepts that make it more likely your writing will communicate. While it is tempting to begin editing the nitty gritty, it is important to start with the big picture.
Start with the big picture
The most important guideline is Write for the reader: When writing, consider who your readers are, what they will understand, need to know or do. While the primary reader is the client, also consider other readers.
Organise your material for your readers’ needs: Organise your writing in a way that flows logically for the reader ‘s rather than your point of view. Consider putting the main points – even the conclusion - up front.
Be human: Treat your readers as humans. Avoid a formal, bureaucratic tone.
Use design to help readers: Make information easy to find and read by using headings, numbers, clear typefaces, plenty of white space with wide margins and suitable line length. Consider using a picture, diagram, maps, flow charts.
Test your writing with your readers. Test with your readers using market research techniques. Collect feedback. These will show how your writing communicates.
The detailed guidelines
From the general we turn to the particular. The key recommendations to avoid legalese are:
Use shorter sentences averaging up to 25 words. Aim for one idea per sentence.
Use active verbs rather than the passive form to be more direct in stating a message.
Use verbs, not nouns made from verbs. Use ‘decide’ not ‘make a decision’ and ‘agree’ not ‘enter an agreement’.
Write as clearly and simply as the subject matter allows. Choose words your reader will know. Use concrete examples. Explain technical terms.
Ban legal-sounding words such as notwithstanding, herein, moreover, whereas, aforementioned, abovementioned etc.
Beware of ambiguity with multiple, often contrasting, meanings. "The police restrained a man with an axe" (Garner).
Legal writing that communicates clearly and effectively to readers is an essential professional skill with multiple benefits for lawyers and their clients.