Bridging the gap between writers and readers of legal documents has never been more relevant, realistic or ripe for rethinking.
Law touches almost everything and everyone in some way. Along with necessary clear thinking and quality analysis, plain language writing is critical to building trust and achieving better results for legal clients and the business.
Why should lawyers use plain language?
Clients are demanding the right to understand the advice given to them and to be able to read legal documents easily. Courts are more willing to hold that documents can be unenforceable because the relevant people can’t understand them.
We now live in a high-information, highly connected society. The very nature of digital information and the web leads to transparency and openness. It is immediate and international. Readers trust clarity and shun opaque content.
Legalese has been described in the past as a “fog” and a barrier to trust. It can distance readers and is sometimes labelled pompous and archaic. Sometimes it’s used because of habit, inertia, fear of change or outdated notions of prestige. Templates, form letters, and precedents also play a part in perpetuating unplain language.
Internationally, mandatory plain language is taking hold in governments and business around the world. Legislation supporting plain language is in place in the US, Canada, the UK, the European Union, Sweden, Denmark, South Africa, India, and Australia. New Zealand’s Legislation Design and Advisory Committee guidelines say: “Legislation must be easy to use, understandable and accessible to those who are required to use it” (www.lac.org.nz/assets/documents/LAC-Guidelines-2014.pdf).
Studies in New Zealand have also shown that both professional and non-professional readers found plain language versions of legislation easier to understand. Testing earlier drafts of legislation gave drafters valuable insights and feedback. Researchers found that content could be legally correct, but also clear and straightforward.
A strong business trend towards simplicity also demands plain language. It’s no longer an optional extra. Writing clearly to suit the needs of readers strengthens relationships with clients, saves time and money and boosts efficiency. Companies are recognising that plain language is something that can define them.
As legal experts, lawyers are rightly sensitive about accuracy and logic. Plain language doesn’t meddle with that expertise, but does mean that it is communicated well. Text in plain language exposes any flaws in the logic of a line of thought. Complex ideas cry out for clear, simple, transparent prose. Presenting a complex topic simply to other experts and non-experts demands great skill. Every one of us can do better at stripping away clutter and ambiguity. Some people describe this as “pulling out the weeds to see the flowers”. What remains is uncluttered and clear.
How can lawyers use plain language?
Plain language is shorthand for planning, organising, writing and presenting a document to suit the needs of readers. It’s not just about removing legalese. And it’s not just a goal in itself. Plain language is a way to help an organisation do its job far better, whether that is serving people, making money, or both.
Broad guidelines for plain language are to:
- plan, design, and organise a document around the reader’s needs;
- construct sentences and choose words that are clear and precise for typical readers; and
- test mass documents on typical readers.
Play to your audience
Keep the needs of both your primary audience and secondary audiences in mind. Write for the audience that is least likely to understand.
Have a clear purpose
What do your readers want to do with the document? What do you, as the writer, want them to do with it?
Structure around your reader’s needs
Put important things first from your reader’s point of view. Give your client an answer, not an essay.
Sound like a person – not an institution
Choose an appropriate tone and degree of formality to suit your reader. Be dignified by being clear and readable rather than sounding “lawyerish”.
Activate your sentences
Write in active sentences: for example, “the directors may issue shares”, instead of “shares may be issued by the directors”. Active voice leads to shorter, more concise sentences and helps readers connect with the main message. Choose powerful verbs over nouns.
Chop up sentences
A good average sentence length is 15-20 words. Chopping up long sentences will make your meaning clearer and your reader happier. Don’t pre-load sentences with complex clauses. Try using bulleted lists to break up long text.
Replace “legal flavouring” with plain words
- accordingly = therefore / so
- expedite = speed up
- forthwith = now
- furthermore = then, also, and
- notwithstanding = despite, still, yet
- whereas = but
- prior to = before
- shall = must
- in view of the fact that = as, because
- inter alia = among others
- jurisdiction = authority, area
- last will and testament = last will
- on numerous occasions = often
- terminate = end
- subsequent to = after
- the question as to whether = whether
- with regard to = about, for
- you are requested to = please
Look for more examples online or request a free ebook from Write Limited: Unravelling Professional Jargon.
Use people’s names
Banish third person names whenever possible. Words like “employer/employee”, “lessor/lessee”, “the company”, “the party” can add distance and confusion. Use real names or “you” and “your”, “we” and “our”.
Don’t kill one bird with three stones
Do away with doublets and triplets and other repetition. Legal documents can be full of unnecessary synonyms that add wordy padding. Watch out for repetition like “any and all”, “give, devise and bequeath”, “fit and proper”, “indemnify and hold harness”, “each and every”. Choose one precise word.
Avoid terms of art that keep readers apart
A small fraction of mutually understood terms can be useful when writing to another lawyer, but are a barrier when writing for lay people. When writing for non-lawyers, either explain the term or don’t use it. Use an easier alternative. For example, if you are referring to the effect of estoppel, use “stop” or “prevent” instead: “Because of what Mr Smith said to you at the time, the law prevents him from denying it now”.
Use definitions sparingly
A long list of definitions can get in the way of the main message. A reader’s understanding of a term is often different to a specific legal definition. It may be easier to explain the concept in the text and not use a definition at all. Put any definitions at the end of the document and clearly mark the defined word.
Leave the Latin in ancient Rome
Archaic terms and obsolete formalisms belong in the past.
Delete ritual beginnings
Clusters of tired formulaic words at the start of sentences are often a meaningless waste of time for the reader and writer–for example: “it is important to note that”, “at this point in time”, “we refer to previous correspondence and now advise that”, “having regard to (or notwithstanding) the foregoing”. Delete these ritual phrases and begin with the main idea.
Take a positive approach
Positive statements are easier to understand. For example, instead of: “The fact that the defendant did not testify is not a factor from which any inference unfavourable to the defendant may be drawn”, try: “Although Mr Charles didn’t testify, you should not hold that against him”.
Looking good is important too
Choose a plain, simple typeface. White space is not wasted. A document with plenty of white space is more likely to be read and better understood. Use diagrams, tables, charts, and graphics to support text.
Point the way
Navigation tools help signpost important information for your reader. Use frequent meaningful headings, a clear and consistent numbering system, symbols, bullets, indenting and bold to highlight.
Remember digital is different
Readers quickly scan online documents for key relevant information. Use familiar words, signposting techniques, frequent and informative headings, chunks of information, actionable content, and intelligent links.
Put your writing to the test
Read your words out loud; check with non-legal colleagues; ask yourself whether a particular family member would understand it; and ask clients for comments. Use checklists, style guides, and computer programs to check for grammar and readability.
From fog to focus
Here’s an elegant example of a plain language rewrite from the original order that ended President Clinton’s trial in 1999:
The Senate, having tried William Jefferson Clinton, President of the United States, upon two articles of impeachment exhibited against him by the House of Representatives, and two-thirds of the Senators present not having found him guilty of the charges contained therein: it is therefore, ordered and adjudged that the said William Jefferson Clinton be, and he is hereby, acquitted of the charges in this said article.
Rewrite by Professor J Kimble, speaker at Clarity2106:
After a trial on two articles of impeachment against the President, William Jefferson Clinton, fewer than two-thirds of the Senators present have found him guilty. Therefore, it is ordered that he be acquitted.
(Kimble, J, quoted in Michèle Asprey’s Plain Language for Lawyers, 4th ed, Sydney: The Federation Press, 2010, p 98.)
Get a shot in the arm
Plain language in law, business and government is the focus for an international Clarity conference held for the first time in Wellington. Clarity2016 has attracted keynote speakers such as the Hon Michael Kirby AC, Una Jagose, Sarah McCoubrey and Dr Paul Wood.
Changing your own or your organisation’s culture to plain language is not always painless. It takes patience, persistence, and persuasiveness. Join Clarity2016 for a shot in the arm of motivation, enthusiasm, and encouragement. Get support and inspiration from leading professionals and like-minded colleagues. See www.clarity2016.org.
Lynda Harris is founder of Write Limited, a New Zealand plain English communications company. Write’s main focus is helping government, commercial, and professional organisations improve their bottom line through clear, effective writing. Lynda established the WriteMark, New Zealand’s document quality mark, and is the author of Rewrite – how to overcome daily sabotage of your brand and profit. She is the founder of New Zealand’s annual Plain English Awards and has been a guest judge for the US ClearMark Awards since 2011. In 2015 Lynda was awarded the Mowat Plain Language Achievement Award – an international award recognising an outstanding contribution to advancing the cause of plain language. She is also the New Zealand representative for Clarity International.