New Zealand Law Society - Virtues of plain language for lawyers

Virtues of plain language for lawyers

This article is over 3 years old. More recent information on this subject may exist.

I am of the generation who had their secondary schooling and, later, law school, in the sixties. I was lucky enough at secondary school to have, in the then sixth form, an inspirational English teacher called Terry McNamara who really inspired a love of the language in me.

I have always believed that there is a skill in writing good, easily understandable letters and documents. In the sixties as law students we were introduced to a lot of Latin words and phrases like “res ipsa loquitor”, “ratio decidendi” “obiter dicta” and so forth, which have fallen into disuse, and, in my view, that is no bad thing.

In the sixties, seventies, and perhaps even early eighties, it was commonplace to use phrases like “15 instant” instead of “15 March”, and expressions like “we have to hand” instead of “we have received” in legal correspondence, and, to my recollection, it was similar in the business world.

I have always tried to keep matters as simple and short as possible in letters and documents, without, hopefully, losing any meaning. Of a more amusing nature there were a couple of fairly well known terse correspondence exchanges between lawyers that I recall.

In the first, lawyer A wrote lawyer B a two-page or so letter urging a particular method of settlement of a matter. The reply was very clear: “no”. The reply to that: “no what?” The response: “no thank you”. The final reply: “that’s better”.

In another, a senior partner in the Auckland law firm when I was then a staff lawyer had a two-page letter urging on him why his client should accept a surrender of lease. The reply: “no”. End of correspondence!

After I was admitted in 1967, I headed off for the “overseas experience” and ended up working in the conveyancing section of a firm of solicitors in Southampton, the large English southern port city.

One of my main lines of work was acting for clients who were freeholding their council houses (the equivalent of State houses here). These people were very plain speaking and “to the point” so it was a good training ground for me to be the same. They would not have appreciated any legal jargon! The senior partner who supervised me told me that I wrote good letters so I took that as good praise.

Since 2006, I have been employed by a Community Law Centre (one of 27 up and down the country). We regularly deal with people who can be highly stressed, vulnerable, unusual and badly needing direction. Again it’s much the same type of client profile as I had in Southampton.

I also do a weekly radio lawyer talk on the local Whakatane community radio station on legal topics plus a fortnightly column in the local free community newspaper. In these situations, the challenge is, of course, to “demystify” what can sometimes be complex areas for the layperson.

I have always tried to put myself in the position of a layperson and ask: how will I explain this in terms they can readily grasp? That, I feel, is the aim we as lawyers need to keep in our minds when dealing with clients, and especially clients who are less sophisticated. A lot of clients may sometimes give the appearance of understanding some explanations, but in reality may not, and do not want to admit this.

It is very important, I believe, to avoid legal jargon. On Wednesday mornings I do an “outreach clinic” and, when driving back to the office, like to listen to Radio New Zealand National, where there is, at 11:30am, a legal commentary by various lawyers on various topics. On one occasion, a particular commentator was talking about the obligations of company directors, and the discussion had been easy to follow. However, she then started to talk about the “Feltex case” and said something like “the informant alleged that …” Clearly would be unintelligible to most lay people. Far better to have said “the prosecution’s case was that ...”

In my career, I started off under the dictation system to secretaries who used shorthand, then to the cassette recorder dictation system, and now to doing my own letters and documents in word format. I can tell you that it concentrates the mind wonderfully when you are doing your own typing!

It is interesting to reflect on some of the words and phrases that we use every day as lawyers without hesitation. Examples like “we act for …”, “we have received instructions from …”, “we are instructed that ...”, “our client categorically refutes the allegation that …” and so forth.

It may not be so easy to use different phrases but it is, I think, worth reflecting on. Another example could be in billing clients. How often do we see lengthy narratives, sometimes occupying several pages, when it may have, at least sometimes, been simpler to have simply said “our fees”. On this topic too, why is it always “to our fee” and then on client statements we get the “tos” on the debit side and the “bys” on the credit? This is an accounting convention really only.

I would like to end this article with some quotes from the judgments and other sayings of the late Lord Denning, whose name was very familiar to us as law students, and who, in my humble view, was the greatest judge of the twentieth century:

  • “The House of Commons starts its proceedings with a prayer. The chaplain looks at the assembled members with their varied intelligence and then prays for the country.”
  • “Old Peter Beswick was a coal merchant in Eccles, Lancashire. He had no business premises. All he had was a lorry, scales, and weights. He used to take the lorry to the yard of the National Coal Board, where he bagged coal and took it round to his customers in the neighbourhood. His nephew John Joseph Beswick helped him in his business.”
  • “It happened on 19 April, 1964. It was bluebell time in Kent.”
  • “In summertime village cricket is a delight to everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in the County of Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good clubhouse for the players and seats for the onlookers. The village team plays there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings they practise while the light lasts. Yet now, after 70 years, a Judge of the High Court has ordered that they must not play anymore. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket.”
  • “To some this may appear to be a small matter, but to Mr Harry Hook, it is very important. He is a street trader in the Barnsley Market. He has been trading there for some six years without any complaint being made against him, but, nevertheless, he has now been banned from trading in the market for life. All because of a trifling incident.” 

They are outstanding in their clarity. Lord Denning always strove to make his judgments as simple to read as possible, and would refer to the litigants by their names rather than as “plaintiff” and “defendant”, or “appellant” and “respondent”.

For those who may want to read more from Lord Denning, have a look at “Alfred Denning, Baron Denning – Wikiquote”.

So try and keep our correspondence, documents, and client discussions as jargon free as possible is my plea and challenge.

David Sparks is a senior solicitor at Eastern Bay of Plenty Baywide Community Law Service, based in Whakatane. He has a keen interest in clearly communicating with clients, and the wider community. He has also had a wide background in private practice.

Lawyer Listing for Bots