Break Free From Fog: About Price Tags, Fig Leafs, and Legal Language

Photo by Dave Hoefler on Unsplash

Legalese, gobbledygook, doublespeak, nonsense, gibberish, abracadabra, double Dutch, geekspeak, jabberwocky, sublanguage, mumbo jumbo — people sometimes use these colourful words to describe legal language.

Why such a negative connotation?

Some pieces of traditional legal language can anaesthetize susceptible folks, shroud them in a legal fog, and suck them into oblivion.

Numerous initiatives across the globe call for plain legal language —understandable, jargon-free, and succinct. Among such initiatives are Plain English Campaign, Clarity, Plain, Obama’s Plain Language Act of 2010, Plain Language Europe, World Health Organisation, and Plain English Commission.

In this story I will share my views on plain legal language — the idea advocated by some lawyers and opposed by other lawyers.

Just Another Day In Paradise

Here is an example of the typical lawyerish style I borrowed from The Mechanics of Law-Making by Arthur Symonds and Miscellaneous: Law Phraseology by W.S. Groesbeck & Chas. L. Telford:

The client asks the lawyer:

I want to give that orange to my friend, Johny. Please draft the wording.

The lawyer responds:

I am glad to assist. Here is the draft: “I, Mr. Robert Springfield, a citizen of __, passport number __ issued by __ on __, having registered address at: __, give you, Mr. Jonathan Morgan, a citizen of __, passport number __ issued by __ on __, having registered address at: __, all and singular, my estate and interest, right, title, claim and advantage of and in that orange, will all its rind, skin, juice, pulp and pips, and all right and advantage therein, will full power to bite, cut, suck, and otherwise eat the same, or give the same away as fully and effectually as I am now entitled to bite, cut, suck, and otherwise eat the same orange, or give the same away, with or without its rind, skin, juice, pulp, and pips, anything hereinbefore, or hereinafter, or in any other deed, or deeds, instrument or instruments of what nature or kind so ever, to the contrary in any wise, notwithstanding.” Please let me know if you have any questions.

Chain-Of-Command Error

Imagine the client decides to read the text before signing it and submitting it to Johny. (It could happen of curiosity, diligence, advice from activists promoting consumer rights, or whatever).

After browsing through lines of words, the client is confused: the client fails to comprehend the text.

The client may assume that the lawyer incorrectly perceived the assignment or — even worser — the draft is not so much obscure as wrong.

Fog Of Confusion

Why does the client enter a legal fog when reading the draft?

Presumably, because of unfulfilled expectations.

The client expected to receive a draft that is easy to read, comprehend, and use. The lawyer’s draft — too formal, too long, and too complicated — missed that point, presumably.

What is seen from the client’s perspective?

An initial 1-line 5-words instruction “give that orange to Johny” turns into a monstrous stream-of-consciousness 12-lines 144-words sentence.

The draft burdens the client to recourse to the rules of language construction, grammar, and punctuation — and these issues are a tough nut to crack.

The client gets lost in translation: vocabulary is out of modern usage, and even common words, the client suspects, could have uncommon meanings.

Repetitions like right and advantage appear unreasonable. Words like hereinbefore and hereinafter sound scary. Design features like tangled syntax and unparagraphed expression obscure.

What does that leave us?

The client is stressed. The client is outraged. And the client requests the lawyer to clarify and redraft.

Iceberg

The draft is not a thing in itself — on the contrary, the draft is an iceberg.

The client sees only the iceberg’s peak — a text.

The lawyer encompasses the iceberg’s underwater part — external factors determining the validity and enforceability of the draft, such as:

the law, both general and sector-specific
the court rulings
the background against which the draft is drawn up
the circumstances and relationship of the parties, and
the purposes which the draft is intended to achieve.

Deep Waters

Let’s take a closer look at the underwater part of the draft.

The draft reflects years of law drafting, practicing, and disputing. Its roots go down deeply into the historical layers of the legal thought: a single text mirrors thousands of statutes and court rulings.

The lawyer drafts in the language of legal rules. To ensure the client’s strong legal stance, the lawyer adheres the language and style of statutes and court rulings — sources of rules, practice, and interpretation.

One needs great courage to dive into the ocean of legal rules, great virtue to survive in storms made of overloading regulation, and great imagination to be lost-and-found in regulatory deserts.

Also take note that legal rules grow exponentially across jurisdictions and frequently suffer from duplication, inconsistency, and incompleteness.

The draft illustrates an ecosystem that developed around legal professionals.To serve as a trustworthy link between the client and the legal universe, the lawyer drafts for other lawyers — judges, prosecutors, and legal counsels of counterparts — whom the lawyer ends up arguing with in courts.

The lawyer makes the draft with numerous battles — won and lost, past and future, unlikely and inevitable — kept in mind. To secure the client’s interests, the lawyer needs to conform to the language and design conventions of other lawyers and seeks comfort in words and forms that have been tested in operation before and seen to be effective. (In fairness, legal professionals are frequently inconsistent when it comes to assigning meaning to legal language, and tradition and litigation do not create precision.)

In addition, the lawyer should draft with a great caution. Always. If something goes wrong, the client will most likely forget who initiated the use of “simple” language, and file a negligence claim against the lawyer. The lawyer’s expertise is put on the line as soon as conventions are abandoned.

Also remember payment arrangements: the client may encourage the lawyer to work long and write long if the client commits to pay by time spent on the assignment and the length of the draft.

Know Your Language

What is a traditional legal language?

First, traditional legal language stands out by impersonal and passive constructions, lengthy and complex sentences, wordiness and redundancy, multiple negations and noun strings. And also by unusual vocabulary (like legalisms, nominalizations, and archaisms).

Second, traditional legal language is a self-perpetuating, self-reinforcing system. The lawyer learns by studying statutes and case law that are written in traditional legal language. Then the lawyer uses the same language to write new statutes and resolve new cases. New lawyers come and learn by those new statutes and cases. History repeats itself.

Two-Handed

On the one hand, readability and clarity of substance are not the same thing.

In pursuit of simplicity, the lawyer can get bogged down in vulgarity, slip into the language of pop songs, and end up in obscurity. The draft can turn into a slice of Swiss cheese — be full of loopholes other lawyers will be willing to pass through and use against the client.

Plain language — as well as legal language — can cause litigation and, therefore, needs to be questioned. Some plain words are no more clear and precise as legal terms of art. Some legal words better to retain for convenience or necessity so as not to destroy the integrity of the draft.

On the other hand, everything that can be put into words can be put clearly.

Articulating in a language that is not artificially complicated, but is clear and effective for its intended audience can help build goodwill, reduce unnecessary correspondence, and save the lawyer and client resources — including time.

Legal documents are no longer meant to be read and used only by legal professionals. Instead, legal documents educate and inform how something works. Those who are affected by legal documents should be able to comprehend them — otherwise, due process standard is failed.

Ultimately, the lawyer — as a professional — should be able to explain complex legal matters in plain terms. Otherwise one could argue that the lawyer have no idea what those complex matters mean.

(Harry S. Truman, 33rd US President once requested to give him a one-handed economist, because all his economists said “one one hand…”, then “but on the other…”. I have to admit the saying is fair for lawyers as well.)

The Client Is Always Right

The client is a valuable brick in the wall of the lawyer’s professional reputation and strong financial well-being. Promptly meeting the client’s needs is the must to survive in legal business.

The lawyer can put on the client’s shoes.

But the lawyer cannot put off the lawyer’s shoes.

What the lawyer can do is to draft with interests and abilities of the client in mind: use no-nonsense words, shorten text, employ sensible punctuation, leave out surplus words, keep verbs in active voice, avoid or explain jargon.

What the lawyer cannot do is to reform the whole ecosystem of law in order to adapt it to the client’s needs: reinvent legal language, rewrite legislation, reeducate legal professionals, revoke precedents.

Price Tag

Everything has a price.

The price of the client-unfriendly legal language includes the risk of loosing clients, reputation, time — and, eventually, money.

Pompous legal drafting prompts confusion, laughing, derision — and pushes the clients away.

If the lawyer exhausts the client with poor legal documents, the client may turn biased as to the lawyer’s ability to communication and advising — and decide not to come back with new assignments.

The legalese can be qualified as misleading and confusing to the extent of being unlawful, thus calling the lawyer’s professional skills into question.

Time spent on clarifying and interpreting poor drafts is full of missed opportunities, clients, and fees.

The price of the client-friendly legal language includes the rising level of ambiguity regarding legal effects of the renovated wording.

The lawyer and the client may end up with the “plain” wording that does not produce — from the legal perspective — the effect intended.

Choosing the new instead of the established may question the lawfulness and enforceability of the text.

Time saved with a “good” draft could end up being spent in courts.

Fig Leaf

Professional risks, litigation perspectives, language patterns, strong precedents — there are a lot of excuses to stick to traditional legal language.

However, no one of those excuses justifies the abuse of language and the confusion of thought found in some legal documents.

No one of those excuses justifies the poor legal drafting — overlong, not tailored to the task and audience in hand, lacking brevity, clarity, and ease of comprehension.

Bad language, bad content, and bad layout make a disastrous combo that destroys any trusted relationship between the lawyer and the client. Putting legal profession ahead of clients’ needs, the lawyer may lose the clientele.

Legal prose exhibits symptoms of a much broader social linguistic disorder, and its problem extend beyond laypeople. As Franck D’Angelo pointed out in Beyond Nineteen Eighty-Four, legal professionals themselves are starting to become concerned that others may misunderstand them and becoming aware that at time they cannot even understand each other.

What can the lawyer do about it?

Ride A Bicycle

The lawyer can do what all those who ride bicycles do — find a balance.

First, the lawyer should seek and find a healthy balance between 2 professional duties —

to advise in accordance with the law, and
to effectively communicate with the client.

This requires gradually — based on research and analysis — adjusting traditional legal language, without the injury to precision and perspicuity.

Second, the lawyer should wisely balance substance, clarity, accuracy, and brevity — no one of those components of plain legal language should prevail without sound justification.

For example, brevity for the only sake of brevity is useless or even harmful. The shorter the text the greater its uncertainty may be. If eliminating ambiguity requires writing a longer text, brevity gives way for clarity.

Excellence

Expertise in law does not qualify a person as a good legal drafter by default.

In fact, drafting in plain legal language is a skill requiring study, research, and enormous amount of practice.

As Michele M. Asprey noted in Plain Language for Lawyers, plain legal language is about writing for your audience, choosing the appropriate tone, planning, structure, design, layout, readability, devices to help the reader find things, and testing.

In below, I respond to several misconceptions about plain legal language —

Plain legal language is less about vocabulary or length, but more about clear communication. A legal document and a document that is easy to read and comprehend can be the same document. All one needs is to carefully plan, organise, and design the document.
Plain legal language is less about simplification, but more about intelligibility— to both lawyers and non-lawyers. In The Plain English Guide Martin Cutts very well observed that the document should give a motivated, co-operative person a good chance of understanding the document at first read, in the same sense that the writer meat it to be understood.
Plain legal language is less about theatrical effects, but more about avoiding needless and artificial complexity, with due account taken of the realities of legal complexity. To be legal, texts do not essentially need to sound ‘legal’ — like something solemnising or ritual.
Plain legal language is less about writing as novelists or journalists, but more about writing as a good writer — have in common with good writers certain resources, techniques, and sensibilities to the nuances of language. Good legal writing is not supposed to entertain, but definitely could be precise and enjoyable at the very same time.

Startpoint

To begin a quest for plain legal language, I advocate for consulting the classic — The Elements of Style by William Strunk and Politics and the English Language by George Orwell.

Both exhibit alike views on what does writing in plain language means.

The Elements of Style — an excellent style handbook for lawyers — calls for writing in a specific and concise way, avoiding vague and needless words, putting statements in positive form, and using verbs in active voice.

Politics and the English Language — a cautionary guide for the society that warns to avoid cloudy thinking — calls for avoiding cliches, preferring shorter words, erasing unnecessary words, preferring the active voice over the passive, avoiding foreign words along with jargon, and using common sense.

Sources Of Wisdom

In addition to the classic, I suggest to consult the following prominent resources —

Elements of Style, William Strunk & E.B. White
Doublespeak, The New Doublespeak, and Doublespeak Defined, William D. Lutz
How to Write Plain English: A Book For Lawyers And Consumers, Rudolf Flesch
How to write clearly, European Commission
The Language of the Law, Legal Writing: Sense and Nonsense, and Mellinkoff’s Dictionary of American Legal Usage, David Mellinkoff
The Lawyer’s Book Of Rules For Effective Legal Writing, Thomas R. Haggard
Legal Writing in Plain English — A Text with Exercises, Bryan A. Garner
Modern Legal Drafting: A Guide To Using Clearer Language, Peter Butt & Richard Castle
The Oxford Guide to Plain English, Martin Cutts
On Writing, Stephen King
On Writing Well, William Zinsser
A Plain English Handbook, The Securities and Exchange Commission
The Plain English Story, Plain English Campaign
Plain English For Lawyers, Richards C. Wydick
Plain Language For Lawyers, Michele Asprey
Plain Style: A Guide to Written English, Christopher Lasch
Seeing Through Legalese: More Essays on Plain Language, Joseph Kimble.
Strike Three For Legalese, Joseph Kimble
Style: Writing with Clarity and Grace, Joseph M. Williams, and
Writing with Precision, Jefferson Bates.

The above is an indicative, but, obviously, non-exhaustive list.

Pieces Of Wisdom

Most sources of wisdom about plain legal language share similar advices, like —

write as a human being, in concise, clear, and simple way
consider the audience and place yourself into its background
employ up-to-date, straightforward, and no-nonsense language
do not use jargon (unless you have to)
prefer active voice to passive
use moderate enumeration, tabulation, examples, charts, lists, and tables
do paragraphing and group related ideas together in a logical way
break up the text with informative headings, and
create a readable design.

Employed wisely, those rules can help bring consciousness and conciseness into the legal drafting, and make every word tell.

Approached with due care, those rules do not infringe on, but help establish the legal effect of documents.

And one more thing: those rules leave a room for art — drafting, after all, is an art — and allow things like calculated ambiguity.

Give A Chance

Everything evolves. Legal language evolves as well.

Speed and extent of evolution varies, but the pattern— towards a clear and effective communication — is evident.

I believe legal professionals should be given — and encouraged to take — a chance in the pursuit of plain legal language.

I hope that most legal professionals will share the views of the Justice Ruth Bader Ginsburg on legal writing — to regard law as a literary profession, to stick to the mantra “Get it right and keep it tight”, and to articulate in plain English wherever you could. (For more details please consult Notorirous RBG: The Life and Times of Ruth Bader Ginsburg, Irin Carmon.)

I hope most legal professionals will agree that plain legal language outpays — professionally, socially, economically — and brings clients.

And I hope most legal professionals — along with their clients — will break free from a legal fog.

Originally published on https://dearall.medium.com/break-free-from-fog-1eed1c045a54.

Disclaimer: This is my personal blog. This is neither a legal opinion nor a piece of legal advice. The opinions I express in this blog are mine, and do not reflect opinions of any third party, including employers. My blog is not an investment advice. I do not intend to malign or discriminate anyone. I reserve the right to rethink and amend the blog at any time, for any or no reason, without notice.