Plain Language Is Always Practicable Possible

• Publication year: 2021

Plain Language is Always Practicable Possible

By David Raatz

During the 1978 Constitutional Convention, the 102 delegates meeting at the Old Federal Building in downtown Honolulu were on the verge of proposing a plain-language directive for Hawaii's Constitution.

The draft proposal read: "All governmental writing meant for the public, in whatever language, should be plainly worded, avoiding the use of technical terms."

But a motion was made to add a qualifying introductory clause: "Insofar as practicable, . . ."¹

A proponent for the amendment said, "By saying, 'Insofar as practicable,' we are saying that there are those cases in which non-plain language is unique and necessary for that particular problem."²

Another delegate, arguing against the amendment, said, "'Insofar as practicable' is an atrocious phrase and has no part in any governmental writing."³ But the argument was unsuccessful. The amended provision was included in a constitutional amendment the voters approved at the 1978 general election. So, for more than 40 years, the State's plain-language policy has itself included legalese.⁴

The good news is that plain language is always practicable—or, more plainly, possible. Indeed, clients, judges, and the public not only accept plain language in legal writing; increasingly they demand it.

Comparing plain language to legalese

What is plain language? "A communication is in plain language if its wording, structure, and design are so clear that the intended readers can easily find what they need, understand what they find, and use that information," according to the International Plain Language Federation.⁵

Traditionally, American legal writing has been characterized by legalese: arcane terminology, convoluted phrasing, and condescension.

Legalese has long been mocked and lamented.

•"What do you get when you cross the Godfather with a lawyer? An offer you can't understand."⁶

•"Why is legal writing almost indecipherable to ordinary people? Because it is almost indecipherable to lawyers and judges."⁷

•"Obfuscation should be abjured. You should also try to be clear."⁸

Plain language creates concise and clear legal documents with powerful, effective communication. According to some commentators, plain-language proficiency is an attorney's ethical duty.⁹

In a Michigan Bar Journal column last year,¹⁰ plain-language practitioners Candice Burt and Frances Gordon rewrote an employment contract that contained long words and sentences, ambiguous phrases, and jargon. See excerpt below.

Impediments to readability in the original draft included expressing a number with both a numeral and a word, inserting other distracting parenthetical content, and using "notwithstanding"—which should be added to a writer's list of banned words.

The plain-language redraft included the following elements:

• sentences capped at 20 words,

• clear phrases and non-technical terminology, avoiding complex or legalistic terms and awkward syntax, and

• a tone that was directed to and respectful of the reader, guiding the reader with textual sub-headings rather than numbering.¹¹

Plain language is conversational and should be comprehensible when read aloud.

Getting to plain language via concision and clarity

To ensure concision, every paragraph, sentence, and word must serve a purpose. If a writer is unable to provide an articulable reason for its existence, the paragraph, sentence, or word should be cut.

This practice is consistent with the interpretative canon known as the rule against surplusage—applied by state and federal courts—which assumes every provision in a legal text exists for some reason.¹²

Clarity requires simple, direct wording. But achieving simplicity is difficult. As Professor Joseph Kimble wrote, "Anyone can complicate matters; it's much harder to simplify without oversimplifying, and only the best minds and best writers can hit that mark. In fact, writing simply and directly only looks easy."¹³

Maintaining a list of ambiguous words and phrases fosters clarity.

The Hawaii Legislative Drafting Manual has some good suggestions:

• Do not use "and/or."

• Do not use "said" as an adjective.

• Do not use: "aforesaid"; "forthwith," "henceforth," "hereafter," "hereby," "hereunder," "in the event that" (use "if"), or "in order to (use "to").

A widely...