Plain English for Amy Lawyers

• Author: by Mr. Thomas W. Taylor
• Pages: 06

1. INTRODUCTION

   When you read complicated judicial opinions or government can. tracts, do you ever wonder why we lawyers torture each other (not to mention QUI- clients) with writing that is so hard to understand that It takes two or more readings?

   And, if it takes two or more reading8 for U B - ~

   experienced attor. neys-to understand our own colleagues' wntmg, what muet the BV.

   wage person think about legal writing and about our ability as profes. sionals to communicate to them or for them?

   Most people have Borne contact with legal witing, whether on a somewhat rare occasion (for them) such as a divorce; a more frequent occasion, such as a home or car purchase; or a common occasion, such a8 a credit card transaction. In all three instances, legal concepts govern their rights and duties, yet most people have only a vague idea about where they stand legally, because of the complexity of legal writing. Although there has been 8ome progress toward making consumer transactions more easily understood (as I'll discuss later), complex legal writing bedevils, confounds, and confuses average people and leads them to add their voices to a growing chorus of critics of the legal profession.

   And Army lawyers are not immune from this criticism. Commanders and staff officers frequently make caustic comments about hard.to-understand legal opinions on a variety of complex msw~ from

   environmental law to fiscal law. Military appellate judgea frequently criticize (and sometimes reverse) trial judges for their confusing jury

   21i

   instructions during courts-martial Contractors and contracting of. fieers outdo each other in blaming lawyers for problems that crop up in government contracts The list of complaints could go on and on, while our clients ask the burning question Wh) don't Arm? lowyeis wrrte in plan English?

   That's what this art& 18 about. I'll begin by looking at the plain English movement and Its impact an legal witing. Expert8 disagree about whether the movement has merit, but the evidence 80 far favors

   it. Then I'll discuss why-in light of the trend favoring plain En. glish-lawyers have not embraced the movement. I'll look at what the Army is doing to encourage its lawyers to use plain English and what it might do to develop a more effective program.

   For the most part, poor legal writing 18 more a matter of neglect, than intent We don't intentionally use unclear words and write in. coherent sentences, we do 80 out ofingrained habit. And if the benefits of the plain English movement weie only semanticel, there would be less reason to push it.

   But the real issue is that poor writing often disguises poor legal analys>s-disgxises it from others and from ourselves! Writing clearly makes it easy to criticize your legal analysis, 88 George Onvell ob-served, "When you make a stupid remark, its stupidity will be ob-vious, even to yourself."'

   11. SO WHAT IS PLAIN ENGLISH?

   Before examimng the pro's and con's of the plain English movement and why lawyers haven't embraced it, let's look at what "plain En. glish" means

   A. WHAT PLAIN ENGLISH IS

   Plain English has a variety of definitions; many of them also 11- 1 h o d English.'

   2 English easily understood by an ordinary persm3 3. English expected of someone with an eighth or mnth grade ed-

   lustrate rules for ita use. Consider the following definitions.

   uc*t,on?

   xLmdgren. St)la Maffers A R e u u Easa) on Legal R~~ling,

   92 Yale L J 161. 187 'Hathawag. ThaPlainEnglish Maoemnt zn 1hrLam-Pas1,Prrsml. ondruluip. 64 'Gale. CarporalePlam Engliah, 63 Mich B J 919 i1980'R Flesch, Howta Write PlainEnglish ABookforLamjen& Cansumere26 11979,

   Mich BJ 1236. 1238 819851

   19811 PLAIN ENGLISH

   4 English that is witten the way we t a k 6

   5. English you would want someone to use if you were the reader and knew nothing about the subject (the Golden Rule of plain English).8

   6 English "written m s clear and coherent manner using words with common and everyday meanings."'

   All of these definitions are essentially correct but reflect progressively complex ideas about plain English. You will not be surprised to learn that the last-and most complicated-definition in the list comes from New Yark's plain English consumer protection law, the first plain English law in the country when it passed in 1978. For our purposes, plain English is a dynamic approach to writing in clear conversational language that your audience will easily understand.

   B. WHAT PLAIN ENGLISH IS NOT

   To better understand what plain English is, let's look at what it is not. In one critique of plain English statutes, Professor Dickerson commented that plain English is "anything but plain.'3B

   However, most agree that plain English is not simple, dkjomted baby talk, usmg only short sentences and shorter thoughts in machineeun-style bursts. It also is not condescending. and its use is not restricted td simple ideas, such as "you last thecase but still must pay my fee."

   Finally, plain English is not a substitute for a decent education, a panacea for a bad one, or an attempt "to turn our rich language into a series of one-syllable words" or legislate "the style of a society's prodB

   111. PLAIN ENGLISH AND LEGAL WRITING

   Now that we have looked at some ideas about what plain English is and is not, we need to focus briefly on legal writing to see if there is anything about It that precludes the use of plain English. In dis.

   'E. Bailey. Jr.. Wnting Clearly A Contempor- Approach 16 (19841 'PlainEnglishforlowyiie, J L Soe'y ScatlandlSep -Om 1984).r~~prinlldinQueens. 'N Y Gen. Law 6 5-702a IMcKImey Supp 1978)'Dlekerson, Should Plain Engliah Be k8islaled*. 24 Rea Gestae 332, 333 (1980)'C Felsenfeld h A. &egel, Wnting Contram m Plan Englmh 232 (1981).

   land L Sac'y J. 293 (Aug 19851

   [hereinaRer Rea Gestae].

   cussing (in the next section) why lawyers have resisted the use of plain English, we'll examine some of these ideas in more detail

   A. WHAT IS LEGAL WRITING?

   1 A language?

   Is legal writing a specialized type of English? Or ordinary English adopted for the function of talking about the law? Or both?

   Some law professors contend that "[llmguistic research suggests that legal language is a sublanguage of English which has certain linguistic features rarely found in normal discourse;" examples in. dude the frequent u8e ofthe pasave voice and nommalieations (making noun8 out of verbs).'" Most lawyers' spouses would probably agree with this position, especially if ''sublanguage" connotes an infenor form of English!

   Other legal scholars contend that most legal writing uses ordinary English words sprinkled wlth terms of art and holdovers from antiqmty 11

   This YEW makes more sense; as social and legal problems change, we use ordinary words to describe legal relationships, rather than creating new "legal language 'I However, we inevitably rely an certain terms of art in relating the new developments to precedents

   2. LLterature'

   Another way of looking at legal writing is to compare it with literature. Both legal writing and literature are more organized than ordinary conversation, and both have a story to tell; but legal writing "isolates from the story the legally relevant facts and subsumes them under a rule of law. . interprets the facts theoretically-and therefore conceptually," allowing us to find similar legal concepts in cases with diverse facts, 80 that we can reach the basic goal of justice-"deciding like eases alike '"'

   Literature-although it alao deals with concepts-does not have this goal and need not be concerned with functioning a6 a pragmatic problem-solver for society. Thus the language of literature 1s more flexible than the language of law

   '"Charraw Baak Re~leu 30 UCLA L Rer 1094. 1102 ~19821 tmevlewmg D Mellln-"D >lellmkoff, supra note 10, at 45'lHyland A LJe,&ns# afLegal Wnting 134 U Pen. L Rei 599. 611-14 119861

   kotT Legal Writing Sense and Xansense (1982V

   19811 PLAIN ENGLISH

   3. A strarghtjacket?

   Another characteristic of legal writing 18 that while "all writers write to be understood, lauyers write so they cannot be misunderstood l'ls This leads to using more words to qualify, explain, and limit what is intended than would otherwise be the case. The goal is usually to leave no loopholes

   This also limits lawyers' literary licenses; they may not wax poetic lest others misconstrue their ramblings as side agreements in a contract or precedents in a judicial opinion. In fact, when a judge does venture into poetry or other literary anomalies in opinions, it is usually newsworthy and reported in state or national legal newspapers or journals

   B. THE CASE AGAINST PLAIN ENGLISH

   As we have just seen, legal writing differs from other forms of wnting. Critics of the plain English movement seize upon these differences to stake out positions along a spectrum from indignation to compromise.

   I . Plain Englrsh? Neuerl

   Among the indignant are those who believe that complex language is necessary to identify and explain complex legal problems or facts and that simpler statements may be misleading. According to these critics, "[tlhe 'Plain English movement is born of nostalgia and displays an impatience and fmrtration with our times," a yearning to return to the simpler times of yesteryear."

   Taking a humorous swipe, another critic complained of being "told to avoid gerunds, participles, and mimtivee. Well, you may be able *[sic1 live without them, but it would sure make my come [sic] and go [sic] difficult. But then, aee [sic] is believe [sic], I alwaya say!'1S Other critics eee plain English as an "alternative to [a1 decent pul,lic education."'8

   14, *f 278

   "C Felsenfeld & A Pegel. aupre note 9. at 231.

   2. Conceptual LSSUS oie sacred.

   Still indignant-but with a different twist-are those entics who acknowledge that legal writing has all the appeal of a cockroach, but perceive the sentiment underlying the plain English movement 18

   that the law ''is the law-and not life" and that lawyers ''are lawyers-and not ordinary people ''17 These critic8 explain that the...