What's It Going to Take for You to Use Plain Language?

by Irene Leonard King
Coaching for Change

What is Plain English?

Coming up with a definition for Plain English is not easy. The one I like best is Plain English is prose carefully written in a way that best serves the reader. The main goal is to convey ideas with the greatest possible clarity. Unfortunately a great number of lawyers do not understand the true intent of plain language or plain English drafting. We know that because of the myth that "Plain Language is impossible because the law deals with complicated ideas that require great precision."

Think about the fallacy of that myth. The broad definition of plain English includes precisely dealing with complicated ideas when that best serves the reader.

Unfortunately it is very difficult to draft complicated ideas using plain English - which, may explain why some lawyers say it can't be done. That is because they have not been trained. Plain English drafting takes training, practice, thought and time. However it is possible to make simple changes like substituting or deleting words as suggested in the drafting guidelines in Appendix A.

The History of the Plain English Movement

The Plain English movement gained force as part of the consumer movement in the 1970's. The Insurance and banking industries were the leaders. Both industries found that litigation from their customers was reduced by using Plain English. Citibank's revised forms resulted in reducing time spent training staff by 50% and the accuracy of the information that staff gave customers improved.

President Carter issued an executive order in 1978 directing that federal regulations be as simple and clear as possible. From the mid 70s to the mid 80s numerous states passed plain English legislation that apply to consumer contracts. See Section 16 of this paper for recent developments.

How satisfied with your writing style are you? What would it take for you to become more satisfied?

Reasons to Use Plain English

Will It Increase your Client Base?

Drafting in Plain English sets a lawyer apart from those lawyers unwilling or unable to accept the benefits of plain English drafting. Those lawyers that learn and use good drafting will attract new clients that are looking for lawyers that use plain English (especially in light of recent SEC rules) or clients that want to understand what they are committing themselves to.

Your Responsibility to Communicate Clearly with your Client.

Lawyers have a responsibility to keep their client reasonably informed to permit the client to make informed decisions. Do clients that sign a five plus pages agreement written in legalese after a 10 minute explanation really know what they are committing themselves to? Consider whether that is a potential breach of your ethical duty to your client. Consider also whether that client might be the one that sues because they did not realize what they were doing. Clear written communication reduces legal and negotiating complications.

What Do Your Clients Want?

Lawyers who draft in plain English are truly providing a high level of quality service for their clients. They are giving their clients what they want in the majority of cases. They excel over their competition. Clients want to feel confident in their lawyer's abilities. There is no better way to show your clients they can trust and rely on you then by drafting material they can understand easily.

Offer to Save Your Client's Money.

In Joseph Kimble's "Writing for Dollars, Writing to Please" The Scribes Journal of Legal Writing (1996-1967) he lists numerous studies that show plain English saves organizations lots of money. A copy is available with these materials.

Positive Proof of Your Legal Abilities.

Lawyers need to be legally accurate, have a good grasp of the law, and have the skill to say it in the simplest way possible. Clients instinctively know that a good lawyer is one that can achieve clarity.

Plain English is More Persuasive.

Surveys show that plain English is more persuasive as well as preferred by the majority of readers. Surveys indicate that clients and judges think lawyers that draft in plain English are smarter than those that don't.

Proof of Your Creativity.

Rather than continuing to draft in an old fashion legalistic writing style those lawyers willing to change evidence their creativity. Creativity is at the heart of a talented, exceptional lawyer.

Your Document's Substance Will Improve.

Barbara Child points out that "one of the common side-effects of converting complex material into Plain English is that the drafter ends up re-thinking the content as well as the form. Restructuring produces reconceptualizing. Ultimately the substance improves."

Time Saved

Plain English documents save time and money for your clients. Reading plain English documents take less time and once trained less time to write than legalese. Less time will be spent with clients answering questions or making explanations.

What Makes "Hereby" Precise?

What causes lawyers to add "hereby" to an agreement? It does not add precision it merely adds pomp. Essentially "hereby" adds nothing to an agreement.

Is Legalese a Bad Habit?

Legalese continues because of habit, inertia, fear of change, the rote use of forms, notions of certainty, and lack of skill.

Investment Versus an Expense.

Consider the money spent to set up plain English forms an investment:

	You will raise your firm profile in the market place and that will attract clients.
	You will ultimately reduce costs because costly mistakes by your staff and you will be avoided.
	Staff training time will be reduced.
	Work efficiency will increase.
	Your staff will enjoy their work more.
	You will receive fewer complaints from clients.
	You could attract foreign markets. (Plain English is easier to translate.)
	You will attract new clients that want a modern approach.

Client Work Product.

A lawyer's client product is often a set of documents. Consider how much influence your documents have on your client's perception of you. Are your letters and documents sending the message you intend to send? Are they clear, well organized, succinct and responsive to your client's needs? Do they show your creativity? Are they efficient? Are they modern?

Imposed by Legislation.

In some cases you are going to have to write in plain English. Consider the effect of the SEC ruling - SEC Plain English Disclosure. Effective Date October 1 1998. Release No. 33 - 7497 File No. S7-3-97. The rule requires issuers to write the cover page, summary, and risk factors section of prospectuses in plain English.

You can find A Plain English Handbook, How to Create Clear, SEC Disclosure Documents can be found at: http://www.sec.gov/pdf/handbook.pdf

The Plain Language Action Network is a government-wide group working to improve communications from the federal government to the public. They believe better communication will increase trust in government, reduce government costs, and reduce the burden on the public. You can find the Plain Language Action Network at: http://www.plainlanguage.gov/.

On June 1, 1998, President Clinton signed a presidential memo requiring agencies to use plain language principles for most of their written communications.

A copy of the Presidential Memorandum on Plain Language can be found at: http://www.plainlanguage.gov/cites/memo.htm with guidelines for compliance at: http://www.plainlanguage.gov/cites/vpguid.htm.

Things You Can Do

1. Take a plain English writing course.
2. Encourage staff to take professional writing courses or training.
3. Provide courses in house.
4. Use the Plain English Drafting Guidelines in Appendix A to start.
5. Create and use a writing checklist.
6. Adopt and implement a firm plain English writing manual.
7. Use available software to check your writing.
8. Develop a plain English library.
9. Hire an in house editor.
10. Use a plain English drafting consultant to redraft firm forms.
11. Stop using jargon now.
12. Reduce your sentence size.
13. Put the most important information first. That means answering the opinion in the first paragraph not the last paragraph. That means incorporating critical provisions like renewals early in a lease rather than at the end.
14. Add plenty of white space.
15. Use bullets for long lists.
16. Don't cite every case under the sun.
17. Change your attitude.

Because of the pressures of the practice of law and the substantial up front costs to clients some lawyers have not accepted the challenge to write in plain English. They should consider starting small - one letter, part of an agreement, the next will.

Getting Started.

1. Recognize the need.
2. Make a commitment.
3. Create a vision.
4. Develop your plan.

Planning

	Where are you now?
	Set down on paper the details of your vision.
	What have you tried so far?
	What steps can you take?
	What are your first steps?
	By when?

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© 2001 Irene Leonard King

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