This is the third issue of Rapport for 1996. We have one more issue to finish the subscription year (not to be confused with the calendar year!). In the past year, Rapport has delivered many reports on the presentations at the 1995 Plain Language in Progress Conference. That reportage will draw to a close in the next issue.
One of the original missions we set for Rapport was to help build a community of plain language professionals and advocates. Five years later, we are still here pumping out the news on plain language, but more than ever, we need your help to keep the newsletter lively and to build that community.
This is our call to you to send in your reports, exemplary documents, event announcements, book reviews and so on. We'd like the next issue, the last for 1996, to bring you news of local activities and case studies. Don't be hesitant to send in your own material. Looking forward to seeing you in the next issue.
Last year, the Italian Ministry of Public Administration commissioned the faculty of law at the University of Rome for a project on simplification of administrative language. The task was to find out what government agencies could do to improve the administrative language and meet the new needs in society in order to increase the citizens' confidence in the agencies.Change people's attitudes towards government
In December last year, the project invited members from the Italian and other European administrations to attend a conference to discuss the administrative language, the relation between the government and citizens and to determine what can be done to simplify or improve communications. This is a summary of the contributions at the conference.
In Italy we have to get rid of all the negative perceptions citizens have about us and our work. People think the public administration is grey and boring and the citizens do not understand the public laws because the language of the law is too complicated. But it does not have to be that way. By modernizing and restructuring we are now going to change this situation.Complexity of language makes it difficult
On Italian prime-time television we will talk about the fundamental rights of the citizens and the relation between government and citizens, and we will make people understand who we are, how we work and why. And above all we will explain what is written in the laws.
If laws and regulations were clear and intelligible people would understand them. Since the language is so complex, people do not know their rights. The agencies have not been able to apply new rules because the language of the law is too complex. Moreover, there are too many antiquated laws which we should repeal because they are no longer being used or applicable.How can the agencies improve the language?
Too much time is being wasted within the public administration, partly owing to the laws and regulations being so complex and obscure. Therefore, the quality of our work is not high enough. The agencies have to take responsibility for their work and spend time modernizing in order to improve the quality.
These steps were suggested for improving the language of government:A tool to write in a clear-cut way
- Courses in drafting for all officials on a regular basis.
- Legibility controls when the documents have been drafted.
- Linguistic verification of all documents, not only of those that the ministers sign.
- Eliminate all redundant laws and regulations.
- No unnecessary documents are produced.
The project group has developed a quick-reference manual of guidelines and a glossary designed for public administrators. The glossary contains common acronyms, definitions of difficult words and expressions and words that have different meanings in different contexts. The manual gives advice on how agencies may arrange plain language projects themselves. The manual also provides tools for officials who wish to teach colleagues how to write plain language.What did we learn?
The final discussion showed that officialese exists everywhere and causes the same problems everywhere. All countries have similar goals in their work to change administrative language. The final conclusion may be summed up like this.
- If the administrative language is to be changed we have to change the attitudes of the writers. It is difficult to change attitudes and old habits and it requires a lot of patience. It is possible with political support and stimulus.
- Plain language work demands time and money. We have to convince the Government that investments in plain language projects are valuable and give high returns.
- Plain language work has to be carried out in a systematic way. Project groups involved in modernization of the administrative language need continuity in their work. Goals must be related to means and smaller projects may be more efficient than larger ventures.
- Networks are very important. We need to learn from each other and we need new ideas.
The Centre for Plain Legal Language recently conducted a workshop on writing in plain language for the magistrates and judges of Papua New Guinea (PNG). The Centre's contribution was part of the Judicial Writing Workshop for Judges and Magistrates organised by the PNG Continuing Legal Education Committee. More than 50 judges participated in the 2 day workshop, which was held in Port Moresby in September, 1996.The speakers at the conference
Anne-Marie Maplesden and Phillippa Wearne represented the Centre for Plain Legal Language, and ran a number of sessions at the workshop. Justice Mahoney, Acting Chief Justice of the NSW Supreme Court, and President of the Court of Appeal also spoke. His comprehensive sessions on writing judgments were both practical and inspiring.Language and the law in PNG
English is the official judicial language in PNG. However, the PNG courts must cater for a population that speaks over 800 different languages. For most of the judges and magistrates, English is a 2nd or 3rd language. In this context, many people who have to read, or write, or listen to judgments, have to come to terms with English so plain English is an absolute necessity.Issues raised in the workshop
The main emphasis of the workshop was on writing with the audience in mind. A problem facing many courts is that defendants often appear unrepresented. This makes it especially important for judges and magistrates to clearly explain to defendants all the relevant court procedures, and all relevant legal consequences affecting the defendant.Responses to sessions
The judges and magistrates also recognised the need to make sure that defendants are not confused by the questions of the prosecution or plaintiff. For example, negative questions are notorious for confusing defendants. Take the question: "Did you not go to Port Moresby on Monday?". In local custom, the response "No" means that the person did go the Port Moresby on Monday. Everyone at the workshops agreed that it is best to put questions in the positive form.
The judges and magistrates said they gained great benefit from the exercises, which were drawn from their own decisions. The re-drafting exercises made them more aware of ambiguity, and how easily meaning may become obscured. By applying the principles of plain language, they were able to redraft the passages in a much clearer way. The focus on the audience of judgments made them rethink a number of issues. One judge commented that he would now concentrate on their needs, rather than trying to write to impress.
One of the exercises the Centre set was to draw a summary of judgment, and a record of hearing. Many of the participants found this exercise particularly constructive. The Centre has offered to write model formats of these for the PNG judiciary.
The session, in two half-days, covered these topics:
- Writing comprehensibly - why and for whom. Swedish work with plain language in a broader perspective:
- Why is plain language required, important text reforms and methods to implement them.
- Swedish legislation and its sructure: Acts, ordinances and regulations. The requirement to reform rules.
- Modernization of legislative language - some milestones
- Which words, phrases and forms should we choose? A review of the Black List and of other lists of new expressions in legislation.
- Structuring sentences for easy reading: Dealing with complex and compound sentences, typical legal word order, passive verb forms and nominalization
- Experiences from the translation work of the Swedish Committee on Translation of EC Law
- How can we attain the objective of clear and simple EC rules? Discussion of forms for development and coordination
Ms. Nicole Fernbach, is from the Montreal firm of JURICOM. Founded in 1982, JURICOM is a legal translation agency serving the public sector and private businesses in North America, Latin America and Europe.Plain Language (English vs. French and Spanish)
Though most people associate plain language concepts with a given language (usually English), it was clear from Ms. Fernbach's standpoint and the views expressed by audience members that the plain language movement is equally at home in a multitude of linguistic contexts. The following summary of Ms. Fernbach's comments is broader than the heading implies and reflects some of the writer's own views on the wonderful world of words.
The North American Free Trade Agreement (NAFTA) provides translators with an English-, French- and Spanish-speaking environment comprising some 350 million consumers who are part of a $6.5 trillion marketplace. Most North Americans are only starting to adjust to the new reality of this multilingual environment.
Plain language does not merely designate plain English. French- and Spanish-speaking writers, among other linguistic groups, have sought solutions of their own to the problems of inaccessible written communications. They have been inspired in their search by the plain English movement which offers them broad scope as well as diversity and adaptation to various cultural, geographical and political contexts.French
In North America, and more specifically in Canada, which is officially bilingual, the French language has inherited an historical tradition from the continental French and integrated the influence of the English system, culture and language. These lines of development are especially apparent in Canadian legal and administrative French, which reflects the dual legal systems of common law and civil law.Spanish
As any other language, French has evolved all over the world and has had to adjust due to the proliferation of communications. It is no longer the product of a centralized and monolithic cultural system. However, the tendency has been to standardize its vocabulary through the widespread use of terminology banks and the international cooperation between linguists and writers.
The Spanish language, as spoken in Mexico, is mostly influenced by traditional continental Spanish because the economic conditions of the Indian population did not allow for a great impact of native languages on the dominant idiom. Modern Spanish has also been shaped by the prominence of the American idiom, especially in advertising.What is Plain Language?
Under the influence of Spanish-American words and phrases that characterize Mexican Spanish, the syntax has become convoluted, giving rise to a type of jargon (half English half Spanish). Very few specialized dictionaries exist, little use is made of terminology banks and information is not widespread. There is, however, a cultural reaction to this phenomenon and the situation will improve with the increase in the standard of living.
All over the world, there is evidence of a movement to respect the integrity of language. The plain language movement therefore involves considering those who are in a minority position and are often disadvantaged. One must strike a balance between adapting to local markets and meeting requirements of linguistic quality. Plain language adjustments, whether applied to original writings or to translations, should take into account cultural and linguistic considerations. It is important to know how the reader will react according to his cultural expectations.Plain language in translation
In the NAFTA context, the presence of three languages makes the search for a simpler and more understandable style of writing more difficult. A source text that is already written in plain language is easier to translate since the translator is then free to apply good writing techniques. However, if the source text is not in plain language, the translator runs the risk of "betraying" the author's style. For that reason, translators generally tend to stick to the style of the original document.Changing language for a changing world
Besides, there is no guarantee that translators know the rules of plain language since plain language concepts have not yet made their way into university curricula. Nor is it clear that translators have gained useful experience in plain language applications. As a result, the risk exists that the translation could be poor.
Translators who have plain language skills are much more likely to provide their clients with quality translations. Nonetheless, the incorporation of plain language techniques means more work because, unfortunately, almost all source texts are not written plainly.
Translators and their clients must realize that, for best results, original material and translations alike should reflect a search for clarity and adaptation to the reader.
Plain language techniques are best applied to situations where writers have organized their information correctly, coherently and consistently. Writing in ways that make sense to the reader is not solely the responsibility of translators.
One solution to the universal vs. local word choice dichotomy is to use brackets or notes to reference from local usage to the universal form of a word. For example, a certain type of animal may be referred to in a document as "x" for local purposes and for reasons of clarity; for other audiences, however, the writer could also use "y" to denote a more universal term. This doubling of terminology can serve an educational purpose, allowing local readers who wish to broaden their knowledge to learn universally accepted appellations.Preferences: English, French, and Spanish
The use of both local idioms and universally accepted terminology helps people increase their knowledge without depriving them of local customs. Extensive use of databases worldwide has strengthened the need for awareness of universally accepted terminology. Since diversity keeps things interesting in this world, we must accept that having two tiers of information is desirable.
What is sauce for the goose is not necessarily sauce for the gander. Some rules that apply to English do not necessarily apply in French or Spanish.Ms. Fernbach's expert presentation at the Winnipeg Plain Language in Progress conference was informative and well received. It was also unusual in that it presented a much broader point of view than that usually associated with the plain language movement in English. Because of the North American Free Trade Agreement (NAFTA), linguistic issues in this part of the world are increasingly being considered in light of a three-way continental partnership. In nudging the North American plain language movement a little closer to the linguistic model of the European community, NAFTA has created a unique three-way interaction between the English, French and Spanish languages and the people who speak them.
Good structure is the same in all three languages; all aspire to a logical order of ideas and a logical flow between ideas. Generally, they use one idea per sentence, except in literary contexts and court cases.
- French and Spanish are inclined to be more "literary" than English.
- English prefers nouns; French and Spanish prefer verbs, which brings them closer to the plain language style.
- English is comfortable with word clusters, but they should be avoided in French and Spanish.
- Foreign words are equally resented by writers of English, French and Spanish.
- Short words are perfectly acceptable in English. French and Spanish tolerate tri-syllabic (and longer) words more easily.
- English prefers concrete words to abstract ones. French and Spanish have a higher tolerance to abstraction and vagueness.
- In plain language, the use of "you" as a form of address makes English more reader-oriented, whereas French and Spanish address others in the third person as a matter of deference. "You" would be too familiar or trivial.
- French and Spanish are as comfortable with the active voice as English, but they have a higher tolerance for the passive voice in administrative prose.
- English uses shorter sentences than French and Spanish, which are more verbose in their style of expression.
- French and Spanish were inspired by the civil law system, English by the common law system where the role of the courts is different.
- Enumeration is used in English but less frequently in French and Spanish.
- All three languages take exception to the use of double negatives.
- Under French and Spanish rules, the masculine gender is considered neuter; there is no need to deal with the awkward sex neutral "he/she" form, for instance.
The graphic presentation of English, French and Spanish is the same now that the use of computer technology is universal. However, pictograms and icons have to be devised for individual language communities. These are very much tied to the local culture.
Bruno LeGal is an Editor/Translator with Agriculture Canada in Winnipeg. Bruno LeGal's background reflects his ongoing interest in language and the ways people use it. He has worked as a radio researcher/interviewer, journalist, language instructor, librarian, terminologist.
In her introduction of the speakers and the topic, Vickie Schmolka, stressed that "Plain language is more than words and structure." She outlined the process which involves consulting, re-thinking, writing, testing, and re-writing.Janet Dean
Her one essential message was "You can do testing." It is possible and it does not have to be complicated. Testing is an integral part of plain language structure. It needs readers participation from the start. Ask them if they can read it and use it, in their work, their lives, etc.
The many ways to test for usability, from simple to more elaborate, methods include:
- interviewing one on one
- asking for draft comments
- asking questions on contents
- using fill-in-blank exercises
- meeting with focus groups
- using usability tests (not a scoring from readability, but talking to reader)
Janet Dean of UserFocus Group is basically involved in the testing phase. With a series of overheads, she took us through the steps of how to prepare for assessing and evaluating a project and how usable the material is. She feels "usability" is a plain language movement term defined as the products ability to be read, stored or listened to. She emphasized that testing is a multi-phased process that should occur during the process and after.Vicki Schmolka
Know the participants. Tests should not show bias. Ethical aspects should be considered. Consider what information you are actually going to use. Do you need name, gender, origin?
She looks at four measures of effectiveness: validity, transfer, acceptance and worth. The methods and who carries them out were discussed. There are "Specialized evaluations and sources" for topics such as design, legality, impact of what you are testing for and who should test. Questioned as to where one finds experts, Janet said to seek them out at conferences, in directories and to ask around. Based on costs if you can't afford all the experts you need go to the audience or someone on staff of the client.
Janet is developing a paper on how one does the testing which will use some "Standard Test Questions" such as "Is the material reader-focussed?" Ask for as many opinions as you can get - buddies, spouse, etc. - to help you start going through the process. Tailored reports and completed tests bring repeat business and can be used for the future.
Vicki Schmolka spoke of her experience in usability testing and evaluating the draft "Consumer Fireworks Regulations" which were written in plain language to help users find information. The testing was done with four user groups (consumers, retailers, distributors and officials). Questions to be resolved were what are the users' needs? How can you measure when needs are met?
Features that were used to help readers find information were:
Features used to help with structure and content included
- table of contents
- marginal notes
- more headings in text
- use of bold words for defined terms
Schedules for retailers and consumers had to be in the form of 'ready-made' instuctions for easier use to help readers do what is expected of them. The tester had to make people feel okay about taking part. Tested individuals were told they were not taking a test, but they were testers for information on the regulations to see if they were sensible, easy to enforce and comply with. This feedback was vital.
- use of simple words
- use of you for more direct approach
- use of ordinary words such as "must" instead of "shall"
- use of examples
To test methodology:
for distributors and officials, regulations were sent before meeting. At the meeting they were given a scenario with questions. Discussion took place on whether it was easy to find information, the wording and how easy the regulations would be to follow.
for retailers, a meeting was held where Schedule 1 was read section by section and they explained each section in their own words, answered questions and interpreted sections. They compared two sample pages and were asked about the use of "you" and commented on regulations.
Consumers were approached at a mall and asked to read Schedule 2 and explain in their own words what it meant. They were asked to match a pictogram to each instruction. The testing showed that the safety instructions were clear and pictograms were understood and well-matched but some consumers had problems with interpretation of words such as pyrotechniques.
Overall, the usability testing showed that participants found the language fairly clear. They liked the schedules and definitions and Table of Contents. There were mixed feelings on the use of "you". Some preferred the more neutral phrasing because it was concise and more familiar.
Lessons learned about users were:
Lessons learned about testing were:
- understanding can be hampered by experience and knowledge.
- being able to explain the meaning of words is not the same as being able to translate them into actions.
Potential benefits of testing a draft regulation content:
- always do a pre-test because errors might be found going through it with real people.
- always allow more time than you think you will need.
Potential benefits of testing a draft regulation context:
- improve language and structure of regulation
- improve readability
- avoid unintended effects
- plug loopholes
- avoid unenforceable need
- improves context
- improves relations with user groups
Phil Knight of Fogcutters, who had just returned from South Africa, spoke about his recent experience with the South African government who want to get rid of gobbledygook and legalese in public information. Plain Language has brought many benefits. The design and layout of documents are now radically different. "People enjoy the benefit of the law because they can understand it."Donna Smith's work in the literacy movement as a volunteer and developer of literacy material for adults, led to plain language workshops and consultations. Donna is on the Board of Directors of the Ontario Literacy Coalition (OLC) and chairs the Clear Language Committee. She was part of the reference group of OLC who published Clear Writing and Literacy by Ruth Baldwin in 1990.
He posed the question, "If starting from scratch, what would I do for testing?":
He spoke about simulating a mock exam with a group that would be users of the finished document - generally students. Out of 40 questionnaires no two were the same. The tests addressed difficult technical issues. The four areas covered were: thinking, reading, understanding and applying.
- always use pre-tests and always with more than one person
- use headers
- offset section headings with bold using a different style (bold sans serif)
- use serif in legislated text
- use side boxnotes to deal with informal cross references, formal cross references and special defined words
Each person was asked to:
Many of the findings are still being worked on. Twenty people used the original document and twenty used the revised. Those who were presented with the revised edition in plainer language wrote a little faster and a little more accurately. Overall those whose first language was English and who had higher degrees did better, but a real improvement came for people with less education who used the revised version.
- Perform five searches to locate and identify a section of the Act that dealt with a specified study
- replace missing words
- review and paraphrase
- solve 5 scenario problems
The future process set-up will analyze what works for people. Is there a pattern? There is still work going on finding elements. What changes are key? One finding is that the South African traditional way only works for well-educated English-speaking people. It is not usable for anyone else. It is hoped that using plain language will take away barriers for many people.
One of my pet peeves is the request to write for the general public. In future when anyone asks for this service, I intend to offer them these examples of the general public. Unless they see their clients in this picture, they'll need to offer a little more information with which to do an audience analysis - or authorize some audience research!
British Columbia provides an information service to tourists. Geist magazine recently reported some of the inquiries that were received in 1996:
Journalism professor Larry Martel at Arizona State University asked undergraduates to identify names an aspiring journalist should recognize. The worst answers:
- Are there any dogsled rental outlets around here?
- How much do your totem poles grow every year?
- Where's the tunnel to Seattle?
- Are those Canadian numbers (referring to a clock with Roman numerals)?
- Is this toll-free number costing me anything?
- How many dollars are in a fund (on being quoted a price in Canadian funds)?
- Is it possible to enter Canada while intoxicated?
- Does this flag come in other colors?
- Alzheimer's - an imported beer
- Apartheid - a building in Athens
- Louis Armstrong - the first man on the moon
- Fidel Castro - Palestinian leader whose wife buys a lot of shoes
- ICBM - InterContinental Business Machines
- Vladimir Lenin - concert pianist
"Information today is currency," noted Joanne Godin, an Ottawa plain language consultant, for workshop participants who had come to hear about the effect of gobbledygook on reading habits. She went on to explain that Canada is becoming a nation of "information-haves" and "information-have-nots." She believes the use of plain language can make the distribution of information more equal. She feels, too, that gobbledygook creates barriers to acquiring information, and also has the effect of lowering literacy skills.Academic writing
Drawing on surveys conducted by Statistics Canada in 1990, Godin presented information about reading habits of Canadians. She began by reminding people that when we discuss reading habits we are only looking at that portion of the population that has adequate reading skills to start with. Godin interprets recent surveys to show that 50 per cent of the population is in the middle range of reading ability, while a further 30 per cent has high literacy skills.
She presented some interesting observations about the kind of materials that people read. For example, non-fiction is read by 70 per cent of the reading population. In this category, self-help and how-to-books are the most popular, followed by history and biography. Fiction is read by 64 per cent of the reading population and the most popular genre is mystery.
With this bit of background information, Godin went on to discuss three specific types of material: academic (or expert-to-expert) writing, manuals, and policies.
Academic material can be thought of as "expert to expert" writing. People who are interested in this type of material may recognize its difficulty but they "slog through it." When experts write to fellow experts, they may use technical terms and they assume that plain language cannot be used. This would be accomplished by using a straightforward sentence structure, and by organizing the material so readers know what is being presented and where they are headed when they are reading.Manuals
Staying in the area of complex "expert" writing, Godin presented two examples. She read aloud a definition of "corporatism," a political science concept, and challenged anyone to interpret what it meant. Next, by comparison, she gave an excerpt from a publication on genetics. "This is not classic plain language," she commented, "but it shows how a difficult subject and one destined for high-end readers, can be written in a very human way."
The second kind of material she described was manuals. In a preface to her discussion on this topic, Godin introduced her personal theory about reading habits. She believes that Canadians are not reading a great deal, despite survey findings. She attributes this to the fact that people are turned off from having had bad experiences, particularly with manuals. Research by the Canadian Standards Association supports this notion. Consumers told the CSA that instruction manuals are confusing, poorly written and organized with too many cross-references. They suggested manuals could be improved by applying principles of plain language. They also recommended that product evaluations include an assessment of the instruction manual.Policies
Godin next introduced a manual for a well-known computer application. This demonstration elicited groans from workshop participants as she repeatedly showed how the material was presented in a complex manner that did not meet the needs of users. She gave an overview of a survey conducted by the Society of Technical Communicators. They compared the number of times customers called for help in five different companies. Four companies had manuals prepared in plain language; one did not. The results were startling. The calls to the company without a plain language manual were ten times as many as the combined total for the other four companies. When these figures are applied to the cost of providing customer service the effect is immediately recognizable to people concerned about the additional cost of preparing plain language manuals. The cost of providing customer service to handle additional calls because of poor manuals is estimated at $250 per call.
Godin examined the way policies are written. She noted that policies that affect employees (vacation and sick leave, for example) are never written in plain language. As an illustration, she presented a lengthy sentence describing pensionable service, which she called "173 words in search of meaning." Godin next walked participants through further examples, pointing out common mistakes and failed attempts at communication.Make it easy
Godin expressed concern that if people do not have information presented to them in a form that is easily understandable, they will have to rely on secondary sources, such as the media, to interpret it for them. This interpretation may not always be in their best interest or meet their information needs. As a result, Canada will increasingly become a nation of information-haves and information-have-nots.Lydia Shevchuk is the Regional Manager, Consumer Affairs for the Prairies and Northwest Territories Region of Industry Canada. Her work keeps her involved in consumer issues including understanding how plain language can help consumers.
In addition, material that has valuable and important information, but which is badly written, will become devalued. The ultimate consequence will be that "information elites of society will put themselves out of business if they continue to just communicate among themselves."
The session ended with a lively question and answer period. A major point of discussion was the effect that gobbledegook has on the reader. People feel stupid when they think they are at fault for not being able to understand material which is, in fact, badly written. Godin countered that anyone who speaks or writes in gobbledygook is demonstrating their own insecurity and feels protected by having "exclusive language."
In her closing comments, Godin said, "Never talk down to your audience." She added that if an idea is very complex, then start by explaining it well to people who will understand it, and allow the information to filter down. "If you don't write well," she explained, "someone else will interpret your gobbledygook, and it may not be in a way that you want."
We who work in the legal field know that getting lawyers to change anything is very difficult. We who are also actively involved in the plain language movement know that plain language makes sense and must be accepted by lawyers. We must continue to try to convince them. This seminar was very helpful in giving us ammunition for our battles.What do judges want and how do lawyers respond
Citibank has experienced a marked decrease in litigation since it simplified its documents.
Rental car agencies historically have had contracts construed against them because of confusing language. Since redrafting their rental agreements, that trend has reversed.
Royal Insurance of Canada had a 38 percent increase in sales when plain language was used in homeowners insurance policies (from 59 million to 79 million).
The Plain Language Institute of British Columbia reports startling results from a recent study: 64 percent of the people surveyed feel frustrated and even angry when reading legal documents, and grow more frustrated and more angry when reading more legal documents. This is significant because it decries the learning curve theory, which says that the more people do something, the more accustomed they become to it and the easier it is for them to do. With legalese, the results are just the opposite.
A new Ernst & Young brochure links plain English and process improvement to added value of a business.
LIFA has identified public relations as a reason to shift to plain language, because documents that are hard to understand result in a lack of trust.
Cheryl Stephens teaches plain language writing to legal assistants at a community college and to lawyersLearn from success
. "When these legal assistants develop plain language documents and take them back to their firms, the lawyers say `This is great!' and begin to use the documents as precedents [forms]," reports Cheryl.
"Judges prefer clear, modern writing," noted Cheryl. "The doctrine of unconscionability says that documents that are unintelligible are void on their face." Cheryl told us of a California law firm, Benson & Kessler, that conducted a study of judges and research assistants about documents filed in their courts. The firm was surprised to learn that a large majority of those surveyed felt that:
The documents with abundant legalese contained the weaker arguments; and
The documents with abundant legalese were felt to have come from less prestigious firms.
Peter Butt, Associate Professor of Law at the University of Sydney, related the following story from Australia. In a recent case where the defense was mistake, the judge ruled in favor of the defendant because at the trial, a bank manager was unable to interpret certain clauses in a key document. Neither could two of the barristers say what the clauses meant. "The judge threw out the entire case," said Professor Butt.
Professor Butt further stated that, while there are some traditional, legalistic words and phrases that have judicial explanations, they are very few. He said that "it is very easy to eliminate the obvious legalese, such as the whereases and hereinafters, but one must be extremely knowledgeable on his subject to write a plain language legal document such as an insurance policy that will stand up to scrutiny." This is, of course, a fear of lawyers, as they hang onto traditional legalese.
Carol Wilson related activities of plain-language advocate Lynn Hughes, a federal judge in Houston. He has ordered lawyers to redraft their pleadings, and even thrown out pleadings that contained gobbledygook. As to document design, Judge Hughes requests that paragraphs be numbered with Arabic numbers, stating that, "if you think Roman numerals are so great, send your clients their bills in Roman numerals!"
"What is the test of a good contract?" Cheryl asked, and answered: "One that doesn't go to court." Cheryl added, from her law firm consulting experience, that "lawyers are afraid of plain language because they are afraid they will lose business. But it's improper to promote litigation. The lawyer's job does not depend on legalese in his documents." Cheryl added that "when there is no ambiguity in a document's language, no lawsuits result from it."
Neil Trenholm, a Winnipeg attorney, commented that "most lawyers just don't see the need for plain language."
Yet law firms that use plain language are having great success. Some of the most notable successes have been reported by the Phillips Fox firm in Melbourne. Not only has the firm attracted new, "blue chip" clients, but it has attracted new business from existing clients. Since establishing the firm's plain language department in 1992 and completely rewriting all form files in plain language, they have experienced these solid advantages:Advantages to law firms
"Legalese breeds suspicion and resentment," says Cheryl, "and is pompous and overbearing." Phillips Fox has not only increased its own business but now there is a booming industry in Australia to draft documents in plain language, thanks to their pioneering work.
- increased firm profits
- raising of the firm's profile
- a new corporate culture focused on meeting the client's needs
- a different outlook toward and acceptance of plain language
"So clients and others are now making demands," Cheryl adds, "but they are not questioning as much as they should."Talk it up
Cheryl suggests to lawyers that they have the client come in after the first draft of a document is completed, to see if it meets his needs, standards, and purposes. "Isn't that better than having the client say at closing that it's not what he wanted?" Cheryl asked. "The best test for document comprehension," Cheryl added, "is to let the client read it."
"The level of confidence is another reason to use plain language," says Cheryl. "Everyone's confidence level goes up from using plain language." In addition, law firms become more efficient because of less time spent in training staff to understand legalese.
Cheryl told of one Ontario attorney who prepares a chart similar to a board game, describing "steps in a transaction." When the client calls, the attorney can refer the client to the chart and report, "we're on step #14 now." Those dreaded phone calls can be minimized by preparing plain language checklists. Clients are usually distraught when they come to see a lawyer, especially in divorce and probate matters, and generally don't hear or remember what the lawyer tells them. "Checklists can really help as the matter progresses and the clients have questions."
Do you know of any law firms that are having successes with plain language? If so, send those stories to Cheryl, so that she can add them to her bank of examples to share with all of us in the plain language worldwide movement. "Talk to your firm about setting up a style manual, or about setting up a precedent [form] committee," suggests Cheryl.
Finally, on an extremely positive note, Cheryl reported that last year the Plain Language Section of the Canadian Bar of British Columbia signed up 168 members in its first year! Edmonton and Calgary, Alberta, now have plain language sections as well.
Inroads are being made, and the plain language movement is healthy. It will prosper if we continue to have successes, and if we continue to let others know of those successes, with plain language.
Mark Adler, Solicitor, London, England
Richard Yampolsky, Dept. of City Clerk, City of Toronto, Canada
Irene Leonard, Project Lawyer, Seattle, Washington, USA