1. Some Major Proponents of Plain Language and What They Say

A. David Mellinkoff

BRHe is the "grandaddy of them all" in the legal community, and his Dictionary of American Legal Usage is a reference work that should be in every legal library. It is annotated with historical references and case authority and contains cross-references and even slang.

burglarize: an untechnical verb to describe burglary (o see breach).
The variant burgle is a joke.
due: the basic sense is owing The money is owing./The money is due.

But the literal sense is expanded, figurative, and flexible in both ordinary and legal English. What is owing or due is what is usual, appropriate, required, what will satisfy. Due and adverb duly are so ordinary, so usual, that without much thought they are thrown in for good measure, without measurable change of meaning:
due demand = demand
due diligence = diligence
duly incorporated = incorporated
duly organized = organized
[Prof. Mellinkoff goes on to define due care, due process, and others.]

B. Bryan Garner

This dynamo Dallas lawyer has published two great reference books and a third will be out any day now. No legal library should be without his works. Every law firm and legal department should send representatives to his seminars. His Dictionary of Modern Legal Usage is filled with practical information and guidelines about language as well as style. Lawyers and those who work for them can benefit from Garner's guidance.

blue sky laws. In the early twentieth century, blue sky meant "an unsound investment, esp. in fake securities." Hence laws designed to protect gullible investors in securities have been given the name blue sky laws. The phrase is used in G.B. as well as in the U.S.

in the event that is usu. unnecessarily prolix for if.

jump bail (= to leave [a place] illegally while free on bail) began as slang, but has now become a respectable expression used even by judges in written opinions.

malice aforethought does not "mean a state of the defendant's mind, as is often thought, except in the sense that he knew circumstances which did in fact make his conduct dangerous. It is, in truth, an allegation like that of negligence, which asserts that the party did not come up to the legal standard of action under the circumstances in which he found himself, and also that there was no exceptional fact or excuse present which took the case out of the general rule." Holmes, The Common Law 62-63 (1881; repr. 1946). A more modern writer has explained: "At the present time, malice aforethought is used to express the idea that the accused killed his victim intentionally; no ill-will is required. The phrase is also employed to indicate simply that the killing was under such circumstances that the accused will be punished as severely as if the killing were intentional." Purver, The Language of Murder, 14 U.C.L.A. L. Rev. 1306, 1308 (1967). See aforethought, prepense, & wil(l)fulness.

Garner's The Elements of Legal Style, like the Strunk & White book but with emphasis on legal matters, contains practical and often witty advice on writing concerns.

In every context, we must weigh what is appropriate. We need not, should not, suppress all the literary devices at hand. . . . Nor should we seek one style as the ideal for all legal writing, any more than we should force on society an absolute dress code. A formal dinner may require evening clothes, but they would be out of place on the beach. The law has its beaches as well as its stately ceremonies, and much in between. We should not try to make it always solemn.

Legal writing should not be lethal reading. Your readers are the ones, finally, who matter: You have invited them to attend to your words, you seek their precious time, and you may even expect to be paid for your efforts. Courtesy requires that you show your readers some grace and consideration.

Lawyers are notorious for qualifying every statement they make with weasel words. When they do-by using an unnecessary conditional phrase (I would contend) or by saying:

it seems
it would appear that
it might be said that
at least as far as X is concerned
it is respectfully suggested that-
they come off as timid and doubtful. How much better to state matters confidently and straightforwardly.

C. Mark Adler

One of my favorites in the plain-language movement is a London solicitor and editor of the journal Clarity, of the 800+ members in 26 countries (74 South Street, Dorking, Surrey, England; tel. 01306 741055; fax 741066 [international code 44 1306]; e-mail adler@adler.demon.co.uk.). His book, Clarity for Lawyers, is published by The Law Society of London, and contains excellent examples and analyses that demonstrate the waste of time in dictating, typing, checking, and the client's incomprehension. Anyone seeking the courage to write legal documents in plain language should start with Mark Adler's book. The ideal example is one from a 1986 paper by Robert Eagleson of Australia, which condensed a 56-line passage to a concise 5 lines, with no loss in meaning! (You will have to buy Adler's book for that one; it's just too good.)

The purpose of writing is to communicate, not to show off. If the reader does not understand, everyone's time will have been wasted and what should have been said will remain effectively unsaid.

Those reading lawyers' prose often do not understand. They may resign themselves to ignorance, thinking themselves foolish or us pompous; they may ask us to repeat what we said in simpler language; or they may ask someone else what their adviser is trying to tell them.

We should be acting as guides to our clients; if we are to do so they must be able to follow us.

Unfortunately, many solicitors prepare documents, often with onerous clauses, without consulting their clients, just copying a precedent which they (or someone else) has used in the past. Similarly, many solicitors do not explain the incoming documents to their clients. Often neither party to a contract knows that the solicitors have arranged. The resulting document does not represent the bargain made by the clients and its provisions are innocently ignored-until there is a problem.

Mr. Adler lists some of the faults in solicitors' writing:

The long paragraph is hard on the reader; it looks too boring to read, and many will start to skim before they reach the end.

There are many words and phrases which might not be understood by a lay reader.

The writer had not organised his or her thoughts; the text rambles from point to point and it is not always clear (even to another solicitor) what was intended.

The style is dull and repetitive, with many inappropriate capital letters.

D. Joe Kimble

This law professor at The Thomas M. Cooley Law School in Michigan is fast becoming known as "Mr. Plain Language" in America. That is because he is a clearinghouse of information about what it going in worldwide in the movement. He knows about everything and does something whenever he can, whether it's traveling to South Africa with the Plain English Campaign or appearing at a Plain Language Conference in Calgary-all, I presume on his own nickel. His writing credits are numerous, and his work with the Michigan Bar, the first to establish a Plain English Committee, is outstanding. His monograph "Answering the Critics of Plain Language," from The Scribes Journal of Legal Writing, is a work of art:

1. Plain language is not anti-literary, anti-intellectual, unsophisticated, drab, ugly, babyish, or base.

Plain language has to do with clear and effective communication-nothing more or less. It does, though, signify a new attitude and a fundamental change from past practices.

If anything is anti-literary, drab, and ugly, it is traditional legal writing-four centuries of inflation and obscurity. . . . [Lawbooks are "the largest body of poorly written literature ever created by the human race." Of course, the law has had its share of fine stylists; but it has been overwhelmed by legalese. And the costs must be enormous.

Plain English is the style of Abraham Lincoln, and Mark Twain, and Justice Holmes, and George Orwell, and Winston Churchill, and E. B. White. Plain words are eternally fresh and fit. More than that, they are capable of great power and dignity: "And God said, Let there be light: and there was light. And God saw the light, that it was good."

As for the notion that plain language is unsophisticated, once again just the reverse is true. It is much harder to simplify than to complicate. Anybody can take the sludge from formbooks, thicken it with a few more provisions, and leave it at that. Only the best minds and best writers can cut through. In short, writing simply and directly only looks easy. It takes skill and work and fair time to compose-all part of the lawyer's craft.

Professor Kimble settled into an airline seat not long ago and tried to make sense of the emergency exit instructions on a plastic card before him, which was a 28-point list of federal rules and directions. Here are excerpts from that card:

No air carrier may seat a person in a designated exit seat if it is likely that the person would be unable to perform one or more of the applicable functions listed under requirements below because: The person lacks sufficient mobility, strength, or dexterity in both arms and hands and both legs to: A) Reach upward, sideways, and downward to the location of emergency exit and exit slide operating mechanisms. B) Grasp and push, pull, turn or otherwise manipulate those mechanisms. C) Push, shove, pull or otherwise open emergency exits. D) Lift out, hold, deposit on nearby seats, or maneuver over the seat backs to the next row objects the size and weight of over-wing window exit doors (approximately 24 1/4 inches by 39 inches and up to 53 pounds). E) Remove obstructions similar in size and weight to over-wing exit doors (approximately 24 1/4 inches by 39 inches and up to 53 pounds.); F) Reach the emergency exit expeditiously. G) Maintain balance while removing objects. The person is less than 15 years of age. The person lacks the ability to read and understand instructions related to emergency evacuation provided by the air carrier in printed or graphic form or the ability to understand oral crew commands.

Professor Kimble's plain language rewrite:

To sit in an exit seat, you must be able to help in an emergency. You must meet these conditions:

1) You are willing and able to reach the emergency exit, open the door, lift out the door (about 50 pounds), work the exit slide, and help others to use the slide.

2) You can do these things without hurting yourself.

3) You can see, hear, and read well enough to follow instructions-both written instructions and those that the crew may shout out.

4) You can give directions to other persons.

5) You are at least 15 years old.

Source: Joseph Kimble, "Writing for Dollars, Writing to Please," The Scribes Journal of Legal Writing

Professor Kimble says, "Being reader-friendly is not just a courtesy; it's a real dollar issue." He gathers examples wherever he goes. "It's staggering to think how much money is lost, letter by letter, form by form, phone call by phone call, because the public can't understand what we're trying to tell them," he says.

E. United States Government and Other Governments

On September 30, 1993, President Clinton issued Executive Order No. 12866, which includes this directive: "Each agency shall draft its regulations to be simple and easy to understand, with a goal of minimizing the potential for uncertainty and litigation arising from such uncertainty." On March 4, 1995, he issued a memorandum to heads of federal departments and agencies, directing them to "conduct a page-by-page review of all your agency regulations now in force and eliminate or revise those that are outdated or otherwise in need of reform." Vice President Gore is coordinating such efforts through his National Performance Review. Their home page is at http://www.npr.gov. Even OSHA is becoming user-friendly. In its guidelines for leaving in a hurry, "Means of Egress" will now be listed as "Exit Routes."

For several years, all federal judges have been required to attend judges' school, where they are taught to write their opinions in plain language. It has had an effect, but has not filtered down through too many of the state judges-yet. Federal consumer statutes, such as the "Lemon Law," are required to be written in language the layman can understand. And now the Securities and Exchange Commission, which oversees things like offering circulars when companies take their stock public, has joined the fight. Chairman Arthur Levitt offered a $250 savings bond to the SEC employee who can find the worst piece of "gobbledygook" and transform it into plain English. Winners will be published in future editions of the SEC's Plain English Handbook.

Warren Buffet, in his preface to that handbook, says:

For more than forty years, I've studied the documents that public companies file. Too often, I've been unable to decipher just what is being said or, worse yet, had to conclude that nothing was being said. . . . Maybe we don't have the technical knowledge to grasp what the writer wishes to convey. Perhaps he himself doesn't understand what he is talking about. In some cases, moreover, I suspect that a less-than-scrupulous issuer doesn't want us to understand a subject it feels legally obligated to touch upon.

The handbook contains 12 useful chapters, and it is free. It can be printed from the SEC's web site or ordered by mail or phone. It elaborates on such tested rules for plain language as "Know Your Audience," "Know the Information You Need to Disclose," "Reorganize the Content Logically," "Document Design," and "The Principles of Plain English." According to SEC Chairman Arthur Levitt: "This is not just another rule or regulation. If it works well, it's a major cultural change."

Vice President Al Gore's panel on reinventing government is promoting the idea of plain English and tracking its progress through several agencies. The group has sent an executive order to the White House that, if signed, would require all federal agencies to adopt a reader-friendly approach in writing for the public. Annetta Cheek heads the vice president's Plain English Committee and says: "We're trying to infect the entire government. When did we get in the habit of writing for lawyers when nobody else can read the damn stuff?" Ms. Cheek can be reached at annetta.cheek@npr.gsa.gov.

The Canadian government uses plain language consultants in every province, and a "Plain Language in Progress" Conference is held every other year in Canada to keep plain-language enthusiasts abreast of what is happening worldwide. I attended the 1997 meeting in Calgary and the 1995 meeting in Winnipeg, and don't think I will ever miss one. Canada, which is bilingual, is having success with both plain English and plain French, probably due to the insight and farsightedness of its governmental leaders. According to Statistics Canada, 42 percent of Canadians have weak reading skills and difficulty reading maps, job applications, and tables. Literacy levels tend to be lower in Quebec and the Atlantic provinces than in Ontario and Western Canada.

The new South African government asked the drafters of its new Constitution to use plain language, to make it understandable for more citizens. With 11 official languages in South Africa, the drafters were overwhelmingly positive about the plain-language initiative. The most frequent response was that plain language increased clarity. One respondent said that plain language drafting uncovered problems hidden by traditional drafting methods: "Plain language draws attention to the legal problems, the policy problems, and the perceptual problems." All agreed that the best way to learn plain language drafting is through experience and practice, but a plain language attitude is also necessary. That committee has now completed its work, and a full copy of the report may be ordered from Community Agency for Social Enquiry, P O Box 32829, Braamfontein 2017, South Africa; tel. +27 11 403 4204; fax +27 11 403 1005.

2. Why Plain Language Makes Sense: Errors Caused by Lack of Communication

A. In the legal world

Carolyn G. Robbins, a Miami jury consultant, wrote an article in the April 1996 isue of Trial magazine, published by the Association of Trial Lawyers of America, called "Jury Instructions: Plainer Is Better." She explains:

Estimates show that 25 million adults are not able to read, or read at or below a fifth-grade level. Another 35 million read at or below a ninth-grade level. The average person called for jury duty probably has some reading deficiencies since there is no literacy test for jury duty and often more "capable" people "get out" of serving. Nevertheless, the judicial system often uses complex legal terms and awkward grammatical structure when instructing jurors. . . . [P]attern instructions have one major weakness: Relatively little attention has been given to ensuring that they are understandable and easy for a jury to use.

I know from my own experience in assisting at trial and interviewing jurors that juries sometimes reach the "wrong" verdict because they did not understand the instructions and questions.

B. In everyday life

All of us have had to sign a consent form, for ourselves or another. Dr. Mark Hochhauser has written in the April 1997 issue of Bender's Health Care Law Monthly: "Can Patients Understand Their Consent Forms?"

The average American has 12.5 years of education, but probably reads at an 8th or 9th grade reading level . . . . The 1993 National Adult Literacy Survey investigated the literacy ability of Americans in terms of prose literacy . . . . On a scale from 0-500, the "average" high school graduate had a prose score of 270 (able to interpret instructions from an appliance warranty), a document score of 264 (able to identify and enter background information on an application for social security care), and a quantitative score of 270 (able to calculate total purchase costs from an order form).

About 7 percent of the population reports that they can't read English very well; 10 percent reports not being able to write English very well; 9 percent get family or friends to help them with printed information; 12 percent get help with filling out forms, and 5 percent get help with basic arithmetic.

Although the federal government specifies that research consent forms should be written in a "language that is understandable to the subject" (21 C.F.R. 50.20), most research on informed consent finds that the forms are written at far too high a reading level. Clinical consent forms fare no better .

Virtually every study that is done on consent forms concludes that the forms are written at a level that most adults will have a hard time reading and understanding, and recommends that the forms be written at a sixth to eighth grade level-if they are to truly be "informed" consent forms. Otherwise, the forms that patients sign represent "misinformed" consent at best, and "uninformed" consent at worst.

Is it any surprise that most of these forms are written by lawyers?

A story in the British newspaper, The Mirror, on October 14, 1997, tells of British Gas shareholders being asked to approve a scheme that will give them a tax-free 30p a share. But the letter telling them about it is very complicated. An excerpt:

Any fraction of a New Ordinary Share that arises after your Existing Ordinary Shares have been consolidated on the 15:17 ratio will be sold free of all dealing expenses and commissions and you will be sent a cheque for the proceeds.

The document was branded "gobbledegook" by Justin Urquart Stewart of Barclays stockbrokers: "It is absolutely typical of the way merchant bankers try to describe things to small investors," he said. "They could have sent out a simple accompanying explanation. We need people to have a greater financial understanding if they are not to be ripped off. This does not help at all. When British Gas sent out its first dividend statement to shareholders, it was so unclear that 10,000 thought it was a bill and sent a cheque!"

C. Time: the most precious commodity

Mark Adler explains very well the aspect of time lost from documents not being written in plain language. Just imagine the time spent by corporations that plan procedural manuals, by lawyers who prepare contracts and stock offerings, and by employees, clients, and the public citizens who try to understand them. The same goes for medical forms, appliance and computer instruction books (ever try to fix your own VCR?), and nearly every legal document, from contracts to court pleadings.

But there are some concrete items of proof. For example, in Canada (which is way ahead of us in the plain language movement, by the way), Alberta Agriculture, Food and Rural Development agency, known as "Alberta Agriculture," has proven that plain language forms have already saved money. In 1993 Alberta Agriculture hired Susan Barylo as its plain language forms coordinator. By April 1996, 92 of the 646 forms were revised in plain language. More than a million of those 92 forms are used each year. Her data indicates that on one of the grant application forms:

Staff processing time on a grant application was reduced from 20 minutes to 3.
Return rate doubled with the new form.
Mailing costs are one-third less.
Almost 20 work days were saved, in spite of 22 percent more applications.

Ms. Barylo says that "plain language by edict doesn't work; the process must be a gradual, seductive one. News of project successes throughout the department helps add credibility." She figured the cost savings to Alberta Agriculture:

With 400 administrative support staff (average salary $24,000), 200 managers (average salary $60,000), and 700 professional staff (average $40,000), Barylo used a base average of $38,154 per year per person. With 1,034,530 forms processed a year, and savings in staff time of at least 10 minutes per form, she calculates the annual saving to the government is an astounding $3,472,014.

Chris Balmford is a lawyer with the Australian firm of Philips, Fox, headquartered in Melbourne but with offices in several cities. A few years ago, Mr. Balmford headed a committee to redraft all the firm's form files in plain language. It cost about a million dollars to do it, but those costs have been returned to the firm many times in new business from existing clients as well as new clients. In short, their clients love plain language!

There are other concrete items of expenses caused by miscommunication:

Michael Egan wrote an article entitled "Total Quality Business Writing" for The Journal for Quality and Participation, (Oct./Nov. 1995, v.18, n. 6), and listed these examples:

3. Being Aware of the Need for Plain Language

A. Noticing it

Begin with the documents around you, that touch your lives, that you work with daily, and that cross your desk on a regular basis. Notice whether they could be helped by Plain Language Principles. Notice whether they are easy on the reader. Look for unnecessary words and phrases. Look for nominalization. Look for what Bryan Garner calls "weasel words." Look for long paragraphs with no discernible topic sentence. Look at document design. Look for white space. Look at typefaces. Especially look for underlining. With the prevalence of bold and italics available on our PCs, there is probably no justification for underlining-ever! Underling is hard to read, and the eyes have to strain. Avoid it!

1. Typeface Selection is the backbone of document design. Serif typefaces (Times New Roman, Bookman, Century Schoolbook) are easier to read than sans serif (Arial, Helvetica, Univers).

2. Type in all capitals is very difficult to read, and readers avoid text in all caps.

3. Research shows that text that is left justified with ragged right margins is easier to read than fully justified to block text. With full justification, the spacing between words is usually uneven from line to line, causing the eye to stop and constantly readjust to the variable spacing on each line.

1. Typeface Selection is the backbone of document design. Serif typefaces (Times New Roman, Bookman, Century Schoolbook) are easier to read than sans serif (Arial, Helvetica, Univers).

2. TYPE IN ALL CAPITALS IS VERY DIFFICULT TO READ, AND READERS AVOID TEXT IN ALL CAPS.

3. Research shows that text that is left justified with ragged right margins is easier to read than fully justified to block text. With full justification, the spacing between words is usually uneven from line to line, causing the eye to stop and constantly readjust to the variable spacing on each line.

B. Talking about it.

Discuss plain language with whoever will listen. As you proofread documents, look for strengthening through plain language principles. Discuss with fellow employees and family members. The more attention is paid to plain language, the more acceptance there will be for it. But sell it seductively, as Ms. Barylo says.

C. Living it

Just an elaboration of B. For example, the members of Legal Secretaries International Inc. have embraced plain language and encourage their law firms and departments to use it. They quickly realized it makes sense. A plain language article appears in almost every publication, and the members adopted a resolution that "We support the use of plain language in legal documents." This is how movements grow.

Another way is to have fun living it. The Canadian Public Health Association, a very strong supporter of the plain language movement, has a "Plain Word Game," available for sale for about $35, and it is it. It consists of a die and cards, much like those used in Trivial Pursuit and other popular word games. On one side are six "hard words" and on the other side are each of their complementary "plain words." Information for ordering is in the back of this seminar booklet.

4. How to Do It: Knowledge Brings Courage

After becoming familiar with all available books and studies on the beneficial effects of plain language, you will have the knowledge that will foster the courage you need. That will help you in spotting examples of bad writing and in making your own more concise.

A. General and business correspondence

(1) Letters requesting action

In the event that your item number B20635 goes on sale within the next six (6) weeks, please be so good as to confirm to me in writing and give me time to purchase it at the same price.

or

Please send me two of item B20635 by December 15, 1997, at $10 or less.

(2) Letters of complaint

I write to voice my utter and total displeasure at being rerouted to Newark when my destination was St. Louis. This action on the part of you and your employees and agents was in callous disregard to my and your other passengers' schedules, and it is not the first time it has happened to me. I demand a refund.

or

Your recent scheduling problems that caused me to spend a night in Newark prevented me from attending a vital meeting in St. Louis. I understand that weather sometimes makes it difficult to service a plane, but you could have given us a choice when we landed at Chicago. I could have taken another airline to St. Louis later that night. I could have driven to St. Louis from Chicago. Instead of being given enough information to make that choice, you took us on to Newark and I was unable to get to St. Louis until 11 a.m., long after my 8:30 meeting had ended and the contract awarded to my competitor.

Had I been awarded that contract, my commission for the sale would have been $5,000. I will settle the matter for $3,000. Please call me.

Notice how the shorter letter is not the most precise one. Length does not always correlate with precision. It's always good to remember that if you are going to complain, you need to be specific, and give suggestions as to how it could have been handled better (so something can be learned from your letter), and tell them exactly what you want. If you take the trouble to write the letter, you should want to do more than just blow off steam.

(3) Letters of reference

This is to recommend Ms. Sue Smith for the position of staff attorney. I have worked with Ms. Smith for several years and have found her to be capable, efficient, and of the highest moral character.

or

I recommend Ms. Sue Smith, who has been an attorney in our firm for six years. Her husband is being transferred to your city, and we will miss her.

While with our firm, she has been responsible for taking depositions in complex business litigation cases, has assisted in four major trials, and has handled two appellate matters on her own. Her skills are those that make a law firm profitable.

Besides her excellent lawyering skills, she exhibits a strong sense of ethics and an excellent character. She will be an asset to any firm in [city]. I will be happy to discuss her further if contacted.

(4) Letters of commendation

On behalf of [company], you are to be commended for your extra efforts resulting in saving our company a great deal of money this past quarter. We want to take this opportunity to thank you and your department and to let you know that you are an example for all to follow.

or

Management thanks and commends you and your department for increasing our third-quarter profits by $20,000. Such improvements are accomplished by team spirit and cooperation in setting and attaining goals.

B. Summaries

(1) Meetings and programs

Look for opportunities to summarize such events, and do so in plain language. Nobody has time to read these days, and the better we can write summaries, the more time we can save for all.

(2) Transcripts of testimony

An everyday need in a law office. Plain language principles are treasured by the lawyers, even if they don't know it. No lawyer has time to read unnecessary words. So make sure that your summaries are not as long as that which you are summarizing (as some deposition summaries I've seen)!

(3) Legal documents

Need I say more than I already have?

C. Court pleadings

My book, Plain Language Pleadings, is devoted to this subject. It is written for those assisting trial lawyers, including legal secretaries, paralegals, and young lawyers. It embraces all the principles we are discussing in this seminar. Some of the worst offenses are in appellate briefs. Here are some examples:

At the time of this malpractice suit, and at all times material to the instant cause,
At all material times,
THE COURT OF APPEALS ERRED IN REVERSING THE TRIAL COURT'S JUDGMENT AND RENDERING JUDGMENT THAT SMITH AND JONES TAKE NOTHING ON THEIR CAUSES OF ACTION FOR INSURER'S NEGLIGENCE AND GROSS NEGLIGENCE IN FAILING TO SETTLE JONES'S CLAIM AGAINST WEBSTER, IN CONTRAVENTION OF INSURER'S STOWERS DUTY.

The court erred in ignoring Insurer's Stowers duty, as found by the jury.
-or-
The court erred in rejecting the jury's finding of Insurer's negligence and gross negligence under Stowers.

THE COURT OF APPEALS ERRED IN HOLDING THAT THE FACT AND EXPERT TESTIMONY THAT JONES'S SETTLEMENT OFFERS WERE NOT CONDITIONAL WAS IRRELEVANT.

The court erred in ignoring evidence that Jones's settlement offers were not conditional.

THE COURT OF APPEALS ERRED IN HOLDING THAT INSURER NEVER HAD A REASONABLE OPPORTUNITY TO ACCEPT JONES'S SETTLEMENT OFFERS AND THAT IT WAS IMPOSSIBLE FOR INSURER TO ACCEPT JONES'S SETTLEMENT OFFERS.

The court erred in ignoring evidence of Insurer's failure to properly handle Jones's offers to settle.

THE COURT OF APPEALS ERRED IN HOLDING THAT THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT THE JURY'S FINDINGS THAT INSURER'S FAILURE TO SETTLE JONES'S CLAIM AGAINST SMITH BREACHED INSURER'S STOWERS DUTY AND CONSTITUTED NEGLIGENCE AND GROSS NEGLIGENCE.

The court erred in holding that the jury's findings were not supported by the evidence.
-or-
The court erred in substituting its own version of the facts for the jury's valid findings.

(1) How this knowledge translates to other documents

By now you can see that the ability to make legal writing more concise and more precise will help in other documents as well. It is a matter of thinking, looking for it, applying the proven principles, and practicing often. For instance, everyday, in every profession, we deal with numbers. Yet most people do not write them correctly. Consider this:

NUMBERS

Plain Language Principles include writing for the reader/audience, so that the writing is easily understood by the reader. As we think on those principles, we should address the subject of numbers. There are rules about numbers, and one of the simplest is the one most often overlooked.

Consider this paragraph, from a recent solicitation letter for the steer auction at the Houston Livestock Show & Rodeo:

The Grand Champion Steer usually sells for more than $250,000.00 with the breed champions (25) selling for $20,000.00 to $40,000.00. The remainder sell for $2,000.00 to $10,000.00. It is truly a unique "happening" that generated over $2,000,000.00 for the Rodeo's Scholarship Fund last year.

At a glance, it is difficult to comprehend if those figures are in the millions or the hundreds of thousands. We can make this much better, simply by deleting those unnecessary ".00" notations at the end of each number. In the Gregg Reference Manual (8th ed.1996), which is the equivalent of a bible with respect to grammatical rules and user-friendly index, Bill Sabin plainly states the rule:

415 It is not necessary to add a decimal point or zeros to a whole dollar amount that occurs in a sentence.

Yet lawyers and their secretaries and other assistants continue to use the "$.00" in narrative text, and never give a thought to whether it is easy for the reader to comprehend. Rewritten with Sabin's Rule 415 in mind, the sentence is much easier to read, is it not?

The Grand Champion Steer usually sells for more than $250,000 with the breed champions (25) selling for $20,000 to $40,000. The remainder sell for $2,000 to $10,000. It is truly a unique "happening" that generated over $2,000,000 for the Rodeo's Scholarship Fund last year.

But plain language principles go even further than do grammatical rules. We should also have some concern for document design and how our message appears on the page to be most easily read and understood. So how about just making it totally easy on the reader:

Examples of sale prices are:

Grand Champion Steer $250,000,000
Breed champions $20,000 to $40,000 each
All others $2,000 to $10,000 each

This unique "happening" generated over $2 million last year for the Rodeo's Scholarship Fund.

Don't overlook the opportunity to use lists. We should look for such opportunities in legal documents as well. Is there a paragraph in your document that is full of numbers, or even phrases, that would be better understood in a table or list format than in run-on sentences? Just some more thoughts for your editing process.

(2) How you can help make lawyers aware

Read the document as if you were the client. Ask the lawyer if the client may be confused by what he reads in the document. Also picture yourself as the judge. Are you convinced immediately? Or do you have to read it several times to understand it? Judges have no more time than lawyers for rereading to try to understand a document. Ask yourself if there is really a reason for the confusing language and structure.

If you work for lawyers, there are many ways to let them know that you have this ability. Once that has been demonstrated to them, they will bring documents to you for a final edit. The best way for you to develop this talent is to work on it. As with any skill: practice, practice, practice!

PLAIN LANGUAGE IS NOT EASY BUT WHEN YOU LEARN IT, IF YOU THINK ABOUT IT, IT'S FUN!

Rhetoric.

I won’t cover any history of rhetoric here, but suffice it to say that the past forty or fifty years has seen a huge surge of interest in rhetoric as a body of theory to help us better understand knowledge, language, persuasion and meaning. Part of the reason for the interest in rhetoric is, following Einstein, Heisenberg, Derrida and others, following what might be termed a rupture in epistemology, often associated with the word postmodernism, there’s been growing interest forms of knowledge that are contingent and probabilistic.

Now this covers vast areas of human endeavour. As Charles Bazerman and others have argued, "even" disciplines such as the hard sciences depend largely on the making and telling of seductive stories, on the creating and disseminating of effective arguments (that is to say, on rhetoric) for their knowledge making. Wherever we deal in reasoning, in the making of propositions and arguments, whenever we examine how people come to believe and know what they do — all this in distinction, but not in opposition, to truth and formal logic — we’re in the realm of rhetoric.

Rhetoric is a slippery word, and for many people, it has pejorative connotations: a posh euphemism for long-winded lies, especially lies told by politicians. These connotations require undoing. I use the word "rhetoric" to mean the study of language that effects, or tries to effect, change. It’s the study of how language discovers, invents, and moves the world.

On a more philosophic note, rhetoric, or what is often called the "new rhetoric":

1) views language as interpenetrating, and at times constituent of knowledge
2) views language as socially bound and binding, as part of a political and ethical context
3) views the individual as a knowledge maker engaged in a dialogic process in a public forum
4) rejects the "windowpane" view of knowledge and the "transfer" model of communication; rather, the new rhetoric sees the reader / listener as an active maker of meaning (not a "sponge" or "receiver") in the communication process

In an essay on "adequate epistemology," John Gage outlines two opposing threads in classical rhetoric, two views of the relationship between knowledge and rhetoric:

One is that rhetoric consists of techniques for successfully communicating ideas which are . . . discovered and tested by means which are prior to or beyond rhetoric itself. [This view] owes an obvious debt to the Sophists, in the sense that it treats persuasion sceptically, as having no bearing on what is finally true. [This is] a view of language use as independent of the means by which knowledge is generated and validated. . . .
The other . . . is to view rhetoric itself as a means of discovering and validating knowledge. The purposeful use of language, in other words, can be seen as what makes knowing possible. This tradition also owes something to the sophistic tradition, namely the idea that language necessarily affects the truths that it is about. From this perspective, rhetoric aims at knowledge, or makes it available. Rather than producing persuasion without reference to truth, rhetoric aims at producing mutual understandings and therefore becomes the basis for inquiry into shareable truths. . . . In this view, rhetoric has knowledge as its goal, rather than operates on knowledge as raw material. (153-154)

Two key phrases:

"Rhetoric aims at knowledge, or makes it available." "Rhetoric aims at producing mutual understandings and therefore becomes the basis for inquiry into shareable truths." Both views of rhetoric have something to offer the plain language practitioner, but I’ll be drawing on the second, more encompassing view.

I first started thinking about ethics and plain language when, as a writing consultant in the Bank of Canada, I read about the 1990 award for "Public Doublespeak," described as a "booby prize" given out by the Canadian Council of Teachers of English. I understand that the prize is no longer given out in Canada, but I believe that similar prizes are made in Britain and the U.S.

In your handouts you’ll find the CCTE Newsletter article that announced the award and that highlighted the "winning" passage, and you’ll find my response.

The passage was taken from the Victoria Times Colonist and concerned the GST (which was then about to be implemented) and its application.

I won’t go into details now, but I’ll summarize three points. I said:

1) that the "winning" passage was not doublespeak, even according to the CCTE’s own definition. If an inserted "GST," in square brackets, were removed, the passage would make sense. I said that the insertion was obviously an error, probably on the part of the reporting journalist, and that the so-called winner was owed an apology by the CCTE Taskforce on Doublespeak;

2) that the rationale for selecting and publicizing such a "winner" was suspect, possibly unethical; the avowed rationale depended entirely on knowing that a piece of discourse is a deliberate lie or at least an attempt to bamboozle. This, it seemed to me, usually required an ability to read minds;

3) that castigating someone in public for the language they use is a serious business, and that it behoves anyone who values common courtesy to be very circumspect in branding others with dunce caps or scarlet letters for alleged language transgressions.

Now, whether I was right or wrong in my analysis, it seems to me that three inferences can be drawn from the article and my reaction, each of which has ethical implications.

One is the problematic nature of plain language itself. I’m not sure we can ever say with certainty that a given piece of discourse is "plain" or "not plain" language. To pretend that we can leads into some troubling situations, exemplified by the Doublespeak awards. Moreover, even if we could agree on what plain language is, and then agree that a given document is, in fact, plain language, we’d have no guarantee that the document is ethical. When we disagree as to whether or not a document is written in plain language, we sometimes attempt to deal with this by saying that it all depends on the audience. The more empirically minded among us might say that testing can determine the degree of plainness, or at least of clarity and comprehension. But when we do this, we’re still sweeping a fair amount under the rug, so to speak, and we’re still reflecting a "windowpane" view of knowledge and a "transfer" view of communication, which rhetoric tells us is at best, naive, at worst, wrong.

The second inference, and related to the first, is the fact that language and power are tied up. As Machiavelli, Bacon, Foucault and others have remarked, language is a means, perhaps the main means, of seeking, demonstrating and exercising power. Problematically, this is not always a bad thing. It’s only human, it would seem to me, to use language to further one’s own ends, and more generally to acquire and exercise power. Better language than arms. The ethical concern is in the ends to which the power is aimed, and in how the power is used.

The third inference is the problematic notion of sincerity in language, always difficult, always thorny, more so now perhaps, in our so-called post-modern world. Sincerity and the idea of sincerity are very important. Among other things, the idea of sincerity attaches truth telling to character and to will. It allows us to conceive of lying, and has a role in our conceptions of irony and sarcasm. "The great enemy of clear language," George Orwell noted, "is insincerity. When there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish squirting out ink." However, in an age when, the making of narratives is a "primary act of mind" (Hardy in Meek et al., 1977), or from another point of view, in an age when Lucien Bouchard can espouse "successive sincerities," identifying sincerity in others would often seem to be beyond our ken.

I’ve used the word "problematic" three times here, and I’m suggesting that plain language practitioners benefit from accepting that much of what they do is not "plain," but complex, riddled with the difficult challenges of dealing with people, power, and language.

I believe, as Wayne Booth and Donald McCloskey and others have pointed out, that all stories, all narratives, carry an ethical burden. It can’t be escaped. As Donald McCloskey points out about economists, we "preach ethics unaware, but have limited [our] imagination in the telling of ethical stories" (1990, 148).

Plain language documents don’t escape the burden of ethics by virtue of "plainness." Public documents constrain choice and incite action; the developers and disseminators of these documents are responsible for, must answer for, these effects.

This point is made eloquently and powerfully in an article in College English called "The Ethic of Expediency: Classical Rhetoric, Technology, and the Holocaust" by Steven Katz. If you haven’t read the article, I commend it to you. Katz says that a document can be reader-centred, written in transparent, plain language, and still be evil.

To make his case, Katz reprints and examines a memo from a Nazi soldier to his superior in June 1942. The memo is "by any formal criteria in technical communication . . . an almost perfect document," by Katz’s assessment. The memo starts with a problem and a clear purpose statement, and in keeping with "the rules of good document design, the memo is divided into three numbered sections that are clearly demarcated by white spaces for easy reading."

The memo proposes three technical improvements for increasing the efficiency of the motorized vans that were used to confine and kill Jews and other "undesirables" in the months before the large-scale death camps of the Final Solution were fully functional. The memo, written by a certain Herr Just, proposes, among other things, to reduce the "load space" of the van, and thus the amount of empty space that must be filled with carbon monoxide. Smaller "load space" would reduce the "operating time," as Just puts it.

Katz makes the point that an "ethic of expediency," which informs most technical writing, stems from an epistemology of objectivity ("insofar as the viewing subject and the viewed object are technical means to some ‘higher’ end"), and vice versa: the notion of objectivity is largely the product of expediency. "In word and act," Mr. Katz tells us, "Hitler created an ethos of expediency to carry out his pogrom for the greater good of Germany." Utilitarianism and faith in technology create and reinforce a culture of expediency which starts as a means to an end, and then becomes the end itself.

One of Katz’s suggestions for mitigating the effects of the ethic of expediency is to recognize "the essentially ethical character of all rhetoric, including our writing theory, pedagogy and practice." This suggestion may strike some as simplistic, but it strikes me as sensible and difficult. As intuitively sensible as it is, there would be some extraordinary implications were we to really take it to heart.

I find an interesting parallel between this suggestion and Donald McCloskey’s plea, at the end of The Rhetoric of Economics, to recognize the essentially rhetorical nature of writing in economics: "Economics has a neurosis, the neurosis of modernism, which a rhetoric of economic inquiry can expose to rational inquiry. . . . [and end up making] economists more self-aware, modest, and tolerant, better in person and profession."

Is this possible? Can simply acknowledging the ethical and the rhetorical dimension of discourse improve the world?

I think so. "What makes a man a ‘sophist’ is not his faculty," Aristotle wrote, "but his moral purpose" (Rhetoric, 1355a39). If, in our plain language work, we fail to acknowledge the deeply moral and rhetorical nature of the documents we deal with — and this requires thinking about the power, social relations and the long chain of consequences set in motion on publication of a document — if we’re not prepared to do that, then we’re not what we pretend to be — informed moral citizens involved in building a better polis — but mere technical assistants in the technopolis, advisors on style and document design, unwitting members of the cult of expediency.

My work as a writing consultant and trainer at the Bank of Canada, as well as my life as a citizen and writer, has led me to try to think a little more deeply about some of the ethical dimensions of consulting in the realm of plain language.

As a consultant, I’ve always been self-conscious, or leery about the presumption involved in telling (or advising) people what to do. This doesn’t mean that I don’t do it; it means that I realize that doing so is problematic and has an ethical dimension. I’ve also seen a fair number of consultants in action, and I’m sometimes puzzled as to their presumptions, both in terms of what I’d call their is and their ought. By "is" I mean the knowledge base, ideology, forms of reasoning, etc. that constitute the ground from which they speak. By "ought" I mean the propositions, suggestions, recommendations, etc. they put on the table.

A few minutes ago, I asked you to swap pens, raise your hands, and you did it. Well I won’t say shame on you. I won’t call you sheep. I will, however, say "shame on me." I was abusing my position as a speaker. I asked you to do something for no good reason, and I used a kind of power that accrues to conference speakers to get you to do it. I even put you into groups and labelled you! And I did all this before I said anything about myself. Shame on me. I was being unethical.

What I ask you to consider, and I hope I’m not stretching it (I don’t think I am, at least not too far) is one aspect of the similarity between my action and how we as plain language practitioners sometimes act. We say do this, don’t do that, but all too often, we don’t do what every professional, every expert must do: introduce ourselves, acknowledge our subjectivity, limit our prescriptions to the scope of our authority, and admit to complexity.

In preparing for this presentation, I scanned a number of Web sites related to plain language and document design, and was struck by how many of documents on the World Wide Web are author-less. No discernible author, and therefore no ethos, the word rhetoric uses to describe the "moral element in character." As Wayne Booth reminds us in The Company We Keep: An Ethics of Fiction, we need to have a sense of the author, as well as a sense of subjectivity in discourse, to know "what kind of company [we’re] keeping." As Donald McCloskey reminds us, the company we keep when we read is important; it affects us for good or bad, just as our mothers told us when we were young about the kids with whom we played.

If it’s important to put "I" or "We" into a document, if it’s important to admit to and display a certain amount of subjectivity, it’s doubly important on the Web. The Web, as they say, is "cyberspace," i.e., nowhere. Messages, even voices often seem to come from nowhere.

The suggestion to put an I or a We into a document is not terribly radical, but using a real first person voice, speaking from inside, from the person, and admitting to subjectivity may be more so. This suggestion follows less from the precepts of document design, where the use of You and We is becoming more common, than (at least loosely) from Richard Coe’s "Better" and "Best" approaches in his "Three Approaches to Plain Language: Better, Best, and Better than Nothing."

For Coe, better than nothing plain language is "text based," and relies on prescriptions (use the active voice, avoid nominalizations, etc.). Better is the reader-oriented approach, which relies on audience analysis, reader-centred design, and testing. Best, according to Coe, is collaborative writing, which engages the reader in the writing process; wherein the "nature and purpose of ‘effective communication’ is negotiated among readers and . . . writers."

The problem with Coe’s idea is that collaborative writing in which the intended audience is involved right from the design stage is not always or even often feasible. When it isn’t feasible, it seems to me that the only ethical thing to do is to have an author, and by that, I mean more than a name. I mean the office of the writer or writers, the context in which the document was written, and the kind of voice that comes from addressing a real You, not just a shorthand You.

I mean the writer admitting to and the writing reflecting a sense of subjectivity, which implies fallibility, the opposite of the certitude, of the Procrustean prescriptivism we so often see in public documents and in Plain Language materials. I also mean a willingness to admit to complexity, which might mean something as simple as putting this at the top of a document: "This document is intended to be a simplification of the subject. Nuances and details have not been captured. For a fuller sense of the subject, please refer to . . ."

In scanning documents and websites related to plain language, I was also struck by the number of prescriptive, acontextual, and even dogmatic lists I saw, such as "Ten Commandments for Plain Language Drafting." One of the reasons for this prescriptivism, absolutism, as well as for authorless writing is, I believe, the influence of deconstruction and its philosophic precursors. The so-called "subject" has been on the retreat for much of this century. One tenet of deconstruction is that the thinking "subject" can’t escape his or her own discursive practices, and therefore is imprinted by them, an object of them. Some academics have declared the Enlightenment notion of the thinking, acting subject, the "engine of liberty and freedom" as dead, "gone from history" (cf. Diggins). Ironically, while much work in deconstruction was motivated by a desire to uncover hidden means of repression, a by-product of deconstruction has been increasing abstraction in much academic language and language attached to culture, and diminishing faith in language’s power to seek, invent, reflect and distill truth.

I’m beginning to think that one way to ensure that Plain Language work has an ethical bearing is to abandon the view, often tacit, of public documents as, to use Chaim Perelman’s terminology, "demonstrating."

Chaim Perelman is a Belgian philosopher who, when asked to write a book on justice at the end of the Second World War, was struck by the limitations of logic, or formal reasoning. He read widely in the areas of ethics, politics and the law. He concluded that rhetoric, "conceived as a theory of persuasive discourse which stressed argument constituted the key for opening the door on values."

Perelman distinguishes between two types of discourse and reasoning: "demonstration" and "argumentation." A demonstration, associated with Aristotle’s analytic reasoning, or formal logic, is "a calculation made in accordance with rules that have been laid down beforehand." The demonstration is "correct" if it conforms to a set of rules and incorrect if it doesn’t. A "conclusion is held to be demonstrated if it can be reached by means of a series of correct operations starting from premises accepted as axioms."

Argumentation, by contrast, is associated with Aristotle’s dialectic reasoning, and aims "at modifying an existing state of affairs." It "presupposes a meeting of minds," and it presupposes choice, agency and power on the part of the reader / listener. It is useful, perhaps crucial, wherever "practical reasoning" is required (e.g., politics, economics, ethics, etc.) and wherever people do not agree on "first principles or definitions."

To be successful, of course, argumentation requires an acceptance that one is speaking with contingent, as opposed to absolute authority, that one is speaking to an audience of people who also have contingent authority and freedom of action, and that one is dealing with the probable, as opposed to the logical.

I sometimes think that we North Americans are afraid of argument. Certainly we’re not as used to bald opinion and point-of-view writing as are Europeans. I think that part of the problem is that we have press, radio and TV that purport to deliver something that is, in fact, rarely found in speaking or writing: so-called "objectivity." I think of objectivity as an informing notion, or goal, rather than an actual characteristic of most writing.

I think that most writing, or at least most writing worth reading is "biased." How could it be otherwise? Writing has to be engaged, to speak from somewhere: from a human soul, from an individual's experience.

Opinions are useful, I think. Opinionated writing, if you'll pardon the redundancy in that phrase, is a form of "knowledge in the making." The wonderful phrase is John Milton's: "Where there is much desire to learn, there . . . will be much arguing, much writing, many opinions; for opinion in good men is but knowledge in the making." We come to know what we know, often, by believing and opining first. Then too, we could look at the other side of a document, the reader: "The reader deserves an honest opinion. If he doesn't deserve it, give it to him anyway." That's from John Ciardi, and might serve as a motto for anyone engaged in the business of consulting in Plain Language.

It seems to me that where many public documents fail – and this is where ethical concerns come in – is in pretending to be demonstrations, when in fact they are arguments. For example, guidelines that masquerade as policy, suggestions that are called "commandments," "findings" or "conclusions" that pretend to truth as opposed to opinion or reasoned interpretation, are all arguments dressed up as demonstrations. Teaching materials are, for the most part, arguments, and should plead, suggest, inveigle, make a case, but all too often, their structure and voice are of demonstrations.

When arguments masquerade as demonstrations, the result can be resistance and cynicism (think of some of the more strident anti-marijuana propaganda), it can be confusion or miscommunication (consider a unilateral declaration of independence in Quebec; consider the first broadcast of War of the Worlds), and it can be terrible, docile acceptance by an authority-accepting population (consider a variety of material from The Protocols of the Elders of Zion to pseudo-scientific diet books).

In other words, dressing arguments up as demonstrations has ethical implications. In any demonstration, expediency increases in importance; audience becomes an abstraction and subordinate to the "truth" demonstrated; and the author tends to become a mouthpiece, a messenger from God, unapproachable, unanswerable.

On the other hand, viewing public documents such as instructional materials, announcements, and reports as "arguments" helps to ensure that they are ethical, aimed at "producing mutual understandings and therefore . . . the basis for inquiry into shareable truths."

1. Be sceptical of the "windowpane" view of knowledge and the "transfer" model of communication. Acknowledge the rhetorical nature of public documents. Ask yourself if what might be deemed to be (and thus planned and developed) as a "demonstration" might better be thought of as an "argument."

2. Acknowledge the ethical implications of working in Plain Language. Acknowledge the power inherent in and sought by language, as well as the unequal distribution of social and political power and language facility.

3. Acknowledge the problematic nature of plain language: what it is, what its limits are. Admit to complexity.

4. Contextualize expertise. In working as a consultant, tell your client what kind of expertise you’re drawing on, its methods, assumptions and limitations. Don’t be afraid of opinions. Admit to subjectivity.

5. Be prepared to question and advise on deep rhetorical matters (genre, content, structure) and ethical matters (ethos, the nature of the implied audience, propositions and their possible consequences, and the power relationship implied between writer and audience), not just on surface matters of style and format.

6. Use I or We. In any document that may be read unattached to its author, say who you are, describe your office and/or capacity, and note any context that could help locate the writer and the document for a distant reader.

7. Define You. Where useful in public documents, e.g., training materials, online documents, Web sites, define the audience.

That’s the end of my prepared remarks. I’d like to stress that I think of everything I’ve said as an argument, the early elements of an argument, really, as I’m still refining my thinking in this domain. If any of you would like to keep up a conversation with me after the conference, I’d be happy to set up an e-mail discussion group. I’d be happy to get substantive feedback on my remarks as well, with a view to helping me revise the paper.

There are a number of ways that we can continue in the allotted time. I’d be happy to respond to questions; I’d be even more happy to hear about the your thoughts on the ethical circumstances of your plain language work.

What is Plain Language?

"Plain language" means providing people with information that they can easily understand. It uses direct, simple, familiar terms, but is not simplistic and does not talk down to the reader. Plain language presents clearly organized material in a design that makes the information easily accessible.

Plain language draws on expertise from at least five fields: government communications, educational editing, literacy training, graphic design, and market research.

Government communications departments are expert at finding out what the people responsible for a document want the document to say.

Educational editors have developed various ways of measuring how much education is needed to be able to read a document.

Literacy instructors have a unique awareness of how documents can confuse, insult, or just plain bore readers.

Designers know which typefaces are the most readable and how a well-designed document leads the reader's eyes around a page so that the design elements are seen in the right order and are easily understood.

Market researchers have developed techniques for evaluating the effectiveness of advertising that are equally valuable when applied to documents.

All of these fields of knowledge supplement the stock-in-trade of writers and editors: the various techniques involved in writing clearly.

Plain language is of particular concern to writers and editors. Although this paper is addressed primarily to writers, the approach we outline will also interest editors and anyone else responsible for producing documents that are easy to read.

The Message

The first step in any plain language writing project is to get a really clear answer to one question: what message is the document trying to communicate? Obviously, any document contains more than one idea, but each piece of writing should have some central unifying concept.

Step 1: Make sure you know the message.

For example, the message of this paper is, "there is more to communicating clearly than just writing well." As two individuals writing on our own behalf, that is easy for us to say. It’s our paper, and we have a clear idea of what we want it to say.

Some writers are in a much more difficult position: they are writing on behalf of a group of people. How do you find out just what the message is when you are writing for someone else? The first step, obviously, is to talk to the people: not just casual chats at the coffee machine, but careful interviews to find out exactly what each person with a stake in the project thinks. You will usually find that each person has a different view. The people will sometimes disagree on every possible aspect of the project.

The writer must resolve these disputes before proceeding. A lot of the work of writing is diplomacy: representing one person’s viewpoint to another person, so that the two can understand each other and come to an accommodation. In trying to clarify the message, you may find that in fact your organization cannot agree on what the message is (in which case you can give up and go on to the next project), or that there are several different messages (in which case you should consider preparing more than one publication).

The Audience

Once you know what you want to say, you should think about who you want to reach with the message. What do they already know? What is the best way to reach them?

Step 2: Define your audience.

The audience for this workshop is "people who would like to communicate more clearly". Your audience could be anything from "teenagers living in Montana" to "students specializing in the work of Kierkegaard" to "people running gravel pits in Ontario."

Step 3: Find out what the audience already knows.

The most difficult part of writing clearly can be deciding what your audience already knows. Although some tests will tell you what the average reader will understand they will not tell you what the readers already know, and what they want to find out.

The Format

You’ve clarified your message and decided on your audience. The next step is to ensure as many members of that audience hear the message as possible.

Step 4: Choose the medium that will reach the largest percentage of your target audience at the lowest per-capita cost.

What is the best way to do this? There are many possibilities: a brochure distributed through high schools, posters in local malls, advertising (TV, radio, newspapers, magazines), bumper stickers, and so on. Which one you choose will depend on such factors as the complexity of your message, the ability of each medium to reach your intended audience, the credibility of each medium, and the comparative cost.

Design

Step 5: Prepare a design that conveys your message.

You’ve decided on a format, but how will the finished product look? What kind of paper, what colours, what typeface? (If you are using a professional designer, which you should if you can, the designer should be included in any discussions of format, and later discussions on how the material will be organized.)No matter how well they are written, some documents are difficult to read because of choice of page layout, type style or size, or even such simple matters as line length. Designers usually claim that serif fonts are the easiest to read, and that the most comfortable line length is from 55 to 75 characters.

The preceding paragraph shows just how hard it can be to read text where typeface, font size, and line length have been ignored. Other pitfalls include using too many type styles, using colours that are difficult to read, or having the text on a dark background.

All elements of the design have to work together to make the document easy to read. Design has another basic role in reaching the audience: it must be attractive to them. Readers can be put off by the design in many different ways: a document can look too bureaucratic, expensive, chintzy, dull, ugly, or irrelevant.

Organizing Your Information

Step 6: Organize your information to make it as accessible as possible.

You are clear on the message you want to convey. You know whom you are trying to reach, and what they already know. You have decided on a format and some preliminary work has been done on the design. The next step is to organize the information in an order that makes it as easy to understand as possible. This sounds really simple, but it is where most plain language projects go off the rails.

Step 7: Put your information in a logical order.

There are three parts to organizing information. Many documents are just plain illogical. The manual for a recently released software package came with a note: "The terms used in Chapter 5 are defined in Chapter 8, so please read Chapter 8 before Chapter 5." How many befuddled users had to call the company before they put that note in the manual? How many more gave up on the program in exasperation?

Step 8: Make sure your readers can find things easily.

Many documents contain all the information the reader wants, but squirrel it away in obscure places. Think of the document as an office building, with some information on open display in the lobby, some in the different rooms, and some tucked away in closets. Some architects use the concept of "wayfinding", which means using signs, colors and symbols to help people find their way around buildings. Documents also need wayfinding, which can be done in many different ways:

Step 9: Make sure it’s interesting.

The third element of organization is the reader's interest level. Something may be clearly written and well organized, but it will lose the reader's attention if it is boring or difficult to read. The various techniques fiction writers use to making their work interesting can easily be adopted for plain language documents as well.

Graphics

Step 10: Decide which information should be presented graphically.

If you really think a picture is worth a thousand words, your writing is too verbose. But graphics are much better than words at presenting some kinds of information. Some people also find it easier to understand ideas if they are presented graphically.

Many writers and designers love to use figures, tables, flowcharts, cartoons, drawings, photographs, and artwork, even where they are inappropriate. Graphic elements should serve one of three functions: providing information, wayfinding, or entertainment. The decision on where to put artwork should be made in the context of one of those purposes.

Writing (Finally!)

Step 11: Sit down and write the thing!

At this point, it might seem that you have done most of the work. You’ve gathered your material and organized it so it is logical, so readers can find things and won’t be bored. If you’ve been working on a computer, you probably have a detailed outline prepared. If you’ve been using a notepad, you have a well-organized file. Either way, you probably have some bits that are well fleshed out, and other parts that are short notes (such as "explain terms here").

But we find it most effective to leave the actual writing until we have all of the information and have a very clear idea of how we will organize it. Then we expand each part, putting in everything that seems relevant. Once we’ve dumped it all down, we go through, reorganizing, cutting out unnecessary information, tightening up each sentence, and trying to gauge just where we might be boring the readers.

Here are ten ways to polish your writing:

Check the Reading Level

Step 12: Make sure the intended audience will be able to understand it.

Educational editing has provided us with an essential concept: reading level. No matter how carefully edited and beautifully written, a document will fail in its fundamental task if the intended readers cannot understand it.

How do we measure reading level? The Fog Index, used in educational editing, is the best-known and easiest tool to use. The index is calculated using a 100-word sample of the written material, and gives a number that indicates the number of years of education needed to understand a passage.

If you have to measure reading level manually, the Fog is the way to go. Computer grammar checkers let you use more complex and accurate measures like the Flesch-Kincaid Index, which is more reliable than the Fog because it is calculated on the whole document rather than a sample.

So you use the Fog Index and find that your booklet aimed at teenagers has a reading level of 27.3. What do you do to fix the problem? Well, the Index is measuring sentence length and long words. To improve the readability, shorten the sentences and choose simpler words.

Jargon

Step 13: Check that any jargon is being used properly.

A difficult challenge facing writers is how to present complex, technical material. The task becomes much simpler when you think of it in terms of the readers. How much do the readers already know about the subject? You do not have to spend time defining terms that readers already know, or explaining concepts they will find familiar.

One way of easing communications for a knowledgeable audience is to use jargon. Alas, using jargon is also the surest way of losing an audience that is not familiar with it. Used properly, jargon functions as a communications shortcut. "Fog" is communications jargon, and "what's that report's Fog Index?" is a perfectly acceptable question if both the speaker and the listener know what a Fog is. If the listener cannot reasonably be expected to know what a Fog Index is, the use of jargon impedes communication.

When confronted with jargon, ask yourself two questions:

Voice

Step 14: Listen to the document’s voice. Ensure that it is not patronizing or hectoring.

A particular problem with plain language is that, if it is done clumsily, it sounds patronizing. The words may be easy to understand but the tone is all wrong. Be careful not to talk down to the reader.

Different kinds of publications require different writing styles. Books, magazines, brochures, forms, reports, and newsletters all have different voices. When you ask a friend about the details of an auto accident over lunch, you will use very different language than an insurance company form will use, although you are probably asking for similar information. Although the voices required by different types of writing vary, the language chosen must remain clear and comprehensible.

Checking Your Assumptions

"When I started working with retardates several years ago, I thought it would be dismal." — Dr. Oliver Sacks

"The Jews and Arabs should settle their dispute in the true spirit of Christian charity." — U.S. Senator Alexander Wiley

"Italians come to ruin most generally in three ways — women, gambling and farming. My family chose the slowest one." — Pope John XXIII. Although none of these three quotes is intended to offend readers, each of them will. Writing that offends readers does not communicate clearly, unless giving offence is the intention.

Step 15: Check that you are only offending people you intend to offend.

Most writers today are aware of the "traditional" biases, such as racism and sexism. But there are more subtle problems as well. Always portraying old people as confused, or evangelists as greedy, is as offensive to some readers as using racial epithets. You should also watch out for such common but horrible terms as "paddy wagon" (which means a vehicle for carting away drunken Irishmen).

Consistency and Clarity

Step 16: When you’re happy with it, send it off to an editor.

Much of what passes for plain language does not work because it ignores the most basic rules of copy editing. Spelling and grammar are often inconsistent or just plain wrong. Information in one part of the manuscript contradicts material that has come earlier. Terms are defined in one place and used differently elsewhere. Tables and figures are incomplete, inconsistent, or just plain confusing. Metric and imperial measurements are used interchangeably. And so on.

It is not possible to effectively edit your own writing. Make sure that a competent editor is part of the process. All writers need to have their work read over at several stages. Book editors have defined four stages of review:

The Reality Check

This paper started its life as a book proposal (watch for the book in 1998!). When I first sent the proposal to a publisher, he sent it back, telling me, "the first part is fine, but the second half gets too technical. You’ve aimed it too much at people already in the field, and forgotten that most of your readers will be less-specialized writers." Oops!

Presumably some readers will note errors in this paper, point out omissions, ask for more detail on some topics, or take exception to what we’ve said. Some of it will go out of date. Eventually, we’ll find the energy to prepare a revised edition.

Step 17: After the document is out, keep track of how effectively it is communicating its message to its audience.

This is a natural part of the process. Even when your work is in the readers' hands, the project is not necessarily done. You should keep track to see whether the document is meeting its objectives. Is it reaching all of the intended readers? Are they reading it? Are they understanding it? Once you have the answers to these questions, you may find that it is time to start all over again.