Answering the Critics of Plain Language
by Joseph Kimble
Contents
Introduction
The Old Criticism
- Plain language is not anti-literary,
anti-intellectual, unsophisticated, drab, ugly, babyish, or
base.
- Most of the time, clarity and precision are
complementary goals.
The New Criticism
- There is long-standing evidence that plain
language improves comprehension.
- Plain language involves much more than just
plain words and short sentences.
- The plain-language movement definitely
recommends testing documents on readers whenever
possible.
- When testing is not possible, plain language
is more likely to be understood and appreciated than traditional
legal writing.
- Ultimately, you must use plain language to
write clearly.
- Plain language would reduce litigation by
preventing the unnecessary confusion that traditional legal
writing produces.
Appendix
- Script for the Testing
- Example of a Before-and-After Provision
and a Question
Footnotes
[This article is from Volume 5 of The Scribes Journal of
Legal Writing (1994-1995). If you would like a copy
(or copies) of the article, e-mail professor Kimble at kimblej@cooley.edu or write
to him at Thomas Cooley Law School, Box 13038, Lansing MI
48901. Please include your mailing address.]
The price that any movement pays for even modest
success is that critics emerge. Critics can be healthy for a
movement. They can correct error, temper excesses, and prompt the
kind of reflection that deepens understanding. So it's
probably a sign of progress that there is debate about the
movement for plain legal language.
Still, some of the criticism has become stale and
should at last be put to rest. The old criticism is, in essence,
that we either should not or cannot write in plain language:
should not, because it debases the language; and cannot, because
of the overriding demands of precision. I have looked at these
misconceptions elsewhere.(1) So
have other writers.(2) But since
the old misconceptions linger, I'll try to dispel them again
here.
Meanwhile, there's a new criticism that
deserves a longer look. The new criticism is, in essence, that
plain language doesn't matter: its approach to communication
is too narrow, and there is no empirical evidence that it
improves comprehension. These are serious criticisms, and to
explain why they are mistaken will require some exploring.
The old criticism of plain language has come mainly
from within the legal profession. Again, these critics say that
plain-language advocates want baby talk or a drab, simplified
version of English. (I hear it from some of my own colleagues.)
Either that, or the critics argue that the need to express
complex ideas precisely makes plain language impossible.(3)
One last stab at the old criticism:
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. In his ground-breaking book, David Mellinkoff
describes it as wordy, unclear, pompous, and dull.(4) Lawrence Friedman agrees:
"The fact is that legal writing, as it pours out of
thousands of word-processors, is overblown yet timid,
homogeneous, and swaddled in obscurity. The legal academy is
positively inimical to spare, decent writing." (5) John Lindsey adds that lawbooks
are "the largest body of poorly written literature ever
created by the human race."(6) Of course, the law has had its
share of fine stylists; but it has been overwhelmed by legalese.
And the costs must be enormous.(7)
The heritage of plain English is just the opposite,
as Bryan Garner explains: "It is the language of the King
James Version of the Bible, and it has a long literary tradition
in the so-called Attic style of writing."(8) 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."(9)
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.
The title of a recent law-review article perfectly
captures the stubborn myth that precision is incompatible with
plain (or clear) language: "Should the Main Goal of
Statutory Drafting Be Accuracy or Clarity?"(10) The truth is that drafters
usually do not have to choose between one or the other: "the
instances of actual conflict are much rarer than lawyers often
suppose."(11) What's
more, by aiming for both, the drafter will usually improve
both:
The purposes of legislation are most likely to be
expressed and communicated successfully by the drafter who is
ardently concerned to write clearly and to be intelligible. The
obligation to be intelligible, to convey the intended meaning so
that it is comprehensible and easily understood, . . . requires
the unremitting pursuit of clarity by drafters. Clarity .
. . requires simplicity and precision.
The blind pursuit of precision will inevitably lead to
complexity; and complexity is a definite step along the way to
obscurity.(12)
Typically, the critics argue their case by offering
definitions of technical terms, like standardized valuation
per person and motor fuel.(13) This argument is not
convincing. Plain-language advocates have said repeatedly that
technical terms and terms of art are sometimes necessary, and
that some legal ideas can be stated only so simply. But technical
terms and terms of art are only a small part of any legal
document -- less than 3% in one study.(14) This hardly puts a damper on
plain language.
Nor is it any real criticism that occasionally a
plain-language version might miss a point or make a mistake. Here
is what the Law Reform Commission of Victoria said about one of
their projects:
If some detail has been missed, it could readily be
included without affecting the style of the plain English
version. It would not be necessary to resort to the convoluted
and repetitious style of the original, nor to introduce the
unnecessary concepts which it contains. Any errors in the plain
English version are the result of difficulties of translation,
particularly difficulties in understanding the original version.
They are not inherent in plain English itself. Ideally, of
course, plain English should not involve a translation. It should
be written from the beginning.(15)
What is the point, after all, of being precise but
unclear? The result is what Robert Benson calls
"unintelligible precision."(16) It makes about as much sense as
precise mud. And besides, this whole debate assumes that
traditional legal writing is precise to begin with -- a dubious
assumption.(17)
Of course, legal writers must aim for precision.
But plain language is an ally in that cause, not an enemy. Plain
language lays bare the ambiguities and uncertainties and
conflicts that traditional style tends to hide. At the same time,
the process of revising into plain language will often reveal all
kinds of unnecessary detail.(18) In short, you are bound to improve the substance -- even
difficult substance -- if you give it to someone who is devoted
to being intelligible.
One critic who downplays intelligibility makes
these two revealing statements -- one of them cavalier and the
other one insular:
If [legislative drafters] write a statute that is not
rapidly comprehensible but fulfills the requester's intent,
they have done their job, although they will slow down readers,
which is a trivial consideration.(19)
[L]egislative drafters will get help in advancing
their art from advocates of focusing on accuracy, not from
advocates of focusing on clarity. . . . Also, major help will
come not from academics, who not only are likely to be wedded to
the plain-language school but also have insufficient knowledge of
the exigencies of drafting, but from professional legislative
drafters. It is time for drafters to fill the vacuum into which
the academics have rushed, to take responsibility for developing
their own art.(20)
First of all, many of the academics who support plain language
have done a good deal of legislative drafting.
Second, the vast majority of plain-language
advocates are not academics at all. They are lawyers who draft
legal documents for a living, under pressure. The proof is in the
membership list of Clarity, an international organization that
studies and promotes plain language.(21)
Third, the author -- like many other critics of
plain language -- seems to be unaware of the plain-language
literature and the extent of plain-language activities around the
world. The argument that it can't be done, or done
accurately, is answered by the fact that it is being done, by
people with the will and the skill to do it. Here are some
examples that involve legislative drafting alone (if only more of
them were from the United States!):
|
In Australia, the Law Reform Commission of Victoria redrafted
Victoria's complex Takeovers Code. They cut it by almost
half. And the redraft was checked and rechecked for accuracy by
substantive experts.(22) |
|
The Parliamentary Counsel of Queensland and of New South
Wales have publicly endorsed a plain-language style of
drafting.(23) |
|
A Commonwealth Inquiry into Legislative Drafting released a
report saying that "the plain English style developed by the
drafting agencies since the mid-1980s has made new Commonwealth
legislation much easier to understand."(24) The report sets out a series of
recommendations to further improve the process and style of
legislative drafting. |
|
Recently, the organization that represents all Australian
road authorities drafted a proposed new set of uniform national
road laws. They are "written in plain English to make them
easy to understand."(25) They come complete with colored diagrams. And they have been
approved by the Office of Legislative Drafting (the Commonwealth
agency that writes regulations), which was involved in the
drafting. |
|
In New Zealand, the New Zealand Law Commission has endorsed a
plainer style of legislative drafting.(26) |
|
Also in New Zealand, the government is rewriting the Income
Tax Act. The new act will be written in plain language --
including everything from a better structure to the use of
formulas, tables, and flowcharts -- as a way to save
administrative costs and compliance costs.(27) |
|
In South Africa, the Ministry of Justice is starting a drive
to write laws and government forms in plain language -- as part
of a commitment to democracy and access to justice.(28) |
|
In Sweden, the Ministry of Justice has a Division for Legal
and Linguistic Draft Revision, consisting of lawyers and
linguists. This division reviews all draft statutes and converts
them into plain Swedish, advises committees that are working on
redrafting projects, gives training seminars for drafters, and
prepares influential models and guidelines.(29) |
|
In England, Martin Cutts, a writing consultant, redesigned
and rewrote an act of Parliament, the Timeshare Act 1992. He cut
it by about 25% and improved the comprehensibility.(30) |
|
In Canada, several federal agencies have created a
partnership to develop a process for drafting in plain language.
As part of a pilot project, they redrafted the Consumer Fireworks
Regulations, consulted with typical users about the redraft,
tested it on typical users, and then revised it. They concluded
that although this process might involve some short-term costs,
it would produce a number of long-term benefits and savings.(31) |
|
In the United States, the federal rules of civil procedure,
criminal procedure, and appellate procedure are now being drafted
according to plain-language principles.(32) |
|
Back in Australia, a four-member task force, including a
legislative drafter and a plain-language expert, has rewritten
part of Australia's Corporations Law under an express mandate
to simplify it. Among many other things, their new version cuts
one main section from 15,000 words to 2,000 words, eliminates
many unnecessary requirements, and redesigns and reorganizes the
entire text for easier access. Throughout the process, the
various drafts were tested (23 testing sessions) on a wide range
of potential users. And the proposed bill was submitted for
public comment before it was introduced.(33) |
Note the last item. What a revolutionary way to
draft major legislation.
The time has passed, you'd think, when
legislative drafters should argue that their only audience -- or
even primary audience -- is the legislator who requests a law or
the judge who may interpret it. What about those who have to read
it because they are directly affected, such as administrators and
professional groups? What about citizens who might wish to read
it because it affects their lives? Do we discount them as merely
secondary or as incapable of delving into such priestly
matters?
The better view is expressed by the Parliamentary
Counsel of New South Wales: "The ordinary person of ordinary
intelligence and education [should] have a reasonable expectation
of understanding . . . legislation and of getting the answers to
the questions he or she has. This is of critical
importance."(34) Certainly,
we have to recognize the political and employment realities that
drafters face. Yet we can fairly ask them to be informed and
open-minded and to consider what steps they could take together
to begin changing old attitudes about in-group drafting.
Let me sum up the debate over the old criticism with an
exchange of letters (one of them mine) that appeared not long ago
in the Michigan Bar Journal. (35)
To the Editor:
Andrew Tierman's article [in an earlier issue] was the
most refreshing piece I have read in years. I, as he, believe
that the Plain English Jihad has marched beyond removing archaic
usage to militarily enforcing politically correct "bad
English."
I was dismayed in a recent negotiation when attorneys for a
major company refused to properly use the possessive form of
their own company's name. This dumbing down made the
documents more difficult to understand with no apparent benefit
(except to illiterate document drafters).
English has and will continue to evolve, but it will suffer if
zealots forbid the use of its flavor and precision. I do not look
forward to a day of bland, two-syllable words and five-word
sentences. |
To the Editor:
I can't let pass the letter from [X] in the September
issue of the Bar Journal. He sets a new record for
distorting the plain-language movement.
What's discouraging is that we have addressed
these criticisms so many times.
|
Plain language has nothing to do with political
correctness. |
|
Plain language has nothing to do with enforcing what Mr. [X]
calls "bad English." What a strange notion. And in the
example he uses, he is wrong to suggest that company names always
require the possessive form. Sabin, The Gregg Reference
Manual (7th ed), § 640, p 154. |
|
We do not "forbid the use of flavor and precision."
Of course not. On the other hand, we don't find much flavor
or precision in "Further affiant sayeth not." With all
the talk about flavor and precision, you might think there's
a lot of it around. But see Garner, A Dictionary of Modern
Legal Usage, "The Myth of Precision," p 369. |
|
We do not insist on "two-syllable words and five-word
sentences." Rather, the guidelines that we suggest are
flexible and varied; they range over planning, design,
organization, sentences, words, and testing. See Kimble, Plain English: A Charter for Clear Writing, 71 Mich B J
1190, 1192 (November 1992). We do think that good legal writers
are moving toward a simpler, more direct style -- and away from
the archaic, turgid, obscure writing that has brought criticism
on our profession for centuries. |
|
There is strong evidence that traditional legal writing does
not communicate well; that plain language improves understanding;
that readers -- including judges and lawyers Â- prefer
plain language and prefer it overwhelmingly; and that plain
language saves time and money. Id., pp 1304-1305
(December 1992). |
|
There are many demonstration projects showing that legal
documents, even complex ones, can be written in plain language
without a loss of accuracy or precision. |
|
Change is hard -- especially when it has to keep overcoming
myths and misconceptions.
The new criticism of plain language comes mainly from outside
the legal profession. Robyn Penman, from the Communication
Research Institute of Australia, argues that there is no hard
evidence that plain language improves comprehension; that
plain-language advocates tend toward a narrow, text-based
(instead of reader-based) approach to communication; that the
only way to be sure whether readers understand a document is to
test it on the readers; and that plain language will not reduce
litigation because the very essence of law is interpreting
words.(36)
My response to Penman and the new criticism:
|
Some of the pioneering research into plain language was done
by the Document Design Center (now the Information Design Center)
of the American Institutes for Research, in Washington, D.C.
Among its early publications, in 1981, was Guidelines
for Document Designers, by Daniel Felker, Janice
Redish, and others. This book set out 25 guidelines for clearer
communication, and each one included references to the supporting
research. |
|
In a study of jury instructions that were presented to jurors
orally, the plain-language versions improved comprehension from
45% to 59%, for an improvement of about 31% over the original.(37) |
|
In another study of some of the same instructions, but this
time given orally and in writing, readers understood the
plain-language versions "almost fully." (38) |
|
In still another study of jury instructions -- two different
sets -- plain language improved the level of comprehension from
51% and 65% to 80% on both sets.(39) |
|
In a study of medical-consent forms, readers of the original
form were able to correctly answer 2.36 questions out of 5; on
the revised form, they could answer 4.52 questions out of 5, for
an improvement of 91%. In addition, the mean response time
improved from 2.65 minutes to 1.64 minutes.(40) |
|
In a study of legislation by the Law Reform Commission of
Victoria, lawyers and law students comprehended plain-language
versions of the legislation in half to a third of the mean time
needed to comprehend the original versions.(41) |
|
In a study of four different legal documents, plain-language
techniques reduced the number of reader errors on three of them
by about half. On the fourth document, an insurance policy,
errors increased. But after further study and revision, including
the use of examples (which plain-language experts have long
recommended), readers made fewer errors on the insurance policy
as well.(42) |
|
In another study of various legal documents, plain language
improved comprehension by 140%, from 15% to 36%, in one test; and
by 31%, from 50.5% to 66%, in another test.(43) |
|
In a study of a mortgage by the Centre for Plain Legal
Language at the University of Sydney, law graduates improved
their accuracy on the plain-language version by 15%, from 66% to
76%.(44) |
|
In a new study involving the Centre, the authors collected
data on several forms, including an application for divorce. For
persons who filled it out themselves, their completion rate
increased from 52% to 67% on the plain-language version; the
number of applications rejected because of errors fell from 42%
to 8%; and the average number of errors fell from 1.74 to .14.(45) |
|
In a study of an office manual concerning an insurance
product, staff members were given a fixed time to answer
questions using the original manual and a plain-language version.
On the original version, they averaged 3.2 questions right; on
the plain-language version, they averaged 6.6 questions right,
for an improvement of 106%.(46) |
|
In his study of legislation, Martin Cutts tested his Clearer
Timeshare Act 1993 on superior law students. Their overall
performance on 12 questions improved slightly, from 87% correct
to 91%. But on one question, central to understanding the scope
of the act, they improved from 48% correct to 94%.(47) |
|
In a 1980 study of an administrative rule by the Document
Design Center, inexperienced readers of the original rule got an
average of 8.54 questions right out of 20; on the plain-language
version, they got an average of 17.26 questions right, for an
improvement of 102%. Even experienced readers of the rule
improved by 29%. In addition, the average response time improved
from 2.97 minutes to 1.62 minutes.(48) |
|
In a recent study of a tax form by the Document Design
Center, the percentage of users who performed well on the revised
form increased from 10% to 55%, for an improvement of 450%.(49) |
You'll notice that in some of these studies the
level of comprehension remained lower than the revisers might
have hoped. That serves to remind us: revising documents is
difficult work involving many variables, there are limits to the
level of comprehension we can expect with legal documents, and we
still have a lot to learn.
But the fact remains that there is evidence to show that plain language
improves comprehension. What's more, it is a substantial gain to move from 10%
to 55%, or from 51% to 80%, or even from 50% to 66%. Finally,
what no study can easily measure is motivation -- that is, the
number of readers who don't even try to understand, say, a
traditional mortgage because they can tell in one look that they
don't stand a chance.
The new critics flirt with distortion when they
characterize plain language.
First, they distinguish between a "text-based
approach" to plain language and a "reader-oriented
approach." (50) The
text-based approach, they say, relies merely on language -- words
and sentences. The reader-oriented approach relies on testing
readers to make sure that they understand and can use the
document.
Then the critics make all the old arguments against
text-based guidelines: long sentences can be managed; there can
be good reasons to use the passive voice; shorter does not always
mean clearer; readability formulas are only a rough measuring
device; and so on.(51)
But these are all nonissues. Every reputable book
on plain language recognizes, for instance, the good uses of the
passive voice.(52) The language
guidelines, the ones for words and sentences, are just that --
guidelines, not inflexible rules. And guidelines are not only
useful to writers, but essential to the writing process. All
writers use guidelines, whether they realize it or not -- either
explicit guidelines or ones they have internalized.(53)
The important point is that plain language cannot
be confined to a "text-based approach." In one
breath, the critics seem to acknowledge this;(54) but in another breath, they
speak of "the typical text-based claims of the plain English
movement" and "the basic, text-based tenets of the
plain-language movement." (55) Unfortunately, they are
ignoring the overwhelming weight of the plain-language
literature.
It's true, of course, that not every voice in
the choir sounds exactly the same; that some articles and
advocates are more narrowly focused than others; and that casual
observers, including many lawyers, still think of plain language
as all about vocabulary, or getting rid of archaic words and
complex verbiage. It's also true that the very term
"plain language" lends itself to a narrow
interpretation. But that interpretation is not accurate, not if
you listen to the full choir.
Once more: the plain-language movement should not
be identified with one approach as opposed to another. We have
learned from the commentators and researchers, from our own
research, and from our work in rewriting documents. And in any
number of books and articles, we have set out dozens of
guidelines for plain language -- guidelines that range over
planning, design, organization, sentences, words, and testing.(56)
In addition, we recognize that the guidelines may
vary according to the intended readers and how they will use the
document. So for documents that organizations or the larger
public will use, plain language involves -- ideally -- a process
of developing the documents to meet the users' needs.(57)
This is another nonissue. The new critics proclaim
that "[a] proper reader-oriented approach would test the
actual documents on potential readers and modify the documents
accordingly." (58) But
again, the plain-language literature is strongly on the side of
testing.(59) The Document Design
Center has been stressing it for 15 years.(60) The Plain English Campaign, in
England, has also been involved in testing for years.(61)
Now there's more to say about testing documents
than I can say here, and more to know about it than anybody knows
today. It is a field of its own, with a growing literature.(62)
The results of testing will obviously depend on
many variables: the type of test, the complexity of the subject,
the experience and ability of the readers, the skill of the
writer or reviser, and more. And almost by definition, the degree
of improvement on a revised document will depend on how well the
original scores: the higher the results, the less room there is
for improvement. Finally, because there are limits to the level of
comprehension we can expect with legal documents, our goals must
be reasonable.
Consider, for instance, one study of a complex
document, a disability-income insurance policy. The testers
identified situations in which, according to industry experts,
policyholders regularly misunderstood their benefits. Using
multiple-choice questions about those situations and a
plain-language policy, the testers aimed for a score of at least
70% right on each question -- a goal that readers achieved on six
of ten questions.(63)
After writing most of this article, I tested
before-and-after versions of two documents, a contract and a
statute. The contract has been used by a Michigan state agency
for work done for the agency by independent contractors. I
rewrote it into plain (or plainer) language and checked it for
accuracy with the agency's director. The statute is a South
African statute redrafted as part of a demonstration project for
that country's new Ministry of Justice.
To test both documents for comprehensibility, my
research assistant prepared two sets of multiple-choice
questions, 14 questions for the contract and 21 for the
statute.
In the appendix to this article is an example, from
the contract, of a before-and-after provision and a question.
Also included is the script that I read at the beginning of each
test. As you can see, I tried to test for accuracy and for speed.
With the statute, I also asked participants to rate how difficult
they thought the exercise was -- a kind of frustration index.
I tested the contract on 27 members of the agency
staff, most of whom had never used the contract (the few who had,
I split up evenly). I also tested it on 38 second- and third-year
law students. I tested the statute on 43 other law students,
mostly first-year students, who signed up voluntarily after I
posted a notice. Finally, I tested the statute on 24 members of a
law-school staff (an educated public; they averaged three years
of college). For each test, half the readers randomly got the
original version of the document and half got the plain-language
version.
Here are the results -- which you can add to the
others listed earlier:
Test of Contract on State-Agency Staff
| |
Original |
Plain Language |
Overall % of correct answers (accuracy) |
53.6 |
78 |
Average minutes to answer all questions (speed) |
14.8 |
12.4 |
Improvement in accuracy: 45.5%
Improvement in speed: 16.2%
|
Test of Contract on Law Students
| |
Original |
Plain Language |
Overall % of correct answers (accuracy) |
65.6 |
81 |
Average minutes to answer all questions (speed) |
15.7 |
12.6 |
Improvement in accuracy: 23.5%
Improvement in speed: 19.7% |
Test of Statute on Law Students
| |
Original |
Plain Language |
Overall % of correct answers (accuracy) |
59.9 |
70 |
Average minutes to answer all questions (speed) |
34.3 |
32.7 |
Average rating of difficulty, with 1 = very easy
& 10 = very hard (perceived ease) |
6.3 |
3.7 |
Improvement in accuracy: 16.9%
Improvement in speed: 4.7%
Improvement in ease: 41.3% |
Test of Statute on Law-School
Staff
| |
Original |
Plain Language |
Overall % of correct answers (accuracy) |
55.6 |
67.5 |
Average minutes to answer all questions (speed) |
39.7 |
36.15 |
Average rating of difficulty, with 1 = very easy
& 10 = very hard (perceived ease) |
6.75 |
5 |
Improvement in accuracy: 21.4%
Improvement in speed: 8.9%
Improvement in ease: 25.9%
|
During most of their days, most lawyers are in
their offices -- writing. They write letters to their clients,
letters to other lawyers, memorandums of law, briefs, lawsuit
papers of all kinds (complaints, answers, motions,
interrogatories, requests for admissions), transactional
documents (contracts, wills, trusts, bylaws), and much more.
Obviously, most of these documents cannot be put through rounds
of testing on potential readers.
So what should a lawyer do, sitting there in the
office without the aid of scientific certainty? The lawyer can
still plan the document, that is, still treat it as part of a
process. How? At least think about who will read the document,
what the readers will have to do with it, what their motivation
is, and what knowledge and reading ability they have. Think about
how the document fits into a system of other documents or other
activities. (Does it comply with the statute? Is it consistent
with the client's other forms and policies?) Show the
proposed document to the client and explain the hard parts. Try
to make sure that it carries out the client's wishes. These
process steps may take a few extra minutes or hours or days,
depending on the document, how unusual it is, and how difficult
the subject is.
In any event, the lawyer must at some point think
about design and organization and style. Let's assume that he
or she knows better than to just order up the formbook model.
Let's also assume that he or she has the skill to write in
plain language. What should the lawyer do, sitting there in the
office? Consider the evidence and the indicators.
First, empirical studies show that plain language
improves comprehension. The guidelines that have been developed
through research and experience will improve most legal
documents. We do not have to start over again with every new
document.
Second, traditional style -- legalese -- fails all
the tests and does not communicate, as indicated in 27 pages of
detailed analysis by Robert Benson.(64) Despite the sheer weight and
variety of that evidence, the new critics have rejected it
because it was not based on testing of readers.(65) But which way does it point,
for the lawyer who is making a choice? Would the critics
recommend just settling for formbook models?
Third, additional research shows that readers
prefer plain language over traditional style.(66) Readers prefer it by a wide
margin; they find it substantively more persuasive; and judicial
readers assume, ironically enough, that lawyers who use it come
from more prestigious firms. But this evidence, too, is dismissed
because it does not necessarily prove that readers can better
understand what they prefer.
No doubt readers can be wrong in thinking they
understand something; they can prefer what they might not really
comprehend. But here again, where do you suppose the odds lie? If
readers prefer version A to version B, which is more likely to be
clear and efficient? Which way should a lawyer write?
One other point about preferences. Remember that
some legal documents -- briefs, most lawsuit papers, and even
letters -- are meant to be persuasive documents. They go beyond
conveying information; they are meant to persuade the judge or
the other lawyer or the client that the writer is correct or has
the better argument. For these kinds of documents, readers'
preferences are surely important.
Fourth, just take a look at the daily fare. Go into
any law firm or law library. Go to any file or to any set of
forms, and you will find stuff like this:
Know All Men By These Presents: That Pierce
Corporation ("Pierce"), a Pennsylvania corporation, in
consideration of the sum of $____, and other good and
valuable consideration, received in accordance with the terms of
a certain letter agreement dated April 7, 1993 by and between
Pierce and Blue Avenue Associates, a Pennsylvania limited
partnership, receipt of which Pierce hereby acknowledges, does
hereby remise, release, and forever discharge Blue Avenue
Associates and its successors and assigns of and from all, and
all manner of, actions and causes of action, suits, debts, dues,
accounts, bonds, covenants, contracts, agreements, judgments,
claims, and demands whatsoever in law or equity, arising out of
that certain lease commencing October 1, 1992 by and between
Pierce and Blue Avenue Associates, which, against Blue Avenue
Associates Pierce ever had, now has, or which its successors,
assigns, or any of them, hereafter can, shall, or may have, for
or by reason of any cause, matter or thing whatsoever, arising on
or before the date of this General Release, but reserving all
rights with respect to the return of the security deposit held by
Blue Avenue Associates.
In Witness Whereof, Pierce Corporation, intending
to be legally bound hereby, has executed this General Release on
April 28, 1993.
Or go down to the local courthouse and pull a
file:
BE IT REMEMBERED that on the 30th day of March,
1993, came on for hearing before this Honorable Court the motion
of Plaintiff to Supplement XYZ Corporation's Appendix to
Plaintiff's Memorandum of Points and Authorities in Support
of Motion for Summary Judgment, and this Court being of the
opinion that such Motion is well taken and should be granted,
does hereby grant the motion of Plaintiff to Supplement XYZ
Corporation's Appendix to Plaintiff's Memorandum of
Points and Authorities in Support of Motion for Summary Judgment. (67)
These specimens are ridiculous on their face. And
if you multiply them almost to infinity, you get some idea of
what the plain-language movement is up against.
So that no one misunderstands, let me reemphasize
the value of testing public documents whenever possible. At the
same time, though, most lawyers are not writing major public
documents that can be subjected to testing. So lawyers are left
to their own devices. They must fall back on their skills, on
their training, on their perceptions and judgment, perhaps on an
editor-friend. They have to make choices. And the evidence --
scientific, impressionistic, and everything in between --
strongly indicates that plain language will be better understood
and will save time. It is no guarantee and no panacea. But it is
the clear choice.
The reason for testing documents, of course, is to
identify problems that readers might have in understanding and
using the documents, to point the way toward solutions, and to
provide proof that the final version of the document works.
During the process that leads up to the final version, the value
of testing is mainly negative: it reveals deficiencies. To fix
the deficiencies, you will probably need to follow plain-language
guidelines. At the least, you are unlikely to improve the
document by violating those guidelines.
When the Document Design Center revised a tax form
for the sale of a home, they found that users had the most
trouble filling out three items on the form.(68)
First, this item:
Face amount of any mortgage, note (e.g., second
trust), or other financial instrument on which you will get
periodic payments of principal or interest from this sale (see
instructions).
Users did not know what the word mortgage referred to -- the amount of
the original loan on the home, or the amount of any loan that the
seller might have made. The revised version:
If you are providing the financing for the buyer of
your former main home, what is the total amount of the loan?
This version makes the condition explicit; uses an
active construction ("you are providing") with a short,
concrete subject ("you"); puts the central action in a
verb ("are providing"); puts the most important
information ("total amount of the loan") at the end of
the sentence; and simplifies the vocabulary ("total amount
of the loan" instead of "Face amount of any
mortgage, note (e.g., second trust), or other financial
instrument").
The second item that caused trouble:
Basis of home sold (see instructions).
Users did not understand the technical term basis, and the instructions did not
begin by specifying the number to start with in making the
calculation. The revised version incorporates a mini-worksheet
into the separate instructions; in other words, it uses a kind of
example or chart. And the worksheet shows users what number to
start with and what numbers to add and subtract; in other words,
it puts the information in a logical sequence.
The third item that caused trouble:
Subtract line 9f from line 8a.
Users didn't know what to do if they had not
needed to fill out line 9f. The revised version includes a
sentence that explains what to do in that case.
All these changes follow plain-language guidelines
or are consistent with them. Even adding detail here and there,
adding words in certain places, is no contradiction. In the end,
using plain language will usually result in a shorter
document.
I don't mean to suggest that every change and
technique in every document will find its precise rationale in a
plain-language guideline. But I do question the new critics when
they say of one of their projects -- the "Capita"
project -- that "[p]lain English was nowhere in
sight" and that their revisions were "not in plain
English."(69)
As they report it, the project involved highly
technical insurance documents. The success of the project
"was due to communication research, design methods, testing,
project planning and successful negotiation." (70) But there is nothing here that
is foreign to plain language. Next: "The factor which
led to the massive improvements in form-filling by Capita agents
[was the use of branching structure, or algorithmic form]." (71) Neither is that technique
outside the plain-language literature;(72) in fact, the technique appeared
in the literature years ago. (73) Finally, some language from a page of the new Capita forms:
You decide. Isn't this plain language? (Joint
tenant is a technical term, but insurance agents, the
apparent users, would understand it.)
I give credit to the members of the Communication
Research Institute of Australia for their excellent work, and for
pushing our understanding of communication theory and document
design. I only wish that, instead of denying that their work is
in plain language, they would consider whether they take it for
granted.
To put this another way, I challenge anyone to
systematically violate plain-language guidelines and produce
clear legal documents.
We are told that litigation will occur with or
without legalese because the essence of law is in the legal
interpretation of meaning.(75) To
say that, though, is to ignore the unnecessary litigation that
poor legal drafting produces.
In gauging what we can and cannot prevent, we need
to be clear about the difference between vagueness and ambiguity.
The law depends to a large extent on vague terms, like good
cause or reasonable person or gross
negligence. In fact, nearly all terms are vague to some
degree; they will always present some uncertainty at the margins,
some uncertainty about how they might apply to peculiar facts.
(Does highway include the shoulder? and so on,
endlessly.) Ambiguity, on the other hand, presents an either-or
choice, a choice between alternative meanings. Ambiguity is
almost always unintended and almost always a sin, but it's
always preventable.
Consider just one example.(76) The state wanted to revoke the
license of a private investigator who had been convicted of a
felony. The felony did not involve dishonesty or fraud. The
relevant legislation said:
- The secretary of state may revoke a license issued under this
act if the secretary determines, upon good cause shown, that the
licensee . . . has
. . .
- been convicted of a felony or misdemeanor involving
dishonesty or fraud, unauthorized divulging or selling of
information . . . .
|
The question was whether "involving dishonesty or
fraud" modified "felony," or just
"misdemeanor." The lawsuit wasted the trial court's
time, the appellate court's time, their staffs' time, and
the government lawyer's time. It could have been easily
avoided by listing the items, or by separating or connecting the
modifying words:
- been convicted of:
- a felony;
- a misdemeanor involving dishonesty or fraud;
- unauthorized divulging or selling of information .
. . .
|
Or, with the same meaning:
- been convicted of a misdemeanor involving dishonesty or
fraud, a felony, unauthorized divulging or selling of
information . . . .
|
Or, with the alternative meaning:
- been convicted of a felony involving dishonesty or fraud, a
misdemeanor involving dishonesty or fraud, unauthorized divulging
or selling of information . . . .
|
The law reports are littered with cases like this one. And who
knows how many other cases have been settled before trial, or
have been litigated in the trial court but not reported because
they were not appealed? In one study of 500 contract cases, the
investigators concluded that about 25% of those cases revolved
around problems of interpretation and that a good part of the
difficulty was directly traceable to incomplete negotiation or
poor drafting.(77)
What's more, it's not just ambiguity that causes
trouble. David Mellinkoff has cited the volumes of litigation
over such jargon as aforesaid, and/or, herein, and whereas.(78) Then you
can add the more than 1,100 cases involving the ubiquitous shall.(79) Then you can
add the cases caused by unnecessary doublets like any
and all; and by not using consistent terms -- the
same word for the same thing; and by not keeping related material
together, which some courts call "deceptive
placement";(80) and by
including so much detail that it becomes almost impossible to
detect inconsistencies. Think of all the cases waiting to happen,
and for no good reason.
Let me end with three comments.
First, we should stop wondering about the value of plain
language. It is, or should be, every bit as accurate and precise
as traditional legal writing. It is clearer -- considerably
clearer. It is usually shorter and faster. It is strongly
preferred by readers. It would greatly improve the image of
lawyers. In short, if lawyers everywhere made it their goal,
"the world would probably change in dramatic ways."(81)
Second, we do need to give more attention to testing major
documents, and not just legal documents. Government and
businesses send out forms, notices, brochures, and bills by the
thousands and hundreds of thousands. Testing a draft costs money.
But even some testing is better than none; some kinds of testing
are not expensive; and whatever testing is done on mass documents
should pay for itself many times over.(82)
So what about testing legislation? Legislative drafters work
under severe constraints, especially time, and further
improvement will depend in part on institutional changes and
support. We can take heart, though, because in a few places
government is starting to see the advantages of testing.(83) Even a very modest program of
spot-testing would have the great virtue of allowing for
self-evaluation:
The Office [of Parliamentary Counsel, which drafts Australian
legislation] has decided to undertake a document testing program
that would involve testing two documents a year. One document
would represent the standard or average Bill. . . . The other
document would incorporate experiments in plain English.
. . .
Testing the first document would monitor our progress towards
plainer and more useable legislation. Testing the second document
would establish whether techniques that we think improve
readability . . . have the desired effect.(84)
This is how legislative drafters could tell whether they
really are developing their art -- which is, as far as humanly
possible, to get the law right and also make it clear to those it
governs.
Finally, this article has taken up a debate between those who
should be natural allies in the struggle for clearer
communication in the law. The plain-language movement is trying
to budge an entire profession off dead center, after four
centuries. The task is daunting enough without overstating our
differences, straining over definitions, and setting up
unnecessary dichotomies between goals and approaches. We have to
give lawyers something they can use -- when they write
for the public at large, and when they write those hundreds of
thousands of individual documents every day.
Thank you all very much for helping me out with this little
study.
What I will have you do is briefly skim over some legal stuff
and then answer a list of questions. You should answer the
questions by referring back to the legal stuff.
Now, I want you to understand that this is not a test of you.
It's a test of what you are reading. I don't want you to
sign it. It's all anonymous. And you don't all have the
same stuff anyway.
So please, this is not a competition. It's not a race.
Don't worry if some other people finish before you. I'd
like you to read at your own normal reading speed. That's
part of the study. What I'm trying to learn is how long it
takes to use this stuff, reading at a normal pace.
For each question, we'd like you to circle the correct
answer. You'll see that one of the possible answers is a
question mark. You can circle that answer if you think the legal
stuff is unclear or if you're not certain about the
answer.
Now, you'll notice that up front here is a clock.
We'll start at a time that is rounded off. [Name the time.]
You start when I say, "Start." I won't say anything
else. When you finish all the questions, look immediately at the clock. Write down the hour, minutes, and seconds. The minutes can be hard to see, so my
secretary will be holding up a sign with the minutes. But you
have to get the seconds. [Use an example.] That's all you
have to do. We'll figure how long it took.
When you are finishing, please don't make a big display of
finishing -- don't slam your pencil down; don't shuffle
your papers -- because that may affect other people. Please just
sit quietly and wait until I say we're done.
Also, don't go back and change any answers. When
you're done, you're done.
Remember, don't sign either sheet. The only thing you do
is answer all the questions and then write the exact time you
finished on your answer sheet.
Are there any questions? Okay. Please do your best.
([For the statute only.] When everyone is done, ask:
"Please rate how difficult you think this exercise was. 1 is
very easy. 10 is very hard. Rate between 1 and 10, write that
number down on your answer sheet, and circle it. [Pause.] So you
should have two numbers on your answer sheet: the time you
finished and the level of difficulty.")
Before:
3. The CONSULTANT agrees to fully complete the described
assignment and furnish same to the DEPARTMENT by __________
calendar days after notification of Approval, it being fully
understood and agreed by the parties hereto that in the event the
CONSULTANT shall fail to do so as aforesaid, the DEPARTMENT
shall, without the necessity of notice, terminate the services of
said CONSULTANT without incurring any liability for payment for
services submitted after said due date or shall deduct, as a
liquidation of damages, a sum of money equal to one-third of one
percent (1/3 of 1%) per calendar day of the total fee if the
performance of the entire contract is delayed beyond the due
date. Upon written request by the CONSULTANT an extension of time
may be granted by the DEPARTMENT in writing, in the event the
CONSULTANT has not received from the DEPARTMENT proper
information needed to complete the assignment or, in the event
other extenuating circumstances occur, the time may be similarly
extended. It is further agreed that if a liquidation of damages
is imposed pursuant to the aforesaid provisions, any money due
and payable to the DEPARTMENT thereby may be retained out of any
money earned by the CONSULTANT under the terms of this
contract. |
After:
5. The Due Date for the Work.
The Consultant must complete and deliver the work by _______
calendar days after receiving notice that the Department has
approved this contract. The Consultant may ask in writing for
more time, and the Department may grant it in writing, if
- the Consultant does not receive from the Department the
information needed to complete the work; or
- there are other extenuating circumstances.
6. If the Consultant Misses the Due
Date.
If the Consultant fails to deliver the work by the due date,
the Department may -- without having to give notice -- choose
either one of the following:
- terminate the Consultant's services, and not pay for
services that are submitted after the due date; or
- claim liquidated damages of 1/3 of 1% of the total contract
payment for each calendar day late, and subtract this amount from
the total payment.
|
Question:
You are the Consultant. Because of circumstances beyond your
control, you will not be able to complete and deliver the work on
time. You have spoken to a Department official over the phone,
and the official has assured you that it is all right for you to
take 10 extra days.
- If you go ahead and deliver the work 10 days late, based on
the authorization you got over the phone, the Department
may:
-
- Fire you and refuse to pay for the work you delivered after
the due date.
- Retain your services, but charge you a penalty of
$33.33.
- Do either one of the above.
- Do neither one of the above.
- ?
[Note: The contract price -- $1,000 -- was set out in another
part of the contract.] |
- Joseph Kimble, Plain English: A
Charter for Clear Writing, 9 Thomas M. Cooley L. Rev. 1,
19-22 (1992).
- See, e.g., Bryan A. Garner,
The Elements of Legal Style 7-15 (1991); Law Reform Comm'n of
Victoria, Plain English and the Law 45-52 (1987; repr. 1990);
Robert W. Benson, The End of Legalese: The Game Is Over,
13 N.Y.U. Rev. L. & Soc. Change 519, 559-67
(1984Â1985).
- See, e.g., Karen Larsen,
The Miss Grammar Guidebook 68-69 (1994) (in other respects, a
good book); Jack Stark, Should the Main Goal of Statutory
Drafting Be Accuracy or Clarity?, 15 Statute L. Rev. 207
(1994).
- David Mellinkoff, The Language of
the Law 24 (1963).
- Lawrence M. Friedman, How I
Write, 4 Scribes J. Legal Writing 3, 5 (1993).
- John M. Lindsey, The Legal
Writing Malady: Causes and Cures, N.Y. L.J., Dec. 12, 1990,
at 2.
- See infra note 82
(citing efforts to demonstrate those costs -- the product of
confusion, frustration, and error -- and to measure the value of
clearer public documents).
- Bryan A. Garner, A Dictionary of
Modern Legal Usage 664 (2d ed. 1995).
- Genesis 1:3-4.
- Stark, supra note
3.
- Garner, supra note 8, at
663.
- G.C. Thornton, Legislative
Drafting 52-53 (4th ed. 1996).
- Stark, supra note 3, at
212.
- Benson Barr et al., Legalese
and the Myth of Case Precedent, 64 Mich. B.J. 1136, 1137
(1985); see also Benson, supra note 2, at 561
("a small island of true terms of art"); Stanley M.
Johanson, In Defense of Plain Language, 3 Scribes J.
Legal Writing 37, 39 (1992) ("the small subcategory
comprising terms of art").
- Plain English and the Law, supra note 2, at 49.
- Benson, supra note 2, at
560.
- See Garner, supra note 8, at 580 (describing "the myth of
precision"); Mellinkoff, supra note 4, at 388
(concluding that the language of the law has only a "nubbin
of precision"); Benson, supra note 2, at 560
("[T]here is relatively little precision, intelligible or
unintelligible, in legal language."); Robert D. Eagleson, Plain English -- A Boon for Lawyers, The Second Draft
(Legal Writing Institute), Oct. 1991, at 12, 12-13
("[T]raditional legal language is not a security against
imprecision [but rather] provides a ready cover for
imprecision.").
- See Plain English and the
Law, supra note 2, at 29-33 (illustrating the problem of
"unnecessary concepts"); Kimble, supra note 1,
at 17 (illustrating "the self-defeating overprecision and
overelaboration that legal documents are so prone
to").
- Stark, supra note 3, at
209.
- Id. at 213.
- Available from the
author.
- Plain English and the Law, supra note 2, app. 2 (Takeovers Code). The figure of
reducing the original legislation by almost half comes from David
St. L. Kelly, Plain English in Legislation: The Movement
Gathers Pace, in Essays on Legislative Drafting 57, 57
(David St. L. Kelly ed., 1988).
- Office of the Queensland
Parliamentary Counsel, Annual Report 1992Â1993, at 2-3
(1993); Parliamentary Counsel's Office & Centre for Plain
Legal Language, A Discussion Paper: Review and Redesign of New
South Wales Legislation 3, 9 (1994).
- House of Representatives Standing
Committee on Legal and Constitutional Affairs, Clearer
Commonwealth Law at xxii (1993).
- Austroads, Proposed Australian
Road Rules, Preface (1995).
- New Zealand Law Comm'n, Report
No. 17, A New Interpretation Act: To Avoid "Prolixity and
Tautology" 4-5 (1990); Report No. 27, The Format of
Legislation (1993); Report No. 35, Legislation Manual: Structure
and Style 33-40 (1996).
- Inland Revenue Dep't,
Rewriting the Income Tax Act: Objectives, Process, Guidelines --
A Discussion Document 6-10, 19-38 (1994).
- Dullah Omar, Plain Language,
the Law and the Right to Information, Clarity No. 33, July
1995, at 11.
- Barbro Ehrenberg-Sundin, Plain
Language in Sweden, Clarity No. 33, July 1995, at
16.
- Martin Cutts, Lucid Law
§§ 1.7, 1.12, 8.28 (1994).
- Shelley Trevethan et al.,
Dep't of Justice, Working Document: Consumer Fireworks
Regulations -- Final Report at v (1995).
- Kimble, supra note 1, at
41; see also Bryan A. Garner, Guidelines for Drafting
and Editing Court Rules (1996).
- House of Representatives, First
Corporate Law Simplification Bill 1994 -- Explanatory Memorandum
4-8 (1994).
- Dennis Murphy, Plain Language
in a Legislative Drafting Office, Clarity No. 33, July 1995,
at 3, 5; see also Plain English and the Law, supra note 2, at 50, 51 (stating that the "law
should be drafted in such a way as to be intelligible, above all,
to those directly affected by it"; and that, while laws
cannot always be made intelligible to the average citizen,
"every effort [should] be made to make them intelligible to
the widest possible audience").
- 73 Mich. B.J. 886; 73 Mich B.J.
1146 (1994) (the citations in my letter following the prescribed
Michigan form).
- Robyn Penman, Unspeakable Acts
and Other Deeds: A Critique of Plain Legal Language, 7 Info.
Design J. 121 (1993).
- Robert P. Charrow & Veda R.
Charrow, Making Legal Language Understandable: A
Psycholinguistic Study of Jury Instructions, 79 Colum. L.
Rev. 1306, 1333, 1370 tbl. 14 (1979).
- Benson, supra note 2, at
546 (noting that "oral jury instructions are likely never to
be understood adequately").
- Amiram Elwork et al., Making Jury
Instructions Understandable 45-46 (1982).
- David S. Kaufer et al., Revising Medical Consent Forms: An Empirical Model and
Test, 11 Law, Med. & Health Care 155, 161
(1983).
- Plain English and the Law, supra note 2, at 69-70.
- Joyce Hannah Swaney et al., Editing for Comprehension: Improving the Process Through
Reading Protocols, in Plain Language: Principles and
Practice 173, 177, 185 (Erwin R. Steinberg ed., 1991).
- Michael E.J. Masson & Mary
Anne Waldron, Comprehension of Legal Contracts by
Non-Experts: Effectiveness of Plain Language Redrafting, 8
Applied Cognitive Psychol. 67, 75, 77 (1994).
- Centre for Plain Legal Language,
Paper No. 1, Surveying a Plain Language Mortgage 3
(1992).
- Gordon Mills & Mark Duckworth,
Centre for Plain Legal Language, Centre for Microeconomic Policy
Analysis & Law Foundation of New South Wales, The Gains from
Clarity at v, 26-30 (1996).
- Australian Mutual Provident,
Documentation Quality Improvement Team 10 (1992) (unpublished
internal study, on file with author).
- Cutts, supra note 30,
§§ 1.7, 8.28.
- Janice C. Redish, How to Write
Regulations and Other Legal Documents in Clear English 43
(1991).
- Anita D. Wright, The Value of
Usability Testing in Document Design, Clarity No. 30, Mar.
1994, at 24, 30.
- Penman, supra note 36, at
122-26.
- Id. at 123-24.
- See, e.g., Mark Adler,
Clarity for Lawyers: The Use of Plain English in Legal Writing 41
(1990); Robert D. Eagleson, Writing in Plain English 47 (1990);
Richard C. Wydick, Plain English for Lawyers 31 (3d ed.
1994).
- Janice C. Redish & Susan
Rosen, Can Guidelines Help Writers?, in Plain Language:
Principles and Practice, supra note 42, at 83,
86-87.
- See Penman, supra note 36, at 125 ("An increasing number of
plain language advocates are recognising the importance of the
reader in developing plain language documents.").
- Id. at 124, 127; see
also Matthew J. Arnold, The Lack of Basic Writing Skills
and Its Impact on the Legal Profession, 24 Cap. U. L. Rev.
227, 247-50 (1995) (equating plain language with mere
"jargon-slaying").
- See, e.g., Michele M.
Asprey, Plain Language for Lawyers (2d ed. 1996); Eagleson, supra note 52; Plain English Campaign, The Plain English
Story (3d rev. ed. 1993); Redish, supra note 48; Review
and Redesign of New South Wales Legislation, supra note
23; David St. L. Kelly & Christopher J. Balmford, Leading
the Way in Developing Plain English Documents, Austl. Ins.
Inst. J., Sept. 1993, at 43, 45-46; Kimble, supra note
1, at 11-14; Susan Krongold, Writing Laws: Making Them Easier
to Understand, 24 Ottawa L. Rev. 495 (1992).
- Janice Redish, Reply to Robyn
Penman, Rapport No. 12, Summer 1994, at 8.
- Penman, supra note 36, at
126.
- See supra notes
37Â49, 56 and accompanying text.
- The Process Model of Document
Design, Simply Stated No. 18, July 1981, at 1, 4.
- The Plain English Story, supra note 56, at 21, 51.
- See, e.g., Joseph S.
Dumas & Janice C. Redish, A Practical Guide to Usability
Testing (1993); Eagleson, supra note 52, at 80-83;
Krongold, supra note 56, at 544-48; Wright, supra note 49.
- David St. L. Kelly &
Christopher J. Balmford, Simplifying Disability Income Insurance
Documents 70 app. at 2, 10-20 (1994) (the authors then used the
testing to further improve the policy).
- See Benson, supra note 2, at 531-57.
- Penman, supra note 36, at
125.
- Kimble, supra note 1, at
24-25.
- Quoted in Carol Ann Wilson, Plain
Language Pleadings 18 (1996).
- Wright, supra note 49, at
28-29.
- David Sless, Plain English
Stories, Communication News (Communication Research
Institute of Australia), Sept.ÂOct. 1993, at 1,
2.
- Id.
- Id.
- Barbara Child, Drafting Legal
Documents 378-80 (2d ed. 1992); David C. Elliott, Innovative
Legislative Drafting, 73 Mich. B.J. 40, 43 (1994).
- Robert W. Benson, Up a Statute
with Gun and Camera: Isolating Linguistic and Logical Structures
in the Analysis of Legislative Language, 8 Seton Hall Legis.
J. 279, 296-300 (1984) (using the term "decision
tree").
- Phil Fisher & David Sless,
Communication Research Institute of Australia, Occasional Paper
No. 10, Improving Information Management in the Insurance
Industry: A Case Study of the Capita Financial Group at 33
(1989).
- Penman, supra note 36, at
125.
- ios v. Department of State Police,
469 N.W.2d 71, 72 (Mich. Ct. App. 1991).
- Harold Shepherd, Book Review, 1 J.
Legal Educ. 151, 154 (1948).
- Mellinkoff, supra note 4,
at 305-10, 315, 321-25.
- 39 Words and Phrases 111-65
(1953); id. at 56-84 (Supp. 1996).
- Yahr v. Garcia, 442 N.W.2d 749,
751 (Mich. Ct. App. 1989).
- Garner, supra note 8, at
661.
- See Mills &
Duckworth, supra note 45, at vii-viii, 67-68 (describing
some benefits of plain language, such as less trouble in filling
out forms and less need for follow-up by staff); Janice Redish, Adding Value as a Professional Technical Communicator,
42 Technical Comm. 26 (1995) (describing ways to measure the
value of clear communication and of testing); see also Coopers & Lybrand Associates, Dep't of Health and Social
Security, Forms Effectiveness Study 1, 30 (concluding that the
annual cost to the agency of errors on its public forms was
"of the order of £675 million," that the
costs to employers and members of the public were "of
similar magnitude," and that the total costs from one common
form alone were £3.5 million) (unpublished English
study, on file with author); Kimble, supra note 1, at
25-26 (listing some reported examples of cost savings that range
from hundreds of thousands to millions); Karen A. Schriver, Quality in Document Design: Issues and Controversies, 40
Technical Comm. 239, 250-51 (1993) (listing still more
examples).
- See supra text
accompanying notes 31, 33.
- Clearer Commonwealth Law, supra note 24, at 102.
Reprinted with the permission of Scribes, the
American Society of Writers on Legal Subjects.
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