index editor's note - clarity international · -ruoj apew aldoad leralas pue 1,,ujeai ol aloru...
TRANSCRIPT
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IndexArticles
• It's Official: New South Wales SolicitorsFavour Plain Language 3
• Answering the Critics of Plain Language 8• The Balmford-Duckworth Tour of the United States -
and Their Message That Plain Language Pays 15• An Excerpt From The Costs ofObscurity: A Discussion Paper
on the Costs and Benefits ofPlain Legal Language 17• An Excerpt From The Cost ofJustice: The Lord
Chancellor's Review ofSpending on Legal Services 20• Comments on a New Plain Language Law 22• Plain English Campaign Holds
Third International Conference 29• Selected Remarks from the
Third International Conference 30Bits imd Pieces
• Committee News 40• 1995 Clarity Awards 42• CLARITY recognized in Hansard 42• The Missing Link: Bringing the User
Into the Information Lifecycle q 43• Top of the Form 44
• Plain Englishing the Anton Pillar Order 46• New Police Caution Is a Loser : .47• A Win for the Outgoing Chairman 47• A Breakthrough in Formbooks? 47• Danka Introduces a Short-Term Lease
in Plain Language 48Book Reviews
• A Practical Guide to Usability Testing 49• Drafting and Negotiating Commercial Leases 49• Drafting Settlements ofDisputes 50• Mellinkoffs Dictionary ofAmerican Legal Usage 51
Letters 53New Members 2News About Members 59News from Around the World
• Australia 35• Canada 36• England 36• Europe 36• United States 38
Subscriptions
The subscription for the year beginning 1stSeptember is now due, unless you first joinedCLARITY during 1994 (in which case you areexempt) or you have paid by standing order.
A movement to simplify legal English
Patron: Lord Justice Staughton
No 32: March 1995
Editor's NoteI'm honored that Mark Adler asked me to serve as
guest editor for this issue of Clarity.
Mark has certainly earned a respite. I don't knowhow he has done this for so long - without losing hissanity or his marriage. We owe him a heavy debt.
To avoid an international incident, I tried to editlightly. I did add a few commas, especially the serialcomma (a, b, and c). And I used the long dash. But Idid not try to conform the articles to one style oranother, British or American. At any rate, I hope youwill overlook the inconsistencies and imperfectionsand will enjoy reading this issue.
Incidentally, I should say a word of thanks toThomas Cooley Law School and Dean Michael P. Cox.He helped to subsidize this issue with a generousallowance for my desktop-publishing specialist.
These are hopeful times for the plain-languagemovement. True, we have lost some organizations the Law Reform Commission of Victoria, the Plain Language Centre in Toronto, the Plain Language Instituteof British Columbia. But their work lives on, newgroups arise (see this issue), and we now have a solidbase of committed supporters in several countries. IfCLARITY stays healthy and grows, then so does themovement.
Somebody told me once that a reformer needs a geologist's sense of time. Fine. Let's call the last 400 yearsthe era of legalese. Now begins the era of plain language.
- Joe Kimble
The next issue will be edited by Peter Butt, atthe University of Sydney. The deadline forsubmissions is May 1. You may send themto Mark Adler or directly to Peter at theUniversity of Sydney, Faculty of Law,173-175 Phillip Street, Sydney, NSW 2000,Australia.
Welcome to New MembersAustralia
MLC Life Ltd, Financial Services -North Sydney
Katrina Williams - solicitor and precedentsmanager/ Baker.
i.ffi:; sydney
Neil Trenholm - lawyer; Winnipeg ,
DenmarkDen Danske Bank (Biblioteket) -Copenhagen
Inger Johnsen - senior translator, DenDanske Bank; Copenhagen
EnglandRachel Conn - solicitor; Cambridge
Patrick Farrant - solicitor, Eversheds DalmesHill & Perks; Norwich
Dr. janita Good - law student, A.H. Dun-combe & Co; Thame, Oxfordshire
Angela Green - solicitor, Bowcock Cuerden;Nantwich, Cheshire
Linda Harrison - solicitor, Jaques & Lewis;London
Edward Hathaway - solicitor, Barlow Lyde &GilberU London
Kenneth McRae - solicitor, BowcockCuerden; Nantwictu Cheshire
jane Norre Nielsen - research student,University of Central Lancashire; Preston,Lancashire
Caroline Peters - law sfudent, HextallErskine & Co; London
Colin Read - law student; YorkPeter Rush - plain language teacher;
LiverpoolChristopher Shepherd - solicitor, Shepherd
& Co; West LondonDavid Tench - solicitor, European Research
into Consumer Affairs; LondonRichard Wheen - solicitor, linklaters &
Paines; London
Janet Wright - solicitor, Wrights; St Albans,Herts
GermanyRalph Czarnecki - law shrden! Bochum
NetherlandsKatherine Andrean - freelance translator
(training as a legal transLator); Hertogenbosch
Louise Rayar - l%al transl,abr; Epert
ScotlandColin Ferguson - Head of the Deparhent
of Comnrunication and I-anguages, TelfordCollege; Edinburgh
i Sweden
f ustitieddepartmentet - Stocktrolm
Committee
Mark Adler(editor)
Richard Castle(CLARITY Mark administrator)
Alexandra Marks
]ustin Nelson(chairman)
Nick O'Brien(treasurer)
Alison Plouviez
and in the United States
Prof. Patricia Hassett
Honorary President: |ohn Walton \
28 Claremont Road, Surbiton, Surrey KT5 4RF 0813399676DX57722 Surbiton Fax:9679
118 High Street, Hurstpierpoint, West Sussex BN6 9PX 0273 833171DX 94803 Hurstpierpoint Fax 832007
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The I-aw Socielv,50 Chancery Lane, LondonWC2A 1SX 071.2421222DX56london/ChanceryIane Fax0057
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Clarity is published from 28 Claremont Roa4 Surbibn, Surrey.This issue was prepared on an Apple Macintosh computer using FrameMaker publishing software.
Submissions should be accompanied, if possible, with a copy on 3.5- disc in eitlrer Macintosh or DO6 format.
In August 1994,the Plain Language Com-mittee of the New South Wales Law Society sur-veyed the attitudes of NSW solicitors to plainlanguage in legal drafting. The survey took theform of a one-page questionnaire inserted in theAugust issue of the Neru SouthWales Law Society
lournal.
The results have been tallied and it is now offi-cial: solicitors in New South Wales say they areinfavour of plainlanguage inlegal drafting, andthey say so by an overwhehi.g majority.
The survey form is set out as Table L. The per-centage results are in Table 2.
The statistics
93% of respondents answered "yes" to ques-tion L: "Are you in favour of plain language inlegal drafting?" Only 47o aruwered "no", and37o were undecided.
Almost 95% thought that it was possible todraft legal documents in plain language, andalmost the same percentage thought it wasappropriate. A lesser percentage --:- 85.5% -said that they understood what is involved inplain language drafting. And an extraordi.*y(and encouraging) figure of 80.5% of respon-dents said that they want to learn more aboutplain language drafting.
A total of 1068 people responded to the ques-tionnaire. This is an extraordi.aty figure initself. The survey had one of the best responsesto any snrvey ever conducted by the NSW LawSociety.
Ctarity 32 3
The response rate
The response rate was particularly good for asurvey that had no reply-paid or DX envelope.Not only did people have to go to the trouble ofanswering the questions, but they also had to getan envelope, put the questionnaire in it, andsend it in. A surprising number of people madethat effort.
Some people did not answer the questions, butinstead made detailed comments. That in ibelfanswers the first question the Plain LanguageCommittee had: do sotcitors in NSW care at allabout the use of plain language in legal drafting?The results indicate that they do- that solicitorsin New South Wales feel quite strongly about theissue of plain language in the law.
The table of results
Table 2 summarises the results of the survey,on a percentage basis, question by question.Questions 7,2, and3 were similar and had a sim-ilar response: The percentages of people whosaid that they were in favour of plain languagein legal drafting, that they thought it was pos-sible, and that it was appropriate,wereg3"h,9 4.8o/", arrd 9 49% respectively.
Questions 4,5,5, artdT focused on whetherpeople practise what they preach. 95.7% ofrespondents said they would draft in plain lan-guage if they had a choice, and96% said thatthey draft letters and other work-related mate-riat in plain language. But only 83.2% said theyactually draft legal documents in plain language,and only 85.5% said they thought they under-stood what is involved in plain languagedrafting.
Question 8 was a "control" question, to testwhether the number of those opposed to plainlanguage was consistent with those in favour ofit. It was: 5.5% of respondents said they wereopposed to legal drafting in plain language,which corresponds reasonably well with the 4%who answered question 1 $rith a"no", theywerenot in favour of plain language in legal drafting
- especially when you take into account the 3%who answered question L "undecided".
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14 Answering the Critics of Plain Language
A11 these changes follow plain-languageguidelines or are consistent with them." Evenadding detail, adding words, in certain places isno contradiction. The fact remains that theoverall result of usurgplain language will usu-allybe fewer words.
I don't mean to suggest that every change andtechnique in every document will find its preciserationile in a plain-language guideline. But I doquestion the critics when they say of one of theirprojects that 'the Capita forms were not in plainEnglish' and "[p]lain English was nowhere insight."s
As they report it, the Capita project involvedhighly technical insurance documents. The suc-
cess of the project "was due to commtmicationresearch, design methods, testing, project plan-ning and successfirl negotiation.'s But there is
nothing here that is foreign to plain language, as
we estiblished earlier. Next: "The factor whichlead to the massive improvements in form-filling by Capita agents [was the use ofbranlhingsiuctur"e,oralgorithmicf orml."37
Neither is that tedrnique outside the plain-lan-guage literature;s in fact, the techniaueippE*ea in the literature years ago.g Finally,
;:*"rff*"ge from a Page of the new Capita
l",trot" l,at\1-1.4.a'See, for instance, Martin Cutts, Lucid Law $ 1.L2
(19a) (his version of the Timeshare Act was 25%
shorter); Law Reform Commission of Victoria,Plain English and the Law, Appendix2(1987)(their version of the Takeovers Code reduced it byalmost half).
s'Duvid Sless, Communication Research Institute ofAustralia, Plain English Stories, CommunicationNews (SeptemberOctober 1993)' at 2.
s'Id.37'rd.s'Barbara Child, Drafting Iegal Documents 37&380
(2d edition, 1992); DavidC. Ellioft, Innooatioe
L egislatia e D r aft in g, 7 3 Micligan Bar Journal 40, 43
(ree4).39'Robert Benson, LIp a Statute with Gun anil Camera:
Isolating Linguistic and Ingical Structures in the
Analysis of Legislatiae l"anguage' 8 Seton Hall Legis-
lative ]ournal 279, 296-300 (19&1).4'Phil Fisher & David Sless, Communication
Research Institute of Australia, Occasional Paper
No. 10, Improving Information Management inthe Insurance Industry: A Case Study of the
Capita Financial Group 33 (1989). The type size inthe example had to be reduced.
2 Are there any other policyowners?
fl) Goto4ED Give details
[Partomitted]
3 Are policyowners:
]oint tenants E) Go to 4
Tenants incommon E) Give%ownershipofeach
Policyowner 1' %
Policyowner 2 Yo
First policyowneras trustee D> Go to 4
You decide. Is this plain language? (lointtenant is a technical term, but inswance agents,the apparent users, would understand it.)
I grve credit to the Communication ResearchInstitute of Australia for their excellent work,and for pushing our understanding of communi-cation theory and document design. I only wishthat, instead of denying that their work is inplain language, they would consider whetherthey take it for granted.
kt me put this another way: I challengeanyone to systematically violate plain-languageguidelines and produce clear legal documents.
]ust one thing more.
This article has taken up a debate betweenthose who should be natural allies in the strugglefor clearer communication in the law. We are
trying to move an entire profession off deadcenter, after four centuries. The task is dauntingenough without overstating our differences,straining over definitions, and setting uP unnec-essary dichotomies between approaches. Wehave to give lawyers something they canuse -when they write for the public at large, andwhentheywrite thosehundreds of thousands ofindividual documents every daY.
NoYes
Clarity 32 15
Last summer, the United States was rockedby two tours: the Rolling Stones and theBalmford-Duckworth Revival. They wereequally awesome.
The article below is reprinted from ThomasCooley Law School' s B enchmark magazine. Ed.
If you're looking for a world leader in theintemational movement to improve officialwriting, look down under - at Australia. Inbusiness, govemment, and law, Australia ismaking a determined effort to communicatewith its citizens in plain language.
That is the message from two Australian law-yers - Christopher Balmford and Mark Duck-worth - who recently toured the United States,visiting law firms, govenunent agencies, andlaw schools. And they had another message aswell: using plain language can produce enor-mous benefits for everyone.
Balmford is head of the plain-language depart-ment at Phillips For; a major Aushalian andAsian-Pacific law firm. Duckworth is director ofthe Centre for Plain Legal Language at the Uni-versity of Sydney. On August 3, they spoke at aKrinock Lecture at Thomas Cooley Law School.
Balmford said there's money for lawyers whocommit to plain language. First, it can give a lawfirm a distinguishing feature. He said customersare choosing Phillips Fox because it can writelegal documents in clear language. The firm justwon twomajor tenders -from a large life-insur-ance company and from Vic Roads (the depart-ment of transportation for Victoria)
-becauseof its plain-language expertise.
Second, plainlanguage adds value to a client,sbusiness. For instance, Phillips Fox rewrote doc-uments for a major Australian firm that providesfinancing and insurance services to export com-panies. The policy was so complicated that itcreated all kinds of problems for the people whoadministered it. The plain-language rewriteimproved consistency and reduced costs, andhas even become a user-friendly selling tool.One,policyholder, who used the policy everyweek, said he was glad to see that it nowincluded a particular kind of coverage that hehadbeenbuying from someone else for Z0 years."The client was appalled," said Balmford,"because the policy had always provided thatcoverage." The client has now given phillips Foxa whole new batch of business.
Balmford admitted thathe met resistance fromsome attomeys in the firm. They weren,t con-vinced that clients want plain-language docu-
-me1ts. A1d they were concemed that nothing
be lost in the translation. The first objection hasbeen answered by the new clients. The secondobjection has been answered through a trainingprogram. Phillips Fox is now training everylawyer in the firm to write plainly. They arereal-
YTg that plain language involves working care-fully with in-house experts and with the cf,ent,sexperts to write documents that are every bit asaccurate and precise as traditional documents.
"There are clients to be won and a marketingedge to be gained," Balmford said. "Today, cli--ents are prepared to pay for legal services thatare plain. One day, they won't pay for legal ser-vices unless they are plain."
16 The Balmford'Duckworth Tour
Mark Duckworth sPoke next and explainedthat the Centre for Plain Legal Language is a
research and business unit within the Universityof Sydney. Among other things, the Centre is
involvedin a major study called "The Costs ofObscurity," which is examining how clear com-
munication can help businesses by improvingefficiency, reducing mistakes, and increasingpublic confidence. Duckworth said this is part ofthe microeconomic reform that is going onthroughout the western world.
In its study, the Cenhe is trytng to measurethings like the time it takes an organization toanswer a call caused by a confusing provision ina document, or the time it takes to send back a
form that has been filled out incorrectly, or the
extra time it takes to train staff because the
internal documents are so poorly written.
Duckworth concluded that plain languageoffers that rare occasion when "business'sdemand for efficiency and cost-cutting coincideswith coruumers' demand to know their rightsand understand what they're getting. Plain legallanguage is a game inwhicheverybody canwin."
Sandwiched around their Krinock Lecture atThomas Cooley Law School, Balmford andDuckworth visited major law firms in LosAngeles, Chicago Detroit, Grand Rapids,NewYork, and Washington, D.C. Their tourwas covered by legal and general newspaPersthroughout the country, induding theNationalIaut lournal, the American Bar Association'sStudent Lawyer, the Michigan l-awyers Weekly , theDetroit kgal Naas, artdThe Detroit News.
CLARITY SEMINARSon writing plain legal English
CLARITY now offers seminars bY
Professor John Adams and28 Regent Square
London E3 3HQ081 981 2880
Mark Adler
(whose contact details aPPear on the inside front page)
All seminars comprise a mix of lecture and drafting exercises'
Professor Adams concentrates on ProPerty and commercial law, and
Mr Aldridge on commercial leases and other ProPerty documents'
Mr Adler deals with drafting in general and for part of the time works on
documents suPPlied bY the host fum'
All seminars last 3hrs 3Omins (induding a 20-minute break)'
Mr Adler's is accredited under the CPD scheme, with a 25% uplift'Accreditation of the other seminars is under discussio&
The standard fee is €600 plus expenses and VAIbut an extra charge may be negotiated for long-distance travelling'
CLARITY's share of the fee is €L50.
Please contact the speaker of your choice.
Trevor Aldridge QGBirkitt Hill House
Offley, HitchinHertfordshire
Tel:046276826LFax:768920
and (as before) by
Clarity 32
The authors are engaged in a study of how tomeasure the costs and benefits of plain legallanguage. This is precisely the kind of infor-mation that we need.
The excerpt below - "Measurement fssues"
- is from the final section of a discussionpaper that outlines the study. Here is a briefdescription of the other sections:
o An introduction that summarizes thereasons for the demand for plain language.
. The nature of cost-benefit analysis.r A general definition of plain legal language.o A review of earlier studies, with a
conclusion that "although many peoplewant to calculate the savings to be gainedfrom using plain language, they do notknow how to."
o The different types of documents.. The economic effects that flow from intro-
ducing plain language.
o Applying the methodology of cost-benefitanalysis.
For a copy of the discussion paper, write to:
The Centre for Plain Legal LanguageFaculty of Law, University of SydneyLevel 6,175 Phillip StreetSydney NSW 2000AUSTRALIAPhone I+61212259323Fax [+51 2]2370469
Measurement lssues
The fundamental purpose of cost-benefit anal-ysis is to compare old and new situations.Accordingly, measurements must be made bothbefore and after the change. The ,,after,, mea-surements have to be estimated (or forecast) ifthe change has not been implemented.
Before and after
Where an organisation is satisfied that it wantsto introduce plain language, it is not so importantto have the "before" measurements. This- isbecause the organisationbelieaes the net effect ofthe change will have positive value. This is thereason why those few reports that do detail theeffects of introducing plain language sometimeshave incomplete and even inadequate measuresof performance in the old situation.
For research, however, the measurementsmade before the new situation occurs must be ascomplete and accurate as possible, so that theresearcher can effectively measure the natureand extent of changes arising from using a plainlanguage document.
This implies that an)/ case study done for eval-uation purposes must include comprehensiveinformation about the situation which existsbefore the change occurs. The organisation mustprepare new measures and procedures to collectthis information if none exist. It must apply thesemeasures and procedures to use of the old docu-ments for a reasonable period before the changeddocuments are introduced (several months, fer-haps).
18 The Gosts ol ObscuritY
Direct effects
The ease of measurement of direct effects -and eventhe possibility of their quantification-depends crucially on the nature of the specificeffect to be measured. For those effects that are
direct and mundane, as for example reducederrors made by customers in completing forms,quantification is relatively straightforward. Val-uing the costs of such errors is not so difficulteither, although it may require more than justcounting the number of errors - especiallywhen some of the costs fall on parties other thanthe organisation which issues the document.
Indirect effects
At the other extreme are indirect effects. Anexample is product innovation arising fromincreased competition. The competition is
fuelled, in part at least, by plain language docu-ments that aid and encourage ProsPective cus-tomers to "comparison shop". But it is difficultto know how much of the innovation in produc-tion can be attributed to plain language because,
at each step in the causal chain, there is the pos-
sibility that other factors have also influencedthe outcome.
Measuring the value of effects
Indirect effects sucfr as product innovationmaybe very difficult tovalue. However, some-times a change maybe a cost-saving or havesome other clearly defined economic effect. Inthose cases, valuation may be possible, eventhough the measures obtained may only beapproximate.
One implication of this is that a full+cale studymight include a comprehensive dassification ofeconomic effects, with thought gr e* to how toquantify and evaluate each effect. To under-stand the kind of work involved in doing this,consider one of the simple, direct effects -reduction in the costs of correcting errors whenprocessing forms. Tables 2 and 3 below lookonly at the cmts incurred by the organisationthat issues the form and corrects the responses ofthe individual. Table 2 tists physical quantitiesthat have to be identified or estimated. Table 3lists monetary valuations that are needed to esti-mate the costs of correcting errors.
Table 2 - Quantification needed to evaluate the costs of correcting errorsmade in comPleting a form
Measure Comments
Number of errors for eachtype
Physical inputs needed forcorrection (per error)
. staff time
. other direct inputs
. other inputs
. errors must be classified according to the natureand extent of the activity needed to correct them, sothat alltypes within a category can be regarded asbeing (roughly) similar
. lnformation should be collected separately for eachdifferent statf level
. consumables, such as number of telephone calls
. office floor-space used to house statl involved in
error correction
Clarity 32 19
Table 3 - Valuations needed to calculate the costs of correcting errors
Cost category Valuations Units
labour costs for each staff category:wage rate
staff on-costs(payroll, superannuation)
$ each person-hour
$ each person-hour
other direct costs otfice space, valued bybuilding rental
$ each square metre each year
depreciation of furniture andother equipment
$ each statf member each year
consumables at unit prices paid
indirect costs allocation of corporateoverheads (to the extentthat is appropriate)
$ each statf member each year
As a further example, consider the diverseeffegts that may flow from rewriting legislationin plain language. The first and most immediateeffect is that professional advisers who use thelegislation in their work will save time, and mayget a better understanding of it. The first step inquan-tifying this effect is to estimate how manypeople read the legislation in a year and howmuch time they spend on this task, before andafter introducing plain language. Time and con-sequential savings can then be measured byapplylng values similar to those we have devel-oped in Table 3.
Costs of preparing a document
A cost-benefit analysis also requires quantifi-cation and valuation directed to measuring thecosts of preparing the plaintanguage document.Keeping records of physical inputs such as stafftime is relatively straightforward. But even so,there canbe conceptual difficulties. The processof revising the plain language documenf mayresult in changes to administrative or other pro,cedures. It may then be difficult to disentanglehow much staff time was used in revision of thedocuments, and how much in changing otherprocedures. If separation is desired, there is acorresponding difficulty in treating the benefits.
A researcher who attempts to evaluate the netbenefits before the event may have difficulty inpredicting the amounts of input needed to pre-pare a document. The same difficulties arisewith any non-routine activity. In a full-scalecost-benefit study, the researcher cotrld collectinformation on amounts of input and developsome rules of thumb, perhaps based on otheiorganisations' experience. However, this maybe hampered by inadequate record-keeping ofpast plain language campaigns.
Conclusions
Quantification and valuation can be taken along way, with effort and the development ofappropriate practices. Again, this treatment isnot appropriate for all effects. Effects thatcannotbe valued or even quantified mustbedescribed as efficiently as possible for the deci-sion-maker.
The Lord Chancellor's Department hasannounced a fundamental review of spendingon legal services in England and Wales. Thedepartment has informally sought the views ofoutside organizations. The NationalConsumer Council (20 Grosvenor Gardens,London SW1W 0DH) has submitted a 5O-pagepaper, which includes the following.
Law making
We consider that to achieve a more simple andcost-effective justice system the Lord Chancellorshould look at the process of law-making. TheHansard Society [in a report called Making the
Law, \992] recently reviewed the legislative pro-cess to look at how the govemment and parlia-ment produce legislation and to assess whetherthe system is in need of an overhaul. They tooka wide range of evidence. For example, in itsreport the Comptroller and Auditor General atthe National Audit Office is quoted as saying "Ido have some concerns about the complexity ofrecent legislation. . . . We find frequent exam-ples of Departments failing to comply with leg-islation - not because they are seeking to actimproperly but because they too have been con-fused by the complexities of legislation . . . . IfDepartments and the National Audit Office findit difficult to interpret legislation, what chancehas the man on the street?"
In its submission to the review, CLARITY, theplain language organisation for lawyers,referred to the social and economic reasons forimproving legal language: "If laws cannot be
readily understood by those most affected bythem the social cost is an increasing ignorance ofthe law and growing disrespect for the law andthose who administer it. Ignorance and disre-spect for the law damage the fabric of society.unnecessarily complex language, redundantwords, and language which fails to communi-cate impose an enormous financial burden on alllevels of society." fMnking the Law, Submissionfrom CLARIW, page 198.1
The Lord Chancellor's department and othergovernment departments should respond to therecommendations in the Hansard Society reportand begin a review of law making which willlead to more effective processes and simplerlaws. This we believe would be consistent withthe spirit of the goverrunent deregulation exer-cise.
Attention has also been drawn to the way inwhich European Union directives are imple-mented into UK legislation which often resultsin conflict between the two. One commentatorhas expressed his concem over the differencesbetween national laws and the EuropeanProduct Liability Directive: "[C]Iaims will con-tinue to be framed under both theories of lia-bility. It is suggested, therefore, that the fact thatthe two systems continue to exist and that a dif-ferent result may be obtained in given circum-stances, will lead to plaintiffs'lawyers pleadingboth fault and strict liability in all but the moststraightforward of cases. Indeed, it may be neg-ligent of them not to. Accordi.gly, litigation willin fact increase in complexity, scope and cost."
In its 1992 Annual Report, the Law Commis-sion wrote, "Ow task is to make the law moresimple and more accessible. . . . Every criminallawyer and every conveyancer, to take only twoexamples, knows on a daily basis how muchmoney is spent needlessly by public or privatesector organisations or by ordinary citizens,because relevant parts of our criminal law orproperty law are arcane or abstruse . . . .
[N]obody has ever calculated the continuingcost to the nation which is caused when so manypeople have to work with obsolescent laws." Webelieve there should be a strong commitmentfrom the goverrunent to carry out the Law Com-mission's proposals that have not yet beenenacted.
A comment from Francis Bennion,in a letter to Harriet Hall of theNational Consumer Council.
Dear Mrs Hall,
Thank you very much for sending me copies ofThe Cost of lustice and the other material.
I would like to make some comments on thepassage tnThe Cost of lustice headed "Law mak-ing" since this is my particular area of interestand knowledge. Inbooks, articles etc. I havesince L968 been campaigning for improvementsin this area. In that year I founded the StatuteLaw Society as a vehicle for reform.
The first point concerns a matter on whichthere is widespread misunderstanding. It is ex-emplified by the quotation from a report of theComptroller and Auditor General where it issaid: "If Departments and the National AuditOffice find it difficult to interpret legislatiorywhat chance has the man on the street?" Thetruth is that the ordinary citizen should not at-tempt to interpret what I call raw legislation, thatis,legislation in the form it is enacted. Law is anexpertise, and it is dangerous for lay persons tothink they can understand it by going direct tothe source. They may well get it wrong, and thatmay be expensive for them (as with home-madewills and contracts).
From the experience of half a century in deal-ing with legislation I would say that what mem-bers of the public need is efficient and affordablemeans of finding out the effect of thelaw in its ap-plication to their particular situation. What law-yers and other experts need is improvements inthe way the law is presented to them. Then theyin turn can be more efficient in passing it on tothe public. The position is the same as with themedical profession. No laypersons would thinkthey could understand a medical textbook orperform an operation on themselves or their rel-ative. It is the same with the law.
Clarity 32 21
The problem of the impact of EC law is a veryserious one, for which there are no simple solu-tions. It is just one reason why the law must betreated as an expertise. However clear a UK Actmay appear to be, the reader needs to be awarethat it may be modified or overridden by an ECdirective, or indeed by principles derived fromelsewhere in our own law. This is all fully set outi. -y textbooks Statutory lnterpretation andStatute l-aw.
My next point concems your extract from theLaw Commission Annual Report for 1992. ltwas with a wry smile that I read the statement"Our task is to make the law more simple andmore accessible". The enclosed offprint of myarticle in the Statute l^aut Rmiew on the Law Com-mission proposals regarding a new criminalcode will show one of the reasons why I am scep-tical.
I have great sympathy with the aims of yourCouncil. For many years they have been mvaims too. The trouble is that in the field of legis-lation the problems are exceedingly complex,and there are very few people with the knowl-edge to see just where the answers lie.
None of the above relates to the need to simpli-fy legal documents, such as forms and explana-tory leaflets, which are intended to be readdirectly by members of the public. Much goodwork has been done in that area recently, andmuch more needs doing. The essenc" of *hut Iam trying to convey in this letter is that reform-ers must consider the int ended audience, whetherprofessional or lay, for the document in ques-tion. The requirements of each are different, andshould not be confused together. If they are soconfused, the work of reform can only be hin-dered.
I am sending a copy of,this letter to Mark Adlerof CLARIW.
Yours sincerely,
Francis Bennion
Introduction
Late last year, the BritishColumbiaMinistry ofConsumer Services introduced regulationsrequiring plain language in consurner motorvehicle leases, the first instance in this provinceof government action directed towards theunspeakable language of consumer contracts.Given the positidn Ilook it my 1993 paperlcalling for legislation to require plain languagein legal documents,I expected to lead the cheersfor this regulation. But on reflection,I am ambiv-alent about it. While I commend what I imaginethe Ministry of Consumer Services wasattempting to do and I am pleased that this firststep has been taken,I find the regulation itselfunsatisfying.
I would have preferred that the ministry, indefining "plain language", had placed lessdependence on technical criteria and greateremphasis on comprehension. Alternatively,glven their decision to rely on technical stan-dards, I would have preferred them to go muchfarther than they do.'
Well, as the song says, "You can't always getwhat you want".
We should be prepared for plain language toarrive in small, halting steps. This regulation isone of those steps, with value beyond itssubstantive effect on the consumer law of one
r' Plain Language Institute of British Columbia, So
People Can Understand: A Proposal For a Law to
^ Improve Legal Writing (1993)
/ A ministry official, Barry Bains, told me they wereconstrained from going any farther by the limitedscope of regulation-making power granted in thelegislation. I am not convinced. The generalregulatory authority in the statute is quite broad,and the governmenf enhanced it last fall withadditional specific powers designed to authorizethe regulation the ministry had in mind.
province. It provides a focal point for analyzingthe principles and mechanics of these laws, a
task that is much easier with reference to aparticular statute than in the abstract. I hope tobegrn that task with this comment.
The regulation
Most of the Motor Dealer Leasing Regulationaddresses the content of lease contracts. The"plain language requirements" are brief and setout in section 4:
4. (1) Every lease contract must be writtenin plain language, in not less than 8point type, and in a manner which iseasily understood by a reasonable
Person.(2) A lease contract must not use more
than twice tlre terms "lessee", "Ies-sor" or "assignee".
(3) A11 other references to the partiesmustbe to "consume{',"deale{' ot"leasing company" or identify theparties by name, or use the terms"you" and "w'e" as appropriate.
The standard of "plain language"
This regulation imposes two types of stan-dards:
1. Subjective standard
The contract must be written in plainlanguage
The contract must be written in amanner which is easily understoodby a reasonable person.
2. Objective standards -
(a)
(b)
(a)
o)
(c)
The contract must be in at least &point type.
The contract must not use the wordslessee,lessor, or assignee more thantwice.
Except for the two permissible usesof each of the forbidden words in (b),the contract must refer to the partiesby name ot as consumer, dealer,Ieasingcompany,you, ot u)et as appropriate.
This is an urursual combination. Many plainlanguage laws use a subjective standard,-focusing attention on the effect of writing. Thoselaws appeal to advocates of clarity of communi-cation, who want to know that readers will acfu-ally understand a document, regardless ofwhether it conforms to certain technical require-ments (however helpful those details might be inpromoting comprehension). Other laws use anobjective standard, drawing attention to theform of writing. They are preferred by advocatesof certainty of legal position,whowishtoknowin advance that a document will be able tosurvive any challenge that it is not "plaitr".
- This regulation, combining the two tests, mayhave borrowed from the pattem used by someAmerican jurisdictions in laws governingconsurner finance arrangements.r Apart from ahandful of consumer statutes, it is unusual to seethe two approaches used together and, in myopinion, unwise to combine them. The use of asubjective standard renders all possible objectivestandards redundant on the one hand, andsomewhat deceptive on the other. The combina-tion is deceptive because the objective criteriaseem to provide the contract drafter with thedesired basis for certainty, but against the back-drop of the concurrent subjective test, thatappearance of certainty is an illusion. Further-more, the combination creates a potential forsome decision-makers to equate the two tests,leading to the conclusion that "plain language,,me.rns "satisfying the objective criteria". Toomany people in the legal world already thinkthat way, and we struggle constantly againstthat simplistic formula. Regulations thit rein-force that notion, however inadvertently, under-mine all our efforts to advance the better, moreeffective idea that
Plain language means language that isclear and readily understandable to theintended readeis.4
Ctarity 32 2g
The subiective tests
Unfortunately, the general rule is flawed. Thestatement that "contracts must be in plainfanguage" does little to advance anyhrafter,sknowledge of what standard to achieve whenpreparing contracts for a client. Outside of astated context, the expression "plain language,,is virtually devoid of meaning. You can requirea document to be "in English" or "inCantonese",because those terms refer to definedbodies of vocabulary constrained by standardsof usage and grammar. Notsothe expression,,inplain langudge" - there is no defined vocabu-lary, grammar, or usage to which that termrefers. Indeed, the very nature of ,,plainlanguage", in which meaning is determined bythe personality of the reader and the circum-stances of the reading, is inimical to the idea of asingle fixed and defined body of vocabulary,grafiunar/ or usage. Using the term in a regula_tion necessarily sends the conscientious drafterin search of an answer to the question, ,,But whatir pJil language in these ciriumstances?,, Byitself, the expression, especially as used in thisregulation, offers precious little advice in answerto that question.
lgrlupr recognizing that flaw, the regulationadded a second element to the generaliule, i.e.thatevery lease contract must aliobe written,,ina manner which is easily understood by areasonable person". There are two sub-elementsto the test that the contract be "easily under-stood" when tested against a "reasonableperson".
I applaud the first sub-element.It is the onlyappropriate measure of comprehensibility for alegal document. However, I have a reservation
3bout the language inwhich it is expressed. yes,I suggested the words "easily understood,, inmy proposed draft legislation, but havingconsidered this further,I prefer the adveib"teadiy" to "easily". I fear that "easily,, couldconvey the notion of "without effort,,, an ideathat goes too far to be practical. It suggests thatthe consumer c.rn be a passive recipient of infor-mation, when what consumers want is to under-stand a document if they apptyreasonable effort.Further, drafters of plain language laws need totake care with the ideas inhereniin ,,under-standing" text. There are many levels of under-standing; not all need to be the subject of thepolicy that this regulation seeks to serve.
3' See Plain Language Institute of British Columbia,
Iegislating Plain Language, Background Data(1993), at 153. [Some U.S. laws combine verygeneral standards with guidelines that may beconsidered in determining whether the generalstandard is met. I'm not so sure that this is a badidea. Ed.l
a' 1oe Kimble, in a resolution adopted by the LegalWrifing Institute, 1.992
24 Commenls on a New Plain knguage Law
Let rne use an analogy. As I type this paper atmy computer,I understand that I haveemployed a word processing program, though Idon't understand how it translates mykeystrokes into the desired results; I understandhow to coordinate that software with mymachine and its operating system, though Ihaven't the foggiest idea how the system code isemployed by the machine's Processor to controlelectronic pulses corresponding to the letters Istrike on the keyboard. The point is,I under-stand thepractical aspects of using my computerto type a memo, but I do not understand theconceptual aspects of it, in an engineering orinformation processing sense, at all. Put simply,I understand how to use the computer and soft-ware to do my work, but I do not understandhow the computer or software work. But then, Idon't really need to,.rny more than a consumerneeds to "understand" the technical legalconcepts inherent in the lease contract. Whatthey do need to understand is what their obliga-tions, rights, and remedies are.It is this under-standing of the practical, rather than theconceptual, aspects of the contract that the regu-lation should address.
Especially since this regulation is the first of itskind in the province, it needed to offer contractdrafters more direction, focusing their attentionon the circumstantialnafure of language use andsuggesting procedures by which they couldimprove the likelihood that their contractswould be "easily understood", even in thelimited sense I have suggested.
There are four critical factors which ought tobe examined in determining whether a text is"easily understood":
1) Finding The ability to locate ap-propriate informationwithin a complex textbody.
The ability to decode thesymbols and constructmeaning from them.
2) Interpreting
3) Comprehending The ability to internalizethe meaning of the text ina manner parallel to theauthor's meaning, andwithin the systemic andprocedural contexts inwhich the meaning mustbe applied.
4) Applying The ability to use themeaning of the text appro-priately as a tool for prob-lem solving.
All four must be satisfied if the reader is to beable to use the lease contract to identify rights,obligations, and remedies - as well as theprocesses designed to realize those rights, obli-gations, and remedies - and to apply thoseprocesses in the relevant circumstances. That isessentially what it means for a document to be"easily r.rnderstood",in a practical sense. Theregulation here would have better served theministry's purpose had it directed the contractdrafter's mind to those issues.
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.__Obviouslyl that assessment begs the question,"tlnderstood by whom?, And ttre answer fromthis regulation-in the second sub-element_is
"g 91d legal friend "a reasonable person,,. An
old friend, to be sure, but an unexpected one onthis occasion. A "reasonable person,, is not thes€une as "a randomly selected person,, or even"an average person". According to Mellinkoff,this term refers to
the law's hypothetical creature who haswhat society tends to regard as a normaldose of virtue and acceptable frailty. Thereasonnble [person's] hypothetical action, re_action, or lethargy i. *y situation is thelaw's standard of reasonable conduct forreal people in similar circumstances.S
We are familiar with the,,reasonable person,,when what is being assessed is the conduct,opinion, assumptions, or even expectations of aperson before the court. But in no case thatsprings to my mind is the test applied to theability of one person to interpret *hat someoneelse has done - and for obvious and goodreason.
Reasonableness may have much to do with"action, reaction, or lethargy ir *y sifuation,,,but it has little or nothing to ao wiin ability to"easily understand" anything. The most reason_able reader may be mystified by what I havewritten here. Some highly unreasonable fellows(together,I trust, with some who are reasonable)mly find my thoughts delightfully lucid andenlightening. Ability to "easily understand,, isunrelated to reasonableness; so the second sub_element of the subjective test is inappropriate.
This choice of words also tends to undo thegood-achieved by the rest of the test. The obliga-tion that contracts be "in plain language andeasily understood" is radical. Before the regula_tion, drafters could (and occasionally did) siy,"Well, I understand what it means. if readershave trouble,let them seek legal advice,,.Inother words, each reader borJthe burden ofmaking the communication effective. Under the"easily understood" pilt of the regulation, thewriter must ensure that, in general, readers willunderstand what is written in the contract. Thus,
Ctarity 32 25
the regulation shifts the burden of comprehensi_bitity from the reader to the writer of thecontract. And I believe that this shift is the verycore and essence of plain language.
But the trnexpected arrival of ,,reasonable
person" on the scene might well shift the burdenof comprehension right back to the reader, bycompelling an examination of the reader,s"action, reaction, or lethargy,, when faced withthe leasing contract. Irutead of this question _"Can the contract drafter demonstrate that, onaverage/ consurners of leasing services under_stand this contract when they read it?. _ thequestion has become, "ln attempting to under_stand this contract, did this consumEr d.emon_strate the ability of a reasonable consumer?', Ithink that moves the focus of judicial concernfromthe
11"S"ug9 of the contract to the abilityand the effort of the consurner.
A better test would have asked whether thecontract could be understood by,,the averageconsumer of leased vehicles ,,, moving the -emphasis away from the consumer,s 6ffort tounderstand, and over to the appropriateness ofthe document for use in the in-tendld circum_stances. Equally important, the ,,average
consumer" test would have provided a mean_ingftrl basis for business to assess their contractsbefore using them. It is possible to devise andconduct tests (on all four aspects of under_standing) on draft documer,ts, adjusting them asneeded toreflect any difficulties consuriers havein understanding the draft.
Given the wording of the regulation, effectivepre-testing would be difficult. trstead of deter_mining-before publication what carefullyselected average consurners acfually do with atext businesses and their legal counsel are left toguess at what a fact-finder might judicially esti_mate to be the reading abilities of'an imaginary"reasonable person", relative to the text flacedin front of him. And since, as pointed ouf above,reasonableness has nothing to do with ability tounderstand text, those businesses and their legalcounsel have no more meaningful basis to males-uch a prediction than the judge has to estimatethe reasonable person's reading ability.
.\4j!inkolf's Dictionary of American Legal Usage(1992), at540
26 Comments on a New Plain l-anguage Law
The wording of the subjective test does notaddress the issues in a manner likely to yieldeffective reform of consumer contracts, and itdoes little to inform or assistbusinesses and theirlegal counsel to understand what the regulationactually requires of them. That is regrettable,because subjective plain language criteria offerthe best chance for improving the comprehensi-bility of consumer contracts. The ministrywouldhave better met its objectives with three minordrafting changes:
L. They should have equated "plain language"with being "easily understood", instead ofmaking those separate and seeminglyconjunctive tests.
2. They should have used "the averageconsurner of leased vehicles" rather than "thereasonable person".
3. They should have added a series of sub-issues to be addressed in determiningwhether a document passes the test.
The resulting regulation might have been:
Every lease contract must be written inplain language that can be easily under-stood by the average consurner of leasedvehicles. The following issues must be con-sidered when determining whether a con-tract is in plain language: (here wouldfollow an appropriate list).
The objective tests
The first objective standard, requiring 8-pointtype, is inadequate. The purpose of a type-sizerequirement is to ensure that a document iseasily readable, i.e. that most adults withaverage eyesight will have little difficultyperceiving the words on the page. Readability isan essential element in creating comprehensibletext. But if you wish to enforce readability byimposing minimum type size, you have to use atleast L0-point type as the standard. The ministryappears to know this, for section 5 of this regula-tion requires every contract to bear a prescribednotice to consumers in "bold 12 point type face".Most adults with average eyesight will havegreat difficulty perceiving words in 8-point type.By using this test, the ministry permits the use ofthe deficient 8-point type. So the veryregulation
intended to serve consurners by making thecontract comprehensible permits the contractdrafter to negate those consurner gains by thesimple device of reducing text to a sub-readablesize.
The second and third objective tests areaddressed to vocabulary, the words we use toexpress ideas. This is also a significant concem increating compreheruible text. But the issue ofvocabulary is much more complex than thedrafters of this regulation seem to perceive.Generally,I dislike the Academie Francaiseapproach to language, involving as it does theprescribing and proscribing of words.Language, being a social instrument, is evolu-tionary, and we are better served if we permit itto evolve within principles rather than try torestrain it within rules. Ideally, drafters ofconsumer contracts (or any legal document),bearing in mind their intended readers, willalways select commonly understood words anduse them in their common meanings. If we musthave laws aimed at vocabulary, let themadvance that ideal, rather than forbid or requireparticular words and forms.
Having said that,I acknowledge that theministry is correct in noting that the ee / er / orwords of legalese are not well understood by thepublic. But it is simplistic in the extreme toaddress the question of vocabulao"yby singlingout three words of this class and banning them.It is absurd to ban them except for two uses each!The only acceptable reason to ban words isbecause they will have no meaning for readers,or will confuse them. If that is not a realistic fear,words should not be barured at all. If it is a real-istic concem, it exists no matter how few timesthe words are used - in which case, ban thewords outright. Certainly, the required word listwould serye the purpose of the lease contractadequately without eler needing any of theforbidden three.
Furthermore, this rule invites, indeed encour-ages, the drafter of lease conhacts to break the"Golden Rule" of legal drafting that calls forconsistent use of terms throughout a legal docu-ment.
. ] t9.9g-ze that the drafter may have thoughtit helpfirl to allow these words to be used in"adefinition of the parties to the lease contract. Ifthat is the justificatiory it is flawed. I think mostskillful contract drafters could easily accomplishthat task without using any of these words. Butmy greater objection to this line of reasoning isthat'it flies in the face of the nature and func"tionof definitions.
. [r creating a definition, one could only use theimpugned words in either of two functions: as aterm being defined, or as part of the definition ofanother term. It wouldn,ilikely be the former;why would you define a term which you cannotuse again in the document? So I am teft witn Urenotion that the regulation permits these difficultwords to be used as part of a definition ofanother term. That is a contrary notion if I eversaw one. The whole point of a definition is to usecommon, understood terminology to explain theye 1d-mganing of an tmcommon expiession;that is, the familiaris used to clari$r the meaning9f th" unfamiliar. Here, the sugges'tion is that thedrafter intended to allow the trie of poorlyunderstood or misunderstood terms as part of adefinition of the parties, narnes. Lr othei words,the unfamiliar may be used to define thefamiliar! As Macauley Culkin,s character repeat_edly asked and answered in Home Alone,,,doesthat make sense to you? I don,t think so!,,
- Furthermote, eefer/or are far from the only
forms of legalese that confuse people andobscure meaning; but under the regulation, thelessor (I'm still allowed one more r.ie of that!) isfree to mumbo jumbo away in words from thedeepest, darkest nooks and crannie s of Black,sLaw Dictionary,bliil-rcly unconcemed for the rest
:f q" vocabulary of the contract, just so long ashe doesn't say lessee more than twice. Thissmacks of a formula for magic incantatiory andmagic deserves better. At lelst
Eye of new! and toe of frog,Wool of bat, and tongue of-dog5
has the twin virtues of being poetic andavoiding legal implications.
Gtarity 32 2Z
Conclusion
. A.law of this type is presumably designed toTm".. a practical andheaningflrl govemmentobjective, e.g.
We wish to improve faimess for consum_ers by correcting a defect inherent in themarketplace, a defect which manifests it_self in the use of unreadable contracts.
If this was the &i"it g objective, it may still beachieved in a backhanded way and morethr-ough the fact of the law than through itssubstance. I expect that businesses corirontedwith the-rggulation will easily meet the objectivetests and, having had their attention drawn tothe issue of contract language, might go beyondthose minor technical.eq,rii"-"rris, rl"iri.,g tt
"opportunity to produce a somewhat more read._able contract. That seems to be the hope of thegoverrunent officials responsible for tlis law.But I remain doubtful. I ipoke with the policyanalyst who has conduct bt Uris file, and heassured me that
the fleasing] industry has vast resources oftheir own, lawyers and advisors who knowall about plain language, and we certainlyhave no intention ana u.e not required tohelp them figure out what they have to doto meet these rules.T
The tone of that comment does not bode well forthe hope that industry will happily exceed theletter of the law.
- Apart from that, the ministry seems to miss a
fundamental point: they expect industry to meetcertain requirements, but hive failed to expressthose requirements clearly. It is incumbent onthe ministry, as the author of the regulatiory to:xpres-s or explain those rules clearly, j*, as it isincumbent on a businesS, as the urrtho, of a leasecontract, to clearly express or explain therequirements they expect coosrr-"rs to meet.
.t ne. polal imperative of plain language applies
T ?ll.who.qaft legal documents. it " irir,i#y,,
stated position amounts to a refusal to do the
Conversation with Barry Bains, folicy Analyst,Ministry of Consumer Services, December 13,
Macbetlr, Act IV, Scene 1
1994-
28 Comments on a New Plain l-anguage Law
very thing they are requiring of others. Itdelivers an implied message that the ministryisn't very committed to the principle behindtheir own plain language rule. And thatmessage, intended or not, invites contempt forthe law.
"Ilor y" is the word to describe this effort,which repeatedly takes away with one wordwhat it gave with another. Irony in failing toappreciate that fine words carurot be read ifprinted in type that is too small.Irony inrequiring plain language, but providing noguidance to its meaning. Irony in enacting a
plain language law to protect consumers, butleaving the communicationburden on theconsumer where it was in the first place. Ironyagain in examining vocabulary, but resorting toa formula-drivery rule-based approach to wordchoice. Irony in demanding plain languagecontracts from business but drafting a law that isa confused mix of incompatible visions of whatplain language is. Finally, and most signifi-cantly, irony thatwe have to temper our sense ofvictory in getting a "first plain language law"with regret that its flaws may undermine thegood it was intended to achieve.
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Clarity 32 29
Last October, thePlain English Campaign held its Third International Conference, inWashington, D.C. It attracted participants from around the world: England, the United States,Canada, Australia, South Africa, and Israel.
You have to admire the Campaign fortheir long and tireless efforts to promote plain language.
{len_sgmeone-suggested at the 1993 conference that the movement neided a jump-sta*ln theUnited States, the Campaign agreed - without hesitation - to help. They have b-een doing itfor 15 years, coaxing business and government, speaking for the public, training writers, an-dewen raising a liftle ruckus when need be. Two days before the 1994 conference,-they shreddeddocuments on the Capitol steps - iust as they did years ago in Parliament Square.
Their fight is the good fight that we are all involved in. Ed.
Professor |oseph KimbleThomas M. Cooley Law School"Answering the critics of plain language"
Dr. Dennis KurzonDepartment of EnglishThe Hebrew University of ferusalem"The linguist's dilemma"
Professor Nancy Schweda NicholsonUniversity of Delaware"Language and the law: Plain English for lawyersand its impact on court interpreters"
Clare RobertsScientific and Regulatory Affairs ExecutiveThe European Proprietary
Medicines Manufacturers' Association"The European approach: Good consumerinformation for medicines"
Peter RodneyEFTA Court"Euro-jargon and plain language"
]ohn SnyderNational Vice President,for Public RelationsNational Association of Chiefs of Police"Streamlining anti<rime legislation"
John Stacey and Paulette |amesThe Lord Chancellor's Deparhnent"Communication and the courts"
|o Van Doren, Associate DirectorDocument Design Center"What does it mean to have a plainEnglish document?"
john Watkinsory PresidentSimplified Communications Group, Inc."How can regulations protect consumers whenyou can't understand them?"
List of speakers at the Third lnternationar conferenceChristopher Balmford
Phillips Fox Solicitors"Plain English: What's in it for law firms?"
William W. BradleyDirector of Technical AffairsNonprescription Drug Manufacturers Association"The US approach: Plain English in OTCdrug labelling"
Chief Inspector John BurlinDerbyshire Constabulary"The thin blue line and the thick red tape"
Gwendolyn Campbell, TQM Project ManagerSocial Security Administration,The Atlanta Project"Georgia Common Access Project -one stop customer shopping"
Susan de VilliersAfrican National Congress"The South African experience"
Nicole FernbachJURICOM inc"The impact of plain language, or lack thereof,on multi-lingual communications"
C. Edward GoodLegal Education Limited"The Writer-in-Residence Program at Finnegan,Henderson, Farabow, Garret & Dunner"
Richard Grimes and Christopher AdamsRank Xerox (UK) Limited"Using plain English to set new standards of clarityin our Code of Conduct and customer contracts"
Mary fo jacobiHead of Group Public AffairsHSBC Holdings plc"Banking on plain English"
30 PEC Third lnternational Conlerence
Selected Remarks from the Third lnternational Conference
. The "Writer-in-Residence": A New Position in Large American Law Firms, Edward Good
. A Linguist's Dilemma, Dennis Kurzon
. Communication and the Courts, John Stacey and Paulette James
. Making Plain English Documents Effective, Jo Van Doren
. How Can Regulations Protect Consumers When You Can't Understand Them?,
John Watkinson
The "Writer-in-Residence":A New Position in
Large American Law Firms
"The partners at the firm wanted continual "Really and truly, those at the top of the pro-training of associates in the area of persuasive fession already realize that legalese is a dead lan-writing. And they recognized that persuasive guage," Mr. Good concluded. "It just fails towriting necessarily means clear, concise compel. ]udges aten't impressed. When thewriting," Good said. After he completed a series profession wakes up and realizes this fact of life,of group programs for all 100 associates, the lots of lawyers will have to remake their writingpaitners asked him to create a Progtam just for styles."the parbrership.
Good pointed out that several other firms inthe United States have created similar positions.Shearman & Sterling in New York employsStephen Armstrong. Crosby, Heafey, Roach &May inOakland, California, hired Clyde Lelandto serve as its Writer-in-Residence and Directorof Professional Development. Similarly, thePortland, Oregon, firm of Miller, Nash, Wiener,Hager & Carlsen has hired Dr. Karen Larsen as
its in-house editor.
Edward Good
One of the speakers at the conferencedescribed the beginning of a trend among largeAmerican law firms. C. Edward Good, author ofMightier thnn the Sword - PowetfuI Writing in the
Legal Professfon, spoke about his new position as
"Writer-in-Residence" at Finnegan, FlendersoryFarabow, Garrett & Dunner, one of America'slargest intellectual property law firms.
At Finnegan, Henderson, the attomeys look onMr. Good as an on-site resonrce. "Associatesand partners call with questions all the time,"Good said. "Often, they will bring me in to editand rewrite briefs. With their backgrounds inpatent law and scientific fields and mine in per-suasive writing, we can make a formidableteam."
Good stressed that his and similar writingpositions in law firms make for good employ-ment prospects for those who study plain lan-guage and the law. More and more firms willbegrn to employ professional writers as theyrealize the close connection between winningcases and the ability to write clearly and con-cisely.
-'-\l_
A Linguist's Dilemma
Dennis Kurzon,The Hebrew University of Jerusalem
Dr. Dennis Kurzon, a linguist who has forsome years carried out research into legal lan-glage, talked of a dilemma of his as a linguist.Modem linguistics, as it has developed in Uretwentieth century, has adopted a number ofprinciples to effect a break from previousapproaches to the study of language and lan-guqges. Some of these principles seem to runcounter to what plain-language supporters are
lttgmpting to do. One such principle is descrip-tivism: the linguist sees his or her task asdescribing language phenomena, andexplaining them from either a cognitive psycho-logical or a sociological perspective. fnit is, thelinguists's job is to describe what language lsand, possibly, why it is like that. Thisis opposed
l. t|r" traditional prescriptive approach, adbptedin the past by school grammarians, and atpresent by teachers of style, by languageteachers (out of necessity), and by ptuirr-tun-guage practitioners - many of whom claim tostate how things ought to be.
But, Kurzon went on, despite the apparentlyoqposing yiewpoints, a number of issues mayarise which mayhave interesting implicationsfor linguistics.
The first issue he brought up is that the lan-guage inwhich documents and other legal textsare written may be intricate because it reflectsthe complexities of the legal situation. AsFrancis Bennion writes n Cknty 27, page 19:"obscurity in legislation is very ofteniaused notby unnecessary complication of language but bycomplication (whether unnecessary or other-
-
wise) of thought". If this is the case, the solutionis notin the language used, but in the legal con-cepts involved. Kurzon then presented a con-
lary viewpoint, known as the Sapir-Whorfhypothesis, a strong version of which states thatlanguage determines thought. This wouldimply that complex language as used in legaldocuments leads to the inhicacies of these docu-ments. In order to generate change, social - int'his case, sociolinguistic - engineering is per-haps necessary; but the initiative to change the
Ctarity 32 Al
sifuation must come from those who are profes-sionally involved in the field - the lawyersthemselves.
Kurzon then turned to a linguistic issue whichis central to the use of language in the legal field,although its discussion by lawyers leaves muchto be desired in terms of sophistication. Thetopic is ambiguitp which should not be consid-ered, as Reed Dickerson once said, ,,a disease oflanguage", but as a nafural phenomenon of anylanguage. A balance is needed between thespeaker's need for brevity and the hearer,s needfor redundancy. That is, the speaker does nothavg to say so much and expend energy,applying as it were the so-called principle ofleast effort. On the other hand, repetitibn andthe use of synonymy may ensure that the hearerfully understands the message. Ambiguity isinherent in language, but words and pfuaiesmay be disambiguated either by editing or, morefrequently, by pragmatic consideratiois (thecontext in general).
Kurzon concluded his talk by discussing threetypes of ambiguity:
1. skucfural, e.g. "a small girls, school,,, whichcould mean either a small school for girls, ora school for small girls, depending on wheth_er small modifies girls or schaol.
2. pr1gmatic, e.g. "the chicken is ready to eat,,which could mean that the chicken has beencooked, or that the chicken is running aroundlooking for food. This may be compired tothe sentence "The zebrais ready to-eat,,,*hi+ can only,mean that the zebra,s feedingtime has arrived, since, at least in western cul-tures, we don't normally eat zebras.
3. multiple ambiguity, e.g. ,,The boy watchedth9 Srl in the park with a telescope,,, forwhich the speaker presented six interpreta-tions, and a further two were suggested bymembers of the audience.
What Dr. Kurzon calls structural, orsyntactic, ambiguity does produce a gooddeal of unnecessary litigation. Ed.
32 PEC Third lnternational Conference
Communication and the Gourts
John Stacey and Paulette JamesThe Lord Chancellor's Department
The Lord Chancellor's Department were rep-resented by Paulette james and John Stacey.james explained that they had begun work byreviewing the information provided for uuep-resented court users. Th"y had found existingbooklets far too long and making the commonmistake of trying to cover every possible eventu-ality. Using a combination of plain English andgood design, they replaced the booklets with aseries of illustrated leaflets, each covering a dis-crete area of procedure. This meant that readersneed not read the whole series, but only thosewhich applied to their particuiar case.
The effectiveness of the leaflets helped blazethe trail for the introduction of prescribed formsdrafted in plain English. The leaflets and formshave also led to a more general commitment toimprove the way the Department gets its mes-sage across. The effect has been to encouragepeople to come to court hearings to give theirversion of events: previously they had stayedaway. There has also been a substantialimprovement in the number and quality ofwritten responses to court documents.
John Stacey talked about the hidden costs ofpoor communication. He explained how a formwhich is poorly designed can raise more ques-tions than it aruwers. The resutrt is that staff timeis taken up answering those questions which theform should have answered in the first place. Hesaid that replacing the information booklets withleaflets has reduced the amount of staff timespent in answering questions from the public.He demonstrated that if an average of 4 hours aday in staff time has been saved in each of the270 cottts, the cost benefits to the organisationwould be2.7 million pounds ($4.1 million US).
Stacey explained that good design improvedclarity and gave forms an appropriate authority.Using "befote" and "after" versions of one form,he explained how the redesign improvedresponses in the form of debt repayment ratesfrom 5% to20%.
Finally, james explained that the future in theDepartment promises more moves towardsimproving communication. Successive commit-tees and reviews have called for more plainEnglish documents and rules. There is now awill to change amongst the judiciary, court staff,and the legal profession. This is bolstered by thelatest committee chaired by Lord Woolf. Two ofhis aims are to produce a single set of proceduralrules for the High Court and county courts inplainer Englistr" and to reduce the number ofcourt forms.
Making Plain EnglishDocuments Effective
Jo Van Doren,Document Design Center
The speaker converted her remarks into ashort essay f.or Clarifu.
How effective is a document that is written inplain English? What does it mean to have a plainEnglish document? How do we know if a plainEnglish document really works?
Creating a document in plain English requiresmore than writing short sentences and simplewords. The following is an example of a simplywritten, easy-to-understand sentence from asign at the front of a small commuter planeenroute to Ohio.
Please contact a crew member if you arenot able to read, speak, or understand En-glish, or are unable to understand thegraphic directions or crew commands.
Plainly written? Yes. Easy for the user? Yes,if the user reads or speaks English. But theintended users, people who need to know thisinformation, are people who do not read orspeak English. For them, this sign may as wellnot exist.
I
I
l
I
A plain English document that is effective isone that meets the needs of its intended users. Itme.rns preparing information so that the audi-ence for whom it is intended will find what theyneed, know what it means, and understand whjtthey need to do. To make a document effectiverequires thorough analysis, writing, designing,testing, and revising. And if it is a living docu-ment, such as a government form that willchange due to new statutes and regulations, italso means retesting and revising throughoutthe life of the document.
In the example above, only part of this processwas followed in developing the sign. Some anal-ysis was probably done to determine the reasonfor the information in the sign. The writer madesure the information was concise and to thepoint. The writer used color and bold letteringto make the information stand out, and thenproofed it. Here is where the process probablyended - because if the sentence had been testedwith the intended audience, the results wouldhave shown that the sign missed the mark. Evenw1t|r""t lesting, simply going over the ptrrposeof the information would have made someonenotice that there was a serious flaw.
Sometimes the problems people have withunderstanding information in a document is notlimited to the document itself. The documentcould be part of an entire system of documentsor procedures that is problematic. It may be thatthe complexity of the procedures is the problem.[r some cases, it's the equipment that the docu-mentation supports that is causing the problem.Without understanding users and determiningexactly what they'll need to do with a document,youwill notbe able to produce a useful plainEnglish document. For example, simplifying thelanguage in a tax form will not necesiarily solvethe problems taxpayers have with filling outtheir tax forms. In a project to rewrite and rede-sign the Internal Revenue Service's Form 21.19,we began by asking nurnerous questions andcollecting vital information from the users andfrom the Lrtemal Revenue Service. We alsoknew that we would have to find out if ourrewritten and redesigned documents were anybetter by testing them with the actual usersusing typical scenarios, performance tests, andcomprehension tests. Steps to redo the formincluded
Ctarity 32 93
L. analyzing the form line-by-line to identifyproblems that affect readability, usability,and presentation of the information;
2. identifying all the decisions taxpayers makein order to complete it;
3. interviewing professional tax preparers tofind out what problems they had with theform and what problems they thought tax-payers had; and
4. testing the form with typical taxpayers to findout what they found confusing about theform.
. As one example of the importance of testing
documents with acfual useri, we would have-missed an important problem with the 211.9 con-cerning "fixing up expenses,'and ,,capital
improvements." On the surface, these seemedeasy to define, but depending on when changes(:le as painting a kitchen oi insta[ing newliving room carpeting) were actually m--ade, cate-g9li-zng these changes became very confusing.Without testing, we would have missed the con-fusion and the subsequent errors.
To make plain English documents effectivemeans following a process that requires dedica-tion and commitment from all wholre involved.And the payoff is a measurable impact on bothproductivity and user satisfaction.
34 PEC Third lnternational Conlerence
How Can Regulations Protect
Consumers When You Can'tUnderstand Them?
John Watkinson, President,Simplified Communications Group lnc.
The way in which regulations about thedisclosure of information often interfere witheffective communication was the topic of ]ohnWatkinson, president of the Toronto-basedSimplified Communicatiors Group Inc.
To illustrate his point, he cited the example ofan insurance policy his company revised thatrequired approval by insurance regulators in 50jurisdictions in the United States. "The hurdle ofregulatory approval seems so high, and thepotential penalties so great," he said, "that com-panies often shy away from making changes,'even though those changes would better servethe goals of the regulator and the needs of theconsumer."
Watkinson said that legislation and regula-tions required the insurance policy his comPanyworked on to have the following terms on thefront cover with virtually no explanation: policyschedule, initial faee amount, additional insurancerider face amount, guarantee period, insurance bene-
fits, cash aalue benefits, cash surrender aalue, inaest-
ment base, inaestment diaisions, aariable uniaersallife insurance, flexible premiums, and non-partici-pating. "If you have ever satbehind the one-wayglass in a research project and watched as con-sumers are probed on their understanding of lifeinsurance," he said, "you know that most peoplehave no idea what these terms mean."
lJltimately, Watkinson said his client wasfaced with two choices: to use the existing policywording, even though it was tremendously con-fusing for most people; or to adopt his proposednew wording, risk incalculable delays, and havethe eventual prospect of a wholly unwieldy andimpractical number of state variations. Wat-kinson couldn't fault his client's decision to staywith the tested version. But in this sort of regula-tory environment, he asked, "Who speaks for theconsumer?"
To help avoid the sort of situation he haddescribed, he cited an initiative his company istaking for a Canadian client, in thir.us" i fit ut .ecompany. Currently, the context in which theconsurner is given information that has to be dis-closed by finance companies ensures that it getslittle if any attention. Watkinson said his com-pany was meeting with one of the provincialconsulner-protection offices responsible for reg-ulating finance companies. "Our message issimple: let's work together to figure out a betterway tomake sure consurners knowwhat they'regetting into."
His company planned to propose to the regu-lator that information which had to be disclosedto the consurner be rewritten in plain Englishand presented in a format that would help it tobe easily understood. Watkinson said his groupwould develop a number of differentapproaches, then do some testing with con-sumers to see which one works best. "Our clientwill firnd this activity, and will hopefully be thefirst to benefit if the experiment results in regu-latory approval for anew and more enlightenedapproach," Watkinson said. The new approachwould combine disclosure with effective com-munication. "Not only do you give the informa-tiory" he said, "but you do so in a way that givesthe consumer the best chance of r:nderstandingit."
fohn Watkinson has worked in communica-tioru for 30 years in the United Kingdom, theUnited States, and Canada. He founded Simpli-fied Communications Group in1992to sPe-cialize in making complex in-formation easy tounderstand. The company, which has a full-time staff of.L1,,uses plain language writing andinformation design, backed by systems,legal,and research skills.
News from Around the World
New National Group -Plain English Plus
We are delighted to announce that we have astrong and growing membership of 25 lawyersand document designers (principally lawyerswho work for the major national law firmi). Wealmost have a logo, aname-play on letters inplain English plus.
We have a charter which was accepted at thelast meeting. The charter provides:
Who are We?
- PEI is a group of people who want to bring thebenefit of plain English plus to the world. Ourskills include law, communicatiory language,research, and management. We are happytowelcome new members from all disciplines andbackgrounds.
What are the benefits of plain Englishplus?
We believe that the benefits of plain Englishplus include:
r improving access to information and the lawby enabling users to better understand andfind out about their rights and obligations
o improving business and government eff!ciency and effectiveness
o improving the legal profession's image.
You can advertise inClarity for as little as
f,|5 an issue.
Please contact Mark Adler.
Ctarity 32 35
What is plain English?
Plain English involves:
o thinking clearly. making sure documents meet the needs of the
users
using language, organisation, and design tocommunicate the information to the users
being culturally appropriate. testing documents during the writing process
to improve them and to make sure thit userstrnderstand and can use the information
. more than just documents: the processes andcontext in which the documents are usedmust also be reviewed and improved. plainEnglish plus is a vital part of improving theway organisations do things.
What are PEP's aims?
For the community and the economy we aim:
. to help and encourage the public, business,government, and the legal profession to- understand the principles of plain English
plus
- appreciate the benefits of plain Englishplus
- seek plain English plus for the people whowrite their communications
- apply the principles of plain English pluswhen they write
o to pursue and promote excellence in commu-nication
o to encourage reform in communication. to be a contact and refenal point for people
who want to know more about plain Englishplus.
For ourselves, we aim:
o to encourage, support, and exchange infor-mation between members
o to create a forum to develop skills in plainEnglish plus
o to create a forum to explore and develop the-gre{c{ and practical issues involved in ptainEnglish plus.
36 News lrom Around the World
We are hoping to have a major public launch,
using the Supreme Court Library or some other
suitable red-velveted premises, in March 1995'
We propose to continue having monthly meet-
ingJ(apart from the surnmer shut-down) at
wtich we handle administratiory encourage the
organisatiory and have a half-hor.u seminar on a
topic on mutual interest.
We are asking for a modest subscription fee
of $20 from our members, which will be puttowards the administrative overheads of the
group. We are going to ask one of the major
publishers in Australia to sponsgr a newsletter,which we hope will have dual editors inMelbourne and SYdneY'
Our idea is to build national knowledge and
understanding of the plain English movement'
Contact: Plain English Plusc/- Iude Wallace226KngStreetMelbourne 3000
Tel03 64244?2Fax 03 6424054.
New Plain Language Sectionin British Columbia
According to the Summer 1994 issue of Rnpport
(a Canadian-based newsletter), the Canadian
Bar Association has established a Plain Lan-
guage Section in British Columbia. The Section
is cdarged with carrying out the recommenda-
tions iri Thz Decline and Fall of Gobbledygook, a
1990 report by a joint task force of the Canadian
Bankeri'Association and the Canadian Bar
Association. The first chair of the committee is
Cheryl stephens, who is also the managingeditor of. Rapport. For more information about
Rnpport,write Stephens at The Precedent Group,
P.O. Box 48235, Bentall Centre, Vancouver,British Columbia V7X 1A1"
Lift-off of Clear English Standard
After only five months, the Plain Language
Commission reports that its Clear English Stan-
dard accreditation mark is being used on 320
documents, including pension and investmentcontracts and tenancy conditions. An organiza-
tion's first use of the Standard is free of charge'
For a leaflet explaining the scheme, contactDiana Sheffield, Plain Language Commission, 69
Bings Road, Whaley Bridge, Stockport SK12
7I\iD, UK. TeI01663 733177, fax 735135'
European Association of Legislation,Newsletter No. 1
The Board agreed to give members from timeto time a very simple newsletter about EALactivities.
1.. Second Congress of the EAL
The Camer dei Deputati in Rome could notmaintain EAL's planning for the 2nd Congress
in Rome by end of this year. The recent elections
in Italy and new situation in the management ofthe Chamber Administration required new deci-
sions for almost everything, including our Con-
gress.
However, our friend Dr. Palanza is now in aposition to invite us for the second EAL Con--gt"tt,
24-25March 1995 in Rome. The schedule
Iid not change. So we'lI discuss "NationalLegislations in the European Framework'"
L:rvitations will be mailed out shortly'
2. Publications
The proceedings of the EAL founding sympo-sium in Bad Homburg are now in print and willbe available as Volume L of the EAL publications(Nomos publisher, Baden-Baden) within sixmonths.
The proceedings of the ffust EAL Congress inLidge in September 1993 will be published in asimple and quick way as a brochure soon -edited by Professor Delnoy of LiEge - and asVolume 2 of the EAL publications in 1995.
A Russian version of the Lidge proceedings,which have been devoted to basic issues ofmethodology of written law, has been preparedby our friend Dr. Lafitsky in Moscow and will bedistributed in Eastem European countries thatestablish their legislatures and legislative pro-cesses during these days.
3. Other Reports
Short reports of the LiEge Congress have beenpublished in
o Gesetzgebt+ng huete (CH), 3 /1993,o Legislagao (Port), No. 8/1993,o Zeitschrift fur Gesetzgebung (Germ), 1/1ggg,o Statute Law Review (LIK), Vol. 15, No.2.
4. Board Activities
The Board met on 5 February lggfrnGoete-borg. Board members have been active as con-sultants in issues of legislation and the law. Dr.Marta Tavares, in June 1994, lectured in Bukareston behalf of the Council of Europe on the "Pro-cess of Drafting Laws" before an audience of theMinistry of ]ustice of Romania. Bjorn Edquistworked as a legal adviser to the Ministry of Jus-tice, Vietnam. Professor St. ]ohn Bates took partin a Commonwealth Law Conference in Ottawa(Canada). The chairman in March andNovember 1994 didsome consultancy indrafting the interim and final constitution andorganizing the Ministry of Science and Researchof South Africa.
Clarity 32 37
5. Call for Information
A newsletter can only be as interesting as theinformation from its members. The Boardkindly asks every member to contribute
o in circulating information of conferences,seminars, and other events in the field of leg-islation;
e in drawing attention to articles, books, and"gr"y materials";
. in informing about teaching activities in legis-lation - in universities and institutions ofadministration;
. in making suggestions for new members to beapproached and other personal information;
. in reporting about activities of the NationalAssociations of Legislation.
Received from Prof. Dr. Ulrich Karpen,Schltiterstr af,e 28, D 201.46 HAMBURG
TeL +49 40 4123-3023 or: + 49 40 4123-4574Fax: + 49 40 447854
38 News lrom Around the World
Plain English Committee,State Bar of Michigan
The Plain English Committee of the State Bar
of Michigan is stitt going strong after more than
ten years.
For the last several years it has been sampling
and grading (rougtrly) the quality oflegal docu-
*"ni, i. n4lcttigut . ite Committee has looked
at selected govemment andbusiness doctrments
in five cate[ories: laws; lawsuit papers; real
estate; othei contracts; and wills and trusts' As
part of that effort, the Committee has been^"i"it
n Claritv Awards, which have received
io-uitt"ntion in the local and national media'
For l995,the Committee has annor:nced these
awards:
o The National Bank of Detroit, for a credit-card
application.
. Lou Kasischke, a Michiganlawyer, for an
emploYment contract.
. The Probate and Estate Planning Section of
the State Bar, for a statutorY will'
. The Heaith Care Committee of the State Bar'
for a patient-advocate form'
The Clarity Awards are meant to recognize
progress. The documents may not be.perfect'
Lutlhey take a step in the right direction'
Finally, inJanuary L994,thre C-ommittee pro-
duced # itt.tu of the Michigan Bar lournal that
was devoted entirely to plain language' The
issue included articies by several members of
CLARITY: Joe Kimble, Jo Van Doren (Document
Design Center), David Elliott, Robert Eagleson'
and Edward Kerr.
Legal Writing Committee,American Bar Association
There is a good chance that the L995 annual
meeting of the American Bar Association willincludJa program on plain languagg, sp-onsored
bv the Legd Writing Committee. The Com-
.t itt"" haiseveral members who metwithChdsBalmford last summer during his tour of the
United States, and they were inspired by events
in Ar-rstralia. A possible title for the program is
"The New Plain Language" ("rtew," because
many lawyers sfrll think that plain language is-
all about g"tti.g rid of archaic language - and
no more).
For many years, the American Bar Association
has been imploring law schools to improve theirlegal-writing Proglams.
. A1979 report recommended three years ofwriting in law school.
. A1987 report said, "Legal writing is at the
heart of liw practice, so it is especially vitalthat legal writing skills be developed and
nurtur*ed through careftrlly supervisedinstruction."
. Algg4report called "just Solutions" said,
One theme that arose with regularity at
the just Solutions conference was lan-
guage. In its simplest form, it found its
Ixpiession in questions such as 'Why ,
can't lawyers speak and write in simple
declarative sentences?' Aguit and again,
public delegates spoke of widespreadpublic failure to understand the courts,
ihe strange language that is spoken there,
and the liw's mysterious Processes' ' ' ' Ajust solution would be [creating] Plain
English committees in every state bar
association and charging them withrooting out unneeded legalese wherever itoccurs.
The plain-language program has now beenconfirmed for August 5 at the American BarAssociation's 1995 meeting in Chicago. (Moredetails in the next issue of Clarity.) Chicago isa great city to visit. Classic architecture.World-famous museums. Wonderfulshopping and night life. Maior-league .pJpbaseball. And home of the city blues. OtEd.
New Consumer-Contract Lawin Pennsylvania
We have a report from Roseann B. Termini,who is Senior Deputy Attorney General in thePennsylvania Office of Attomey General.
In June l994,Pennsylvania became the ninthstate to require plain language in certain con-surner contracts. The others: Connecticut,Hawaii, Maine, Minnesota, Montana, New|ersey, New York, and West Virginia. The Penn-sylvania statute specifically states that it isintended "to promote the writing of consumercontracts in plain language." 73 PermsylvaniaStatutes 52202b).
The statute applies to a written agreementbetween a consurner and a pafty acting in theusual course of business, made primarily forpersonal, family, or household purposes inwhich a consurner does any of the following:
. Borrows money.
. Buys, leases, or rents personal property, realproperty, or services for cash or on credit.
o Obtains credit.
However, the stafute has some notable exclu-sions:
r Real-estate conveyancing documents; deedsand mortgages; and title insurance contracts.
r Consumer contracts involving more than$50,000.
I Marital agreements.
o Contracts to buy securities.
Ctarity 32 39
o Documents used by financial institutions thatare subject to supervision by federal or stateregulatory authorities.
. Contracts for insurance.
r Commercial leases.
So what's left? The statute still applies to resi-dential leases, retail installment-sales contracts,home-improvement conhacts, consurner rental-storage contracts, and motor-vehicle leases.
The stafute requires that contracts be "written,organized and designed so that they are easy toread and r.nderstand." In deciding whether acontract meets this general requirement, courtsmust consider a series of language guidelines,visual guidelines, and consumer restrictions.The consumer restrictions require that the con-tract include a description of any property thatthe consumer could lose, or any contractwaiversof the consumer's rights in residential leases.
For a violation, the stafute allows one or moreof these remedies:
o Compensation equal to the value of anyacfual loss.
r Statutory damages of $100.o Court costs.
o Reasonable attomey fees.
o Any other relief ordered by the court.
A contract may be submitted to the AttomeyGeneral for preapproval. The Attomey Generalhas prepared a packet that includes a copy of theact, the process for preapproval, a checklist thatreflects the guidelines for readability in thestatute, and illustrated examples of the guide-lines.
As of January 1995, the Attorney General hadsent about 700 packets and,received about 300applications for preapproval. Most of the con-tracts are for residential leases. The others varywidely: retail installment+ales contracts, con-sent for medical treatment, pre-need funeralcontracts, and more.
For more information, contact:
Roseann B. TerminiPennsylvania Office of Attomey GeneralBureau of Consumer Protection, 14th FloorStrawberry SquareHarrisburg, Pennsylva rtta 17 120
40 Bits and Pieces
Committee News
Understandably enough, he wants to reduce
the burden of hisCLARITY work, withoutbyany means losing touch, and his retirement as
Chairmanhas provided an opportunity to intro-duce new blood in the form of Nick O'Brien,who is now Treasurer. As well as continuing as
the Journal's resident editor, Mark remains on
the committee and is still fully involved in the
organisation's plans and activities.
On behalf of all members, I thank Mark for the
immerue amount of work he has done in the
past, and trust he will continue his enthusiastic
iupport long into the future.
Plain English Precedents
Mark Adler is preparing a book of plainEn-glish precedents for commercial publication,
F"iri due credit to CLARITY's role. Again, if
lou aie willing to offer precedents, please tell us'
ClaritY Mark
We are considering the possibility of awardinga "ClarityMark" tohrms and individuals whopractise what CLARITY preaches. Planning is at'an early stage, but I hope to let you have fum de-
tails in the next issue.
We had considered awarding the Mark for
specific documents, but various practical Pfob-16ms arose: if we aPProve a standardised docu-
ment (say, a lease), *e could not check on the
clarity ofth" variable text that mighibe inserted;
wodh minor revisions require fresh approval
from scratch? Also, we were concemed over the
(probably remote) chance that an "end user"
^ignt cliim against CLARITY if the legal effec-
tiv6ness (as opposed to the style) of the docu-
ment was not uP to scratch.
We decided instead that it would be both safer
and more useful to encourage those who followCLARITY's aims to flaunt it on their letterheads
- an added benefit being that such a system
would be largelY self-Policing'
ISO 9000/BS 5750
This Standard can be a means of encouraging
the use of clearer language. We therefore intend
lobbying BSI to tnis JffeCt in time for when they
next revise the Standard.
These are some of the topics the committee is
discussing. If you have any comments on these
topics or i:ggestions for other items to consider'
pl"ut" conticl Justin Nelson or any committee
member. We would greatly value your views'
The Woolf review ofthe civil iustice sYstem
We have ioined the list of prospective consult-
ees (is there such a word?) for this' We should
,"."irr" consultation documents as the Board is-
sues them. Initially, the committee will consider
these, but may cali ,tpon other members to help
in preparing resPonses as aPProPriate' The most
reterrat t arJa is iitety to be the review of the
rules of court. If youare interested in this, please
tell us.
Change of Chairman
At the Annual Meeting and supper inOctober'
Mark Adler retired from his post as Chairman'
and I was appointed in his place' Mrark remains
editor-in-chiuf of tt " Joumal, though guest edi-
tors are being invited to take over for some indi-
vidual issues.
Ever since he joined CLARITY, Markhas been
a stalwart supporter and, as Chairman, he has
done more than any predecessor to raise CLAR-
Ifi's profile in the legal profession, in academic
circles, and amongst the public generally' As-
well as running Clerufy extremely efficiently'
and adopting il "ty pro-active attitude in this'
he has p.o*6t"a CleruTy's aims through the-
publication of his book (Clarity for Inwyers) and
ihrough his plain drafting seminars'
Bar Conference andLaw Society Conference
Wg ge investigating the possibility of runningworkshops (or similar) at each of these confer--ences in 1995 to promote CLARITyand its aims.If we are successful in winning a slot, further de-tails will follow.
L995 Clarity Awards
. Sp_onsored by D.I. Freeman (who recently won
t}ae Estates Gazett e' splain language competition),these awards are intended to demonstrate andrecognise good communication by lawyers, andhighlight poor examples. Open to all lawyers,entries from CLARITY members would bi par-ticularly welcome. Full details appear elsewirerein this issue.
Committee meetings
We hold these approximately every twomonths, at the home or office of a committeemember. Non-committee members are welcomet9 atJend if they want to observe or take part inthe discussions- If you cannot attend a rneeting,your views and suggestions are still welcome.
The next meeting will be in central London onSaturday 8th April, starting at 10:30am and end-ir,g !y 1:00pm. If you want to attend, pleasespeak to me.
Ctarity 32 41
Annual Meeting and Supper
We feel it is time to change the format of theannual get-together, and suggest a three-stageformat.
o 6.00pm to 6.30pm: a short formal businessmeeting
. 6.30pm to 7.30pm: a.lecture, talk, or discus-s10n
. 7.30pm onwards: supper, similar to prev!ous years
Members could attend one or more parts of theeveningwithout feeling obliged to attend all.
The event is likely to be held on a Fridayevening in central London.
BACK NUMBERSof Clarity are available at the following prices:
Issues
1-4 fl, each5-11 €1.50 each12-24 f2 each25-31 fg each
CLARITY TIESare available at f,8.50 each
42 Bits and Pieces
1995 ClaritY Awards -Sponsored bY D.J. Freeman
The awards
The awards will recognise lawyers who -. use modem language
. set out documents clearly
. generally make sure they communicate effi-ciently and effectivelY
Through the awards, CLARITY and D I Free-
man hope to demonstrate to lawyers and publicalike thi benefits of clear commrnication and ac-
curate use of Plain language.
We will reward the authors of thebest exam-
ples and the suppliers (who need not be the au-
thors) of the worst examPles.
Entries
Entrants may submit as many items as theywant. Entries canbe any legal documents(agreements; orders; Articles of Association;delds; pleadings; judgments; debentures; etc) orexplanatiors (client care /Rule 15 letters; news-
leiters to clients; letters of advice) in any field oflaw. The important element is the clear commu-nication of what would otherwise be complicat-ed or difficult.
Procedure
Entries should be sent to D j Freeman by 21st
April1995.
CLARITY and D j Freeman will present the
awards at a ceremony at the Law Society's HaIlin London on the evening of 23rd May 1995.
Entering the scheme -o gives us the right to publish the names and
details of the entrant and all or part of the ma-terial submitted.
r is confirmation that use of the entry does notbreach any confidence, professional ethics, orcopynght.
Contact details
Please address all enquiries and entries to -D j Freeman (ref: Clarity)43 Fetter LaneLONDONEC4A 1NA(DX: 1,03, London)
Small world. The Plain English Committeeof the State Bar of Michigan has been givingClarity Awards since 1992. See Clarity 27
'page3. For international readers, perhaps we willcall ours the Michigan Clarity Awards, so as
not to confuse them with these new andimproved CLARITY Awards. In any event, youcan't have too much claritY. Ed.
CLARITY recognized in Hansard
The following remarks were made by Lord Henderson of Brompton in theHouse of Lords on
December 14. He is commenting on cllRIry's submission to the Hansard Society Commission
on the Legislative process. CLAIITY's submission was prepared by David.Elliott. It appears in
Clarity Zi-Zgand in the Commission's Report, called Making the Lazo, Pages L92-216'
I wish to say a brief word about the delightfully wrjttgn Memorandum L8 entitled "Clarity',' . I wish
to know who or where is Clarity? What ii she - or is that an official secret? The memorandum was
so well written that I think it should be published as a separate paper. The excellent memorandum
discusses the use of purpose clauses, "rri ,".o*mends them. I was disappointed not to see that en-
dorsed in the reconunendations of the Hansard Society Commission. Purpose clauses could reduce
exceptional resort to Hansard by the courts'
The Missing Link:Bringing the User lnto
the lnformation Lifecycle
This is an excerpt from "Focus on Infor-mation," a new client newsletter by Infor-mation Management & Economicsr lnc., inToronto, Ontario. The president is Mark Vale.
Analyzing information needs and collectinginformation is the beginrring of the informationlifecycle. For most organizations, the primarymeans of collecting client information is throughforms. However, the client is often left out whenanalyzing information needs in forms design.Using a plain language approach to forms de-signbrings the user into the process, and ensuresmore effective and efficient management of in-formation resources.
Client forms are critical to developing infor-mation in all organizations. The information be-comes the basis for the delivery of services orproducts. Inaccurate information means in-creased costs to the organization.
Organizations have become very adept atdealing with deficient forms, but the resultingcosts are significant. Inone govemmentregstryit was estimated that it took ten times longer tohandle a form with errors on it than to handle aform with no errors. The extra time was spentfollowing up with the clients to obtain the cor-rect information. For example, if the error rateon the forms was 20 percent, the registry wasspending more than 70 percent of staff resourcescorrecting errors.
Clarity 32 43
How can plain language help? A plain lan-guage approach to forms design treats the pro-cess of collecting information as a dialogue withthe user. Research has shown that by conshuct-ing the form as a communications dialogue, er-rors are reduced and clients find completing theform easier. By developing plain languageforms, the British Columbia Small Claims Courtwas able to handle a 40% increase in case loadwith the same staff resources.
Usually theprocess of forms designstarts fromthe point of view of the organization and whatinformation must be collected. The data ele-ments are assembled based on operationaf poli-cy, and legal considerations. The design is oftenbased on the needs of data processing systems.Plain language forms design, on the other hand,focuses first on the user and matches the user'sneeds with the needs of the organization.
A key part of plain language forms design istesting the form for usability and readability be-fore the form is finalized. This testing ensuresthe form will effectively collect the right infor-mation.
By bringing the user into forms design, organi-zations can collect accurate information early inthe inf ormation lifecycle.
44 Bits and Pieces
Top of the Form
with the public. After completing his study,Mike retumed to the Revenue to work in inter-nal communications - but he has never lost hispassion for forms.
Communicating by Design
Mike's philosophy for forms is based on twoprecepts: user-friendly design and clear, simpleianguage. 1'All too often," he says, "forms are
designed to meet the needs of the organisationwithbut any thought being given to the prob-lems this causes the recipient. And forms are
never given the priority they need at the designstage; it's usually a last-minute job."
Problems can arise from a long or unfamiliarword; a long or complex sentence; a long line oftype; a string of words in capital ietters; or text ina small typeiize. If such problems waste just fiveminutes'time for each user in an organisationwhich uses 200,000 forms, the burden imposedon the public is equivalent to two years'wastedtime - or, in cash, upwards of f,50,000.
In some situations the consequences can bemore serior:s. People who need to claim benefits
but who cannot understand the forms they mustcomplete, are denied their rights or suffer delayin payment.
There is also the additional burden on the or-ganisation, the staff time, and the extra postage
of putting right the errors in incorrectly complet-ed forms. In Sweden, applications for housingallowance were taking far too long to process be-
cause of errors in completion' This was not onlycosting the department money, but also delayingthe payment of benefits. The Ministry devised,
with the help of consultants, a form that has littlecartoon illustrations to help people complete it.The result was a dramatic reduction in errorsand a better customer service.
This article about Mike Foers appeared inCommunication Europe, the iournal of the
Federation of European Industrial Editors'
, i,Ti;o,To ru it is someonehnnding me a form
and saYing, "Fill this in" 'It's hard to put into words iust whnt happens to me'
Eaery part of my body stffins. I gohot all oaer'
I feet tike I am going to pass out. I can't moae'
I can'i speak and there is a little man in my head bashing
my brains with ahammer.
These opening lines from a Poem, Fear is, ex-
press the feelings of many people. Yet forms are
the principal means for businesses, governmentdepirtments and public utilities to talk to their.*to-u.t. Sadly, for many people, the conver-sation seems to be in a foreign language, with fartoo many forms still virtually incomprehensibleto ordinary folk.
The UK's hrland Revenue won its first award
from the Plain English Campaign in L984 and ithas been a regular winner since. But only the
first awardwas a form - a simplified tax retum'The person responsible for the design was MikeFoeri, who wai then the inspector in charge ofthe department's forms design unit. And he has
been c-ampaigning for simpler forms ever since'
In 1985hewas awarded aCivil ServiceFellow-ship to look at what other countries were doingto simplify administrative forms and how they
were tackiing the problems of communicating
The costs of completing and processing a formare estimated to be 20 times the costs of produc-i.g it. So a little extra money spent at the designstage can be very cost-effective.
But sometimes designers become too involvedwith design and lose sight of communication.Mike believes his skills come from working in abig organisation with many forms, from an in-volvement with plain English, and from an en-thusiasm which outweighs his lack of formaldesign training.
Have Form, Will Travel
Attheend of his fellowshipyear and followingthe publication of his report -u AComparativeStudy of Administrative Forms" - Mike was in-vited to give a workshop in Paris to OECD rep-resentatives. He also visited Ankara andIstanbul, the Escola d'Administracio Publica inBarcelona, and an international UNESCO /ICO-GRADA conference in Nairobi.
His first design assignment came with an invi-tation from the International Monetary Fund.The assignrnent, in October 1988, was for twoweeks in Budapest. Hungaryhad a personal in-come tax system - the first in more than 40years - and needed a tax retum ready to issueinlanuary L989. The department's draft formwas 1L pages long with more than 70 pages oftypescript notes! Two weeks later they had afour-page retum, and the notes were containedin a 16-page booklet incorporating a ready reck-oner, to help people in the new self-assessmentsystem.
Clarity 32 45
The next overseas assignment was anotherIMF mission n1992in Sri Lanka, where taxcollection was being computerised and newstationery was needed. Sri Lanka has twoofficial languages - Sinhalese and Tamil - anduses English as a link language. All Govemmentforms must be in the three languages, so spacewas at a premium and instructions had to besimple and clear.
If designing the forms was one challenge, get-ting them printed was another. Producing con-tinuous stationery in Europe may be aneveryday occurrence; in a developing country itis entirely different. But after two months, thetax department had a series of new forms.
Currently, Mike is working on a project wittrthe tax department of the Govemment ofLesotho in southern Africa. He is redesigningexisting forms to make them easier to completeand process; designingnew forms, as the tax sys-tem is overhauled; and introducing a corporatestyle for stationery. M*y of the forms are bilin-gual - Sesotho and English - but after copingwith three languages in Sri Lanka, two languag-es are relatively easy.
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48 Bits and Pieces
Danka lntroduces a Short'TermLease in Plain Language
The following appears in the advertisingbrochure for Danka's new short-term copierlease.
With other photocopier distributors you couldspend a forfune on legal fees, sorting out the con-
tract you thought you signed from the contractyou actually did sign. Sir Bryan Carsberg, the
Director General of Fair Trading in the OFT'sreport "Photocopier Selling Practices", March1994, writes: "Misrepresentation, obfuscationand deceit are the things that are objectionable."
Danka agree
So we have introduced a simple S-point agree-
ment which can be cancelled, at any time, withjust 90 days written notice. Nothing more topay. No penalties. No upgrades. No small print,ana lt doesn't matter if you're a well establishedcompany or if you are just starting up: it isexactly the same contract.
Customer No:
Customer
Lqll tt'.1_. ..
L!9r:'-
Post Code
Name of Bank
Agreement No:
Ivrg ql Psrllp:t.. . . .
I-qqn.ir 9$ilqll .
Isl ltgf:rllg. ...9-om.cllv.l:gi:$Io-trtq .
'........'-...,.......'-........'.
_......._.,._...,..,.:-......
....-.,......,..-......, ..4
l{9rs:r..trot ! trt. d.cr...t ri ror ro rr r'r ror rrne;;;;;;;;i:i:;;;;; i"i"''"'lrt 'o' rlt'
Supplier: Danka
sortcodetl-m-m
Sales Person
Te[ No
+ VAT payabte quarterty in advance
+ VAT payabte monthly in arrears.
Branch:
r44rq.rri..... . .
Payment Terms Renta[s of fpenceCost Per
EquipmentQuantity
Terms and Conditions
1. This agreement may be cancetted by
either party at any time by giving 90 days'
notice to the other by recorded detivery
letter. Upon canceltation the Customer wiltmake the Equipment avaitable for coltection
by Oanka.
2. Rental payments are fixed but the Cost per
Copy may be increased annuatty in line with
the R.P.I.
Signatures
3. The Cost Per Copy inctudes atlreptacement parts, labour. btack toner,
consumables, and catl outs, It does notinctude charges due to misuse of theEquipment. Paper and any cotoured tonerwilL be charged separately. Danka wi[[ not be
liable to the Customer for faiture to provide
services due to causes beyond its controt.
4. The Customer witl fu[[y insure and take
proper care ofthe Equipment and willimmediately advise Danka if the Equipment
is tost or damaged.
::':':*::
5. Danka excludes a[[ express or imptied
warranties in respect of the Equipment. Inno event wit[ Danka be [iabte to theCustomer for any consequentia[ [oss
(inctuding any lois of revenue or business)
arising from the us€ of the Equipment. The
Custonet indemnifies Danka against any
loss, damage or injury caused by theEquipment or its use, except for death orinjury caused by the negligence of Danka.
Thls does not affect your statutory rights.
Manufacturet Model No
Duty authorised
0wnerDanka UK ptc. lilaidenhead House, 112 Barthotomew Street, Newbury, Berkshjre RG14 5DT
Short term Lease
Acceptance fot and
Tel.: 01635 31103 Fax:01635 31101
A Practical Guide toUsability Testing
Joseph S. Dumas and Janice RedishAblex Publishing, Norwood, New Jersey
"Watching users is both inspiring andhumbling. Even after watching hundredsof people participate in usability tests, weare still amazedat the insights they give usabout the assumptions we make. . . .
Watching just a few people struggle with aproduct has a much greater impact on [de-signers' and managers' attitudes] thanmqny hours of discussion about the impor-tance of usability or of understanding us-ers." A Practical Guide to Usability Testing,page32.
Sometimes it isn't practicable and clients'bud-gets don't allow it, but there's been a mytharound that user-testing is rarely done by plainEnglish exponents. In this book, Dumas and Re-dish finally lay the myth to rest. Both have wideexperience in creating plain English documentsand setting up testing procedures, and it shows.
The book argues for usability engineering,meaning the harnessing of users'resporues andviews to inform the development of softwareand machines. Dumas and Redish explain whythis is necessary (it's costly and inefficient notto), what effect it has on writers and product de-signers (stunning and salutarl), and how it canbe done (no need for enormous expense or ex-treme scientific rigour). The how-to sections areremarkably detailed, down to explaining theconvening and running of successful focusgroup discussions, ways of avoiding the intro-duction of bias into participants'responses, andthe optimum arrangement of fumiture in usabil-ity laboratories.
Clarity 32 49
There is a particularly helpful section on set'ting usability goals during - not after - prod-uct development. An example of such a goalwould be: " A totally naive user will be able totake this computer out of the box and have it allcornected and configured in less than half anhour without calling for support." The goal thenacts as a spur to product designers and instruc-tion writers, and the success of a testing pro-gramme can be measured against it.
Most Clarity readers do not make softwareprograms or machines, and there is little in thebook that directly relates to testing documents,legal or otherwise. But with a bit of ingenuity,much of the information can be adapted for thisPurPose.
Martin Cutts
Drafting and NegotiatingCommercial Leases (4th edition)
Murray RossButterurorths
When I reviewed the third edition of this work,I said how impressed I was with the text, whichwas detailed, well-researched, and practical inits outlook. The text in the fourth edition de-serves all those comments, and is of course up todate (the law is stated as at 1 March 1994). Eachclause of a commercial lease is analysed, ex-plained, and put in context, with chapters alsoon underleases/ renewals, and completion andpost-completion practicalities.
As a textbook for a practitioner, it is excellent.
The main difference befwben the third andfourth editions is that the third included theRosscastle Letting Conditions, while the fourthdoes not. The Conditions were a brave attemptto introduce standard commercial letting condi-tions that could be incorporated in leases by ref-erence (in the same way that the StandardConditions of Sale are incorporated into con-tracts for the sale of land). Unfortunately, theConditions were not taken up generally, andMurray Ross has admitted defeat (for the timebeing, at least). Instead of persevering with the
50 Book Reviews
Conditions, the fourth edition of his bookincludes a selection of precedents of complete
leases and of individual clauses.
The complete lease precedents are -. leases of whole buildings (long and short
forms)
. leases of parts of buildings (shops and offices)
. a lease of an industrial unit on an estate
The individual clauses cover altemative ver-sions of service charges and insurance cove-
nants, and include clauses for rent review,underleases, and contaminated land, and an al-
temative clause qualifying the landlord's rightof access.
All the precedents are clearly written, andshould appeal to all but the most radical ofCLARIfi members. They are also supplied on a
3'1./2" computer disk, which is included in thecover price. Apparently, they canbe retrieved inWordFerfect (for DOS or Windows)' Wordstar,RTF or ASCtr format, but so far I have been r:n-able to get into the disk to extract them.
As in the third edition, the book also includesa useful checklist for the tenant's solicitor andsets out the text of Part II of the Landlord and
Tenant Act 1954.
The book is well worth its cover price to any-one who deals with commercial leases, howeverfrequently or infrequently. Although I personal-
ly * disippointed that the experiment of the
Rosscastle Gtting Conditions did not get off the
ground, after five years a nery edition of Ross's
Sook was needed, and this edition canbe highiyrecommended.
Justin Nelson
Drafting Settlementsof Disputes
Michael ArnheimTolley Publishing Co Ltd
All too often, settlement agreements, consent
orders, and similar are drawn up in a rush -and show it. This book first demonstrates howeasy it is to make serious mistakes in writing let-ters in negotiation, in agreeing on settlementterms, and in drawing up consent orders, thenshows how to avoid those mistakes
It covers a wide rtrnge, from negotiating theterms of a settlement (including a discussion ofthe lawyer's role and "2l golden rules of negoti-ating") to recording agreed terms in a memoran-dum or incorporating them in an appropriateorder (or both, as the author recommends).
I found the analysis of the relevant law excel-lent it explains the legal background to variousaspects, identifies critical factors to bear in mind,and shows how to avoid fundamental errors' Itenables the reader to understand the points thatshould be covered in letters, agreements, and or-ders, and to appreciate how they are best cov-ered.
Where the work disappoints is in the draftingadvice and the speciment documents. I maybeover-critical, as the author is a member of CLAR-ITY, and I expected better of him. I was disap-pointed in the sparse drafting tips (avoid"Legalese"; use - but do not rely on - punctua-tion), and in the precedents: the precedentagreement on page 65 contained irritating de-tails (using hereby and shall, f.or instance) and was
defective (providing for only two out of ten in-stallments of the settlement sum to be paid).
That said, any lawyer (certainly, any CLARITYmember) worth his salt will recognise and com-
pensate for the drafting shortcomings. The real
value of the book is in its text, which is a handybut detailed account of the relevant law.
justin Nelson
Mellinkoff's Dictionary ofAmerican Legal Usage
David MellinkoffWest Publishing, St. paul, Minnesota
h 1963 David Mellinkoff published The t^an-guage of the lza. Mellinkoff wrote in its introduc-tion that his book was "a beginning. The goal isnothing more modest than the rationalizafion ofthe language of the law" . He followed that bookwithLegat Writing: Sense €t Nonsense in 19g2.Both these books set out how the language of thelaw developed and why lawyers use certainwords and phrases. They were written to ex-plode the "myth of precision" aurrdto show law-yers that they were fooling themselves if theythought the traditional way of writing had somespecial magic. They are also practical books,bothwith a detailed word and phrase index. Soit was a logical step for Mellinkoff to produce adictionary of the words and phrases themselves.
Mellinkoff floated the idea for his dictionary in1983 in a lecture glven to the Los Angeles divi-sion of the University of California AcademicSenate. This lecture was "The Myth of precisionand the Law Dictionary",3T UCLALaw Reaiew483 (1983). tr it he stated that "I think that thecomplete law dictionary on historical principles,the path of the OED, will remain a scholar,Jdream". He thought that the path shown byFowler's Dictionary of Modern English llsagewould be a more useful one to follow. Mel-linkoff proposed that A Dictionary of AmeicanLegal Usage would
help to resolve the identity crisis of the lawdictionary. The new dictionary would notbe an old curiosity shop, nor a sort of legalencyclopedia. Itwould notbe a dictionaryof law, but a dictionary of the language oithe law as used in America today.
Ctarity 32 51
Of course, before Mellinkoff published his Dic-tionary, another was published. Bryan Garnerproduced lis Dictionary of Modern Legal llsage tn1987. This also has Fowler as its inspiration. ButGarner's is a very different book, and I will ex-plore some of the differences later. However, allthree have one thing in common: the personalityof the author appears in many entriei. Thismakes Fowler, Garner, and Mellinkoff muchmore fun to read than an impersonal grammarbook or dictionary.
Mellinkoff s Dictionary hers a number of featuresthat make it easy to use. At the front there is acomplete index of entries. The print is clear and
lhe gageswell set out. The organising principlefor MellinkoffsDictionary is based on the themesunderlying his earlier works. Words have aplace in the dictionarp he explains in the pref-ace, "when the law gives them a specializedsense; or to emphasise that there is none,,.
This approach means that there are two mainstyles of entry: those which simply explain a le-gal word or phrase and those that show why acertain term should not be used.
Some entries simply explain the special mean-ing of a word in common use. For example,"novelt5r: a requirement of patentability. . . nota requirement of copyright".
With a legal term such as Tbin t and seaeral liabil-ify Mellinkoff explains what it means, then in-cludes an example that uses the term in context.This is a very usefirl part of the Dictionary. Theexamples are made distinctive by a mark in thetext and a different typeface, so it is easy to tellthem from the explanations.
Mellinkoff does not attempt to find a plain lan-grug" altemative for every traditional phrase.Some words and phrases have technicil mean-ings and have to be used.
But tum to a phrase hke null and aoid. As wellas explaining what it means ("void and void,which is to say a oid"), Mellinkoff criticises its tuein the colourful language characteristic of hisother work. He writes that nuII and ooid is
one of those once fashionable coupled syn-onyms that refuses to admit it is dead. It hasdeveloped a flair for redundancy. Writersshower the colpse with flowers . . . .
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54 Letters
Dear Mark,
As always, I read the most recent Clarity withinterest. I have some comments on the Lrterpre-tation Clauses on pages L2-1,4. They come froma non-lawyer's point of view, which may givethem an interesting slant for many of your mem-bers.
My comments relate to those clauses whichhave a property bias, since I do not feel compe-tent to comment on other matters.
General -All lawyers should be assured that I, and I sus-
pect many of my Chartered Surveying col-leagues, welcome any move which is likely toget property-oriented legal documents, in partic-ular leases, expressed in clearer, simpler lan-guage.
Flowever, the preparation of complex docu-ments, tailor-made for a particular sifuation, us-ing standard clauses is fraught with problems.Some of my colleagues have prepared what arecolloquially known as "structural surveys" us-ing standard word-processing paragraphs. Itmay be cost-effective for the surveyor but cheatson the client, who used to be the person whomattered in professional circles. Sadly, i^ *yprofession, this is not now so much the case.
However, the worst aspect of preparing docu-mentation in this way is the complacency it in-duces in the professional. There is a very naturalhuman tendency to omit rigour from drafting insuch circumstances.
L6 Leases -16.4 Elements for inclusion in "the demised
property".
Lr -y experience, many lawyers are guilty ofinept drafting of leases, particularly in residen-tial circumstances. Few have any concePtion ofhow the simple but somewhat important mat-ters of maintenance are undertaken during theterm of a lease by parties such as managingagents, who have relatively little, if any, chanceof input into the initial definition of the repairingobligations.
For instance,I have advised one party to alease on the practicalities of repairing shucturalfloor timbers, known in the trade as "joists",where the divisionbetween two flats, one abovethe other, is defined as being through the middleof the depth of such joists. Anybody with anounce of practical sense would realise that it isvirtually impossible to repair rotted timberswithout replacing the whole member. Whathappens if one or either tenant refuses to join inthe remedial work?
Lawyers should remember that leases are gen-erally only referred to either when there is an im-pending dispute or when the two parties to thedocument are involved in a matterwhich affectsthem both. Otherwise, the document merely sitsin a deed box. In other words, when the partiesrequire clarity, if it is ill-drafted, they are badlyserved.
I applaud the intention to define those ele-ments of the propertywhichareincluded withinthe demise. Flowever, why are window sills ex-duded from "windows, window frames andwindow glass"? In building parlance, the sill isthat part of the window frame which projects be-yond the external face of ttie property so as toshed water clear of the fabric beneath. It is illog-ical to exclude this from the definition of win-dows and their frames, since it is invariablyattached in a soiid manner.
It frequently happens that windows and theirframes are included within the tenant's demise,but the external decoration is the responsibilityof the landlord. Unless there is a mechanismwhereby the landlord can override this liabilityand repair the tenant's windows, the landlord isfaced with the possibility that, each time theproperty is decorated externallp he may befaced with painting over rotten timberwork.Without specific provision, his only mechanismis to try and persuade the tenant to repair the de-fective member. If the tenant refuses, the mech-anism of a dilapidatiors claim is his onlyrecourse. It is a very practical problem. I know
- I have had to deal with such a situation in-volving 48 Flats!
16.6 Obligation to maintain property
This clause appears to be fraught with contro-versy, albeit from the best of motives. If, as thedrafters intend, it is to be interpreted simply, thelack of the word !'repair" places an obligation onthe party with responsibility for this clause to dolittle more than clean it, arrange the fumiture,and decorate it regularly. There is no sense inwhich the somewhatnecessary regular repair ofa building is required.
Furthermore, defining the standard of mainte-nelnce in relation to that which existed at the dateof the lease flies in the face of the mass of caselaw surrounding the area of dilapidations. Atpresent, the only way in which the standard ofrepair is related to the commencement of thelease is for each party to agree to a record of thecondition of the building at the beginning. Cer-tainly this clause would simplify matters in suchcircumstances.
\Atrhat would happen if, as is frequently thecase in old commercial properties, the tenantwere to improve, extend, and alter the propertyout of all recognition. Clearly he would satisfythis clause, but would there be a correspondingobligation on the landlord to financially recogn-ise the improvement in the investment-valueifhis property as a result of the tenant's exceedingthe terms of this clause?
It is not that I object to this clause; far from it -if properly drafted, it could introduce greaterfaimess into an area of the lease which is open toa lot of abuse, particularly by landlords. Howev-er, I would be concerned at setting the standardat the date of the lease rather than at the com-mencement of the term. As we all know,leasesare frequently dated many weeks, months, andeven years after the commencement of the term.
I hope these comments are of some interest.They are not intended to be negative criticisms.I find many of the ideas expressed in this articlerefreshing. I toust Messrs. Castle & Nelson willcontinue with their good work.
Richard AllenRichard Allen & AssociatesChartered Building Surveyors
Clarity 32 55
Comments on the Criticism ofSpecial Conditions of Sale
in Clarity 31, page 23
Dear Mark,
I must get this comment in before RichardCastle does!
Under the title "Customising the standardconditions of sale", you criticise the commonspecial condition for reduced deposits for itspoor drafting.
There is a more ftrndamental comment: thespecial condition is completely redundant, asstandard condition 6.8.4 covers the point verywell.
Other commonly used redundant specialconditions are:
. "The provisions of this Agreement shallremain in full force and effect notwithstand-ing that completion has taken place" -see standard condition 7.4.
. "If. the expression'the Seller'refers to two ormore people their obligations are joint andseveral" (and the same for'the Buyer') -see standard condition 1.2.
. "The parties hereby authorise their respectivesolicitors to effect exchange of contractsby hand, post, fax, telephone or such othermethod as they may decide . . ." -see standard condition 2.1.
e "The deposit payable hereunder shall be paidby banker's draft or Solicitors' Client AccountCheque" - see standard condition 2.2.1.
. " Arty interest earned on the deposit moneyshall belong to and be paid to the Seller" -see standard condition 2.2.3.
r "The Property is sold in its present actualstate and condition and the Seller givesno warranty . . . (etc)" - see standardcondition 3.1.3.
. "The Seller warrants that any chattels herebyagreed to be sold are his own absolute unin-cumbered property" (usually inserted bybuyers'solicitors) - see special condition 9.2,bearing in mind the warranty as to title im-plied by the Sale of Goods Act.
56 Letters
I find it worrying that solicitors are amendingthe standard conditions without actually know-ing what they already say.
On a related topic, I find that solicitors do notknow what the Law Society's Code for Comple-tionby Post says. Often, in response to the ques-
tion "Will you use the Law Society's Code forCompletionby Post (1984 Edition)?" I get the re-ply "Yes, at the Buyer's risk". I think this ismeaningless. On asking for an explanation,I amusually told that any documents sent to me willbe at the Buyer's risk - paragaph 7 of the Codealready says so.
Recently, the "explanation" I received said-
We are anxious to avoid the situationwhere in the event of a second charge be-ing disclosed by your Land Regtstrysearch, having regard to the decision tnEd-wardWongFinance Company Ltd -v-lohnson Stokes €t Master.
This worried me - did the EdwardWong case
highlight a defect in the Code? I looked up thecase, then realised it was the case that hadprompted the Law Society to issue the Code inthe first place; it could not be criticising theCode, as the Code did not exist when the case
was decided.
It turns out that the seller's solicitors simplydid not want to give the blanket undertaking im-plied by adopting 3(2) of the Code. Their origi-nal reply should therefore have been "Yes,except paragraph 3(2)',leaving me to obtain anexplicit undertaking for specific charges.
In another case, the seller's solicitors have re-fused to adopt the Code; they are willing to com-plete by post, but "at the Buyer's risk"' hr thisinstance, thev mean just that: it is for the Buyerto risk the loss or misappropriation of the mon-ey, the seller's solicitors'failure to send thedeeds, etc. As the seller's solicitors are a largeLondon firm, whose honesty cannot be ques-tioned (even if their reasonableness can), myclients have decided to take the risk, rather thanpay me extra to complete in person.
fustin NelsonSolicitor
To the Editor,
The note as to the obscurity of the common ad-ditional condition of sale (requiring any convey-ancing deposit of less than 10% to be made up to1.0% if the contract goes off other than throughthe fault of the seller) is noteworthy for its point-lessness in any event.
There are two circumstances inwhich this con-dition might apply:
a. Where the contract is frustrated through thefatrlt of neither pfiV, e.g. compulsory Pur-chase between exchange and completion.Under the terms of Section L Law Reform(Frustrated Contracts) Act1943, the depositpaid is rettunable and the balance stated inthis clause to be owed shall no longer be pay-able - the clause might therefore never havebeen inserted.
b. Where completiondoes not take place owingto the buyer's fault when the seller is able andwilling to complete. The seller can then givea completion notice, and under standardclause 6.8.4(b) the buyer "is forthwith to paya further deposit equal to the balance of that10 percent".
Not only therefore is all this verbiage obscure,but it is totally unnecessary.
David R. PedleyTurner LynamSolicitors
Poor Drafting and
Unfair Gonditions
To the Editor,
The following commentby Staughton j. isftom Stay Line Ltd. v . Tyne Ship Repair Group Ltd.ffhe Zinnia),1198412 LL. L.R. 2L1. The case in-volved a ship-repairing contract between twocommercial firms (i.e., not a consumer).
I would have been tempted to hold that allthe conditions are unfair and urrreasonablefor two reasons: first they are in such smallprint that one can barely read them; sec-ondly, the draftsmanship is so convolutedand prolix that one almost needs an LLB tounderstand them. Flowever, neither ofthese arguments was advanced before meso I say no more about them.
Robert LoweLowe & Gordon Seminars
Forms the Foers Way
Dear Mark,
Thank you for the copy of the latest edition ofClarity; it is a good read.
I had been meaning to write to you for sometime now and never got around to it, but the ar-rival of the magazine reminded me of my omis-sion. I have now taken early retirement from theRevenue, but I am continuing with my forms de-sign and plain language interests. I have an on-going assignment with the Govemment ofLesotho designing forms for the income tax de-partment; and I'm hoping that this will be ex-tended soon into customs duties and sales tax.
I was out in Ghana last month Sving some as-sistance to the civil service department. This in-volved designing some forms and giving sometraining.
Clarity 32 57
On a personal note, I went along recently to asolicitor inSt. Albans tomake anewwill. I askedwhether he had heard of CLARITY ;' yes' was hisreply, but he went on to be quite dismissiveabout the role of plain English in the law. Hisfear seemed to stem from a reluctance to draft awill which might fail to achieve its desired inten-tion. Has any work been done to test a plain-English will? Are there any guidelines? I knowthat the wording of a will is supposed to reflectthe wishes of the individual concemed, butwhen affairs become a little more complicated itseems the lawyers fall back on the hied andtested formulas. The absence of punctuationonly adds to the confusion and the mystique. It'sone thing for the solicitor to be able to under-stand it, but the testator ought also to be able tounderstand and not have to rely on the solicitor'sassurzrnces that it is in order.
Mike FoersL9 Lancaster RoadSt. AlbansHerts ALI4EP
Dear Joe,
Mark Adler suggested that Iwrite to you aboutmy current work, presumably in case you thinkitworthy of a mention rnClarity. I am enclosinga copy of an article that appears in the latest edi-tion of Communication Europe. [It's reprinted inthis issue.l
Since the article was writtery I have been onanother assignment to Africa. This was for theOverseas Records Management Trust - a partof the Lrstitute of Commonwealth Studies attheUniversity of London - and involved a two-week visit to Accra, in Ghana, to give advice andtraining on forms design and to design someforms needed in connection with a new CivilService computerisation project.
Mike Foers
58 Letters
CLARITY Handout Used at
Credit-lndustry Conference
Dear Mr. Adler,
Muny thanks for sending me the outstandingcopies of the Clarity jownal for my collection, to-gether with the tie.
I enclose a copy of the CLARITY handout Iused to introduce the PlainEnglishWorkshop atthe 1994 Annual Conference of the Money Ad-vice Liaison Group. The document was appreci-ated by the 20 delegates who attended theworkshop. The delegates were drawn from bothsides of the credit industry. As matters tumedout, I was really an "inhoducer" rather thanleader of the workshop.
David Bray gave a talk for about an hour illus-trated with many references to howlers (e.g. theNHS definition of a bed and a Trade Union jobspecification). He is an affable individual (amethodist lay-preacher in his spare time and aformer Mechanical Engi4eer). He presented aninteresting talk. He is obviously kept very busytravelling up and down the country.
He said that the Plain English Campaignworked with lawyers. Why didn't lawyers usepunctuation in their document? He urged thatconsrrners should challenge companies whoused incomprehersibie forms. He mentioned anexample of an insurance company who "dry-cleaned" a policy document through the PlainEnglish Campaign which later resulted in in-creased sales!
He gave a number of simple guidelines:
1. Use short sentences - 15/20 words.2. Make it human - i.e. l, you, we, etc.3. Use everyday English.4. Use active verbs.5. Avoid "hiddenverbs" (usingverbs asnouns).
He said that Plain English was good for you!
After the workshop, d senior Bank Official stat-ed that one bank had spent over f250,000 on"dry-cleaning" their guarantee documentsthrough the Plain English process but had takenthe precaution of "copyrighting" the outcome.
F.W. OakesSolicitor & Company SecretaryE-pite Stores Group plc
Oops!
Dear Mr. Adler,
In reading the latest copy of Clarity [31], I no-ticed that the index on the front cover graciouslygrants me authorslip of How toWrite Regulationsand Other kgalDocuments in Clear Englislr. WhileI would certainly like to take credit for this work,itwas written, as the book review on page L8shows, by Dr.Janice C. Redish.
Although as anew member I have not seenmany issue s of. Clarity,I particularly enjoyed thisone. It has some wonderful examples of how theuse of plain language dramatically improves le-gal writing. Also, having recently met MarkDuckworth and Christopher Balmford duringtheir tour of the U.S., reading about thek activi-ties was especially meaningful.
I look forward to future issues.
Anita D. WrightAssociate Communication SpecialistDocument Design CenterWashington, DC
HRH?
To the Editor,
One cheer for Prince Charles on his endorse-ment of the Plain English Campaign. Whyshould we use five syllables where one woulddo?
He can have the other two cheers when he an-nounces that he is to be referred to as "him" in-stead of "His Royal Highness".
Mark Adler
Clarity 32 59
News About Members
Richard Bagley has moved to the Consolidated Insurance Group Limited.
fudith Bennett is the new Precedents & Plain Language Manager at Freehill Hollingdale & Page,in Melbourne. The Precedents & Plain Language Group has its own newsletter, which recentlycontained the following statement from the firm's managing partner in Melbourne:
Melboume's Board is committed to focussing on precedents as its priority for 1994. This includesbeing committed to plain language and design principles in precedents.
The firm is responding to the demand from business, consurners, and government that legaldocuments be more understandable and user-friendly. Plain language precedents meai ourservice to clients can be the best - as well as legally accurate, innovative, and client-oriented.Within the office, plain language precedents can assist us to manage our time and resourcesefficiently and profitably - as well as improving quality and productivity in legal services.
fohn Blank has moved to Finchley, where he is a partner in Blank Swerner & Grant.
Lord |ustice Hoffman has been appointed a Lord of Appeal in Ordinary.
Peg James is practising as a legal writing consultant at3695 Loraine Avenue, North Vancouver, BC(Tel. 604 9834747; fax2M7).
David Rickett has left Allied Dunbar and is now back full-time in ihe legal profession as a probateconsultant.
Murray Ross is now practising in Colchester.
Andrew Sims QC has left the Alberta Labour Relations Board and is in private practice in Edmonton,Alberta.
Amanda Taylor has moved back to England after service in India with the Foreign andCommonwealth Office.
Mike Foers writes: Richard Wydick, Professor of Law at the University of California at Davis andthe author of Plain Englishfor Lautyers, is in the UK on a sabbatical. His address is 3 Essex Court, 3rdFloor South, Middle Temple, London EC4. He will be there until the end of February, although he andhis wife will be in the UK for some time after that date.
60
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