There is an ongoing debate over whether legal practitioners should use plain language in legal writing; or whether legal practitioners should carry on with tradition and write in a more lawyerly manner some call “legalese”. As with any debate, there are two opposing sides and a middle ground. Proponents of plain language believe that since legal documents are read by both legal professionals and laymen, they should be understandable to a wide audience.
Proponents of legalese believe that since legal documents are primarily written for an audience of other legal professionals, the traditional style of legal writing is perfectly understood by its intended audience. There is a long history of traditional legal writing law that sounds very important and archaic to the modern ear. Words such as substantiate, elucidate, and notwithstanding are seldom found anywhere outside of a legal document.
There are also many phrases that are rarely used outside of a legal document, such as: “until such time as”; “render assistance”; “including but not limited to”; “owing to the fact that”; and “in the event that“. The use of Latin phrases is common in traditional legal writing. The precise meaning of the phrases is obscure to readers who lack a knowledge of Latin. Latin phrases such as “habeas corpus”; “prima facie”; and “quantum meruit”; are likely widely understood only by legal professionals.
Other Latin phrases used in traditional legal writing, such as “ab initio”; “de facto”; and “ex post facto”; might be understood by a well educated audience as well as legal professionals. Boilerplate language is another convention of legal writing. So-called “boilerplate” language is a grouping of words, sentences, and sometimes lengthy paragraphs that may have meaning beyond their plain meaning. For example, clauses in a property deed for a house contain language that has been parsed, defined, and argued for decades. The precise meaning of each boilerplate clause is related to the definitions and arguments that accompany it.
Boilerplate language refers to any language that is always the same and is perceived as standard wording, such as “standard contract” clauses. The term boilerplate originated in the days of hot metal type. Publishers would use blocks of type that were made to be unchangeable, one sheet of metal printing plate with full paragraphs, clauses, or “standard” wording on it. These metal sheets resembled a plate on a boiler, and that is how the term came about. (Black’s 1991). Another convention of traditional legal writing is its repetitiveness.
Personal pronouns, such as he, she and they; are generally not used. Instead the person’s name is used each time. Or a person’s position in a cause of action, such as defendant, plaintiff, respondent, or petitioner; is used each time. Similarly, the word “it” is seldom used. Instead the word for the thing or the word for the idea is used each time. Descriptive phrases in traditional legal writing are also confined to the same descriptive phrase each time. For example, words used to describe a vehicle would always be the same words each time they appeared in the same legal document.
A red pickup truck would always be referred to as just that, “a red pickup truck”. The descriptive words would not be changed to “a Ford truck” even though the descriptive phrase could just as easily describe the same vehicle. “Plain language” is a phrase that defies definition. Like defining art or pornography, a prevalent attitude is that there is no encompassing definition, but we know it when we see it. Would it be fair to say that plain language is language that most people easily understand? That question begs for the next question, who is “most” people; and what is their level of understanding?
So, then when we speak of plain language in legal writing, does that mean at a reading level that all or most adults can comprehend? Does plain language in legal writing mean only college educated adults? According to the most recent National Adult Literacy Study: “The National Literacy Survey shows that the average adult in the U. S. reads at the 7th grade level, with nearly 50% below the 6th grade level and over 80% below the 10th grade level. ” (DuBay, 2004). So does that mean that plain language in legal writing should be written at a 7th grade reading level?
In 1969 Harry McLaughlin devised the SMOG readability formula and it is still commonly used today. To use McLaughlin’s formula “count the words of three or more syllables in three ten sentence samples, estimate the square root, and add three. ” The number generated is the readability score which corresponds to the reading grade level at which the paper could be read and understood. There is a deviation of plus or minus 1. 5. On his website, McLaughlin offers a readability calculator, just copy and paste any document into the box, and the calculator generates a readability score for that document.
I plugged in one page of this paper and a score of 17. 34 was given. Since my intended audience is my professor and my academic colleagues, I believe this is an appropriate level of writing. (McLaughlin, 2008). Plain language, most simply defined, has to be just that, readable for the widest possible audience. Plain language does not seem to rely on multi-syllabic words when a shorter word will do. Words such as substantiate, elucidate, and notwithstanding can be replaced with prove, despite and clarify, respectively. Some common phrases used in traditional legal writing have a concise plain language substitute. In the event that” translates easily to “if. “Until such time as” means “when”. Plain language in the context of legal writing means using a translation of the Latin word or phrase, rather than the more scholarly sounding Latin. Proponents of maintaining a traditional style of legal writing believe that continuing to use the traditional conventions, Latin phrases, and boilerplate language preserves legal culture. The use of Latin phrases adds a certain panache to writing, and some of the Latin does not translate very well. Few individuals outside of the legal profession will ever read a Supreme Court opinion.
The process of legal argument, legal reasoning and legal writing are so intertwined that it becomes impossible to express legal opinion except in traditional legalese. In fact, for attorneys the use of traditional legal writing is more efficient because it is most commonly used; therefore, most commonly understood; understood by attorneys that is. The conventions and tradition in legal writing are much more than meaningless archaic language. Legal documents are written for specific legal situations. Sometimes legal language is purposely broad and imprecise so that unknown and unforeseeable future circumstances may somehow be addressed.
Other wording is precise and well defined to clearly define the expectation of both parties, like the wording in a contract. A contract may have many clauses and if they can be simplified by using traditional standard language then all the better. It is after all, attorneys, communicating with attorneys. (Bast, 1995). Many attorneys choose to use published forms as the basis for contracts because they can easily be adapted to a specific client and situation. These attorneys believe that it is too time consuming for them and expensive for their clients to write a complete contract for each client and each situation.
For example, in a contract a saving clause, also called a severability clause, allows the contract to remain in effect even if one or more of the provisions of the contract is breached or is found to be unenforceable. (Bast, 1995). This clause may or may not be written in plain language, but the meaning is the same. Attorneys reading other attorneys’ contracts easily grasp the intent and meaning of contract clauses, whether the language is standard legalese or written for a mass audience as long as the wording is precise. If the legal language found in a contract is familiar and precise attorneys can save themselves time and effort.
And they can save their clients money, because they have no reason to analyze or parse out each word or clause, the meaning, to them is clear. Proponents of traditional legal writing style also assert that the repetitiveness in legal documents is necessary. While other types of writing demand variation of word choice to describe an object, person, or event, legal writing demands consistency in word choice. This consistency provides clarity and precision. There can be no question as to who “they” refers to in a legal document, when the word “they” does not ever appear at all.
Proponents of plain language in legal writing claim that much of so-called traditional legalese is nothing but gobbledygook. Legalese is jargon and is used to obscure meaning. Webster’s Dictionary defines jargon as “confused, unintelligible talk; the special speech or vocabulary of a class, as of technicians, artists, thieves. ” (Webster, 1987). In fact, the purpose of jargon among members of a group is to communicate among themselves without being understood by outsiders. Police and criminals each have their own jargon, hoping the other will not understand them.
The goal of jargon among legal professionals is so that the public will not understand the law. If the public cannot understand the law because the public cannot understand the legal terminology then the public has no choice but to seek legal advice to interpret every legal document. So, legalese is very important to attorneys as job security. The most compelling argument in favor of plain language in legal writing is that consumers often sign legal documents in the course of their everyday lives. Nearly every agreement that a consumer enters into is bound by a written contract.
If that contract is unintelligible, then the consumer’s rights are at risk. Consumers enter all types of contracts, including cell phone contracts, mortgages, and insurance. Laws and ordinances also have impact on people’s lives. It is popular to say that ignorance of the law is no excuse. However, laws are passed at a dizzying rate, and in truth most of us, including attorneys, are ignorant of many laws that might affect us. If we can comprehend the meaning of a law, we have a much better chance of following the law. And if we can understand a proposed law on the ballot we have a better chance of voting appropriately.
Many states have gone so far as to legislate plain language in legal writing. In Florida, property insurance policies must be written in plain language. In California, they have legislated the use of plain language this way: Section 6215 of the California Government Code states: “Each department, commission, office or other administrative agency of state government shall write each document which it produces in plain, straightforward language, avoiding technical terms as much as possible, and using a coherent and easily readable style. ”
When it comes to personal safety, plain language is even more important. After a series of studies found that the improper use of child-safety seats was the leading risk factor in fatal injury to children in car accidents, two public health officials began to investigate. Dr. Mark Wegner and Deborah Girasek suspected that there might be a relationship between the improper use of the child-safety seats and the installation instructions. The pair analyzed the readability of the instructions of 107 different child-safety seats and published their findings in the medical journal “Pediatrics”.
The team found that the installation instructions that came along with most of the child-safety seats were written at the 10th grade level. Far higher than the national average reading level of 7th grade, and much higher than the 5th to 6th grade level recommended for health related writing for consumers. This type of safety instruction is not legal writing per se. However, product liability is strict liability. And, if the safety instructions on a product are unintelligible they might as well be non-existent.
Manufacturers risk substantial loss in tort actions if their product’s safety notifications are useless. In a letter to Senator Bob Bennett dated September 17, 2008, Ruth Anne Robbins, president of the Legal Writing Institute wrote: “Bureaucratic legal writing, including government writing, has long been difficult to read. It is convoluted and dense. Even those of us who are legal writing professors are challenged by it – and it is challenging for us to teach our law students how to properly read and interpret it.
The government would benefit from paying more concern to the efficacy and readability of its communications. We teach our students to be reader-friendly rather than writer-centered. Unfortunately, government documents are too often writer-oriented rather than reader-oriented. ” (Robbins, 2008). Since I believe that the purpose of writing is communication, not obfuscation, I support plain language in legal writing. The world today is a complicated place, and there is no reason to make it even more difficult to navigate than it needs to be.
Whenever possible precision should be chosen over vagueness. When crafting wording for legislation, lawmakers should be careful to choose words that as clearly as possible show the intent of each law. Judges at all levels should strive to write their court opinions clearly and concisely. Laws and court opinions will always be subjected to interpretation, and that is one of the things that makes our country great. But, the interpretation of laws should be directed towards applying laws and opinions to a changing world, rather than trying to understand the original intent of those laws and opinions.
There is no mention of the right to privacy anywhere in the U. S. Constitution. Justice William O. Douglas, in his landmark Supreme Court opinion , Griswold v Connecticut, (1965) wrote that our right to privacy is a constitutional right, and that right is included in the penumbra of rights emanating from the specific guarantees of the constitution. This type of expansion of personal freedoms is, in my opinion, the best and highest use of legal reasoning. The cumbersome challenge of interpreting obscure and arcane legalese is intellectual quicksand, and to be avoided at every opportunity.
Courtney from Study Moose
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