2014-15

SUBJECT: LANGUAGE OF LAW

FINAL DRAFT

LEGAL LANGUAGE AND PLAIN ENGLISH

Submitted To: Submitted By:

Mr. Vipul Vinod Shubham Patel

Assistant Professor (Law) Roll No. 137

Dr. RMLNLU Sec. B

B.A. LL.B. IInd Sem.

Acknowledgements

I take an opportunity here to pass a note of thanks to all those

who have helped me in some way or the other to successfully

accomplish the task of completion of this synopsis.

First and foremost I will to thank Mr. Vipul Vinod my subject

teacher for giving me the opportunity to research on such a

interesting topic and providing with all the necessary resources

and help to fulfill this task successfully.

I would also like to thank my seniors and my dear batch-mates for

providing the necessary support to complete this work.

ContentsTopic Page No.

Acknowledgement

Introduction 1

Plain Language 4

Legal English 6

Goals of Plain English 10

Conclusion 12

Bibliography 14

Introduction

The price of clarity, of course, is that the clearer the document the more obvious

its substantive deficiencies. For the lazy or dull, this price may be too high.

–Reed Dickerson, Professor of Law, Indiana University.

The common language of the law is not the product of necessity, precedent,

convention, or economy, but it is the product of sloth, confusion, hurry, cowardice,

ignorance, neglect, and cultural poverty.

–Judge Lynn N. Hughes, U.S.. District Court, Houston, Texas.

People communicate to share and understand the ideas but when the

person n the other end, the receiving end fails to make out the

meaning the whole idea of communication fails.

Legal documents in general are written in the formal,

prescriptive format that does not take into account the

audiences. Since these documents in most likely conditions are to

effect the lives of the laypeople so these documents should be

written taking into consideration the audience to whom the

message is to be finally conveyed. This would enable the

laypeople to understand and when they will be fully informed

about their rights and responsibilities better participation from

their side can also be expected on the matter related to them.

Legal language from long time has been criticized due to the

factor it being incomprehensible for the layman and on some

accounts even by lawyers. They usually find the traditional legal

writing such as statutes, contracts, mortgages etc. confusing and

beyond their understanding. An example to consider this situation

is that words like abutting, or mitigating etc or reading the

long sentences having numerous clauses and then drawing the

meaning out of them would be difficult for the person with little

or no prior legal knowledge.

The criticism of impenetrable legal writing is well founded,

especially concerning “functional documents.” “Functional

documents” are documents such as contracts, jury instructions,

and legislation written to be acted upon. Legal documents,

especially functional documents, should be written in plain

language because a reader cannot act on a document the reader

cannot understand.1

1 Lawyers Should use Plain Language, Carol M Bast, 10/95 Florida Bar Journal

This leads to the conclusion that there is a great need t make

the legal documents more comprehensible to the person it aims to

serve – laypeople, unfamiliar to the legal language and terms.

In his article, “The End of Legalese: The Game is Over,” Robert

W. Benson quoted a doctor’s, a lawyer’s and a judge’s reactions

to legalese. In reply to an insurance company,

The doctor wrote:

I am certain that you put a lot of thought into the letter but as

far as I am concerned it is not understandable. This was not

written for the common man to understand; it was presented in a

smoke of confusion and “double talk.” I want you to rewrite the

letter so that I know simply and plainly what was on your mind.

The lawyer wrote:

I have in my time read millions of words from the pens of judges

and, despite my professional interest in them, I have rarely

failed to experience a sense of defeat or even pain. Sometimes it

is as though I saw people walking on stilts; sometimes I seem to

be trying to see through dense fog; and always there is the

feeling of being belabored with words. I have known moments when

I felt actual physical shock, as though the words were bats or

bricks.

The judge wrote:

I read briefs prepared by very prominent law firms. I bang my

head against the wall, I dash my face with cold water, I parse, I

excerpt, I diagram and still the message does not come through.

In addition the structural content is most often mystifying.

The quotes in this article are clearly advocating the use of

simple language and abandoning the use of legal language.

Legal Writings are of the form that they continue indefinitely,

the judges usually resolve the matter in a case using the

provisions of various statues and different case laws that are

written in legal language, and they repeat the cycle by giving

theirs rulings and judgments in the same style as was used

earlier. The lawyers in future instances will use the same case

laws and thus this circle continues.

In the later coming sections of this work the History of Plain

English, its significance and goals, the Legal English and

problems associated to it and how use of Plain English helps to

resolve this problem will be dealt with.

Plain English

Definition

Plain English is a generic term for communication in English that

emphasizes clarity, brevity, and the avoidance of technical

language—particularly in relation to official government or

business communication.

Although very many definitions of Plain English exist but there

is no standardized and specific definition for the same. Kevin

Collins describe it as “effective communication” while Martin

Cutts in his book ‘The Plain English Guide’ describes plain

language as “The writing and setting out of essential information

in a way that gives a co-operative, motivated person a good

chance of understanding the document at first read, and in the

same sense that the writer meant it to be understood”

A website Center For Plain Language states its mission as to

“increase the usefulness and efficiency of government, legal and

business documents, so that the people who use those documents

can quickly and easily find what they need , understand what they

find, [and] act on that understanding.”

Almost anything form of definition that deals with the use of

common and understandable language can fit in as the definition

of the Plain Language, using the portions of all definitions I

would like to define the plain language as ‘effective and simple

communication that allows people to find what they need,

understand what they find and then finally they are able to act

on that understand.

History

There is no specific known history and origins of the Plain

English Movement but it gained popularity in 1970s. However

understanding the legal documents was a problem centuries before

this, as Peter Tiersma in his book “The Plain English Movement”

points out.

Tiersma points out that earliest of problems relating to

understanding of legal texts arose in England when William, Duke

of Normandy, became the king of England after defeating Harold,

the Anglo-Saxon king, at the battle of Hastings in 1066. William

and his supporter, who spoke French, used Latin and French for

their legal documents. As time went on the lawyers in England

continued to use the same though the people in England did not

used French and Latin. To remove the displeasure of the people

the British Parliament in 1362 passed Statute of Pleading. This

law required that all the pleas should use the Plain English,

however this was not much successful as the peculiarities of the

language used did not vanished.

Even today our legal system also uses much of the same language.

For example, in French, adjectives usually come after the noun

they modify. Legal words such as “fee simple absolute”, “attorney

general”. “malice aforethought” reflect such influence.

If we consider another example, in Law French, the French that

the English attorneys used, words ending in “-ee” indicated a

person was the recipient or object of an action. This pattern is

still evident in common legal words such as “assignee”,

“detainee” and “mortgagee”. However, same words also end with “-

or”, the combination of these suffixes can be very confusing for

a layman. An example to understand this is, an “assignor” assigns

an interest in property, while an “assignee” is the person to

whom the property is assigned.

Legal English

Legalese, which is form of jargon, is defined as the specialized

language used in the legal profession. Every profession uses the

jargon to a varying degrees but when the use of jargon is very

much predominant it becomes hard to understand and thus obstructs

the communication. Sometimes even the professional have the

difficulty in understanding the jargon, if these professionals

encounter the problem then it can be very well considered that

laypeople will encounter the problem too.

Writers sometimes forget that the terms and phrases they

understand may be difficult or meaningless to other readers. Some

readers may be novices in a field. Other readers in a particular

field may not be familiar with the terms and phrases used by

those in a subsection of that field or not have reached the same

level of expertise as the writer.

While most people who work in the legal profession generally

understand legalese, sometimes the legalese stymies even highly

educated judges. In 1969, New Jersey Supreme Court Chief Justice

Weintraub confessed during oral argument on a case pertaining to

an insurance policy, “I don’t know what it means. I am stumped.”

Tiersma says legalese collectively refers to the features that

differentiate legal language from ordinary language. According to

Tiersma, those features include technical vocabulary as well as

archaic, formal, and unusual or difficult vocabulary; impersonal

and passive constructions; nominalizations; multiple negation;

long and complex sentences; and wordiness and redundancy.

Lengthy and Complex Sentences

Most of the sentences found in traditional legal writing, usually

contain an inordinate number of words.

One of the factors why the writers prefer this can be that it

allows including all the relevant information in one unit, as

dividing the sentence into two or more sentences increases the

possibility of them being read as separate and unrelated to each

other.

Including every detail in a single sentence does not only produce

long sentences but it makes them grammatically complex too.

Usually it ends up that these sentences contain numerous sub

clauses with many conditions and exception and additional

conditions and exceptions within the earlier exceptions.

Wordiness and Redundancy

Many legal documents are produced boilerplate from prior

documents and forms. Most of these clauses are not deleted;

instead new ones are added. People in legal profession usually

tend to use them as they are without thinking of editing or

revising them with the demands of a specific case. Traditional

legal language favors the use of phases and phrases instead of

simple adverbs and propositions. For example, a document may use

a phrase “until such time as” instead of the use of the word

“until”.

Conjoined Phrases

Another feature which one witnesses in traditional legal

documents is that it often contains the words and phrases which

are joined by the conjunctions “and” and “or”. This leads to

increase the wordiness of the document where a single word or

phrase would have sufficed the cause.

Tiersma points out traditional legal writing tend to use binomial

expression five times more than those used in prose styles.

Binomial expression consists of two parallel words joined by a

conjunction such as “and, all, any”

Unusual Sentence Structure

Legal writers tend to use an unusual sentence structure with many

clauses used in sentences. Legal usage tends to separate the

subject and verbs as well as insert a lengthy amount of material

inside the verb complex. This usually leads to the loss of

comprehension. Legal writers often reverse the order of the

phrases and place the prepositional phrase before the noun

phrase.

Impersonal Constructions

Legal writers usually rely heavily on third-person voice, the

reasons attributed for this are as follows:

i) Legal documents such as statutes usually are targeted for a

wide range of audiences and they are to serve different roles

when kept under different glasses, for example while the statute

tells common masses the rules they must obey, it also at the same

time it tells the police officers about what is the acceptable

behavior and finally it tells courts on how to react when breach

of such acceptable behavior is done. By using third-person voice,

the statue can address all the audiences at a time.

Let us consider a example of contracts here. Using the personal

pronouns “I” or “you” in a phrase, such as “I promise you to

pay”, creates ambiguity. However it is easy to understand if it

is prepared in third-person voice that reads, “X promises Y to

pay”. Third person voice gives objectivity to the legal writing.

Poor choice of words

Kevin Collins groups the poor word choices into six broad

categories:

1) Archaisms: These are outdated words or expressions still used

in legal writing. Examples of this are ‘Aforementioned’,

‘Pursuant to’, ‘Know all men by these presents’ etc.

2) Doublets and Triplets: These use synonyms to help amplify the

legal language, for example “indemnify and hold harmless”.

3) Formal Words: While legal writing traditionally uses formal

words, it tends ti use these words excessively. These words are

not generally used in the common English but they are used to

denote the authority present in the legal language.

4) Here and There Words: according to Collins, here-and-there

words are used to establish an abbreviation.

5) Legalisms and Lawyerisms: legal professionals often use that

words and phrases without a substantive purpose, even in places

where ordinary words can conveniently convey the same meaning.

For example “Abutting” instead of “next to”, “pursuant” instead

of “under” or “in accordance with”.

6) Nominalizations: Changing a verb into a noun by adding a

suffix such as “–tion,” “-sion,” “-ment,”“-ence,” “-ance,” or “–

ity” creates a nominalization. In addition to requiring the use

of prepositional phrases and “to be” verbs, which add extra

words, nominalizations can make writing abstract.

Goals of Plain English

The plain English includes all parts of a document, which

includes its contents, language, structure and design. It

rigorously focuses on the audience and the reasons for its

communication.

The basic purpose of any document is to give its reader a clear

idea of what the document is all about and provide them the

information they can easily use, so that they do not have to

ponder about what the author really meant to say. Not only the

plain language documents are easy to comprehend but they are

attractive too, the attract the reader to start reading them and

then to completely read them.

The Center for Plain Language provides several guidelines to

follow. These guidelines primarily include the need to write in

short sentences; preferring active voice; use clear and

informative headings; using logical organization; omitting

unnecessary words and having readable design.

Sentences: The greatest enemies of clear communication are

complex sentences, Sentences containing dependent clauses and

exceptions can easily distract readers and make it difficult for

them to focus on the main point. Instead, short sentences to

break up complex information must be used. Smaller units make it

easier for readers to understand. A reader can only store about

seven chunks of information at a time, after which memory lapses

occur. A complex sentence with multiple parts requires that a

reader spend additional time mentally sorting through and

organizing the new information into chunks.

Active Voice: A document written in active voice clearly tells

who is responsible for performing an action. The person or thing

that is acting is the subject of the sentence. In contrast, in

passive voice, the object of the action becomes the subject of a

sentence. Plain Language.Gov says

passive voice, in which responsibility is obscured, is one of

the greatest problems with government documents.

Headings: Headings not only give the reader a brief summary of

the information in each section. They help reveal a document’s

organization to readers as well. By glancing at a document’s

headings, the reader can obtain a brief outline of the document’s

layout and the sequence of information in which the information

is presented.

Organization: A plain language document should have the group

related matter together in a logical sequence. General

information, being put first, followed by specialized information

and exceptions. This organizational pattern allows the material

to address the majority of readers and situations first. Then,

put material that applies to separate audiences into separate

sections. By organizing the material in this way, the different

audiences who use the document do not have to spend time browsing

through material that does not apply to them.

Unnecessary Words: Wordiness is one of the biggest problems in

the government documents. The writers are advised to carefully

consider every word they write.Documents can be shortened

drastically by eliminating prepositional phrases, omitting

redundant words, and deleting excess modifiers.

Design: Document’s design is an important element in developing

an effective document. A document that appears cluttered and

dense discourages readers from using it. A plain language

document uses design elements to emphasize key points for the

reader. It uses short sentences and paragraphs to help break up

the material visually into manageable sections. Headings, tables,

and lists can replace large, nondescript blocks of text and

create more white space for the reader.

Conclusion

It is important that the legal writers to carefully consider

their choice of words. As with any writing, legal writers also

need to use the words that will serve the reader’s needs best.

Rather than focusing on readability formula that specifies how

many words a sentence shall contain and how many syllables a word

shall have. The writers shall concentrate on how easy it is for

readers to access and comprehend the information they need.

Many legal concepts by themselves are difficult to grasp.

However, adding long, complex sentences and using difficult and

unfamiliar vocabulary in legal documents makes it even more

difficult for a layperson to understand his or her rights and

obligations and comply. Instead of connecting a writer with

his/her audience, the dense prose of legalese tends to alienate

the audience from the writer.

Because the document written in plain English is reader-focused,

its reader do not experience the same comprehension problems as

the readers of traditional legal documents. Its content word

choices, structure, and design all focus on the reader, which

allows the reader to easily understand the message the writer

intended to communicate.

Reform Difficulties

Established practices tend to change slowly. However, language is

not static. Because of changing practices, some words eventually

become obsolete and the new one appear. For example “ye” and

“thee” have now lost their existence and are no longer used.

“Ms.” is now routinely used in the salutation letters addressed

to female instead of “Miss” and “Mrs.”.

Some of the reluctance to adopt plain language stems from

criticisms and misconceptions. For example, some opponents assert

plain language is shortened, “dumbed-down” text, some argue about

the fact that the plain language is not well researched.

Why legalese persists

Why does legalese continues to be used, when even the legal

professional sometimes experience difficulty understanding it?

Legalese persists for many reasons. People typically associate

legalese with the legal documents. Legalese gives these documents

a distinctive aura and sets them apart from other types of

documents.

Because the formal aspect of legalese seems to connote a level of

respect, some people worry that a document written in ordinary

language will not be taken as seriously. Changing a legalese

document into a plain language document is a time-consuming and

expensive task. Many people feel it is not cost-effective. While

legalese is not a perfect way to communicate, it works relatively

well within the legal community. As long as legalese serves its

purpose, many legal professionals feel there is no need to

discard it.

Legalese though is considered to provide more authority to the

legal documents and papers but it still is not clearly understood

by the common masses and even the professionals sometimes have

difficulty in understanding it, so to make the legal documents

more comprehensible and understandable among the common masses,

the plain language should be promoted for use in legal documents.

Bibliography

Books

o Bhatia V. K. 1993.Analyzing Genre: Language Use in

Professional Settings. London: Longman.

Web Sources

o www.centerforplainlanguage.org

o www.gov.ns.ca/cmns/plainlanguage/frequent.asp

o www.jstor.org.ucfproxy.fcla.edu/jstor

Other Sources

o Implementing Plain Language into Legal Documents: The

Technical Communicator’s Role, Peggy Gale Bivins

o The Lawyers should use Plain English, Carol Bast