Plain language in Spain

ClarityNumber 53 May 2005

Journal of theinternational associationpromoting plain legal language

Editor in chief:Michèle Asprey

Guest editor for this issue:Catherine Rawson

In this issueMultilingual legislative drafting

William RobinsonHow the European Commission drafts legislationin 20 languages 4

Juliet Weenink-GriffithsThe European Central Bank’s approach todrafting legislation in 20 languages 11

Duncan BerryThe effect of poorly written legislationin a bilingual legal system 15

Emma WagnerProducing multilingual legislation in Switzerland 18

Ian FrameLinguistic oddities in European Union legislation:don’t shoot the translator 21

Plain language in non-English speakingand multilingual countries

Catherine RawsonJust fix the English 25

Christopher WilliamsProgetto Chiaro! and theplain language movement in Italy 30

Cheryl StephensCanada’s multilingual plain language projects 33

Myla KaplanLegalese of biblical proportions:some observations on legal language in Israel 36

Maggie Jo St JohnCitizen’s Language: Plain language in Mexico 39

Daniel CassanyPlain language in Spain 41

Vijay BhatiaPlain English in Asia 45

Kyal HillLegal English in Japan: a translator’s perspective 48

Lei-Theng LimPlain English in Singapore:preparing the next generation of lawyers 51

Other ways of tackling clear writing

Mike UnwallaASD simplified technical English 54

Margaret van NaerssenA forensic test of a Pennsylvanian contract 57

Book reviews 63

Clarity and general news 65–72

Conference announcements & reports 65

2 Clarity 53 May 2005

Country representatives

Australia: Christopher BalmfordWords and Beyond Pty Ltd1 Barrack St, Sydney NSW 200002 8235 2337 (fax 9290 2280)[email protected]

Brazil: Dominic C. MinettLex English Language Services LtdaRua Humberto I, 298Bloco B, Sala 2, 2o andar, Vila MarianaSao Paulo, SP 04018-030011 5084 4613 (phone & fax)[email protected]

Canada: Philip Knight1074 Fulton AvenueW. Vancouver, BC V7T 1N2604 628 0387 (fax 925 0912)[email protected]

France: Anne WagnerDépartement DroitUniversité du Littoral Côte d’Opale21, rue Saint-Louis, BP 77462327 Boulogne sur Mer Cédex03 21 99 41 22 (fax 21 99 41 57)[email protected]

Hong Kong: Wai-chung SuenDepartment of Justice9/F Queensway Govt Offices66 Queensway, Admiralty2867 4171 (fax 2845 2215)[email protected]

India: Sandeep Dave4 Kanch, Plot No 191, 11th RoadWest of Khar, Mumbai 40005222 2600 0550 (phone & fax)[email protected]

Israel: Myla KaplanPOB 56357, 34987 Haifa054 3132010 (fax 04 8110020)[email protected]

Italy: Christopher WilliamsVia Taranto 3370031 Andria (BA)0883 [email protected]

Japan: Kyal HillApartment 706 Presle Tamaishi4-15-28 Toshima, Kita-kuTokyo 114-0003080 3415 2082 (fax 03 5390 1700)[email protected]

Malaysia: Juprin Wong-AdamalDepartment of Human Resources Development7th Floor, Block A, Wisma MUIS88999 Kota Kinabalu, Sabah88 218722 ext. 199 (fax 88 211 554)[email protected]

New Zealand: Richard Castle148A Tinakori RoadThorndon, Wellington 600204 938 0711 (fax 934 0712)[email protected]

Philippines: Victor Eleazar4/F Unit C-2 Marvin Plaza Building2153 Chino Roces AvenueMakati City 120002 897 1681 (fax 897 5257)[email protected]

Singapore: Lei-Theng LimFaculty of LawNational University of Singapore13 Law Link, 1175906874 6464 (fax 6779 0979)[email protected]

South Africa: Adv Annelize NienaberLaw Faculty, University of PretoriaPretoria, 0002012 420 2634 (fax 420 4524)[email protected]

Sweden: Barbro Ehrenberg-SundinJustitiedepartementetSE-103 33 Stockholm08 405 48 23 (fax 20 27 34)[email protected]

UK: Paul ClarkCripps Harries HallWallside House12 Mt Ephraim RoadTunbridge WellsKent TN1 1EG01892 515121 (fax 01892 544878)[email protected]

USA: Prof Joseph KimbleThomas Cooley Law SchoolPO Box 13038Lansing, Michigan 48901-30381 517 371 5140 (fax 334 5781)[email protected]

Other European countries:Catherine [email protected]

All other countries:Please contact the USA representative

Patrons The Rt Hon Sir Christopher Staughton and The Hon Justice Michael KirbyFounder John WaltonCommittee

President: Professor Joseph Kimble ([email protected])Members: Country Representatives plus Simon Adamyk, Mark Adler, Michèle Asprey, Peter Butt,

Sir Edward Caldwell, Robert Eagleson, Nicole Fernbach, Robert Lowe, John Pare,John Walton, Richard Woof.

Clarity 53 May 2005 3

An international associationpromoting plain legal languagewww.clarity-international.net

PresidentProfessor Joseph [email protected]

Clarity … the journalPublished in May and November

Editor in chiefMichèle AspreyPO Box 379 Milsons PointNSW Australia 1565Fax: 61 2 9252 [email protected]

Guest editors for next issueNicole FernbachJuricom, Inc.Phone: 1 514 [email protected]

Edward CaldwellLaw CommissionPhone : 44 20 7453 1206 (direct) or 1238 (secretary)[email protected]

Advertising ratesFull page: £150Smaller area: pro rataMinimum charge: £20Contact Joe Kimble, [email protected]

Copyright policyAuthors retain copyright in their articles.Anyone wanting to reproduce an article in wholeor in part should first obtain the permission of theauthor, and should acknowledge Clarity as thesource of the original.

This issueThis issue reviews plain language initiativesaround the world, particularly in non-Englishspeaking countries and multi-lingual countries.About half the articles discuss the complexitiesof drafting legislation in more than one language.Most of the others deal with the challenges of trans-lating and editing texts written by non-nativespeakers of English. Two articles deal respectivelywith a linguist’s forensic test of the “plainness” of acontract, and “simplified English”—the plainer-than-plain international writing standard used bythe aero industry to promote safety.

Getting news of what is going on around the worldhas taken imagination and persistence. How doyou find someone to ask? Having found a likelyperson, how do you persuade that person to writefor Clarity?

Despite the bumper size of this issue, its overview isnot comprehensive. Some countries apparently theydo not have plain language initiatives in the publicor private sectors. Other countries’ fledgling plainlanguage initiatives seem to have lost momentum,leaving little of consequence to talk about. In somecases I was unable to find anyone who wouldrespond or who was willing to contribute.

But Asia is awakening to the benefits of plainlanguage. In February, the Malaysian SecuritiesCommission published The Plain Language Guide forProspectuses. And last year the Hong Kong MortgageCorporation, a statutory authority, issued HK’s firstplain language prospectus. Readers will be able toread about this experience in Clarity No 54.

The Clarity and Obscurity in Legal Language confer-ence being held in France in July (see pages 65–67)has two sessions reviewing plain language aroundworld. We hope that this issue of Clarity will act asa “tickler” for the conference, encouraging you tocome along and share your experiences.

Finally, if you know of a plain language initiativenot mentioned in this issue, please email me about itbecause Clarity is keen to learn of developments andhear of your experiences.

Catherine [email protected]

Catherine Rawson helps multi-lingual organisations ensure thattheir staff write clear, concise,readable English, regardless oftheir native language. By usingtailored software to reinforceCatherine’s plain Englishtraining, her clients are able tomonitor the quality of theirEnglish communications.

pschuelke

Stamp


William Robinson

Coordinator in the Legal Revisers Group of the EuropeanCommission’s Legal Service, Brussels, Belgium

European Union (EU) legislation applies to 450 millionpeople in 25 countries and exists in 20 languages whichall have equal status. This article describes how theEuropean Commission drafts legislation, what it hasalready done to improve drafting quality and what moreit could do.

The article expresses the author’s personal views and doesnot necessarily reflect those of the Commission. It is farfrom exhaustive and focuses on actual drafting of Euro-pean Community legislation in the Commission, not whathappens before or after.

The European Community (EC)legislative process

Under the EC Treaty as amended over the yearsmost basic Community legislation is adopted jointlyby the European Parliament, directly elected by EUcitizens, and the Council, representing the govern-ments of the Member States, with only a few fieldssuch as taxation, agriculture, and fisheries beingreserved to the Council alone. But in almost all casesthe proposal for legislation—the first draft of themeasures—must come from the Commission, andwithout such a proposal the other institutionscannot act.

Also under the EC Treaty, most of the detailed rulesto give practical effect to the basic legislation are tobe adopted by the Commission, which must gener-ally act with the approval of a committee composedof representatives of the Member States.

The EU has 20 official languages

Article 290 of the EC Treaty states:

The rules governing the languages of the insti-tutions of the Community shall … be determinedby the Council, acting unanimously.

Those rules were laid down by Regulation No 11, asamended by successive Acts of Accession, underArticle 1 of which:

The official languages and the working lang-uages of the institutions of the Union shall beCzech, Danish, Dutch, English, Estonian,

Finnish, French, German, Greek, Hungarian,Italian, Latvian, Lithuanian, Maltese, Polish,Portuguese, Slovak, Slovenian, Spanish andSwedish.

Article 4 provides “Regulations and other documentsof general application shall be drafted in the twentyofficial languages”, thus indicating that there is notsimply one original language version and 19 trans-lations. Under Article 5, the Official Journal of theEuropean Union must be published in all 20 languages.

Exceptionally, because of difficulties regardingtranslation into Maltese, Regulation (EC) No 930/2004 lays down that, for a limited period, acts neednot be drafted and published in Maltese. Irish is notan official language under Regulation No 1, but theTreaties themselves are authentic in Irish.

Although all 20 official languages are the workinglanguages of the institutions according to Regu-lation No 1, the institutions’ day-to-day work canhardly be carried on in all of them simultaneously.Different institutions have chosen different practicalsolutions, a number of which have faced legal orpolitical challenges. Some institutions have optedfor a single internal working language: French forthe European Court of Justice, English for the Euro-pean Central Bank, for example. The EuropeanCommission has a policy of using three languagesfor internal purposes: English, French and German.In practice, French and English are the main lang-uages of internal communication and drafting.Formerly French enjoyed a clear predominance butin recent years the balance has shifted and nowwithin the Commission most drafting is done inEnglish.

How the Commission drafts legislation

Step 1—First draft written by technical experts

Legislation is drafted by the technical departmentfor the sector concerned, not by a corps of draftingspecialists. The first drafts are generally written notby lawyers but by technical experts such as econ-omists or scientists: veterinarians draft animalhealth rules and so on. Until recently, new arrivalswere not even given much in-house training indrafting and would have to depend on their ownexperience and national background and theexperience of colleagues.

How the European Commission

drafts legislation in 20 languages


Drafters must write in either English or French andtheir choice is determined by the language used intheir department. So most write in a foreign lang-uage, and it is harder for them to write exactly whatthey want to say or to express their ideas in theclearest possible way.

One result is a tendency for drafters to follow prece-dents. It is much easier for non-native speakers of alanguage to stick to provisions or phrases that havebeen used in earlier legislation. Non-lawyers gainsome comfort from the fact that provisions or phraseshave been used before and therefore—they assume—cannot be wrong. Adherence to precedents drawnfrom past legislation is all the more tempting sincethey exist in all the languages. All those dealingwith the new draft in English or French will be ableto find out what it will look like in their own lang-uages. Translation will probably take less time andpresent fewer problems because the translators canrely in part on the old text.

Unfortunately the precedents chosen may not bebest suited to the new circumstances. Because thedrafters are not lawyers, they may not always ana-lyse sufficiently the circumstances they are dealingwith and those dealt with by the precedent. Andbecause they have to work in a foreign language,they are not in a position to judge the linguisticquality of the precedent they have chosen. Moreover,drafting standards have evolved and over-relianceon precedents tends to perpetuate past faults andweaknesses.

Step 2—Consultation within the Commission

Once the technical department has prepared itspreliminary draft, it is submitted to the otherCommission departments concerned as part of theinternal consultation procedure. The Commission’sLegal Service has to be consulted on all draft legis-lation. Lawyers specialising in the sector concernedwill examine the draft for compliance with the lawand coherence with other legislation in the field.The Commission’s legal revisers, who all have duallegal and language qualifications, will examine itfor compliance with the rules on form and presenta-tion of legislation, in particular the Joint PracticalGuide of the European Parliament, the Council and theCommission for persons involved in the drafting oflegislation within the Community institutions 2.

At this comparatively early stage when the draftexists in only one language, far-reaching changescan be suggested if the legal revisers believe themnecessary. Unfortunately the strict, short deadlinesunder the internal rules and the volume of workprevent the revisers from always achieving thestandard they would like. The formal Legal Serviceresponse is drawn up by the lawyer for the sectorconcerned and generally—but not always—incor-porates all the legal revisers’ suggestions. The law-yer will sometimes drop some of the legal revisers’

suggestions in deference to the wishes of theoriginating department.

If the originating department chooses, it may alsoconsult a team of editors in the TranslationDirectorate-General who will suggest linguisticimprovements.

After those consultations it is up to the originatingdepartment to take account of the commentsreceived. Generally the Legal Service’s suggestionsmust be followed although it does not have thepower to block a text altogether.

Step 3—Translation into the otherofficial languages

The text must then be translated into all the officiallanguages by the Translation Directorate-General,before formal adoption by the Commission. Some-times the originating department has already begunthe translation process before receiving the LegalService’s suggestions. It may then be reluctant toaccept any drafting changes because of the difficultyof having the changes made in all the other lang-uage versions by the Translation Directorate-General,or else it may have the changes made by members ofits staff who are not trained translators: a hazardouscourse.

The legal revisers may have another opportunity torevise the text at this stage. Revision may be requestedby the originating department, often at the instigationof the Legal Service or of the Commission’s Secretariat-General, which has general responsibility for ensuringthat procedures are properly followed. Since the texthas passed through extensive consultations, is oftenthe fruit of difficult compromises, has been translatedinto all the official languages and is to be adopted in amatter of days, the revisers must confine themselves tocorrecting formal or terminological errors and ensur-ing that the legal scope is exactly the same in thedifferent language versions.

What happens when the Commissionhas adopted a legislative proposal?

The Commission’s proposal is submitted to theEuropean Parliament and the Council, where itpasses through those institutions’ internal pre-adoption procedures. In the European Parliament itis considered by a committee of Members of the Euro-pean Parliament, which submits a report to theplenary. In the Council it is considered by workinggroups consisting of experts from the Member States.

Each institution has its own team of legal reviserswho will also ensure that the drafting rules arecomplied with. At the more advanced stages of theprocedure, however, it is harder to propose restruc-turing or rewriting for the sake of clarity and therevisers’ primary responsibility is to correctmistakes and ensure that the various languageversions correspond exactly.


Particular features of EU law

Multilingualism

A unique feature of EU legislation is that it exists in20 language versions, each of which has equal force.This fact and the multilingual drafting process arethe source of certain complications.

The handicap of having to work in a foreign lang-uage weighs heavily on the authors of the firstdrafts but it affects the subsequent stages of theprocedure too. Most of those involved in discus-sions on that draft will also be working in a foreignlanguage and will have extra difficulty, first inunderstanding what is in the draft, and then inexplaining how they want it altered. The resultingtext must then be translated, which creates scope formisunderstanding, especially if the original text isnot clear. The text will also undergo various word-processing manipulations as it passes from onedepartment to another. At all these stages mistakescan creep into the various versions. In a mono-lingual system, there is less scope for linguisticerrors in the first place, and most errors that do slipin will tend to be corrected by those involved at laterstages, right up to the level of the minister whosigns the final text. In a multilingual system, few ofthose involved at later stages will actually be nativespeakers of the language version concerned and sosuch spontaneous correction is less likely.

It may happen that a term used in one languageleads to a misunderstanding in another. In Regu-lation (EC) No 141/20003, the term “orphan drug”is used in a technical sense (known to the tradecircles) of a drug which is used to treat a raredisease and for which the manufacturer receivesspecial tax credits and marketing rights as anincentive to develop the drug. However, a Germanexpert has assured me that she has seen it trans-lated as “medicine for children without parents”!

In the Koschniske case4, the Court of Justice wasasked whether “diens echtgenote” (Dutch: “whosewife”) in a provision of a regulation on social secur-ity could also be understood to mean a marriedman. The Court held that it could, by interpreting itin the light of all the other language versions, whichused a word such as spouse to cover both sexes, aswell as the purpose of the provision and the prin-ciple of equal treatment.

In June 2004 a Directive on jams, jellies and marma-lades5 had to be amended because the Germanversion had used the terms “Konfitüre” and “Marme-lade” for “jam” and “marmalade” respectively,while in certain local markets in Austria andGermany the term “Marmelade” is traditionally used

for “jam” and the term “Marmelade aus Zitrusfrüchten”is used for “marmalade”.

A recent example of the pitfalls of the system wasthe native-English-speaking author who refused toaccept the revisers’ correction of “ton” to “tonne”.He said that “tonne” had been in all the documentssubmitted to him but he had checked in an Englishdictionary and the correct spelling in English was“ton”. He was clearly unaware that a tonne ormetric ton is 1 000kg while a British ton is 2 240lb(1.016 tonnes).

To ensure that the legal effects of an act are identicalin all languages the various language versionsmust, as far as possible, have the same form. It is notpermissible to adopt a solution to a drafting problemthat works only in one language. For example alpha-betical order cannot normally be used because itemswould appear in a quite different order in mostlanguages.

During the drafting of the Constitution one thornyproblem was the names for the various componentsof the Court of Justice. Some languages, such asFrench, have two words (“cour” and “tribunal”)which on their own convey a hierarchy which couldnot be reflected by two words in some other lang-uages, including English. Moreover, in somelanguages two words similar to the French wordsexist but the hierarchical order is not clear. Thesolution finally adopted was to call the lower body“general court” or the equivalent except in lang-uages where single words were enough to conveythe hierarchical relationship.

Multilingualism is not just a complicating factor. Itbrings benefits too: the original text is subjected to aparticularly close scrutiny as all the translators andrevisers consider how the meaning should be ren-dered in their own languages. Mistakes or lack ofclarity or consistency in the original are oftenbrought to light by the translation process andcorrected.

Multiculturalism

EU legislation becomes more complex because it hasto deal with many different cultures and divergentlocal conditions. The animal health rules containmany examples.

The rules on ear tags on bovine animals had to takeaccount of the particular cases of bullfights in someMediterranean countries and the custom in someNordic countries of displaying animals in tradi-tional rural settings, in farm museums for example.When pet passports were introduced to make iteasier for citizens to travel with their pet animals,they catered not just for cats and dogs, which arecommon pets throughout Europe, but also forferrets, much to the bemusement of countries withno ferreting tradition.

How the European Commissiondrafts legislation in 20 languages(continued)


During a case at the Court of Justice in which theFrench word “chasseurs” had to be translated intoEnglish, the translator pointed out that in Englandhunting would conjure up images of red-coatedhorse riders in pursuit of inedible foxes whereas inFrance hunters are often local farmers and workersout with a gun and a dog shooting birds for the pot.

Taking account of multiculturalism is a dynamicprocess since local conditions are evolving at dif-ferent speeds in different countries. Even areaswhere there was once a large degree of uniformityacross the Member States may become more complex.For example, marriage has generally been regardedas an institution with common core features acrossthe EU. Since the introduction of same-sexmarriages in the Netherlands, however, some peoplethere find it is no longer enough to say they aremarried but feel it necessary to specify the sex oftheir partner.

Negotiated law

The first drafts of legislation are not of the highestquality and the text becomes even heavier throughthe cumbersome process of multilingual committeeswhose members are making textual suggestions inone language but “thinking” in another, whethertheir native language or one in which they formerlyworked.

At a very early stage the draft becomes the expres-sion of the policy and many subsequent attempts toinfluence the policy consist of textual suggestionsby bodies largely made up of non-native speakers ofthe drafting language.

Changes are made with a view to achieving policyends rather than producing clear, simple and pre-cise legislation. It sometimes happens that a provisionis deliberately left vague (known in French as flouartistique) to paper over a failure to reach full agree-ment. This is a situation addressed by the JointPractical Guide in point 1.3:

Provisions that are not clear may be interpretedrestrictively by the Community courts. If thathappens, the result will be just the opposite ofwhat was intended by the incorporation into thetext of grey areas intended to resolve problemsin negotiating the provision.

The Joint Practical Guide cites the example of the Pro-Sieben case in which the Court concurred with theconclusion of Advocate General Jacobs, after havingapplied all the available methods of interpretation,that two opposing interpretations were possible6.

AG Jacobs stated (at Point 53):

in the present case, … the provision in questionappears to be, in the light of the arguments ad-vanced on both sides, not only equally open totwo conflicting interpretations, but perhaps

deliberately ambiguous. An ambiguity—andparticularly a deliberate ambiguity—cannot beinvoked to restrict a fundamental freedom.

Lack of continuity in the drafting process

The European drafting process differs from manynational systems in that there is not a single depart-ment with responsibility for total quality. Texts arelargely drafted by committee with the familiardanger that all contribute but no one single personassumes full responsibility.

The danger exists within the Commission itselfbecause so many different departments, each withdifferent priorities, are involved in the draftingprocess. In 2001 an attempt was made to tackle partof the problem by adopting guidance on the respon-sibilities of those involved in the drafting processwithin the Commission7.

The danger is aggravated by the fact that for allbasic legislation, the texts produced by the Com-mission pass to the European Parliament and theCouncil, where they may be substantially changedby committees and working parties before adoption.

Steps taken to improve drafting?

As long ago as 1992 the European Council adoptedthe Birmingham Declaration including the strongmessage: “We want Community legislation to beclearer and simpler”.

At the Amsterdam Intergovernmental Conference in1997 the heads of State and of government adoptedDeclaration 39 calling on the Community institu-tions to adopt common guidelines for improving thedrafting of Community legislation and to take “theinternal organisational measures they deem neces-sary to ensure that these guidelines are properlyapplied”8.

On 22 December 1998 the institutions adopted anInterinstitutional Agreement9 setting out 22 guide-lines for drafting, based in large part on suggestionsfrom the Member States. The first guidelines includegeneral principles familiar to all drafters: draft inclear, simple and precise terms; think of the addres-sees; keep sentences and provisions short; use plainlanguage; be consistent both within one act andbetween acts in the same field.

That agreement also listed the internal measures tobe taken.

The very first was to produce, in March 2000, theJoint Practical Guide for persons involved in thedrafting of legislation. That guide was translatedinto all the official languages and distributed withinthe institutions. In 2003 it was published and puton the EU’s website for legislation, EUR-LEX10. Theguide is quite short with less than 100 pages, laidout in accessible form and illustrated by models and


examples of good and bad drafting. It is designed tohelp all those involved in the legislative process,those writing the first draft, those commenting ondrafts, the translators of the various languageversions and those negotiating the final text.

Secondly the institutions undertook to enable theirlegal services and in particular their legal revisers tomake drafting suggestions earlier in the process.The Commission’s legal revisers now have theopportunity to revise all draft legislation as soonas the originating department submits it to the otherCommission departments for approval, and theyhandle some 2000 drafts a year.

The institutions also committed themselves toproviding drafting training to their staff. Since 2001the Commission’s legal revisers have been offeringbasic legislative drafting courses, which have beenattended by some 400 staff.

A computer programme has been introduced tostandardise the presentation and formatting oflegislation and to steer drafters in the right direction.Contacts have been established with the MemberStates to exchange views on drafting and ways toimprove legislation. The legal revisers of the threeinstitutions sometimes liaise with each other toharmonise their practices and agree on commonsolutions to problems.

At the end of 2003, the institutions adopted a newInterinstitutional Agreement11 reaffirming their com-mitment to the full application of the 1998 Agree-ment and to “ensure that legislation is of goodquality, namely that it is clear, simple and effective”(point 25). As part of efforts to make European legis-lation more accessible, the institutions have alsoadopted agreements on codification and recasting12.

Other possible steps

In 1995 an influential report on the quality of Com-munity legislation was produced by a committee ofsenior Dutch civil servants chaired by a formerjudge at the Court of Justice, Judge Koopmans. Oneof its suggestions, endorsed by other commentators,was an independent body to review acts at the stageof the Commission’s proposal or just before theybecome law, on the model of the French Conseild’état or similar bodies in some Member States.

At the end of 2003 the United Kingdom Foreign andCommonwealth Office presented a report examiningthe drafting of EU legislation and identifying prob-lems relating to the application and interpretationof EU legislation in Member States13. It suggested anEU Legislative Drafting Office, perhaps modelled on

the UK Parliamentary Counsel Office, independentof present institutions, with responsibility for draftlegislation throughout the legislative process.

In January 2004 the four countries holding the rotat-ing presidency of the European Council in 2004 and2005 (the Netherlands, the United Kingdom, Irelandand Luxembourg) launched a Joint Initiative onRegulatory Reform14 to maintain the momentum inimplementing the Commission’s Action Plan onsimplifying and improving the regulatory environ-ment. Other Member States have since backed theinitiative.

The standards by which EU legislationhas to be judged

At a Colloquium of the Association of the Councilsof State and Supreme administrative jurisdictions ofthe European Union in The Hague in June 2004, itwas suggested that EU legislation should be judgedby different standards from national legislation. ThePresident of the Association, Mr. H. Tjeenk Willink,Vice-President of the Dutch Council of State said:

The European legal order was devised to servediversity and pluralism and the EU’s legislatorsmust take this into account. Were some law intro-duced in the name of the free market which madeit mandatory for all cafés in Europe to meet thesame requirements, it might denote a success forthat free market but it would spell failure for theconcept of Europe. Of Europe as a cultural andsocial reality. “European legislation is not intend-ed to take away the diversity of legal traditions,methods and systems in the Member States, butrather to shape their compatibility”.

This means that the EU’s legislators do notnecessarily play the same role as national ones.While national legislators focus primarily onhow to find uniform solutions to what areexperienced as common problems, Europeanlegislation must define the scope for diversesolutions. National legislators will often indi-cate what must be done while EU legislatorswill indicate what must be stopped.

Is it possible then that the lack of clarity and lack ofprecision resulting from the process by which EUlegislation is adopted are not just unfortunate side-effects of that process but are actually essential toenable the system to work by giving the MemberStates the leeway they need to adapt it to their ownlegal systems? Perhaps in EU law the point of bal-ance between fuzzy and fussy legislation is differentfrom that in national systems. Whatever the answer,the acknowledged need for some leeway or “wriggleroom” cannot be treated as licence to be sloppy.



Communicating the law

G.C. Thornton has written that the legislativedraftsman’s “task is not only to determine the law,but also to communicate it” 15. At the 1990 Common-wealth Law Conference, he suggested:

Communication depends on an overlap of thelinguistic experience of the sender and receiverof the message. There must be a shared contextof both linguistic experience and social exper-ience if ambiguities and other comprehensionproblems are to be avoided or resolved.16

For European legislation, identifying a sharedcontext presents particular problems. While there isperhaps some overlap of linguistic experience at thelevel of the government representatives who nego-tiate the texts, there is less overlap at the level of thelawyers and civil servants in the Member States,and still less in the case of the ordinary citizen.

A shared context of social experience must beviewed in relative terms. While a person at onegeographical extreme of the Community may per-ceive considerable cultural differences between hisor her social context and that of the other geograph-ical extremes, those differences might appear quitesmall to a person viewing the situation from theother side of the world. Perhaps we Europeans aretoo conscious of our differences and not enoughaware of the increasing amount that we have incommon.

Language

In view of the trends in language knowledge andteaching in Europe, more of the institutions’ day-to-day work will probably be done in English. Theproblem of authors or negotiators thinking in French(because they have been doing so for many years)but drafting in English will tend to diminish. At thesame time, and partly as a result of that change, thegeneral standard of English amongst its staff willprobably improve.

This does not mean that EU English will come touse only words in common use in the British Islesand that those words will have the same meaning.Indeed the Court of Justice has held that it is unsafeto assume that words used in EU law have the samemeaning as in national law17. In fact EU English isan international medium of communicationdivorced from any one national culture.

Is it possible that, in the same way as EU legislationhas to be judged by different standards from nat-ional legislation, EU English cannot be judged bydomestic standards in the British Isles? It is perhapsindicative that a booklet published in English by theEU institutions advising authors how to draft inorder to make sure translation is easier and morefaithful was based on a Swedish document whichin turn was a translation and adaptation of a

Finnish guide produced for Finnish domestic pur-poses18. This “internationalisation” of English ispart of a wider trend, not just confined to the EU. InEngland itself, Leeds Metropolitan University is“launching a new MA in Teaching English as anInternational Language in September 2005 whichwill be staffed by a team of mainly non-nativespeaker lecturers”19.

Euro-speak

On 2 September 2004 The Economist published a light-hearted article in its Charlemagne column entitled“Decoding a Euro-diplomat takes more than a dic-tionary”. It looked at some of the language problemsin the institutions and concluded:

But ever-inventive Brussels is coming up witha solution of sorts through the emergence of“Euro-speak”—a form of dead, bureaucraticEnglish.

The joy of phrases like “qualified majorityvoting”, “the community method” and “thecommission’s sole right of initiative” is thatthey are completely meaningless to all ordinaryEuropeans—whether in translation or in theoriginal. But, crucially, they are crystal-clear toinsiders.

The idea of Euro-speak dictionaries explaining tooutsiders what EU insiders are talking about is oneto be taken seriously20. There are precedents. Back in1886 a guide to Indian English words called Hobson-Jobson was published by Yule and Burrell to explainnew words such as “curry” and “juggernaut” thatwe now accept without question in everyday Eng-lish. A dictionary explaining the Euro-Englishexpressions listed by The Economist but also manymore such as “transposition” (the way Europeandirectives are made part of national law) and “Com-itology” (the system of committees of Member States’representatives overseeing the Commission’s exer-cise of the powers delegated to it) would certainlyhelp the “outsiders” now, even if it might seemquaint in years to come.

A critical approach to the quality of language andlegislation in the EU is healthy. But critics shouldensure that they know what they are talking aboutbefore they sound off. In 2004, BBC journalist JohnHumphrys published a book entitled Lost for Words:The Meaning and Manipulation of the English Lang-uage, in which he blamed institutions like the EU forthe decline in standards of English. He com-plained of the use of such words as “pertannually”in the draft European Constitution and the fact thatwhen concerns were raised, the word was replacedwith “insubdurience”, an assertion picked up byvarious reviewers. In fact those words did not exist.According to Private Eye magazine, Humphrys hadsimply been taken in by a spoof by Simon Hoggartpublished in the Guardian newspaper in June 2004.


What more could be done?

The departments and staff of the institutions mustbe made aware that even if imprecision, diplomaticvagueness, linguistic slips and awkwardness areinevitable and tolerable in their day-to-day commun-ications, much higher standards must apply to thedrafting of legislation.

Moreover, while numerous routine managementlaws may continue to be drafted by a production-line process, special procedures may be needed fordrafting fundamental laws. Those could be entrustedto specialist drafters who should be allowed theextra time and resources necessary to produce aquality product.

The Commission’s technical departments, whichunder the present internal rules are responsible forthe quality of the first drafts, should each set uptheir own drafting units (as called for in the 1998Interinstitutional Agreement) to meet that responsi-bility, facilitate all the work on the text downstream,and pave the way for a better final product.

More generally, all departments and staff of the insti-tutions should recognise the crucial importance ofeffective communication and take language skillsmore seriously, especially in the main internalworking languages, English and French. All staffconcerned should be offered advanced training inthose languages. Greater emphasis should be placedon drafting as a specialist skill and all draftersshould be offered reinforced back-up, both by humandrafting specialists and by computer systems.

© W Robinson [email protected]

1 OJ 17, 6.10.1958, p385/58.2 <http://europa.eu.int/eur-lex/en/search/

search_lip.html>.3 OJ L 18, 22.1.2000, p1.4 Case 9/79 Wörsdorfer, née Koschniske v Raad van

Arbeid [1979] ECR 2717.5 OJ L 219, 19.6.2004, p. 8.6 Case C-6/98 ARD v Pro Sieben [1999] ECR I-7599.7 Communication on simplification and rationalisation

of the language process in Commission decision-making procedures (SEC (2001) 2031).

8 OJ C 340, 10.11.1997, p139.9 OJ C 73, 17.3.2000, p1.10 <http://europa.eu.int/eur-lex/en/about/

techleg/index.html>. Paper copies may beobtained from: <[email protected]>.

11 OJ C 321, 31.12.2003, p1.12 OJ C 102, 4.4.1996, p2 and OJ C 77, 28.3.2002, p1.13 Implementation of EU legislation, an independent

study for the FCO by R. Bellis, available from:<www.fco.gov.uk>.

14 <www.finance.gov.ie/viewdoc.asp?DocID=1804&CatID=1&StartDate= 1+January+2004&m>.

15 Legislative Drafting, 4th edition, Butterworths 1996.16 <www.plainlanguagenetwork.org/Legal/

lawdefn.html>17 Case C-103/01 Commission v Germany [2003] ECR

I-536918 Writing for Translation, Translation Centre for the

Bodies of the European Union, 2003 ISBN 92-894-6331-7.

19 Guardian Weekly, 17-23 September 2004.20 English reference works already available include:

Bainbridge, T. and Teasdale, A.L., The PenguinCompanion to the European Union, London, Penguin,1995; Leonard, D., The Economist Guide to theEuropean Communities, 8th edition, Profile Books;Davies, E., Eurojargon: a dictionary of EuropeanUnion acronyms, abbreviations and terminology, 7th

edition, European Information Association.

William Robinson hasfor many years worked inthe field of European lawand language, He startedhis career in Luxembourgas a legal translator at theEuropean Court of Justicebefore moving to Munichas a translator, reviser andeditor for the EuropeanPatent Office. He thenreturned to the Court ofJustice where he revisedtranslations of its judg-ments and producedguidance for Englishtranslation. Since 1996 hehas been a legal reviser in the European Commission’s LegalService in Brussels revising draft legislation and working onguidance and training for drafters.



Juliet Weenink-Griffiths

Head of Institutional Legal Framework SectionJuristes-Linguistes Division, European Central Bank,Frankfurt am Main, Germany

This is an overview of the European Central Bank’s(ECB’s) Juristes-Linguistes Division (JLD): how it isorganised, its principal responsibility for producingECB legislation in the 20 official European Communitylanguages, and its working procedures and qualitystandards. The article also considers future challenges forthe JLD.

The views expressed here are the author’s and are notnecessarily shared by her employer, the ECB. The articleconcentrates on the drafting and publishing of legal actsand instruments, and does not cover the court cases andother legal documents that the lawyer-linguists alsohandle.

A History and organisation of theJuristes-Linguistes Division

The European Central Bank (ECB), the central bankfor the European Union’s single currency (the euro),has regulatory powers that enable it to adopt legalacts (regulations, decisions, recommendations andopinions) and other legal instruments (guidelines,instructions and internal decisions). The differencebetween legal ‘acts’ and other legal instruments isthat legal acts are those also used by other EuropeanCommunity institutions, while legal instruments areforms of rulemaking used by the ECB for specificpurposes. The ECB’s powers stem from two sources:

• the Treaty establishing the European Community,and

• the Statute of the European System of Central Banksand of the European Central Bank.

In June 1999, the ECB’s Governing Council followedother European Union (EU) institutions in creatinga dedicated juristes-linguistes (lawyer-linguist) unit.In 2000, it adopted a ‘transparency’ policy underwhich it publishes almost all of the ECB’s legal actsand instruments in all of the 20 official languages ofthe European Community (see the article How theEuropean Commission drafts legislation in 20 languagesby William Robinson, in this issue on page 4). Thispolicy went beyond the requirements of European

Council Regulation No 1/58 on the languages usedby the European Community, which would requireonly ECB regulations to be published in the 20official languages in order for them to be directlyapplicable. European Community Regulations rankhighest in the hierarchy of secondary legislationbecause they are the only legal acts that are directlyapplicable in all Member States. Member States haveto implement them word for word into national lawwithout variation.

The ECB’s Juristes-Linguistes Division (JLD) hasbeen fully operational since early 2001. Unlike theother European institutions, where the lawyer-linguists are linked to the Legal Service of theinstitution concerned, the JLD forms part of theECB’s Directorate General Secretariat and LanguageServices. Having a position within the organisationmeans that the JLD is integrally involved in decisionson the form and wording of legal acts and instru-ments.

The ECB’s lawyer-linguists are all fully-trainedlawyers, able both to draft legislation in theirmother tongues, and translate legislation fromEnglish (the ECB’s working language) into theirmother tongues. The Division comprises two sec-tions, each of which mirrors one of the Divisionswithin the ECB’s Legal Services: Operations LegalFramework Section and Institutional Legal Frame-work Section. Within each section, the lawyer-linguists belong to specific subject teams.

B Responsibilities of the JLD

The ECB’s lawyer-linguists, like those of the Euro-pean institutions, ensure that the legal acts andinstruments comply with national linguistic rulesand legal terminology, as well as the requirementsof both the law of the European Community andnational legal systems. However, each EU institu-tion has a different approach to the way in whichlawyer-linguists contribute to preparing legal actsand instruments. For example, at the EuropeanCourt of Justice, the lawyer-linguists either translateor revise translations. At the European Commissionand the Council of the European Union, the lawyer-linguists revise translations and provide both legaladvice and advice on legal drafting rules. At theParliament, the lawyer-linguists’ main task is torevise translations and to coordinate languageversions for the various hearings and committee

The European Central Bank’s approach

to drafting legislation in 20 languages


meetings. The table on page 12 shows the differenttasks of the lawyer-linguists in five of the main EUinstitutions.

The JLD carries out all the tasks shown above for theECB, and performs several other tasks that are vitalto ensuring consistency both within one text andbetween various texts (known as ‘concordance’).The ECB’s ‘cradle to grave’ approach involves thelawyer-linguists from the initial drafting of a legalact or instrument until its publication. The ECB’slawyer-linguists participate in drafting panels, editall legal acts and instruments, ensure their trans-lation, play a coordination role, give legal advice,advise on legal drafting rules, and organise thepublication of legal documents.

Within the ECB, the JLD has primary responsibilityfor two main areas:

• the quality of the drafting of ECB legal acts andinstruments; and

• preparing all ECB legal acts and instruments inthe 20 official languages.

Quality of drafting

The JLD ensures that the ECB legal acts and instru-ments comply with the European institutions’ rulesand advice on legislative drafting. Some of the mostimportant are:

• Joint Practical Guide for the drafting ofCommunity legislation<http://europa.eu.int/eur-lex/en/about/techleg/index.html>;

• Interinstitutional Agreement of 22 December 1998on common guidelines for the quality of draftingof Community legislation (OJ C 73, 17.3.1999, p1);

• Interinstitutional Agreement of 16 December 2003on better lawmaking (OJ C 321, 31.12.2003, p1);and

• Interinstitutional Style Guide (on style andpresentation)<http://publications.eu.int/code/en/en-000300.htm>.

Although the ECB is not party to these agreementsor guides, it fully complies with them. The English-mother-tongue editors and draftspersons areresponsible for enforcing the drafting rules and forproducing the English text on which translationsare based. However, the JLD’s multilingual approachto drafting allows timely and valuable input fromcolleagues covering the other 19 official languages.

The JLD has two main aims in its drafting: clarityand consistency.

Clarity

Clarity means ensuring clear, simple and precisedrafting whenever possible. The English-mother-tongue lawyer-linguists enforce the merits of plainEnglish, in particular:

• avoiding unnecessarily vague or indirectlanguage, and unnecessary ‘legalese’ and jargon;

• checking for correct use of specific terminology;

• checking for clear structure (for example, usingheadings when necessary);

• avoiding long sentences or paragraphs, andrepetition;

• lessening use of the passive;

• replacing nouns by verbs whenever possible; and

• applying gender-neutral language.

Consistency

Consistency is more complex and involves ensuringthat:

• a word in a text has the same meaningthroughout;

• conventions, such as the rules set out in styleguides, are followed; and

• there is consistency between all language versions(‘concordance’).

The European Central Bank’s approachto drafting legislation in 20 languages(continued)

Institution Drafting Editing Translating Revising Coordinating Legal advice Publishing

Court of Justice X X

Commission X X

Council X X

Parliament X X

ECB X X X X X X X


The JLD has developed, with Legal Services, a seriesof legal templates for the ECB’s legal acts and instru-ments to ensure that legal acts and instrumentscomply with all the relevant rules for presentation.

A further quality control measure involves applyingthe ‘four-eyes’ principle so that each editor/drafts-person asks a colleague to revise their work. In add-ition, the English lawyer-linguists have developed achecklist like Dr Betty S. Flowers’ madman-architect-carpenter-judge approach to the writing process (seeChristopher Balmford’s article in Clarity No. 43,May 1999). Under this approach the four stages are:

• Madman—creative brainstorming stage;

• Architect—reviews information and outlinesdocument;

• Carpenter—lays down structure and producesfirst draft; and

• Judge—edits and reviews drafting.

All lawyer-linguists cooperate closely and exchangeideas with their colleagues at the Council of theEuropean Union, European Commission andParliament, as well as with the ECB’s lawyers,who ensure the timely involvement of the lawyer-linguists in the drafting process. Together thelawyers and lawyer-linguists aim to balance thespeed of adoption of legislation with the need toallow plenty of time to get the legislation right.

As mentioned earlier, the JLD is responsible forpreparing all ECB legal acts and instruments in the20 official languages of the European Community.All texts must be legally, linguistically and termin-ologically consistent and accurate so that the effectof legal acts and instruments is identical in eachdifferent language.

The ECB publishes its legal acts and instruments inthe 20 official languages whenever possible (unlessconfidentiality justifies otherwise). It also aims topublish anything that could be of interest to thefinancial markets or the public. If it is not possible topublish all of a legal act because certain aspects of itneed to remain confidential, then the ECB adoptstwo separate acts—a public and a non-publicversion. (There is more information on the institu-tional framework of the European System of CentralBanks in an article in the ECB’s July 1999 MonthlyBulletin.)

The final stage for the JLD is arranging for the ECB’slegal acts and instruments to be published in theOfficial Journal of the European Union and on theECB’s website in the electronic legal compendium:<www.ecb.int/ecb/legal/1341/1342/html/index.en.html>.

C Working procedures

The JLD’s work relies heavily on effective teamwork,both externally with Legal Services and the businessareas involved, and internally between the lawyer-linguists. Projects generally involve four phases:

1. Preparation

When the JLD receives a request from Legal Servicesto edit or draft, and translate a legal act or instru-ment, it first chooses an English editor/draftsperson,a project coordinator and several subject expertsrepresenting a cross-section (usually four or five) ofthe official languages. The team then draws up adraft production schedule with Legal Services andthe business area or areas involved. The JLD isaware of legal acts and instruments in preparation,so it can effectively plan resources and avoid bottle-necks. Past practice has shown that the earlier thelawyer-linguists are involved in the drafting orediting of legal acts and instruments, the shorter thetext and the fewer the number of revisions needed.

2. Editing and drafting

There may be several rounds of editing or drafting,as the ECB’s various expert committees usuallychange the legal document. The subject experts do amultilingual drafting check. They start to translatethe non-final version of the legal act or instrument,to highlight any drafting, translation or otherproblems the English text presents. The subjectexperts discuss all these problems and issues withthe English editor/draftsperson, who amends thelegal document as necessary. This not only improvesthe quality of the draft text at an early stage, but alsouses resources more efficiently. The group thatworks alongside the English editor at this stageproduces several reference versions that help thelawyer-linguists to answer queries. The project teamidentifies useful background information andsources of specialised terminology. The Englisheditor/draftsperson and the coordinator may alsomeet with Legal Services and business area experts.By the end of this phase, the legal act or instrumentshould be stable enough for translation into theother 19 official languages.

3. Translation

During this phase, the coordinator gathers furthercomments on the English text and arranges a‘translatability’ meeting with the relevant businessarea and Legal Services’ representatives. Ideally, theediting and drafting phase has already identifiedmost problems. However, further points often ariseduring the ‘translatability’ check which lead tochanges to the source text. Lawyer-linguists also doa ‘concordance’ check comparing their languageversion, or selected parts of it, with one or two otherlanguage versions, to ensure that each version hasequally binding legal effect in all targeted jurisdic-


tions. To simplify this task the German and Frenchversions of a legal act or instrument are establishedearly in the drafting process, so they can serve asadditional reference versions during translation. Forregulations, which are not just published but alsoadopted in all 20 languages, individual lawyer-linguists may informally consult contacts in therelevant national central bank.

4. Publication

After the legal act or instrument is adopted by theECB’s Governing Council or Executive Board, theJLD arranges its timely publication in the OfficialJournal of the European Union. Some legal acts orinstruments (mainly statistics texts) are proofreadby the ECB’s lawyer-linguists before publication.All ECB regulations are proofread after publication.Once a legal act or instrument is published, alllanguage versions of the text are placed on the ‘legalframework’ section of the ECB’s website.

D Future challenges

1. ‘Better regulation’

The ‘better regulation’ agenda is currently in vogue,in part prompted by the European Commission’s2002 Better Regulation Action Plan (whichpromoted impact assessments, and simplifying andmodernising existing legislation) and the 2003Interinstitutional Agreement on better lawmaking.Under this Agreement the European institutionscommitted themselves to transparency, account-ability, better preparation of legislation, impactassessments, public consultation before makingproposals, and to legislate only when necessary.Wider use of public consultations and the possibleintroduction of legal impact assessments are almostcertain to prompt calls for greater clarity in draftinglegislation. The ECB has carried out public consult-ations, but not yet for a legal act or instrument.

2. Joint Initiative on Regulatory Reform

In 2004, Ireland, the UK, Luxembourg and theNetherlands launched a Joint Initiative onRegulatory Reform (as mentioned on p 8 of WilliamRobinson’s article in this issue). The Joint Initiativemakes recommendations about:

• improving the quality of regulatory proposals bybetter impact assessment procedures;

• ensuring that impact assessments influencedecision-making;

• encouraging greater consideration of the outcomeof legislation; and

• simplifying regulation and looking at alternativesto it.

The JLD is closely watching to see how theserecommendations develop to ensure high qualitydrafting.

3. Even more languages

The increasing number of languages used withinthe EU makes it even more important for the ECBand other European Community legislators toimprove the quality of legal drafting. In 2004, thenumber of EU Member States increased from 15 to 25,nearly doubling the number of official languages—from 11 to 20. If Romania and Bulgaria join the EUon 1 January 2007, it will be necessary to translatethe body of common rights and obligations thatbind all EU Member States (known as ‘acquiscommunautaire’) into those languages. The ECB’slawyer-linguists will again help the relevantinstitutions to translate the ECB’s part of the acquiscommunautaire.

These are just a few of the issues that challenge theECB’s lawyers and lawyer-linguists. It is critical tothe quality and transparency of ECB legislation thatwe meet those challenges.

© J Weenink-Griffiths [email protected]

Juliet Weenink-Griffiths has been working in the field of EClaw for over 18 years having studied English and French lawin Birmingham and Limoges. While working for the Com-

mission, a law firm, aEuropean IndustryAssociation, a multi-national company,and the EuropeanCentral Bank, shegained broad insightinto the drafting ofCommunity legis-lation from both aEuropean and a

national perspective, and from the position of the drafter aswell as that of the end user. Having always worked in amulticultural environment she is attuned to the challengesposed by producing legislation in many languages and isfirmly convinced that clear and precise drafting is the key tosuccess in this area.

The European Central Bank’s approachto drafting legislation in 20 languages(continued)

Country reps wanted

If you are in a country without aClarity country representative andyou would consider taking on thejob, please contact Joe Kimble [email protected].


Duncan Berry LL.M, MPP, SJD

Consultant Parliamentary Counsel, Office of theParliamentary Counsel to the Government, Ireland;formerly Deputy Principal Government CounselHong Kong Department of Justice; Dublin, Ireland

Hong Kong is unique in having legislation that is writtenin both the English and Chinese languages. But despitethe improvements in the Chinese drafting style over thepast few years, the Chinese version of Hong Kong legis-lation will still be difficult to understand if the Englishtext from which it is derived is not itself readily compre-hensible.

Until the late 1980s, it was the policy for Hong Konglegislation to be drafted and enacted only in theEnglish language, with only explanatory notesbeing written in both languages. A change in policyoccurred with the signing of the Sino-British JointDeclaration of 1984 on the restoration of Chinesesovereignty over Hong Kong. Three years later, theHong Kong Legislative Council enacted the OfficialLanguages (Amendment) Ordinance 1987 (No. 17 of1987) (HK) and the Interpretation and General Clauses(Amendment) Ordinance (No. 18 of 1987) (HK). Shortlyafterwards, the first Chinese language versions ofHong Kong legislation appeared and a program toproduce Chinese language versions of existingHong Kong legislation was established.

Under section 10B(1) of the Interpretation and GeneralClauses Ordinance (Cap. 1) (HK), both the Englishand Chinese texts are equally authentic and bothtexts are regarded as having equal status. AlthoughHong Kong’s Basic Law does not explicitly providefor English to be an official language of Hong Kong,Article 9 of that Law does say that “…English maybe used as an official language …”.

The normal Hong Kong practice is for the Englishtext to be drafted first and for that text to be the basisfor preparing the Chinese text. This may be con-trasted with Canada where, at the federal level atleast, separate English and French texts are draftedcontemporaneously by Anglophone and Franco-phone legislative counsel.

During the period immediately after the intro-duction of the new policy, the Chinese languageversions of legislation were basically translatedtexts. Legislative counsel concentrated on closely

adhering to the style and format of the English textsand ensuring that legislative concepts in the Englishversion were accurately replicated, even at theexpense of readability and comprehensibility. Inother words, in preparing the Chinese version of alegislative provision, readability and comprehen-sibility were sacrificed for accuracy if alternative(but more readable and comprehensible) Chineseversions would result in an interpretation differentfrom the interpretation of the English version. Onereason for this was that the drafters of the Chineseversions were then relatively inexperienced inoriginal legislative drafting. Nevertheless, accordingto Tony Yen, Law Draftsman, Hong Kong Depart-ment of Justice, a Chinese version of a legislativeprovision would not be adopted if it would departso far from the grammatical norm in the Chineselanguage that it would fail to convey accurately, oreven adequately, its technical meaning.1

In recent years, Sinophone legislative counsel havegained more experience and confidence in thepreparation of the Chinese versions of Hong Konglegislation and so those versions are no longer aword-for-word translation of the English text.Nevertheless, the meanings that Sinophone userselicit from the Chinese version of the legislation arestill expected to be the same as those elicited byAnglophone users who read the English version.

Despite the improvements in the Chinese draftingstyle that have evolved during the past 3 or 4 years,I contend that the Chinese version of Hong Konglegislation will still be difficult to understand if theEnglish text from which it is derived is itself notreadily comprehensible. Because of the semantic,grammatical and syntactic differences betweenEnglish and Chinese, achieving exactly the samelegal effect of the English statutory provisions byChinese translation is far from easy. The difficultylies in the structural differences between the Englishand Chinese languages. This can result in legis-lative texts that differ in effect. If therefore theEnglish text is obscure, producing the Chineseversion becomes nightmarish. According to Fungand Watson-Brown2:

Without clarity, the law becomes a trap. Whatrelevance is that to translation? Before thetranslator can hope to be understood, he mustunderstand. The translator should not be led

The effect of poorly writtenpoorly writtenpoorly writtenpoorly writtenpoorly written legislation

in a bilingual legal system


into the trap of misunderstanding the law. Inrecognising the issues that blur communication,the translator is able to work his way throughthe complexity of the law.

It should therefore come as no surprise to learn thatat least some Chinese versions of Hong Kong legis-lation have been described as being difficult to readand comprehend. However, some of the critics maybe unaware of the constraints imposed on thoseresponsible for producing the Chinese version of alegislative document. Others may not yet havebecome used to using Chinese as a “legal language”.The problem of ensuring that legislation is bothreadable and comprehensible is not unique to theChinese texts. Users of the English versions of legis-lation make similar complaints. For example, seeFung3. Other contributors to the Hong Kong Lawyerhave voiced similar criticisms about the complexityof the Chinese texts of Hong Kong legislation.

Many older Hong Kong statutes and regulations aremodelled on old English Acts that are drafted inarchaic English and in a convoluted, opaque stylethat is difficult to understand. According to Yen4, ithas been particularly difficult to create readable andcomprehensible Chinese language versions of thesestatutes and regulations. Hong Kong Sinophonelegislative counsel have on many occasions told mehow much easier it is to create readable and comp-rehensible Chinese versions of legislation when theEnglish texts from which they are derived are them-selves drafted in clear, user-friendly English, withshorter and less complex sentences and morefamiliar words.

In order to determine whether or not this view wasvalid, I identified what I considered to be fairlydifficult sections in the Police Force Ordinance (Cap.232) and the Fixed Penalty (Criminal Proceedings)Ordinance (Cap. 240) and, as part of a legislativedrafting training exercise, asked some of the legis-lative counsel who were participating in theexercise to provide me with interpretations of thethem. Each of the provisions was misinterpreted byat least one of the counsel. All of the counselinvolved in the training exercise were employed inthe Legislative Drafting Division of the Hong KongDepartment of Justice and were well-qualified law-yers who had been regularly exposed to Ordinancesand subsidiary legislation for at least 2 years. Farfrom being a reflection on them, their inability toaccurately interpret the sections concerned is areflection on the readability and comprehensibilityof those sections.

I subsequently redrafted the provisions with a viewto making them more readable and more intelligibleand asked one of the Sinophone legislative counsel

in the Department to say whether those versionswould enable a Sinophone version to be producedthat would be easier for a Sinophone to read andunderstand than the original (existing) Chineseversions. One of the sections that I redrafted for thepurpose of this exercise was section 9A of the FixedPenalty (Criminal Proceedings) Ordinance. The sectionreads as follows:

9A. Additional penalty in proceedingson complaint

Where a person, having notified theCommissioner of Police, in accordancewith a notice under section 3(3), that hewished to dispute liability for a scheduledoffence or having been given leave undersection 3B(1)(a) and having been servedwith a summons, does not appear beforethe court or, having appeared, offers nodefence or a defence which is frivolous orvexatious, the magistrate shall, in additionto any other penalty and costs, impose anadditional penalty equal to the amount ofthe fixed penalty for that offence.

In my view, the section is too long; it is too com-pressed; and it contains too many ideas for thereader to absorb on first reading. Furthermore, thesection is ambiguous because it is not clear which ofthe preceding clauses the clause “and having beenserved with a summons” modifies.

My redraft of the section is as follows:

9A. Additional penalty in proceedingson complaint

(1) A magistrate who hears theproceedings in respect of a scheduledoffence must impose on a person to whomthis section applies an additional penaltyin addition to any other penalty and costsif the person—

(a) does not appear before themagistrate; or

(b) having appeared, either offersno defence or offers a frivolousor vexatious defence.

(2) The additional penalty must be equalto the amount of the fixed penalty for theoffence.

(3) This section applies to a person who—

(a) has given a notice of an intentionto dispute liability for a sched-uled offence to the Commissionerof Police under section 3(3); or

(b) has been given leave undersection 3B(1)(a) and served witha summons.

The effect of poorly written legislationin a bilingual legal system(continued)


Although the redraft contains more words than theoriginal, it arguably expresses the ideas in a waythat is more readable and comprehensible. Thecomments of the Sinophone legislative counsel (whoprefers not to be named) on the redrafted section areas follows:

The tabulation of the English text of section 9Aimproves its comprehensibility greatly and alsohelps to remove ambiguities contained in theoriginal text. If correspondingly structured, theChinese version will be much more focusedwith the legal subject (the magistrate) and thelegal action (imposition of the additionalpenalty) stated upfront. Placing the circum-stances and conditions under which the lawoperates in a tabulated subsection (3) canoffload the original Chinese sentence, stream-line its syntax and convey its meaning muchmore clearly.

Along with others, I have proposed to the HongKong Department of Justice that the Englishversions of older Hong Kong statutes and regu-lations could be re-written in plain, modernlanguage that would be much easier for Anglo-phone users to read, understand and use. If thissuggestion were implemented, it would surelyfacilitate the creation of Chinese versions of thosestatutes and regulations that Sinophone userswould find much easier to read, understand anduse. Although the proposal has been favourablyreceived by the Department, it remains to be seenwhether there is sufficient political will to imple-ment it in the foreseeable future.

© D Berry [email protected]

1 Yen, T. “One law two languages”, The Loophole,(Journal of the Commonwealth Association ofLegislative Counsel) 1997, Dec, 4-11, p 4.

2 Fung, Y.C. and Watson-Brown, A. The Template—A Guide for the Analysis of Complex Legislation,London: Institute of Advanced Legal Studies,1994.

3 Fung, Y.C. “Law and disorder: Bilingual agenda”,Hong Kong Lawyer, 1998, July, 28, 29.

4 Yen, T. “One law two languages”, The Loophole,1997, Dec, 4-11, p 4.

Duncan Berry graduatedLL.B University ofNottingham July 1957. Hewas called to the Englishbar (Grays Inn) Nov 62;joined NZ ParliamentaryCounsel Office Aug 65;joined NSW PCO 1975and was Senor LegislativeDrafting Officer NSWPCO (1975-78 & 1984-1995). He was ChiefParliamentary Counsel ofTasmania (1978-83) andDeputy Principal Gov-ernment Counsel HongKong Department ofJustice (1995-2001). He was awarded his SJD (Doctor ofJuridical Science) by the University of Technology Sydney(thesis: ‘Designing Usable Legislative Texts’) in May 2003,and is currently Consultant Parliamentary Counsel, IrishOffice of Parliamentary Counsel. He is also secretary of theCommon-wealth Association of Legislative Counsel (CALC)and editor of ‘The Loophole’ (journal of CALC).

Ambiguous and unhelpful signsFrom The Sydney Morning Herald, Thursday 21 April 2005.

Ambiguous and unhelpful signs (Column 8, Friday and beyond) continue to roll in. “Asimple ‘Egress’ sign is bad enough,” writes Bob Watson, of Pennant Hills, “but even moreirksome is the Pennant Hills Community Centre’s exit doors, which are marked ‘AlternateEgress’. Don’t get me started on ‘alternate’ instead of ‘alternative’.” As for hospital signs,where this whole shemozzle started, sometimes the very word “hospital” has gone by thewayside. “It is of interest to see the use of the word ‘campus’ by the Health Department ofNSW,” writes Bob Triebel, of Casino. “If you are looking for the hospital in Coffs Harbour,give up, you should be looking for the ‘Health Campus’. These signs may well mean nothingin an emergency or late at night.”

Reprinted with permission from ‘Column 8’, The Sydney Morning Herald.


Emma Wagner

Ex-Eurocrat, Brighton, UK

Legislating clearly in one language is hard enough—butit is even more difficult when several equally authenticlanguage versions have to be produced. Switzerland isone country that faces this difficulty and still producesclear legislation. Has Switzerland solved the problems oflegislating multilingually and if so, could the peopleproducing European Union legislation copy the Swissmodel?

Switzerland is not a member of the European Union.However, it has one characteristic in common withthe European Union: it is multilingual. Switzerlandhas three main official languages: French, Germanand Italian, plus a fourth, the Latin-based localdialect called Romansh. Switzerland must produceits legislation in all three (and in some areas four)languages.

In the early days of the European Union there wereonly four official languages: French, German, Italian,and Dutch. Now the EU has grown to 25 MemberStates, with 20 official languages, but the obligationto produce multilingual legislation remains thesame. As explained in a recent European Com-mission press release:

The scale of [the EU’s] multilingual regimemakes it unique in the world, and to some theextra work it creates for its institutions mayseem at first sight to outweigh the advantages.But there are special reasons for it. The Unionpasses laws directly binding on its citizens andcompanies, and as a matter of simple naturaljustice they and their courts must have a versionof the laws they have to comply with in a lang-guage they can understand. Everyone in theUnion is also entitled and encouraged to play apart in building it, and must be able to do it intheir own language.1

Translation versus co-drafting

Given this similarity of obligations, it is interestingto compare the systems used to produce multi-lingual legislation. The EU system, discussed byWilliam Robinson in this issue of Clarity (page 4), isbased on translation of an original text into all the

other languages required. Much effort is thenexpended on the legal checking of the translations(these checks are carried out by lawyers, not bytranslators) to ensure that all the language versionsare legally sound and can therefore be equally valid.

Critics of EU legal jargon have suggested that thereis an alternative to translation, called co-drafting.This practice is followed in some bilingual coun-tries, notably Canada, where ’Bills are co-drafted bypairs of drafters in the Legislation Section workingsimultaneously on English and French versions ofthe bill. Neither version is subordinated to theother.’2

Co-drafting is well defined by Winston Roddick QC,Counsel General to the Welsh Assembly, in this evi-dence to the Richard Commission of the NationalAssembly for Wales:3

Co-drafting is the process by which each of theversions of the Bill is drafted simultaneouslywith the other—more or less—and there is a dia-logue between the one version and the other inwhich the wording of one informs the wordingof the other. The simultaneous evolution of thetwo versions is bound, I would think, to mani-fest itself in legislation the content and form ofwhich is quite different from that of legislationmade in English and then simply translatedinto the other language. The Canadian exper-ience was precisely that.

According to Mr Roddick, co-drafting improves thebrevity and clarity of texts:

The different approach required by co-draftingproduced legislation that was briefer and clearerthan legislation produced in English and thentranslated into French. The form of one influ-ences the form of the other.

And he explains why this is:

When you have to give effect to something intwo languages, each one as legally valid as theother, you really have to know what that some-thing is.

It has always been clear to me, as a translator, thatco-drafting would produce clearer results thantranslation. In the process of translation, most trans-lators will find obscurities in the original text:passages that could have been worded more clearly.

Producing multilingualProducing multilingualProducing multilingualProducing multilingualProducing multilinguallegislation in Switzerlandlegislation in Switzerlandlegislation in Switzerlandlegislation in Switzerlandlegislation in Switzerland


They are often obliged to reproduce this ambiguity.But if the obscurities could be nipped in the bud atthe drafting stage, in a ‘dialogue’ between the lang-uage versions, the resulting texts would be clearer.

As for procedures, though: while co-drafting isviable when producing a bilingual text, it is difficultto imagine how it could be organised when morethan two languages are needed. So, having heardthat legislation is produced in multilingual Switz-erland by co-drafting, and that Swiss legislatorsattach importance to clear language, I decided toinvestigate.

An interesting Swiss hybrid(co-drafting plus translation)

My first discovery, based on information for which Ithank Christine Guy of the Federal Office of Justicein Berne, was that Swiss legislation is not producedby simultaneous co-drafting in all three officiallanguages. Co-drafting is used in two languagesonly: French and German. The third, Italian, isadded by translation. All three language versionsare equally valid, but the drafting is done in twolanguages only, because of the practical difficulty ofconducting a dialogue between more than twoparticipants. Co-drafting is restricted to importantlegislation, and to certain departments. However, itis considered very beneficial. As Christine Guy saidin a private e-mail: ’Co-drafting not only helps tosimplify and clarify legal style; it also enriches thesubstance.’

This echoes the point made independently byWinston Roddick QC in the passages quoted above,reporting on the Canadian experience. Co-draftingdoes indeed appear to concentrate the mind of thedrafters, forcing them to think harder and moreclearly about what they are trying to say. I can ima-gine, too, that the more different the two languagesof co-drafting are, the greater the pressure on thedrafters to move away from the surface words andthink about the deeper meaning. French and Germanare very different languages, with profound differ-ences in word order, grammar and vocabulary. Thedistance between them is even greater than thedistance between English and French. Probably thismakes for even better results in co-drafting Swisslegislation. Certainly there is a consciousness of theneed to avoid interference between the two; this isspelled out in one of the excellent on-line guides forSwiss drafters: ‘Take extra care when translatingfrom German: its syntax and compound words canlead to a clumsy style in the French version; makesure the French is idiomatic.’4

Clarity tools in Switzerland

Co-drafting is not the only tool in the Swiss legis-lators’ clarity toolbox. There are several others. Oneis wide public consultation on important draft

laws.5 The effect of public consultation is twofold:first, there is pressure to write comprehensible draftsin order to minimise criticism during consultation;and second, as Christine Guy points out, ’It is notunusual for comments made in the consultationprocess to lead to linguistic improvements’. There isnothing like a critical test reader (or several) to ferretout any obscurities persisting in a draft.

Another tool is the set of excellent legal draftingguides provided by the Swiss authorities, in Frenchand German, and offered on-line so that they can beupdated as required. These guides include the Guidelinguistique des lois et ordonnances de la Confédérationwhich—despite its unsnappy title—provides pithyadvice such as the following, which could usefullybe framed and hung in the offices of officials in civilservices everywhere:

If a provision can only be understood by theofficials who wrote it, it is badly written. 6

The main drafting guide for Swiss legislators is theGuide de Législation mentioned earlier. This is an ex-haustive 500-page manual, in French and German,covering all aspects of the legislative process, frominception to implementation. After the chapters onlegislative technique, and forms and precedents,there is a fascinating chapter on legal language,including guidance on clear language such as thefollowing:

On concision: check that every word is reallynecessary.

On syntax: • the simplest forms are oftenthe best;

• use short sentences;

• use simple constructions;

• avoid embedded subordinateclauses.

On vocabulary: use modern, everyday words.

On verbs: use the active voice.

On definitions: • if definitions are necessary,group them in the same article;

• definitions can be avoided ifeveryday words are used withtheir everyday meaning.

Little of the advice given above will be new to Clarityreaders. But should anyone mistakenly supposethat concern about clear legal language is restrictedto English-speaking countries, they need only lookat the Guide de Législation to see that in Switzerlandthere is official encouragement to write clearly inFrench and German, with excellent advice on howto do it.


Can co-drafting work for the EU?

Does Switzerland have anything to teach the EUinstitutions about procedures for drafting multi-lingual legislation? It seems that the answer is‘Probably not.’ Of the three aids to legislative claritymentioned here—co-drafting, public consultationand drafting manuals—the last two are already partof the EU legislative process.

As for co-drafting, the Swiss experience has shownthat while it is possible when working with twolanguages, the practical and economic difficulties ofbringing a third language to the co-drafting tablemay be insurmountable. So there is not much hopefor the EU, with 20 official languages! Nevertheless,even limited co-drafting can bring benefits, as theSwiss and Canadians have found. An experimentwith co-drafting in two languages in the EU contextmight bring the sort of clarity and brevity benefitsobserved in Canada and Switzerland.

© E Wagner [email protected]

Emma Wagner worked forthe European Commissionfor 30 years as a translatorand translation manager.While there, she coordin-ated the ‘Fight the Fog’campaign to encourageclear writing. She is nowliving in England and is onthe Council of the Instituteof Translation and Inter-preting, a UK professionalassociation. She has co-written two books ontranslation-related subjects,as well as Clarifying ECRegulations, with Martin Cutts of Plain LanguageCommission; she writes articles and gives lectures onthese topics.

Producing multilingual legislationin Switzerland (continued)

1 Commission Press release, 13.1.2005.2 Ch 2.3 of the Guide to Making Federal Acts and

Regulations produced by the Privy Council Officeof the Government of Canada.

3 <www.comisiwnrichard.gov.uk/content/template.asp?ID=/content/evidence/oral/councilgeneral/index.asp>.

4 Guide de Législation <www.ofj.admin.ch/f/index.html>.

5 For consultation procedure see RS 172.062<www.bk.admin.ch/ch/f/rs/c172_062.htm>.

6 Guide linguistique des lois et ordonnances de laConfédération<www.admin.ch/ch/f/bk/sp/guide/memoire.htm>.

A new service for law firmsA new service for law firmsA new service for law firmsA new service for law firmsA new service for law firms

Mark AdlerMark AdlerMark AdlerMark AdlerMark Adler

a solicitor now retiring from general practice after 25 yearsand a former chair of Clarity

is offering

clearclearclearclearclear-legal-writing courses by email-legal-writing courses by email-legal-writing courses by email-legal-writing courses by email-legal-writing courses by email(accredited by the Law Society for up to 12 CPD hours)

and will also draft documents as your agent, or in consultation with you.

Details, and terms of business, are available [email protected] and www.adler.demon.co.uk

April Cottage, Logmore Green, Dorking, Surrey RH4 3JN, UKPhone: +44 (0)1306 74 1055 Fax: 74 1066


Ian Frame

Lawyer-linguist, Court of Justice of the EuropeanCommunities, Luxembourg

Translators are often blamed for oddities and infelicitiesin Community legislation, yet they are rarely at fault.Rather it is the system that is to blame.

The role of the English language

European law has been a reality in the United King-dom for more than 30 years. Throughout that periodthe United Kingdom has not only been subject toCommunity law but has participated actively in theprocess by which it is adopted.

The Community legislative process has alwaysbeen multilingual but with each enlargement of theEuropean Community there has been an inexorableprogression towards the use of English as thedrafting language for the majority of Communityinstruments.

It is undeniable that there have been linguisticerrors in EU legislation over the years and all toooften the easy option has been taken of attributingthem to translators. What is miraculous is that therehave been so few mistakes, given the enormousnumber of enactments. But, as will become apparentfrom a brief examination of the legislative process,the translators are rarely to blame.

The start of the legislative process

All secondary legislation in the EU (that is, regu-lations, directives and other measures that theCommunity institutions adopt under the variousTreaties) originates in the Commission. Specialiseddepartments write the first draft of an instrument(known as the ‘proposal’). Those who do so willalmost certainly have limited experience of legisla-tive drafting. They may be, for example, economists,tax specialists, pharmacists or veterinarians,depending on the subject of the proposal.

Although English is now the language in whichmost documents are drafted, particularly in the ‘co-decision procedure’ (see below), it is not necessarilythe mother tongue of the drafter. That said, thestandard of English of the majority of drafters isimpressively high, whatever their linguisticbackground.

The result is that the raw document produced by theoriginating department in the Commission will inmost cases display a reasonably good standard ofEnglish but there will be errors of style and vocab-ulary, and many other imperfections in need oftidying up.

Legal revisers

It is at this stage that, in theory, the Commissionproposal will be looked at by a Commission legalreviser. The legal reviser’s job is to check the instru-ment for compliance with the rules on form andpresentation and to improve the quality of draftinggenerally.

However, correctness of another kind—politicalcorrectness—is a factor that complicates matters.Since the majority of Community acts first see thelight of day in English it would be logical for theCommission to have more legal revisers of Englishmother tongue than of any other language. How-ever, political correctness prevents the recruitmentof significantly more English legal revisers thanthose of other languages, with the result that thereare not enough of them to ensure that all the docu-ments that need to be examined by a legal reviser ofEnglish mother tongue are in fact so examined.

Another adverse factor is that it is extremely diffi-cult to recruit English legal revisers to work in theEU. Although the UK is considerably more linguist-ically aware and competent than it was 30 yearsago, there is still a shortage of English lawyers withan indepth knowledge of two or more foreign lang-uages. Those who do possess this dual qualificationtend to look first to the City of London for employ-ment where they can often earn more and lookforward to speedier promotion. Large financialincentives will be needed before a sufficient numberof UK multilingual lawyers will consider abandoningclaret in the winebars in London’s Bishopsgate forthe raspberry-flavoured beer served in the barsaround the Rond Point Schuman in Brussels.

Whilst it is acceptable for the thousands of routinedocuments that the Commission drafts every yearnot to be revised by a native speaker (for example,those concerning agricultural prices will often differfrom earlier ones only as regards the date and theprice levels), important documents really needlinguistic scrutiny as early as possible.

Linguistic oddities in European Union legislation:Linguistic oddities in European Union legislation:Linguistic oddities in European Union legislation:Linguistic oddities in European Union legislation:Linguistic oddities in European Union legislation:

don don don don don’t shoot the translator’t shoot the translator’t shoot the translator’t shoot the translator’t shoot the translator


There is also an understandable temptation for theCommission to be economical with its overstretchedresources by not revising instruments that are to beexamined in detail by legal revisers elsewhere at alater stage, because they will ultimately be adoptedjointly by the Parliament and the Council. This pro-cedure—known as the co-decision procedure—is animportant innovation introduced by the MaastrichtTreaty to give the Parliament more powers and raiseits reputation from that of a mere talking shop. Thedocuments adopted under the co-decision procedureare looked at, first separately and then jointly, by theEuropean Parliament legal revisers and by theircounterparts in the Council (who refer to themselvesas jurist-linguists). More than 95% of the acts adoptedunder this procedure are drafted in English.

Where documents are drafted in English by a non-native speaker, the originator of the document maybe mentally translating certain passages from alanguage that may or may not be his or her mothertongue into English. Even if the drafter is of Englishmother tongue, he or she may not have developedthe linguistic awareness needed to produce adocument that is grammatically as well as legallycohesive. As a result, any linguistic peculiaritiespresent at this early stage are attributable not toprofessional translators but to the drafters.

The amendment stage

The draft instrument now moves forward in thelegislative process, and numerous participants,many (sometimes most) of whom are neither lawyersnor linguists, add their contribution. All draft legis-lation is of course forwarded to the Member Statesfor consideration by their domestic civil servantsand politicians. At the international level, there areworking groups, consultative committees, manage-ment committees, groups of experts, meetings of thevarious national representatives—the list goes on—so that changes and additions come from manysources. And in the co-decision procedure theParliament’s contribution is in the form of numerousamendments tabled by Members of the EuropeanParliament [MEPs] (many of which do not attractenough votes to survive).

MEPs’ amendments are usually, but not always,drafted in the language of the document to whichthey relate. Some are drafted by the MEPs and theirassistants and some are mere echoes of suggestionsmade by lobbyists—it is not unusual for the text oflobbyists’ amendments to be lifted verbatim. Becausethey are interpolations, they often fit with difficultyinto the grammatical structure of the sentences ofwhich they aspire to become part, and they oftenintroduce inconsistencies of vocabulary. Those that

are not drafted in English have to be translated intoEnglish. But the translator does not have the lastword. That responsibility falls to others. The finalversions of the amendments are checked by theParliament’s legal revisers.

As a result of the many changes which documentsundergo, imperfections arise or in some cases arewilfully introduced, or are at least tolerated. It mustnot be forgotten that the Council is not just in thethrall of the Member States—it is virtually an eman-ation of the Member States. Therefore, there is atendency to do those things which ought not to bedone and to leave undone those things which oughtto be done, at the behest and for the convenience ofthe Member States.

The imperfections are many and diverse. Theyderive from political disingenuousness, a desire forvagueness, or outright spin; from application of the‘principle of inertia’ (including the subprinciple of‘even if it’s broke don’t fix it’); from overreliance ontechnical experts; from inadequate knowledge ofEnglish on the part of some of those involved in thelegislative process, including some native speakersof English; and from indifference about the qualityof the language of legislation (sometimes exacerbatedby the desire of national civil servants to escapefrom long meetings and catch flights home).

Inertia: even if it’s broke don’t fix it

Council Directive 93/104/EC of 23 November 1993concerning certain aspects of the organisation of workingtime

Article 21(7):

Member States may provide that workers onboard seagoing fishing vessels for which nationallegislation or practice determines that these vesselsare not allowed to operate in a specific period ofthe calendar year exceeding one month, shalltake annual leave in accordance with Article 7within that period.

Even if we disregard the lonely comma between thesubject and the main verb, we cannot overlook thefact that the sentence structure goes awry with thephrase for which national legislation or practicedetermines that these vessels … . In 2003, when thedirective was being amended, the Council squan-dered the opportunity to rectify this provision byrefusing to adopt the following wording suggestedat the legal revisers’ meeting, which would haveenhanced both the grammar and the clarity of theprovision:

Member States may provide that workers onboard seagoing fishing vessels which, by virtue ofnational legislation or practice, are not allowed tooperate in a specific period of the calendar yearexceeding one month shall take annual leave inaccordance with Article 7 within that period.

Linguistic oddities in European Unionlegislation: don’t shoot the translator(continued)


The longer a document exists, the harder it becomesto change it. For this reason it would—as suggestedabove—be extremely useful for the Commission’sLegal Service to have more English-language legalrevisers available to remove grammatical andstylistic errors before the consultation stage fromdraft legislation produced in English. By the timedraft legislation finds its way to the Parliament’sand the Council’s legal revisers, time allows only forlegal niceties and logical inconsistencies to becorrected. Moreover, because most of the participantsare not native English speakers, they are unlikely toregard grammatical errors and stylistic infelicitiesin the English version as important.

Political meddling

Member States’ representatives often make changesfor political reasons which override linguistic con-siderations. Particularly in the case of directives,Member States often prefer ambiguity to clarity sincethis enables them to implement a measure in a waythat suits their domestic agenda. Even if the Court ofJustice ultimately finds that a Member State has notproperly transposed a directive into its domesticlegislation, this tactic buys years.

The taming of terminology

Directive 2002/30/EC of the European Parliament andof the Council of 26 March 2002 on the establishment ofrules and procedures with regard to the introduction ofnoise-related operating restrictions at Communityairports

The wording of this directive is vague, which comesas no surprise since the United Kingdom Govern-ment is sensitive about steps to reduce aircraftnoise, fearing that commercial interests might bedamaged. Thus, at the end of the legislative processthe measure contained strange linguistic deviationsthat remove the sting from plain words such as‘aggravation of noise pollution’ (which would havebeen the obvious translation of the French aggravationde la pollution sonore) and substituted the anodyneexpression ‘deterioration in the noise climate’. Otherexamples of tampering include ‘assessment of thenoise impact’ for évaluation des incidences des nuisancessonores and ‘a policy approach to address aeroplanenoise’ for une méthode d’action pour traiter des nuisancessonores générées par les avions. No English-speakingtranslator would have produced these translationsfrom French; they are politically massaged versionsof faithful translations.

The translator as healer

In contrast to linguistic chicanery of the kind illu-strated above, translation can sometimes rectify andheal. This happens when a translator improves onthe original text. For example, an English draft thatcontains errors intentionally overlooked or even or

created by disingenuous participants may be trans-lated correctly into other language versions. Considerthe following example.

Directive 2003/30/EC of the European Parliament and ofthe Council of 8 May 2003 on the promotion of the use ofbiofuels or other renewable fuels for transport

Article 4(1)

In the report covering the year 2006, MemberStates shall indicate their national indicativetargets for the second phase. In these reports,differentiation of the national targets, as com-pared to [sic] the reference values referred to inArticle 3(1)(b), shall be motivated and could bebased on the following elements .... (emphasisadded).

The words ‘shall be motivated’ in the originalEnglish were doubtless written (in English) bysomeone whose mother tongue is French, Spanishor Portuguese (French sera motivé or Spanish andPortuguese será motivado). No translator in the Com-mission or the other EU institutions would use theword ‘motivated’ in that context. They would usuallyuse the words ‘reasoned’ or ‘reasons’ as in Article85 EC: ‘a reasoned decision’; or Article 253 EC:‘shall state the reasons on which they are based’).Here, an acceptable translation might read ‘thereasons for differentiation of the national targets …shall be specified’. A United Kingdom civil servantwould only insist on retaining ‘motivated’ becauseits meaninglessness attenuates the force of theobligation imposed on the governments of theMember States, including the UK.

The ironical result is that the only version that ismeaningless is the original language version, whichthe translator, as healer, has not had an opportunityto improve.

Misconceived mastery of experts

Sometimes native speakers of English defer totechnical experts even when they must know theEnglish is wrong or that jargon should be translatedinto plain English. Here is an example.

Directive 2003/71/EC of the European Parliament and ofthe Council of 4 November 2003 on the prospectus to bepublished when securities are offered to the public or ad-mitted to trading (as amended by Directive 2001/34/EC)

These securities may include different products,such as debt securities, certificates and warrants,or the same product under the same programme,and may have different features notably in termsof seniority, types of underlying, or the basis onwhich to determine the redemption amount orcoupon payment [emphasis added].

Whether or not it is customary to use ‘underlying’as a noun in the securities industry, this usageconfuses most readers who assume that ‘under-


lying’ is an adjective and so look in vain for thenoun it modifies. Translators into other languagesadded the noun ‘assets’ or ‘securities’ after ‘under-lying’ in their versions.

Drafters in denial

To end, here is an example of the Council paintingitself into a corner by publishing an error in itsManual of precedents for acts established within theCouncil of the European Union (the English version ofwhich, for some undisclosed reason, has an indexonly in French).

A provision that appears in numerous measuresconferring powers on a committee (a process called‘comitology’) refers to Council Decision 1999/468/EClaying down procedures for the exercise of implementingpowers conferred on the Commission.

The provision states incorrectly that for certaincommittees the period laid down in Article 4(3) [ofDecision 1999/468] shall be set at [x] months. Article4(3), however, does not lay down a period but refersto ‘a period to be laid down in each basic instrument’,so there is a clear contradiction. Apart from thestandard clause being wrong, the expression ‘shallbe set at’ implies that further action is to be taken ata later stage. This is not the case since the instrumentcontaining the comitology clause sets that time-limit.

The Parliament’s efforts to amend this recurrenterror (by suggesting the wording: the period referredto in Article 4(3) shall be [x] months) usually failbecause the Council will not admit that it has beenwrong for many years to use the illogical wordingenshrined in its Manual of Precedents and, thanks toits superior bargaining power in this, the so-calledco-decision procedure, the Council’s wishes mostlyprevail.

I could give many other examples, but I hope thatthose I have given show that it is rarely the trans-lator who is responsible for the oddities found inCommunity legislation.

© Ian Frame [email protected]

Linguistic oddities in European Unionlegislation: don’t shoot the translator(continued)

After eight years with aCity of London law firm,in 1981 Ian Framebecame a lawyer-linguistin the Court of Justice ofthe European Communitieswhere he has worked eversince, apart from a periodof about 18 months as alegal reviser scrutinisinglegislation in the EuropeanParliament. He is also aScrivener Notary Public ofthe City of London, havingbeen attracted to thatprofession by the dualqualification in law andforeign languages which Scriveners must obtain, during afive-year traineeship, before being entitled to practise.

Clarity: electronic or paper?We publish Clarity in both electronic (.pdf) and paperforms, in May and November. The electronic versionreaches you sooner, because the paper version has to beposted from the US all around the world. You can ask forClarity to be delivered to you either or both ways.

Just let your country representative knowif you want to change the way you receive Clarity.


Catherine Rawson

International Legal English, Consultant, Beijing, China

Non-native English speakers who expect a quick fix oftheir writing are usually indulging in wishful thinkingand making the mistake of forgetting the needs of theirreaders—the overriding principle of plain languagewriting. Editing this sort of English is skilled work.While some errors are obvious and easy to correct, othersare not, especially when tangled up in tortuous sentenceswith legal concepts. If allowed, an expert legal editor cangreatly improve a text by not only correcting the errors,but also by “translating” and “interpreting” the text tomeet the needs of international readers.

As guest editor of this issue of Clarity, the reason Ichose to explore the extent to which plain languageis used in multilingual and non-English speakingcountries, is that I have found that using plainlanguage (like plain speaking) raises deep cross-cultural issues. German lawyers, for example, areinclined to perceive plain language as unscholarly,whereas English-speaking lawyers consider it tobe the hallmark of competence. The difference inperception is cultural. German academic traditionequates transparency with superficiality, whileAnglo cultures admire thinkers who make theirideas “crystal clear”. Non-native English writerswhose native language has both a formal andinformal mode of address can feel uncomfortablefollowing the plain English recommendation ofusing “you” to involve their reader. To them thisform smacks of rude informality.

This article is in two parts. Here I review some of theproblems non-native English lawyers experiencewriting in English, and the extent to which meaningand language are inseparable. In Clarity No 54 Iwill expand on what is involved in editing non-native English texts, and how firms can dramaticallyimprove writing standards while reducing costs bylessening their lawyers’ dependence on native Eng-lish speakers. With training supported by softwaretools, non-native English lawyers can correct styleand translation errors themselves.

“Reading maketh a full man, writing makethan exact man”

When Englishman Sir Francis Bacon (1561-1626)wrote these words 400 years ago England was amultilingual country, so Bacon would not have beena stranger to the misunderstandings that occur whenspeakers use a foreign language. Bacon understoodthat we must be exact in how we write, if others areto understand our thoughts and be persuaded toour way of thinking.

Each of us is shaped by our family, education, andnational culture. Frustration and misunderstandingscan easily result when we communicate in a foreignlanguage to a different audience. Without the benefitof non-verbal signals and voice tone, the writtenword presents our readers with a linguistic guessinggame. The task of the non-native English lawyer isto remove the guesswork.

Standard English

Today more people use (abuse?) English as a foreignlanguage than use it as a native language. To becomprehensible as an international language, Englishmust follow one standard. Since each English-speaking country has its own usage standards forgrammar, vocabulary, spelling, and punctuation,writers must choose one standard and stick to it.This is easily done with computerised grammar-and spell-checkers, although the prompts designedfor native English speakers may sometimes puzzleand confuse non-natives.

Editing out “foreignness”

If “foreignness” could simply be skimmed off a textas cream is from milk, an editor could “just fix theEnglish”. The problem is that gleaning meaningcomes before editing. If a legal editor cannot under-stand what a text is about, then if the intendedreader is to understand it, the editor will need to gobeyond merely correcting the odd foreign error. Aplain English text, as Clarity’s readers know, allowsthe intended reader to get its message on first reading.

25


A legal editor plays the role of an expert surrogatereader for the target audience, which for a lawyer ismostly prospective and existing clients. If a text isunclear or poorly written or both, the editor willstumble and backtrack, just as the reader would.The editor’s task is to correct flawed writing and fillcontent gaps to create flow. Sometimes this involves“translating” foreign concepts and language and“interpreting” assumed cultural messages.

“Lawyers have two common failings. Oneis that they do not write well and the otheris that they think they do.”1

This statement made by Prof Carl Felsenfeld in 1982about US lawyers, applies to non-native Englishlawyers today. How well a foreign lawyer writesin English depends on the lawyer’s grasp of law,English level and writing ability. A writer whosethoughts are unclear finds it hard to write clearly,regardless of the vehicle language.

Non-native English lawyers who write poorly intheir mother tongue have trouble writing well inEnglish. Like their native English speaking col-leagues, these lawyers do not know the differencebetween good and poor writing because they havenot been taught how to write plainly. Once non-native English lawyers accept that writing qualitycan be measured objectively, they are motivated toimprove their writing skill, because they realize thatboth English speaking and writing competence arethe keys to their success in the international workplace.

What errors do foreign lawyers make?

Non-native English legal writers often make mistakesin content and writing. The main content error isassuming that all readers share their cultural andlegal context. They make errors in grammar, vocab-ulary, spelling, punctuation, tone, linkages, andlayout. Let’s consider these cultural and writingerrors in six classes (of which only the first threeare unique to non-native English speakers):

• Learner errors

• “Signature” errors

• Misjudged cultural assumptions

• Problems with flow and tone

• Proofreading errors

• Poor writing style.

Learner errors

Non-native English speakers’ errors are rather likea foreign accent. A light accent does not affectunderstanding but a thick accent does. Similarly,occasional errors do not affect a text’s readability,but endemic errors do.

Because they are all learners of English, they nearlyall make mistakes. Learners with upper intermed-iate English or better can cope with legal writing ifthey use plain English. (See my article in Clarity No45 (Dec 2000), “Plain English is a Gift for ForeignLawyers”). Less competent users of English do bet-ter to use a translator. Editing a garbled English texttakes longer and is less reliable than translation,because the native English editor has to guess themeaning.

“Signature” errors

When language learners transfer some of the patternsof their mother tongue to English they make “sign-ature” errors. Dunglish, for example, is Dutch that’sgone English2 and Japalish is Japanese that’s goneEnglish3.

Another type of sub-English is EuroEnglish. This isthe insider-speak of the European institutions, andis as much a dialect to outsiders as legalese is to non-lawyers. EuroEnglish is especially unintelligible tonative English speakers with no knowledge of Euro-pean languages. Take this meaningless sentence:

The modalities of the situation dictated acomplicated solution.

Modalities, a word with French roots, is a chameleonword whose meaning changes according to context.Since its natural habitat seems to be abstract, jargon-ised sentences, nothing short of a rewrite is usuallynecessary to expose meaning. In the example, thewriter might have been trying to say that:

Involved procedures were needed to solve thecomplicated situation.

The closer a language is to English, the more likely alearner is to transfer signature errors. Linguistically,English is a fixed-word-order, non-inflecting, subject-prominent language. In other words, English is alanguage where meaning comes from the order ofthe words and not how they are modified by othersaround them. Being a subject-prominent languagerequires the order: subject-verb-object (S-V-O). Theexpected pattern of an English sentence is thus Who-Did-What-To-Whom or What?, followed or precededby When?-How?-Why? detail. This is why plainEnglish experts advocate writing short sentences inthe active voice without embedded clauses.

The table on page 27 gives examples of signatureerrors.

Just fix the English(continued)


Misjudged cultural assumptions

Cultural myopia occurs on two levels. At thecountry level, the writer assumes a universalunderstanding of how the world works. Take forexample “business hours” which vary from placeto place. To avoid confusion, a writer must spell outopening and closing times, not forgetting the lunch“hour” or siesta zizzzz.

In legal practice, cultural myopia shows in assump-tions made about the way the law works. Everylawyer knows that the civil and common lawsystems are different, yet lawyers in differentjurisdictions sometimes fail to set out the basicassumptions that underpin their advice. Considerthe rules of inheritance. In Belgium forced-heirshiprules override conflicting provisions in a testator’swill. Unless this is explained to a lawyer who isused to testamentary freedom, that lawyer is likelyto assume that the Belgian has made a mistake inapplying the terms of the will.

Problems with flow and tone

1. Linkages: tone and flow

Untrained writers often find it difficult to strike theright tone because they cannot manage smoothlinkages. Sometimes this is because they have notmastered the use of subordinating conjunctions(although, because, when) and conjunctive adverbs

(however, moreover) or have fallen for the myth that itis grammatically incorrect to start sentences withcoordinating conjunctions (and, or, but).

The end of an English sentence carries the rhetoricalstress. Putting old information before new createsflow in a text. Sometimes to achieve flow, S-V-Oword order must be surrendered in favour of thepassive voice’s O-V-S order. Reversing the orderallows the writer to lead the new sentence withinformation picked up from the previous sentence.Consider this example taken from Michèle MAsprey’s Plain Language for Lawyers4:

To acquit the accused, the jury must believe theaccused’s alibi. The alibi must be confirmed bythe evidence.

The focus in Dutch sentences is the reverse ofEnglish, leading many Dutch writers to “frontallyoverload” their English sentences. Joy Burrough-Boenisch5 gives this example of refocusingDunglish to English:

Especially in the social sciences, a clear bias canbe observed in the development of models.(Dunglish)

A clear bias can be observed in the developmentof models, especially in the social sciences.(English)

Examples of signature errorsDutch (NL), French (FR), German (DE), Spanish (ES), Japanese (JP) General (Gen)

False cognates DE: The actual situation is serious currentES: She is embarrassed with a boy pregnantFR: The market is fiercely concurrent competitiveNL: Her death was dramatic tragic

Translation errors DE: He did not advise the price correctly guessES: Her book has 5 years old isFR: The event arrived in 2000 happenedNL: He controlled the accounts checkedJP: He is 6 feet high tall

Abbreviations— Gen: f.e. e.g. (for example)not used in English Gen: i.r.t. in regard to

Punctuation— Gen: A Panda eats shoots. A panda eats shoots.incorrect Gen: “What nonsense”! “What nonsense!”

Gen: When will you come. When will you come?

Unidiomatic English Gen: When I and you arrive he’ll be happy you and IGen: Later or sooner he will agree sooner or laterGen: That’s less or more correct more or lessGen: His carriage and horse were out horse and carriage


2. Passive voice

Many non-native English lawyers overuse the passivevoice believing it creates the formal tone appropriatefor legal writing. They may do this because this is howthey write in their mother tongue or because they areimitating poor examples of English legal writing.

3. Tense

Some non-native English writing conventions donot transfer to English. For example, some Euro-peans record minutes of meetings in the presenttense, not realising that English requires the simplepast tense.

4. Blockages and focus

Most native English speakers instinctively recognisestilted English but many have difficulty in freeingblockages and refocusing sentences, let aloneexplaining why the changes are needed. Overlyconfident non-native English writers resent nativeEnglish editors who cannot justify their changes,even if those changes result in flowing, idiomaticEnglish.

Proofreading errors

Diligent users of English can proofread their owntexts for spelling, grammar and punctuation errorsby using Microsoft Word’s spell- and grammar-checker. Checking for deviations from a firm’sstyleguide, if any, is more painstaking but nonethe-less essential. A customised style-checker, however,does the job faster and better than a bored human.

Poor writing style

Poor native users of English make the mistake ofwriting long, complex sentences redolent with thestyle faults listed in the table below.

Style faults

• Passive verbs • Clichés—ordinary& business

• Nominalisations • Redundancies

• Misusing words • Tautologies

• Confusing words • Overwriting

• Archaic words • Weak modifiers

• Foreign words • Cross referencing

• Complex words • Elegant variation

• Jargon • Abstractions

When non-native English lawyers ape traditional(poor) English legal writing it is often faster andbetter to rewrite sentences than to edit them. Teasing

out non-native English speaker errors from complexsentences riddled with style faults is more effortthan the job is worth. In cases of truly dreadfulwriting, the editor may end up ghost-writing theentire text. If a text is to be assessed— such as adoctoral thesis—rewriting raises ethical issues.

Should an editor speak the non-nativeEnglish speaker’s language?

Fluency in the non-native English speaker’s lang-uage can help an English editor pick up obvioustransfer mistakes and odd literal translations. If thenative English editor is also familiar with the non-native English speaker’s culture, the editor willreadily spot cultural gaps in understanding whichneed bridging. Countries and professions havecultures. For example, a Brazilian may not think toexplain that insuring households in Brazil is agovernment-run monopoly. Similarly, a civil lawpractitioner may not realize that certain conceptsderiving from Roman law are foreign to common-law practitioners.

Living in the non-native English speaker’s countryhas a downside. Editors can lose their grip onEnglish when immersed in another culture. One’ssensitivity to sentences like “I’ve been working heresince 10 years” dulls with time and repetition.

Can content be separated from writing?

Since the purpose of writing is to convey meaning,simply removing non-native English speaker’serrors and style faults is often insufficient to conveymeaning, as the following excursion into linguisticsshows.

• Correct but meaningless

Leading linguist, Noel Chomsky6, gives thisexample:

Colorless green ideas sleep furiously.

• Correct but ambiguous

Please remove all your clothes when thewasher’s light goes out. (sign in a laundry)

• Correct but confusing

This charter is neither extensive nor exhaustive.Plain language expert, Martin Cutts, in his OxfordGuide to Plain English7 says the confused publicinterpreted this sentence to mean:

This charter is neither costly nor tiring.As Cutts says the government would have donebetter to write:

This charter doesn’t try to give you every detail.

• Correct but illogical

Bargain basement upstairs. (department store sign)

• Incorrect abbreviated writing (texting)

RU OK 4 2Nite? It’d B GR8 2 C U!

Just fix the English(continued)


• Incorrect (jumbled) lettering

Seieng is bleivneig, rghit? It deosn’t mttaer whatoerdr the ltteers in a wrod are so lnog as the fristand lsat ltteer aer in the rghit pclae, bcuseae we donot raed ervery lteter but the word as a ttoal.

• Incorrect capitalization

oNLy ThE GooD aRe ReWaRdED.

• Incorrect spelling creating wordplay

Bach in a minuet. (sign on a music shop)

Now let’s try classifying the followingungrammatical non-native English speakers’sentences as acceptable, understandable, guessable8

and unintelligible.

• Acceptable?

Please learn me how to sing. (teach)

• Understandable?

Please me teach English. (teach me)

• Guessable?

The veteran typist did the job quickly. (Japalishfor: expert)

• Unintelligible?

I was cried by the baby (Japalish for: I couldn’tlull the baby)

Managing changes

When a writer believes that the editor has changedthe meaning of a sentence the solution is rarely toreinstate the original text. If the editor didn’t under-stand something then the reader probably won’teither (even if the reader may know more about thesubject than the English editor). Instead, the writerand editor need to agree an acceptable rewrite.

Writers should not judge an editor who asks ques-tions and makes “wrong” guesses as incompetent.The line of least resistance (and greatest profitability)for an editor is to pander to clumsy writers’ fragileegos. Fewer edits reinforce clumsy writers’ misplacedconfidence that they write well. More realisticwriters respect the contribution an editor can make,invite the editor to do whatever is necessary to makethe text comprehensible for the reader, and so helpboth the writer and the reader.

Do-it-yourself fixing for non-nativeEnglish speakers

Once trained in plain English writing techniques,and armed with customised editing software, non-native English lawyers are able to correct commonstyle and translation errors. My work with inter-national firms is aimed at making their multilinguallawyers confident and self-sufficient English writers,who depend on native English legal editors only forhoning content to meet their foreign readers’ needsand expectations.

At Clarity’s July 2005 conference in France, I willshow how DIY editing saves money and fragile egosby allowing non-native English lawyers to:

• pick up predictable translation and signatureerrors

• access legal know-how relevant to an inter-national audience

• enforce adherence to housestyle rules

• measure writing quality

• promote plain writing.

© C Rawson [email protected]

1 “The Plain English movement in the UnitedStates”, Prof Carl Felsenfeld, Canadian Business LawJournal, vol 6, 1981-82.

2 Righting English that’s gone Dutch, 2nd ed, JoyBurrough-Boenisch, Kemper Conseil.

3 Noriko Nakanishi, an MA linguistics student atKobe City University of Foreign Studies is studyingthe extent to which readers understand Japalish.You can help her by filling out her questionnaireat <http://members.goo.ne.jp/home/questionnaire2005>.

4 Michèle M Asprey, Plain Language for Lawyers, 3rd

ed, Federation Press, at page 141.5 Joy Burrough-Boenisch (see endnote 2 above).6 Noam Chomsky, quoted by Steven Pinker in The

Language Instinct, 1994, Penguin Books, at page 88.7 Martin Cutts, Oxford Guide to Plain English, 2nd ed,

OUP, 2004, at page 11.8 Noriko Nakanishi’s questionnaires allow subjects

to choose from these categories when assessingJapalish sentences (see endnote 3 above).

Catherine Rawson helpsmultilingual organisationsensure that their staff writeclear, concise, readableEnglish, regardless of theirnative language. By usingtailored software to rein-force Catherine’s plain Eng-lish training, her clientsare able to monitor thequality of their Englishcommunications. Catherinehas worked as a lawyer onthree continents, is fluentin German and gets by inFrench and Portuguese.

Wanted: a pithyshortform descriptionCatherine needs your help. See page 38.


Christopher Williams

Associate Professor of English at the Faculty of PoliticalScience, University of Bari, Italy

After an encouraging start, the state-sponsored plainlanguage initiative ‘Progetto Chiaro!’ has fizzled out.So Italians are once again left to grapple with thecomplexities of bureaucratese, an area still in need ofdrastic reform.

I wish to thank Giovanni Vetritto for his invaluablecomments.

Anyone who has lived and worked in Italy will beonly too aware of the mind-boggling complexity andsluggishness of Italian bureaucracy and of Italy’slegal system. Small wonder, then, that there havebeen calls for reforming the language of officialdomto make it more user-friendly. But while in Britain,the USA and other English-speaking countries, theplain language movement has mainly found expres-sion outside government institutions, the nearestequivalent in Italy, known as the Progetto Chiaro!,is part of the Department of Public Administration(Dipartimento della Funzione Pubblica).

The Department was set up in 1983 as part of thedrive to modernise public administration, but it wasonly in the 1990s that a concerted effort was made toimprove its quality and efficiency. This culminatedin the setting up of Chiaro!, the so-called ‘Project forthe simplification of administrative language’<www.funzionepubblica.it/chiaro/>.

The language of officialdom

One of the characteristics, then, of the plain languagemovement in Italy is that it has so far concentratedits attention mainly on the language of officialdomand has tended to be less concerned than its English-speaking counterparts with, say, consumer rightssuch as ensuring that leaflets contained in prescribedmedicines are comprehensible to non-experts, orwith the language of prescriptive legal texts. Ofcourse, the language of officialdom spills over intothe legal field; moreover, in recent years attemptshave been made within the Italian Parliament toimprove the quality of legislative drafting, as StefanoMurgia and Giovanni Rizzoni pointed out in ClarityNo. 47 (May 2002, page 20).

Thus, on the one hand, the focus of the ProgettoChiaro! is more limited than that of, say, the plainEnglish movements in the UK, Australia and Canadabut on the other hand, given the pervasiveness ofstate officialdom in most people’s lives in Italy, theproject has undoubtedly hit on the area that wasmost desperately in need of reform. A guidingsource of inspiration behind the proposed reformof bureaucratese has been Alfredo Fioritto whoseManuale di Stile. Strumenti per Semplificare ilLinguaggio delle Amministrazioni Pubbliche was firstpublished in 1997. The manual provides practicaladvice on how to draft administrative documents,regulations, contracts etc (see Francesca Nassi’sreview in Clarity No. 47 (page 23).

Gathering momentum

The most fruitful period in the drive towards thesimplification of administrative language in Italyseems to have been between 1994 and 2002. It wasin 1994 that the scheme for rewriting administrativedocuments was launched with Sabino Cassese asMinister (his Codice di Stile of 1993 was the fore-runner to Fioritto’s manual). Under his successor,Franco Bassanini, the project continued to flourish.On 8 May 2002, with Franco Frattini as Minister, theso-called ‘Frattini directive’ was introduced callingfor an overhaul of administrative language byestablishing drafting rules. To help in applying thedirective the Progetto Chiaro! was set up that year,with an online consultancy service for local govern-ment employees and officials seeking guidance onhow to draft administrative documents in accord-ance with the directive.

The directive’s ten ‘rules for writing texts’

The first part of the directive contains the (ratheropaquely worded) ‘rules of communication andlegal structure’, such as making sure the content ofthe text is always clear, always having a clear ideaof who the recipients of the text will be, insertinginformation in a logical way, using notes, attach-ments and tables to lighten the text etc. This isfollowed by ten ‘rules for writing texts’:

1. Write short sentences.

2. Use words from everyday language.

3. Use technical terms sparingly and explainthem.

Progetto Chiaro!Progetto Chiaro!Progetto Chiaro!Progetto Chiaro!Progetto Chiaro!and the plain language movement in Italy


4. Use abbreviations and acronyms as little aspossible.

5. Use verbs in the active and in the affirmativeform.

6. Connect words and sentences briefly andclearly.

7. Be consistent when using capital letters, smallletters and punctuation.

8. Avoid neologisms, foreign words and Latinisms.

9. Use the indicative form rather than the sub-junctive where possible.

10. Make sure the text is visually pleasing (i.e. usewhat modern technology has to offer, but don’tget carried away!).

Sentence length, subjunctives and passives

One area where there is certainly room for reform—not just in legal or bureaucratic language—is thatof sentence length. Not surprisingly it is put first inthe list of rules above. There would seem to be aningrained tradition in Italy of writing long sentences:anyone perusing the average academic textbook inItalian will see what I mean, with sentences ladenwith subordinate and parenthetical clauses.

Rule 9 is an interesting case. While subjunctives arealmost non-existent in modern English they repre-sent roughly 10 per cent of all verbal constructionsin Italian legal texts. But in my opinion their usedoes not generate any particular ambiguity (theyalways refer to hypothetical situations); they simplymake the text sound more formal (people tend to‘drop’ their subjunctives in informal conversation).And, in common with many other countries, thedirective calls for a reduction in the use of the pas-sive, even if it is less frequently adopted in Italian(about 20% of verbal constructions in prescriptivetexts are in the passive) than it is in English (about25%).

Losing momentum

Unfortunately, the momentum favouring languagereform came to an abrupt halt not long after thedirective was passed, as can be witnessed by visitingthe website where the information and documen-tation have not been updated for three years. WhenI emailed the address provided on the website forthose seeking further information or advice, myemail bounced back and I was informed that theuser was unknown. The implicit message was, alas,molto chiaro! It was only after further investigationthat I was informed that the project had been given alimited time span, after which it was shut downaltogether and has not since been revived.

Top down

The hiatus in the activities of the Progetto Chiaro!reveals one of the inherent weaknesses in a move-

ment that springs from within the state itself ratherthan from the grassroots, namely that much dependson the interests and priorities of individual ministers.This is not to say that the average citizen in Italydoes not moan about the incomprehensibility of offi-cial documents, but there is simply not much of atradition in Italy as there is in, say, the UK, in formingpressure groups to do something about it. It is oftenthe case in Italy that reforms take place as a result ofadopting models from abroad rather than as a resultof pressure from within.

Legal language

There are several possible reasons why legal lang-uage tends not to be the main focus of criticism inItaly as it is in most English-speaking countries.First of all, the type of language in which laws aredrafted in Italy is not perceived as being as archaicor idiosyncratic as it is in English-speaking coun-tries. There are few equivalents to the hereinaftersand aforetosaids that sound like something from theElizabethan age. Laws drafted in Italian may notalways be easy to follow, but they do not soundparticularly antiquated. Secondly, like most othercountries in continental Europe, by far the mostcommonly-used tense used in prescriptive texts inItalian is the present indicative, constituting two-thirds of all finite verbal constructions. So there isno ambiguity as there is often claimed to be in Eng-lish between shall and the present tense: in the vastmajority of cases shall would be rendered as thepresent simple in Italian. Può and possono (respect-ively, third person singular and plural of the modalverb potere = to be able to) are the equivalent of may,used for expressing discretion or, in the negativeform, prohibition; while deve and devono (respect-ively, third person singular and plural of the modalverb dovere = to have to) are the equivalent of must,used for expressing legal requirements or condi-tions. To the best of my knowledge the choice ofverbal constructions is not a major issue in draftinglegislation in Italy.

Changing perspective

Another difference from the position in the UK orthe USA, for example, is that there is no tradition of‘plain writing’ courses in Italy. Fioritto’s manualstands out like a beacon, and it has only given riseto one or two isolated initiatives in recent years.

Summing up, then, the situation of plain languagein Italy has undoubtedly improved in the last tenyears. It has been officially recognised that there is aproblem with the language of public administrationand it has been addressed, at least in part. What islacking, rather, is a widespread determinationamong the general public and the state to applyplain language principles to other areas where citi-zens may feel excluded simply because they cannotunderstand what is being said. While consumer


Christopher Williamswas born in Nottinghamand graduated in ModernLanguages in London in1974, the year he movedto Italy. He is currentlyAssociate Professor of Eng-lish at the Political ScienceFaculty of Bari. He alsoteaches English at the LawFaculty at Foggia Uni-versity. He has a longexperience of translatinglegal texts, mainly inlabour law, from Italianinto English. He has pub-lished several articles on legal English and has just completeda book, Tradition and Change in Legal English: VerbalConstructions in Prescriptive Texts, published by PeterLang.

movements are fairly active in Italy, they have not yetfully grasped that plain language lies at the heart ofthe desire for reform and change. Few people in Italywould deny that abstruse language can be a problem,but there is not yet the perception that clarity beginsat home (apologies for the pun!), and that lastingresults can only be achieved by forming grassrootsassociations to tackle the practical issues at hand.

© C Williams [email protected]

Progetto Chiaro! and the plain languagemovement in Italy(continued)

ORDERING YOUR COPY

UK & Europe:

Willan Publishing (UK)

www.willanpublishing.co.uk

Email: [email protected]

North America:

Gaunt Inc (USA)

www.gaunt.com

Email: [email protected]

All other countries:

The Federation Press (Aus)

see contact details below

Michèle Asprey’s book has established itself in Australia

as the best explanation of plain language for both

lawyers and the profession generally. It is clear and

easy to read: a great example of the art of plain

language. The third edition is a comprehensive revision

and update:

It covers the significant developments in plain

language and the law since 1996.

It includes two new chapters, one on writing email

and writing for the internet, and the other on

designing documents intended to be read on the

computer screen.

Chapter 3 (Why plain language?) has been

expanded and divided into two chapters:

Chapter 3 – Why plain language? and

Chapter 4 – Plain language around the world,

reflecting the many developments in plain language

The Federation Press

Published July 2003

ISBN 1862874646 Paperback, 336 pages

rrp AU$45.00 (excl GST)

T H E F E D E R AT I O N P R E S S PO Box 45, Annandale NSW 2038, Australia Phone (61 2) 9552 2200 Fax (61 2) 9552 1681

email [email protected] www.federationpress.com.au

PLAIN LANGUAGE FOR LAWYERSPLAIN LANGUAGE FOR LAWYERS

3RD EDITION3RD EDITION

Michèle M Asprey New!


Cheryl Stephens

Plain language consultant, legal marketingand development coach, Vancouver, Canada

I want to share with you some of the lessons I learnedfrom directly handling one project and from observationas a participant in another.

The two multilingual projects:

1. Online Legal and Court-Related Dictionary

2. Plain Train, an online training course in plainlanguage

The biggest lesson I learned: the bigger and morecomplex the project, the more significant the “projectmanagement” needed.

First, you have to remember to include a line item inthe budget for project management. Then you haveto decide who will do it. If it is you, then I highlyrecommend you take a short-course in project man-agement from a local institution.

Second, I advise you to take on such projects only ifyou are competent in the languages of the project. Ofcourse, that is not always possible, as I’ll discusslater.

It is difficult to understand the problems arising inone language when you do not know that language.Consultants working in other languages may beyour experts in that language but they will need agreat deal of guidance from the project manager onlanguage issues—more than I ever imagined. Bylanguage issues I mean the register, and the choicesof vocabulary and other factors that the particularaudience and purpose require you to make.

The next concern arises with testing results on theforeign language materials when you do not knowthat language. You have to trust completely yourlanguage expert who may have a different sense of“plain language” than you or the project funders.

1. Online dictionary

The Multilingual Online Legal and Court-RelatedDictionary is funded by the Law Foundation ofBritish Columbia and managed by the CourtInterpreter’s Program at Vancouver CommunityCollege. This dictionary provides the equivalent to

an English term in five languages: Russian, Vietna-mese, Mandarin, Farsi, Punjabi, and Spanish.

The process of producing the legal terminology

The project, which includes about 4,500 entries ineach language, was organized to provide proof ofthe validity of the plain language. This proof camefrom linking to existing dictionary definitionswhich were more formal or legalistic.

The project began from a longer English word listprepared by a court interpreter and reviewed by twojudges and a lawyer who whittled it down to 5000words. Later it was reduced again by eliminatingwords that are used in their common dictionarymeanings. It was expanded by updating the list asnew laws presented new terminology during the 3year project. Also, each variant of a word is definedseparately. Some words are defined differently whenused as both verbs and nouns, in both litigation andproperty, or in a local or national context (eachvariant is described as a term).

A legal researcher reviewed recent court decisions todetermine the actual and current use of the word inthe local legal system (the term). Then the researcherreviewed popular English dictionaries to discoveran existing dictionary definition that suited theusage (the formal definition). When a suitable defini-tion was not available, the researcher turned to legaldictionaries or wrote his or her own definition.

Then the researcher located an example of the wordused in context (the context). In a few cases theseexamples came from court cases or other legal docu-ments. But whenever possible, the example comesfrom a popular text so that the use is comprehensible.

At this point the plain language consultant trainedin law (known to the project as the Wizard) reviewedand reconsidered all that material. Then she wrote aplain language definition identified as the casualdefinition. A professional terminologist dealt withabout 1500 slang or technical words that are oftenused in criminal or family court.

Now we had the full term record consisting of theterm, formal definition, context, casual definition andother components. The formal definitions obtainedfrom commercial dictionaries are not included in theonline publication, for copyright reasons. The termrecord will appear online as in this example.

Canada’s multilingualmultilingualmultilingualmultilingualmultilingual plain language projects


English

Term tort law

Part of Speech noun phrase

Casual Definition field of law devoted tocompensating injurysuffered by a person or theirproperty under common lawor private rights

Context/Example While there has been muchdebate about the liability ofthe mentally ill in thecontext of *tort law*,considerable uncertaintystill abounds...the topicexemplifies the confusionthat has plagued this areaof the law.

Source of Context Fiala v. MacDonald,2001abca169,Source:<http://www.canlii.org/ab/cas/abca/2001/2001abca169.html>

Synonyms and tort; tortiousVariants of“tort law”

A lawyer acquainted with plain language issuesreviewed the entire term record and checked the legalvalidity of the casual definition. This sometimes ledto a negotiation and revision of the casual definition.

The term record that resulted from this research andwork provided the background support for the for-eign language terminologists. These English termrecords provided a sound understanding of theCanadian (or specifically British Columbian) useof the term for determining the closest equivalentterm in the other language. For each language, twopeople divided the word list: each dealt with halfthe term records and reviewed the work of the other.

We are lucky that Canada is a multi-cultural countryand Vancouver the most rapidly changing city inthe world in that respect. It was possible to findlocally the qualified people in all these languages.Yet they were not necessarily trained in law in thecountry of their language.

It would not be easy to find a project manager whois fluent in so many languages. It fell to the foreignlanguage terminologists to share their experiencesand find a way to communicate their commonconcerns to the project management:

• There was often no equivalent word to the Englishlegal term or to the particular use of that word.Rather than merely translate the English material,the aim was to create a new term record (or asmany components of it as possible) in the targetlanguage using context examples from materialsoriginally produced in that language.

• It was also a challenge to find materials in somelanguages. There were few resources online inwhich a discussion requiring legal terms wouldarise.

The working terminologists were operating in Can-ada, where they had minimal access to research orreference materials in their own language. Thisproject would have been better carried out with aninternational workforce who could access librariesof information in their own languages.

2. Plain Train

Plain Train is an online training system currentlyhosted by the Plain Language Association INter-national <plainlanguagenetwork.org/plaintrain/>.

It is based on pre-existing resources:

• A booklet: Plain Language: Clear and Simple

• A formal training curriculum: Trainer’s Guide toPlain Language: Clear and Simple

produced by the National Literacy Secretariat of theGovernment of Canada and funded by Access toJustice Network <acjnet.org>.

The original materials were prepared in both Eng-lish and French, Canada’s official languages.Canada’s population is about 30 million with 6.7million speaking primarily French and a large pro-portion being multilingual.

I managed the project and Janet Dean designed thecurriculum in the transformation of the in-persontraining to the online course.

The original French booklet and training programwere not simply translations of the English version,but were original materials addressing the distinctcharacter of the language. We based the Frenchonline training on the Canadian French materials.

As project manager, I would have been of moreassistance to the French editor on the project if Iwere also bi-lingual. High school French was notenough; I can only shop in French. From second-hand observation, it appeared that the problemsthat arose for the French training course were:

• Archaic language used by government translatorswho had a hand in some of the training materials

• Colloquial or regional nature of the language usedin some of the written material

• Differences of opinion over stylistic issues withinthe French language.

Canada’s multilingual plain languageprojects(continued)


Nonetheless the program was well received andcontinues to be used regularly. Many educationalinstitutions include the URL on course syllabi. Theentry page for Plain Train receives about 400 hitsevery month with about 80 users proceeding to theFrench version.

It is so popular that a linguist working in a Euro-pean state government who was producing a versionof Plain Train in his own language wanted to knowif I could provide the graphics in that language. TheCanadian government holds copyright to the mater-ials. I never heard from him again so I do not knowthe end of the story.

So, I will say again that working on a multi-languageproject requires expertise in project managementand people management which must take into ac-count cultural, in addition to language, differences.Nonetheless, the personal reward is tremendouswhen users value the product and I have receivedmany emails from users saying they do.

© C Stephens [email protected]

Cheryl Stephens, alongwith Kate Harrison,founded the precursorto the Plain LanguageAssociation INternational.A Canadian, Cheryl coacheslawyers on developing theirprofessional and businessskills and provides trainingin work skills development.

Clarity on the netEach issue of Clarity since No 40 is posted on the Claritywebsite <www.clarity-international.net>. But we do notpost an issue until it is superseded by the next one, so thatmembers get the chance to read each new issue before therest of the world can.

Beyond non-normalFrom Flight 427: Anatomy of an AirDisaster, by Gerry Byrne, CopernicusBooks, 2002, p99.

On July 13, 1993, Boeing issued a 6-pagedocument as part of a series of occasionalnewsletters called Boeing Flight OperationsReview. The new edition had an unwieldy title:“Guidelines for Situations Which Are Beyondthe Scope of Non-normal Procedures”. Theaverage person would call a non-normalprocedure on an airplane an emergency ofsome kind or other.


Myla Kaplan

Attorney, legal writing instructor and legal translatorHaifa, Israel

Hebrew is a plain language fan’s dream, or at least itshould be. It is a wonderfully concise language, whichtends to be plainly spoken and plainly written. However,as I will discuss below, lawyers in Israel often write in astyle that is anything but plain.

Hebrew is naturally concise and clear

The most dramatically concise feature of Hebrew isthat it is written mostly without vowels. This alonemakes the average Hebrew sentence take up muchless space than its English equivalent. But it is thecondensed Hebrew syntax that really shortens thesentence: most prepositions and conjunctions areprefixed onto the word they modify as one letter.Thus, the little words like “and”, “the”, “to”, “in”,“as” and “from” (which we all know take up quitea bit of space in the average English legal document)tend to disappear in a Hebrew document. Evencompound prepositions such as “to the” and “inthe” can be expressed as a one-letter prefix in Hebrew.And, possessive pronouns such as “our” and “your”are often suffixed onto nouns, saving even morespace.

Hebrew’s extreme conciseness can be seen in atranslation of a typical sentence: “In our letter, werequested that the funds be allocated at the end ofthe year.” In English this sentence has 16 words, or78 characters including spaces. In Hebrew it hasonly six words, or a mere 39 characters!1 The lack ofwritten vowels creates most of the volume differenceof course, but many words are saved because all ofthe prepositions are attached to their subjects. Forexample, the phrases “In our letter”, “at the end”,and “of the year” are each expressed as one word inHebrew.

Hebrew is by nature a coherent language. Most verbsare regular and easily conjugated. Related wordstend to have a common root making it easy forreaders to interpret words, even in legal language.For example, the words for contractual obligations—binding, charge, commit, debit, debt, debtor, duty,liability, must, and obligation—all contain the samethree-letter root in Hebrew.

Legal Hebrew is neither concise nor clear

Lawyers in Israel, like many lawyers everywhere,seem to prefer a dense and highly formal style. Legaldocuments are rife with long and complex sentences,passive voice and archaic language. This phenom-enon of Hebrew legalese is especially ironic, consid-ering that its predecessor, the ancient Hebrew legallanguage in the Bible, is a model of clarity. The Britishare partly to “blame” for modern-day legalese, sincemodern legal Hebrew developed during the thirtyyears the British ruled under mandate, establishingIsrael’s court system and drafting many of the cur-rent laws.

American English has recently had a strong influ-ence on legal language due to the close business tiesbetween Israel and the US.

Unfortunately, the international trend toward plainlanguage has not yet taken hold in Israel; legaleseconventions that have been dropped from Britishand American documents are still very popular intheir Hebrew counterparts, particularly in contracts.Contracts in Israel usually contain a long list ofrecitals, whether they are helpful or not, and eachrecital begins with an equally archaic equivalent of“whereas”. Contract obligations are often prefacedwith useless legalese such as “it is expressly agreedhereby by the parties that…” or “in order to removeany doubt, it is hereby clarified that…”. This isparticularly true of the documents large law firmsproduce thanks to their heavy reliance on old-formprecedents. Solo practitioners are more likely todraft their own contracts and do so in clear,readable Hebrew.

Hebrew “lawyer’s letters” have their own speciallegalese. Letters to adversaries inevitably start witha formal introduction such as: “On behalf of myclient ABC Ltd., I hereby contact you in the above-referenced matter as follows:”. The word used for“client” (marshi/marshati) is so archaic that manylay people do not know what it means. When evenBritish lawyers are adopting a much less formalstyle of letter writing, it is strange that lawyers inthis very informal society continue to use archaiclanguage in correspondence. After the introduction,letters generally launch into a numbered list of shortpoints, describing the dispute and making demandsfor payment or action. Presumably the crisp style

Legalese of Legalese of Legalese of Legalese of Legalese of biblical biblical biblical biblical biblical proportions:proportions:proportions:proportions:proportions:some observations on legal language in Israelsome observations on legal language in Israelsome observations on legal language in Israelsome observations on legal language in Israelsome observations on legal language in Israel


and numbered points have their roots in themilitary, where nearly every Israeli lawyer spendsseveral years before starting law school.

Attitudes toward plain language in Israel

In the legal writing workshops I teach, I take aninformal poll to gauge Israeli lawyers’ attitudestoward plain legal language. Many of these lawyersrecognize the benefits of plain legal English, butobject to using plain legal Hebrew in their ownwriting. Like lawyers in other countries, they oftenperceive formal legal language as being moreimpressive and more appropriate for the legalprofession. In a country with a lawyer for every 200residents, lawyers want to maintain some distancebetween themselves and the public. They fear thatclients will not respect lawyers if they think theycan write the documents themselves. Some lawyersalso believe that legal matters are too complex forplain language, and that obscure and complexlanguage protects client interests better.

An interesting observation that I hear from Israelilawyers is that a ruling by Israel’s Supreme Court isdeterring them from drafting contracts in plainlanguage. Attorneys and law students in Israel oftenquote the revolutionary 1993 Apropim decision,which says that courts dealing with contractdisputes should look beyond the terms of a contractfor the parties’ true intent, even when the contract’sterms are crystal clear.2 This decision has created astir in the legal community, as it leaves even the bestdrafted contracts open to court reinterpretation.Unfortunately, it also seems to be inspiring lawyersin Israel to bolster their contracts with legalese andredundancy, so that judges will have less room tointerpret what the parties “really” meant. Of course,there is no evidence that legalese has ever saved acontract in court, but it will be hard to convincelawyers that the opposite is true until the courtsbegin to send a signal that clear language ispreferable to legalese.

Despite these problems, I do try to promote clearlegal writing in all the work I do. I relentlessly pointout the advantages of plain legal writing when Iconduct in-house workshops on English legalwriting skills and contract drafting, and in thecontinuing legal education courses I teach. I discussplain language in the Legal English course I teach tofirst-year law students at the University of Haifa, asI believe it is a good place to guide future lawyerstoward better writing habits. Recently I wrote anarticle (in plain Hebrew!) summarizing plainlanguage movements internationally, andsuggesting that lawyers here strive toward clarityand readability in their documents. As far as I know,my article was the first of its kind in Israel. It waspublished in a bar association journal and on apopular legal website, and has received a surprisingamount of positive feedback.

The legal profession in Israel does not seem to beunder any public pressure to make its writing moreaccessible to clients. Israel does not have anylegislation requiring the use of plain language. TheStandard Contracts Law offers some protection toconsumers from unfair terms in typical consumerpurchase contracts. Although this law does notrequire plain language in consumer contracts, itdoes give a special tribunal the right to void orchange any term in a standard contract thatoppresses consumers or gives an unfair advantageto suppliers that could be oppressive to consumers.However, the law’s range is limited to contracts thathave “standard” terms determined in advance bythe dominant party for use in multiple transactionswith unspecified third parties.

Translating legal texts from Hebrew toEnglish and English to Hebrew

Over the years, I have translated every type of legaldocument from Hebrew to English and quite a fewfrom English to Hebrew.

One problem in translating legal documents withdefined terms from English to Hebrew is thatHebrew has no capital letters. Thus definitions donot stand out in Hebrew text and often get hidden inthe middle of compound words. For instance, if acontract says something is “attached to theAgreement” in English, the words “to theAgreement” appear as one word in Hebrew, and thedefined term becomes difficult to distinguish,especially without the capital letter.

When translating from Hebrew to English, I exercisea wide discretion on word choice, since there arefour or five English equivalents for most Hebrewwords. My policy is to translate into plain languageto improve the readability of the translateddocument. Of course, I cannot do this in all cases.Certain legal documents such as signed contracts,statutes, and judicial opinions for instance must betranslated to reflect the original Hebrew as nearlypossible. Although I have more leeway whentranslating unsigned contracts and otherdocuments needed for international transactions, Ialways ask for permission before “plaining” theHebrew in the source document. So far no one hasdeclined once I explain how a plain languagetranslation will improve their document. Clientreactions are very positive, especially after I“retranslate” a legal document from impossibleEnglish legalese into plain English.

Business people react positively to plain language.This is not surprising, since this audienceappreciates readable, user-friendly documents.Translating into plain language is less expensivetoo. After all, translators are paid by the word. Buteven legal clients are invariably pleased with theresults of a plain language translation on their


legalese-filled documents. This gives me hope thatlawyers’ objections to plain legal Hebrew are mostlydue to their lack of awareness of its benefits. It oftenseems that many lawyers in Israel write the way dowithout thinking about the readability or communi-cativeness of their writing. They assume that readinglegal language has to be a chore because it alwayshas been, but when they see their writing translatedinto clear, concise, readable English, they cannothelp but appreciate it.

© MKaplan [email protected]

1 Transliterated, the sentence reads: B’michtaveinubikashnu she’yutzku hac’safim besof hashana.

2 In State of Israel v Apropos Construction andDevelopment Co. Ltd., P.D. 49(2) 265, Civil Appeal4628/93, Justice (currently Chief Justice) A. Barakcreated a rule of subjective inquiry into both thecontract’s language and the circumstances underwhich the contract was made, even when thelanguage of the contract is clear. Section 25(a) ofthe Contracts Law, however, seems to call for suchan inquiry only when the contract’s language isunclear: “A contract shall be interpreted inaccordance with the intent of the parties as itappears in the contract, or, in so far as it does notappear in the contract, as it appears from thecircumstances.”

Myla Kaplan is anAmerican-born attorneylicensed to practice inIsrael and New Jersey.She received a JD fromGeorgetown UniversityLaw Center in Washing-ton DC and an MA inCommunications fromthe Hebrew University inJerusalem. She is a memberof the Clarity Committeeand Clarity’s Israelrepresentative.

Legalese of biblical proportions(continued)

Teachers of English as a foreign language describe their students as:

a. NNS (non-native speakers of English)

b. NNE (non-native users of English)

c. ESL learners (English as a second language learners)

What pithy shortform description can you suggest for lawyers who use Englishas a foreign language?

“Foreign lawyers” won’t do because “foreignness” is a matter of perspectiveand smacks of cultural insularity. “NNS lawyers” is unsatisfactory because thecontrasting term for native English-speaking lawyers would need to be “NESlawyers” or “NS lawyers” both of which are clumsy.

Please email your suggestions to Catherine Rawson at [email protected]

Wanted: a pithy shortform description

Clarity’s annual meeting for 2006 hasbeen fixed for Saturday, 4 February.Barring any change of plan it will beheld that morning in London.

Next Clarityannual meeting


Maggie Jo St John

Freelance English for Specific Purposes consultant;co-ordinator of the voluntary English and communityeco-tourism project with UCA Miraflor, Nicaragua;world citizen, Birmingham, UK.

In the last issue, an interview with Jesus Mesta introducedthe Mexican government’s initiative on LenguajeCiudadano—Plain Language (Clarity No 52, November2004, pages 40-41). He spoke of an international confer-ence to be held on 4 October 2004, referring to it as ’onestep in their three year strategy to reform internal regula-tions and the first one in changing government-to-citizencommunication’. I was privileged to attend and speak atthat conference.

The Mexicans chose to launch their initiative bylearning from the experience of others. Four of us,from countries where plain language movementsare prominent, spoke of the approaches, the hurdlesand the successes in our countries and cultures. Ispoke on behalf of Plain Language Commission, anindependent business in the UK. We also observedthe first pilot workshop for civil servants and helddiscussions with representatives of the legalprofessions.

The conference

Some 800-900 people attended the conference, whichwas well-planned and had support at the highestlevel. The President, Vicente Fox, sent a special videomessage and Juan Carlos Murillo, the PresidentialOffice advisor for government innovation, chairedthe day.

The team working for regulatory simplificationrecognises that citizens cannot exercise their rightsor fulfil their obligations, if the messages from gov-ernment institutions lack clarity. They see Citizen’sLanguage as a tool to improve transparency, qualityand efficiency within government.

Although we had the same brief, our talks comple-mented rather than reiterated. We emphasised ourhope that Mexico could learn from the experienceof our countries and ‘skip’ a couple of decades ofprocrastination and resistance to change.

I quoted the example of Britain’s Tax Law rewrite:after many years of saying that they ‘wrote asplainly as possible’, the Parliamentary Counsel’sOffice finally had to acknowledge that they couldmake improvements.

Annetta Cheek from the USA provided good exam-ples of time and money saved: rewriting one form inCanada lifted the compliance rate from 40 % to 95%,while an improved letter is saving the VeteransBenefits Administration several million dollars ayear.

We emphasised the value of training, the use ofguidelines, and the need to rethink model documents.And we mentioned that final telling mark of suc-cess: not one organisation adopting plain languagedocuments had ever reverted to the original style.

The workshop

Around 20 civil servants attended and were verypositive in their attitude. Lively interaction is acharacteristic (for me) of Mexicans and the work-shop was no exception.

A common activity in workshops is re-writing aconvoluted text into plainer language. The work-shop leader used a variation that I found effective.He used PowerPoint to present a short plain text.And then he gradually reverted to the original. Eachnew slide showed the text with yet another improve-ment being ‘undone’. To see so clearly how a clearpiece of communication could be mangled wassalutary.

The manual

A manual written for ’those who write in theMinistry of Public Administration’ was ready forthe conference and every participant received acopy, as did workshop participants—a good illustra-tion of the co-ordinated planning that lies behindthis initiative of the Mexican government.

The 48-page guide contains 3 sections:

• A summary of plain language initiatives in Sweden,Australia, the UK, Canada, the USA and Spain.

• Descriptions of the stages in the writing processwith the focus on audience analysis, planning,drafting and revising.

• A style and layout guide covering 16 key points.Each point is explained and illustrated with‘before’ and ‘after’ examples. The key points fallinto 4 categories: words—simple, precise, essentialand positive; sentences—short, simple structure;discourse—markers, headings, introductions andconclusion; layout—lists, tables, diagrams,contents pages.

Citizen’s Language

Plain language in Mexico

pschuelke

Stamp


Lenguaje Ciudadano

The naming of a new concept is important, andtricky. The Spanish chose Lenguaje Llano as theirterm. Llano, of a surface, means flat, smooth, level,open. Figuratively it means open, frank, plain andsimple.

I wondered why Mexico had not adopted the sameterm. The term, Citizen’s Language, however, reflectsthe origin of the movement. The initiative stemsfrom the Government’s Good Government Agendaand is part of the strategy to transform itself into acitizen-driven government, responsive to citizensand focused on results. It is an internal campaignand Citizen’s Language is seen as a tool to helpcivil servants embrace the cultural shift.

In the wider community the term may ring lessclearly.

The Mexican way

The Mexicans have looked worldwide for bestpractice and selected an approach they believe willwork in their context.

They, like the Swedes, are starting at the top. This isa government issue—not a people’s movement.Conferences, video conferences and workshops arespreading the word throughout the Ministry ofPublic Administration. As Britain did in the 1980s,they are eliminating regulations and have a mora-torium on new ones; there’s a 25% reduction to dateand many others have been standardised betweendepartments. Training trainers will start in February,so future regulations should be drafted on plainlanguage principles.

They are making full use of technology (althoughthey must recognise that the vast majority of thepopulation has no access to computers and theinternet). Every participant at the conference receiveda CD-ROM of the presentations and there’s been avery positive response to their website, launched inDecember: <www.lenguajeciudadano.gob.mx>

Look out for the Mexican ‘clear language’ awardsand their own standard. Both of these ideas, men-tioned during the conference, struck a chord. TheMexicans hope to externally verify documents, ashappens in the UK through non-government organ-isations such as Plain Language Commission andPlain English Campaign Ltd. And they are workingon a contest for the best documents of 2005.

Plain language is a way of thinking. Editing canimprove a document, but the best documents placethe reader at the centre of the complete decision-making process. Getting that message across isdifficult. The sound bites—avoid the passive, usefamiliar words, be positive—are remembered morestrongly than the fundamental message.

© M J St John [email protected]

Maggie Jo St John graduated in Chemistry, has an MSc inTeaching English for Specific Purposes (TESP) and an MBA.She taught in science in South America, and lectured in ESPat Aston University. She has worked freelance since 1987running ESP and Communication Skills courses forscientists and business people overseas and in the UK,training teachers, writing teaching materials, and publishingbooks and articles. Her current commitments include:

• running a voluntary project in English and communityeco-tourism on the Miraflor Nature Reserve in Nicaragua;

• teaching professional writing skills courses for UKbusinesses and Government Agencies for Plain LanguageCommission;

• promoting fair trade.

Citizen’s LanguagePlain language in Mexico(continued)

Hospital signage scandalFrom The Sydney Morning Herald, Monday 18 April 2005.

The hospital signage scandal deepens (Column 8, last week). “Mydoctor recently directed me to outpatients at St Vincent’s Hospital,”Roslyn Forest says. “I asked at reception for ‘outpatients’ and followedtheir directions, but I couldn’t find it. Finally, with much eye rollingand patronizing, a woman held my hand and dragged me there. Youknow what the sign above the door said? ‘Ambulatory Care’.”



Daniel Cassany, Spain

Lecturer, Universitat Pompeu Fabra, Barcelona, Spain

For thirty years Spain has been striving to improve itscommunicative style to create a democratic communityproud of its linguistic and cultural diversity. Progresshas been good but there is still much to do.

This article reviews the communicative style Spaininherited from the dictatorship, Spain’s conception ofplain language, the goals it set for the four most widelyused languages, and the results achieved.

Spain has seen enormous changes since the dictator-ship ended in the 1970s. In these thirty years Spainhas moved from a dictatorship to a democracy andfrom a centralised government to one closely resem-bling a federation, with autonomous parliamentsand administrations. Spain joined NATO, the Euro-pean Council, the European Union, and adoptedthe euro.

Languages

While Spanish remains the country’s lingua franca,Spain recognises four co-official languages:

1. Aranese in a small valley in the Pyrenees

2. Basque in the Basque Country and Navarre

3. Catalan in Catalonia, the Balearic Islands andValencia (where it is known as “Valencian”)

4. Galician in Galicia.

The academic community further recognises lang-uages such as Asturian and the Aragonese Fablaand languages imported by immigrants even thoughthey don’t have official status.

Nearly 42% of Spaniards are bilingual or live inbilingual communities with autonomous govern-ments, parliaments and administrations. It is noteasy to summarise plain language in Spain becausethe situation has yet to be studied as a whole. Inwriting this article I have relied on informationgiven to me by experts 1.

Our inherited style

From the dictatorship

The administration’s communicative discourseduring the dictatorship was unwieldy, obscure and

written exclusively in Spanish. This discoursefeatured:

• Syntax that tended towards long, complicatedsentences with much subordination

• Vocabulary that included words rarely used ineveryday spoken and written language

• Documents that were organised into lengthysections and paragraphs with rigid and obsoletestructures

• Idioms that were flattering for civil servants andhumiliating for citizens.

Civil servants had to be flattered to get them to carryout their normal duties with addresses such as:“according to your faithful knowledge and under-standing (según su leal saber y entender)”; “… gracewhich is hoped to be obtained through your justaction, most illustrious One (gracia que espera obtenerdel recto proceder de Vuestra Ilustrísima)”; “my veryLord (muy Señor mío)”.

Citizens on the other hand had to plead (ruega) withand supplicate (suplica) to officials to give them therights they were due.

While we all recognised this style was artificial, old-fashioned, and often incomprehensible, we had touse it when dealing with the administration.

From earlier times

Certain characteristics of our inherited style predatethe dictatorship and have legal and socio-culturalroots.

From 1881 to 1985 the law required court judgmentsto introduce every fact and ground for a decisionwith the gerunds resultando (being) and considerando(considering). Doing so resulted in a very long sub-ordinate clause with no full stops; a judgment couldbe delivered in a single sentence several pages long.This style influenced all administrative and legalwriting even though it is rarely used in spokenSpanish. Solemn written forms of address reflecteda view of society which was both hierarchical andclass-oriented. For example, Vuestra Ilustrísima (YourMost Illustrious One); Vuestra Señoría (Your Lord-ship/Ladyship); Excelentísimo Señor (Most ExcellentLord); Muy Ilustre Señor Don (Very Illustrious SirLord). Nowadays, as we all have the same legalstatus, the law recommends using usted (you) andseñor/a (Mr/Ms). The old-fashioned forms, however,are occasionally still found.

Democratic aims

With political change, Spanish institutions began toadapt their language to the needs of a modern dem-ocratic society just as our neighbours had done.This marked the birth of the effort to develop a com-munication style that could better reflect citizens’

Plain language

in Spain


rights and obligations. The starting point for eachof the four main languages was very different.

Spanish

Language change involved dealing with the unwield-iness of a writing tradition consolidated overcenturies. Linguistic alternatives that were closer tothe common language needed to be developed, onmany levels (syntax, terminology and discourse). Itwas also necessary to change people’s attitudes andvalues. Many people honestly believed that complex,incomprehensible text transmitted relevant infor-mation better than simple, clear text, possiblybecause it sounded more formal and therefore moreappropriate. Besides, they were simply more used toreading and writing this unwieldy style, and sochanging this habit was even more of a challenge.

Basque, Catalan and Galician

These languages faced a double challenge. Firstly,they needed to create a register. Having been out-lawed for most of the 20th century, these languageseffectively lacked a register because they had rarelybeen used for contemporary public communication.Secondly, they needed to struggle against the influ-ence of Spanish’s obscure style and against theprocess of linguistic substitution.

The result has been that these languages havefocused on designing a new style suited to the needsof their recently regained autonomous administra-tions. The basic principles guiding their efforts are:

1. to respect the inherent characteristics of eachlanguage as spoken and written;

2. to recover their historical traditions (whethermedieval, renaissance or literary); and

3. to adopt international standards, includingthe use of plain language.

The creation of plain Catalan, Basque and Galicianhas gone hand in hand with linguistic “normal-isation”. According to Spanish sociolinguistics,normalisation revives the use of a language and isthus the opposite of linguistic “substitution”. Thisprobably explains why in many ways plain lang-uage has developed much more quickly in thesethree languages than in Spanish.

Using language simplification as a tool for linguisticnormalisation has not always achieved its goal. Forexample, judges, solicitors and barristers translateCatalan model documents into Spanish instead ofusing them as written. Basque institutions are con-sidering publishing their manuals in Spanish aswell as Basque because their efforts at simplifiedBasque have failed to change the habits of Spanishspeakers.

Language typology

Spanish, Catalan and Galician are Indo-EuropeanRomance languages. The approach to designing aplain style for these languages is not so differentfrom that needed for French or even English. Basque,however, comes from a different linguistic familyand has different lexical and syntactical structuresfrom Roman or Indo-European languages. Sodeveloping a plain style for it requires a differentapproach.

Despite historical and typological differences,many principles for plain writing apply to all fourlanguages. For example, writers are asked to avoidusing nominalisations, passive verbs, verbal para-phrases, abstract words, long sentences, and excess-ive subordination. These recommendations arereflected in the spoken form of each of the fourlanguages.

The concept of plain language

There have not been many campaigns focusedexclusively on simplification in Spain. The reason isthat plain language—though important—is seen tobe only an element of a more ambitious and relevantpurpose: to create a register that satisfies citizens’communicative needs in a democratic community.Other features of this purpose are:

1. Creating a modern linguistic tool that:

• allows people to express any idea in any ofthe four languages;

• avoids the colonising influences of onelanguage over another. For example, Englishover all the four languages, Spanish andFrench over Catalan and Basque, andSpanish and Portuguese over Galician; and

• is in keeping with the tradition andidiosyncrasies of each language.

I believe that this public register should meetthe dynamic demands of language (neology)while filtering out interference from otherlanguages such as barbarisms, syntactic calques(direct, word-by-word translations) and codeswitching. How can software, impeachment ortsunami be said in each of these fourlanguages? In answer to this, the followingagencies maintain plurilingual terminologicaldata bases and on-line computer tools:

• Euskaterm for Basque <www1.euskadi.net/euskalterm/indice_c.htm>

• Termcat for Catalan <www.termcat.net>

• Termigal for Galician <www.cirp.es/>

• Real Academia de la Lengua Española forSpanish <www.rae.es>.

Plain language in Spain(continued)


2. Creating a respectful language, which does notdiscriminate on the basis of sex, race, sexualorientation, ideology or religion.

Examples of changes to avoid sexual discrim-ination include:

• job descriptions: personal sanitario (healthpersonnel) instead of medicos (doctors, m)and infermeras (nurses, f);

• forms of address: señora (equivalent to theEnglish Ms) instead of señorita (Miss) whichwas used to refer to a girl and an unmarriedwoman; and

• married women: continue to use theirmaiden name after marriage. Thus MaríaSolís who marries Pedro Pérez would not becalled María Pérez or María Solís de Pérez.

3. Encouraging communicative practices whichrespect language plurality by defending citi-zens’ right to speak their own languages andto understand other languages. Each commu-nity has enacted regulations on language use.These are designed to promote a linguisticregister which is both useful and modern.

In this context, plain language is seen as animportant tool for citizens to exercise theirrights and obligations. Plain language:

• improves citizens’ ability to read and write;

• increases their understanding of democracy,and therefore can reduce corruption andmarginalisation; and

• changes the values and communicativehabits of the population, which are remnantsof the dictatorship.

There are also valid economic reasons for usingplain language such as reducing reading andproduction time, reducing costs and errors, andincreasing efficiency. Although important, theseeconomic reasons are neither essential nor urgent.

Campaigns and results

The communities run campaigns to change peoples’attitudes and values on language use and theirinstitutions were the first to adopt simplified formsthat used modern language. Recently some privatebanks and service providers have followed thisexample with varying degrees of success.

Public sector

Governments and local administrations (town andcounty councils) were the first to change the style oftheir discourse with citizens. Various public agen-cies such as ministries, schools for public admini-stration, ad hoc language services, and languageschools offered recommendations for simpler dis-course and published simplified forms. Since the

1980s specialised journals on administrative lang-uage have been published. Today the followingjournals provide an important reference on thesubject and include the legal framework, simplifiedmodels of documents (structure, phraseology,format), grammar and vocabulary (discussionsabout rules, terminology, neology, place-names),translation (linguistic interference), writing tech-niques and bibliography:

• in Catalan: Llengua i Administració, 1982

• in Galician: Revista de Administración Galega, 1985;Boletín de Admistración e Lingua

• in Basque: Administrazioa Euskaraz, 1993.

During the 1990s, manuals were published in allfour languages that greatly influenced adminis-trative language. In 1991 and 1994 the Ministry ofPublic Administrations published in Spanish theManual de estilo del lenguaje administrativo andManual de Documentos Administrativos<www.igsap.map.es/sgpro/documen/sgprg.htm#instru>. Similar manuals werepublished in 1991 in Catalan and Galician and in1994 for Basque. Like the Spanish manuals thesehave since been updated and republished.

Bureaucrats have learned how to write better fromtraining courses based on the manuals’recommendations and from international plainlanguage specialists. Ensuring familiarity with thelinguistic register appropriate for the publicadministration has become an essential part of civilservice training programmes. The followingwebsites publish the manuals and otherinformation about each language:

• Basque: <www.ivap.com> by the Basque Instituteof Public Administration

• Catalan: <www.eapc.es> by the School of PublicAdministration of Catalonia

• Galician: <www.egap.xunta.es> by the GalicianSchool of Public Administration

• Spanish: <www.inap.map.es> by the InstitutoNacional de la Administración Pública.

Legal writing

Here language renewal has probably been muchslower, although notable efforts have also beenmade. Several institutions, including the Autono-mous Parliaments and the Ministries of Justice, haveestablished language services and set up networksof consultants to correct, edit and translate legaldocuments. Manuals on how to simplify rules, lawsand technical documents have gradually improvedthe clarity of legal documents. The plurilingualjournal, Llengua I Dret, has been gathering researchon legal language usage since 1983 <www.eapc.es/rld.html>.


The Spanish Government has passed rules tosimplify the style of judgments, and the officialassociations of lawyers have published some modelforms for legal proceedings. Despite these effortsmost Court documents are still written in obscurelanguage. This may be why the Ministry of Justiceof the central Government recently set up the Com-mittee for Modernising Legal Language.

Other institutions

Public institutions such as universities, towncouncils, labour unions and chambers of commercehave actively contributed to creating and publi-cising plain language. Many of these organisationsemploy language experts to draw up, correct andtranslate their documents according to their stylerules. Noteworthy examples are the universities ofBarcelona and Santiago de Compostela which havepublished style manuals and standard-formdocuments. Although these manuals and docu-ments are aimed specifically at academics they areuseful to other groups and some are availableonline. Each year the University of Barcelona givesan award to the organisation which has commun-icated best with its community. Some town councils’“quality-of-service” campaigns include improvingtheir oral and written communication.

Private sector

The demand for a plain language has increased aspeople’s attitudes and values have changed. Thepublic increasingly expects industry to commun-icate more clearly and efficiently having seen thatpublic institutions are doing so. Companies areresponding to this demand because they want toretain and expand their customer base, not becausethey want to promote democratic renewal. Bankssuch as La Caixa, Banc de Sabadell and GipuzkoaDonostia Kutxa have style manuals and modelforms to encourage simplification and clarity. Utilitycompanies have redesigned some of their docu-ments including invoices, contracts, rules andregulations to make them easier to read and under-stand.

Style manuals

These are one of the most important tools forimproving language. Both the private and publicsectors use style manuals to set down guidelines forclear writing. Manuals are published in print andon the web. They have sections on grammar, punct-uation, capitalisation, and preferred vocabulary,and often include models of commonly-useddocuments such as the most usual internal (reports,memos) and external (correspondence) documents;

technical documents (reports, research protocols);admini-strative documents (official letters andrequests); and courtesy documents (invitations,notices, replies to complaints). All of these standardform documents tend to some extent to abide by andpromote international principles of plain language.

Conclusion

Spanish communication is gradually becomingmore comprehensible. People are coming tounderstand that they need not use complicated orobscure language to make what they have to saysound important. Similarly, when people do notunderstand something, they no longer assume theyare ignorant; instead they call on the author to writemore clearly.

For example, the internet is further pushing organi-sations to simplify the way they communicate withtheir customers. Interactivity depends on easy-to-understand, simple forms. Consequently mutualcomprehension is increasing.

Much remains to do. Old-fashioned, incomprehen-sible discourse persists in the courts, in legalcontracts, and in many organisations’ rules andregulations. New challenges continue to arisebecause communication is dynamic, but plainlanguage is taking hold because Spaniards want tounderstand their rights to euthanasia and justice,and read about scientific developments in medicineand the environment.

© D Cassany [email protected]<www.upf.edu/dtf/personal/danielcass/index.htm>

1 I would like to thank Carles Duarte, Cristina Gelpí,Lisa Gilbert, Joseba Lozano, Susana Mayo, MònicaPereña, Ramón Sarmiento and Montserrat Veiga.

Daniel Cassany isa lecturer on CatalanLanguage and Dis-course Analysis atthe UniversitatPompeu Fabra inBarcelona. Heresearches literacyon the Internet, inacademia and inscientific writing,taking a critical viewpoint. Daniel has published books andaround 50 articles on these subjects in Catalan, Spanish,English and Portuguese. Daniel has worked with thegovernments of Catalunya, Galicia, Spain, Argentina, Chileand Mexico on education, teacher training and curriculum.He has been a visiting professor at several universities inSpain, Italy, Japan and Latin America.

Plain language in Spain(continued)


Vijay K Bhatia

Professor, Department of English and Communication,City University of Hong Kong

Although the plain English movement is well establishedin countries such as the UK, the USA and Australia, ithas apparently not gained a strong presence in manyAsian countries, including India, China, Singapore andHong Kong. This does not mean that plain Englishpractices have not influenced legal writing. However,public and bureaucratic writing show a distinct lack ofawareness of plain English.

This paper draws on the findings of an internationalproject entitled Generic Integrity in Legal Discoursein Multilingual and Multicultural Contexts, fundedby the Research Grants Council under their CompetitiveEarmarked Research grant (No.CityU1108/99H).

Legislative drafting

The writing style of legislation in Asia is generallyplainer than public and bureaucratic writing. Thisis surprising because the style of legislative draftingwas considered to be resistant to change. Perhapsthe plainer style is explained by the fact that someAsian countries appropriated the content and styleof their new laws from the developed democracies ofthe west. This is particularly so in internationaltrade and commerce, where businesses crossingnational borders require laws to be accessible andconsistent globally.

Often an Asian country improves and adds to a lawit has appropriated. Take for example the groundsfor challenging the appointment of an arbitrator inthe laws of India, Sri Lanka and People’s Republicof China, which were adapted from Article 12 of theUnited Nation’s UNCITRAL model law.

UNCITRAL: Article 12 — Grounds forChallenge

(1) When a person is approached inconnection with his possible appoint-ment as an arbitrator, he shall discloseany circumstances likely to give rise tojustifiable doubts as to his impartialityor independence. An arbitrator, from thetime of his appointment and throughoutthe arbitral proceedings, shall withoutdelay disclose any such circumstancesto the parties unless they have alreadybeen informed of them by him.

(2) An arbitrator may be challenged onlyif circumstances exist that give rise tojustifiable doubts as to his impartialityor independence, or if he does notpossess qualifications agreed to by theparties. A party may challenge anarbitrator appointed by him, or inwhose appointment he has partici-pated, only for reasons of which hebecomes aware after the appointmenthas been made.

This section is not particularly difficult to under-stand and, by the standards of traditional legislativedrafting, may even be considered easy, partly be-cause it has been divided into separate subsections:one requiring a potential arbitrator to voluntarilydisclose information that may give rise to doubtsabout his impartiality or independence; the othersetting out the procedure for challenging an arbi-trator’s appointment.

Let us now see how UNCITRAL’s Article 12 hasbeen rewritten in three Asian countries.

India: The Arbitration and ConciliationOrdinance (1996)

Article 12 — Grounds for Challenge

(1) When a person is approached in connec-tion with his possible appointment as anarbitrator, he shall disclose in writing anycircumstances likely to give rise to justifi-able doubts as to his independence orimpartiality.

(2) An arbitrator, from the time of hisappointment and throughout the arbitralproceedings, shall, without delay, discloseto the parties in writing any circumstancesreferred to in sub-section (1) unless theyhave already been informed of them by him.

(3) An arbitrator may be challenged only if —

(a) circumstances exist that give rise tojustifiable doubts as to his independ-ence or impartiality, or

(b) he does not possess the qualificationsagreed to by the parties.

(4) A party may challenge an arbitratorappointed by him, or in whose appointmenthe has participated, only for reasons ofwhich he becomes aware after the appoint-ment has been made.

In substance there is no significant differencebetween the Indian and UNCITRAL provision. Butthe style of the Indian version is more accessible dueto the use of textual-mapping devices to spread theinformation load over four sub-sections instead ofjust two. The Singapore Arbitration Act, 2001, Section(14) (Grounds for challenge) is almost identical to

Plain English in AsiaPlain English in AsiaPlain English in AsiaPlain English in AsiaPlain English in Asia


the Indian section. Perhaps the Singaporeansborrowed from the Indians.

Sri Lanka: Arbitration Act, 1995

10. Grounds for challenge …

(1) …

(2) …

(3) A party who seeks to challenge anarbitrator shall, unless the parties havedecided that the decision shall be takenby some other person, first do so beforethe arbitral tribunal, within thirty daysof his becoming aware of the circum-stances which give rise to doubts aboutthe arbitrator’s impartiality orindependence.

(4) Where a party who makes an applica-tion to an arbitral tribunal under thissection, is dissatisfied with the order ofthe tribunal on such application, hemay within thirty days of the receipt ofthe decision, appeal from that order tothe High Court.

The first two sub-sections were borrowed fromUNCITRAL but the second two are originaladditions. The first specifies the procedure forchallenging an arbitrator if doubt exists as to hisimpartiality and independence. The second allowsa party to appeal to the High Court if they feeldissatisfied with the outcome of a challenge. Theadditional provisions do not compromise compre-hensibility because the drafter has carefullycontrolled the information load.

Compare these additional provisions with thesection below from the People’s Republic of China,a country with a civil code system.

China: The Arbitration Law (1994)

Article 34

An arbitrator shall withdraw from serving inthe tribunal when his case is one of the follow-ing, and the litigants also have the right topresent a withdrawal request:

(1) where he is one of the litigants in thearbitration, or he is a close relative of anyone litigant, or a relative of the attorney;

(2) where he has a vital interest in thearbitration;

(3) where he is related to the litigants, or theirattorneys, in other respects in the case andthe relationship may affect an impartialarbitration; or

(4) where he has had private meetings with thelitigants or with their attorneys, or when hehas accepted the invitation of the litigantsof the attorneys, to dine, or accepted theirgifts.

Like the provisions of the Asian countries consid-ered above, the Chinese provision uses textual-mapping devices to spread the information load,thereby making the text more accessible to itsintended readers. However, the Chinese provisiongoes one step further by specifying examples ofunacceptable bias such as the arbitrator having aclose relationship with a litigant, or dining withlitigants.

These three examples show that despite therehaving been no visible campaigns for clear legis-lative writing in Asia, legislators are using plainEnglish strategies.

Initiatives to help the public

Most Asian countries have introduced simplerversions of laws to increase public awareness ofnew and existing laws. The Law Society of Singa-pore’s website has a section where the public canread simplified versions of many Singaporean lawsin English including topics like ‘Giving Evidence’,‘Road Accidents’, ‘Arrest & Bail’, ‘Buying & SellingA House‘, ‘Workers’ Compensation’, ‘Making AWill’, and ‘Divorce’. But the simplified versions arenot original or authentic versions of the legislation.Thus the website gives this disclaimer:

This segment contains only general and basicinformation on the law… provided as a publicservice by The Law Society of Singapore…However, neither the Society nor their repre-sentatives accept any responsibility for errorsor omissions in the write-ups.

Similar initiatives have been taken in other coun-tries such as India and Hong Kong too. Here is anexample of an Indian tax law that has been mademore accessible for the public.

Salary Tax

Money which you earn from different sources istaxed differently. So if you are a salary earner,your salary income to be taxed will be calcu-lated in a different way from gains. The term“Salaries” includes remuneration in any formfor personal service, under an expressed orimplied contract of employment or service.Section 17 of Income Tax Act defines Salary toinclude:

• Wages

• Pensions or Annuities

• Gratuities

• Advance of Salary

Plain language in Asia(continued)


• Any cess, commission, perquisites or profitsin lieu of or in addition to salary or wages.

• Any encashment of leave salary.

• Any amount of credit to provident fund ofemployee to the extent it is taxable.

Therefore “salary” includes basic salary,encashment of leave salary, advance of salary,arrears of salary, various allowances such asdearness allowance, entertainment allowance,house rent allowance, conveyance allowanceand also includes perquisites by way of freehousing, free car, free schooling for children ofemployees, etc.

Drafting Guidelines

Some countries have published plain Englishalternatives for archaic expressions to help lawyerswrite better legal English. The Singapore Academyof Law’s list contains some of the followingexamples:

Actus Reus — guilty actBona Fide — in good faithDe jure — by right/ as a matter of lawEx Parte — by one party onlyHabeas Corpus — produce the person/ for the

production of the personInter Alia — among other thingsMens Rea — guilty mindObiter Dictum — observations made in a

judgment other than on thepoint decided

Ratio Decidendi — point decidedSine Die — without any fixed date.

Judicial writing

Let me take a section from a Malaysian courtjudgment.

Dalam Mahkamah Rayuan Malaysia(Rayuan Jenayah No W-05-10-2000)

Balachandran (Appellant) andPublic Prosecutor (Respondent)

The result is that the force of the evidenceadduced must be such that, if unrebutted, it issufficient to induce the Court to believe in theexistence of the facts stated in the charge or toconsider its existence so probable that a prudentman ought to act upon the supposition thatthose facts exist or did happen. On the otherhand if a prima facie case has not been madeout it means that there is no material evidencewhich can be believed in the sense as describedearlier. In order to make a finding either way theCourt must, at the close of the case for the prose-cution, undertake a positive evaluation of thecredibility and reliability of all the evidenceadduced so as to determine whether the elementsof the offence have been established.

This is just one illustration of the typical traditionalstyle that the judiciary persists in using in someCommonwealth countries. While legislation in Asiais gradually changing, probably because of inter-nationalisation, bureaucratic and other forms oflegal writing continue to adhere to the so-called‘prestigious’ literary style of a bygone era. Thisadherence seriously undermines the accessibility ofthe message to ordinary people. The Deccan Heraldcorrectly summarized the position on August 10,2003:

English is not our first language in India. Butthe union government, the judiciary and thestate governments at the higher levels conducttheir business in English... But no attempt seemsto have been made…to simplify the Englishused by government agencies. The Plain EnglishMovement seems to have left the shores of Indiauntouched.

© V Bhatia [email protected]

Dr. Vijay Bhatia is aProfessor in English at theCity University of HongKong. His main areas ofresearch interest areapplied genre analysis ofacademic and professionaldiscourse, including legal,business, newspaper,advertising, and otherpromotional genres; ESP(Theory and Practice);simplification of legal andother public documents;and cross-cultural anddisciplinary variation inprofessional discourse. Hehas published in several international journals associated withthese areas. His books Analysing Genre (Longman) andWorlds of Written Discourse (Continuum) are widely usedby researchers interested in genre theory and practice.


Kyal Hill

Legal translatorTokyo, Japan

Plain legal English is rare in Japan. Most legal translatorsand Japanese lawyers dealing with English texts areinured to traditional legal English. Textbooks written byJapanese authors about legal English perpetuate poorlegal writing. The outlook for legal English here is bleak:a government initiative to translate Japanese laws intoEnglish is heading toward authorizing and effectivelymandating legalese, including the dreaded “shall.”

Translators and Japanese lawyersperpetuate legalese

Post-war Japan has made noticeable efforts towardmodernizing legal Japanese. While legal Japanese isstill often identifiable as such, there is not the hugegap between ordinary and legal Japanese that thereis in English. But a tradition of using traditionallegal English (legalese) has grown up amongJapanese-to-English (J-to-E) translators and Japaneselawyers. They do not seem to realize that plain Eng-lish serves the purpose of legal translation better—clearly and precisely creating the same legal relation-ships in English as are created in Japanese.

Unfortunately, as long as examples of legalese ap-pear to outnumber plain English examples, thesetranslators and lawyers will stay within what theyperceive to be the safer confines of the traditionalmajority. Few will question the reasons underlyingthis way of writing. Instead they will trust that thosewho wrote the examples must have known whatthey were doing.

At an international J-to-E translation conferenceheld last year in Yokohama, a speaker showed justhow weak the presence of plain legal English is inJapan. According to her, “[f]or a while there was amovement toward making legal English more collo-quial ... but because I haven’t heard about it recently,it mustn’t be around any more.”

The handout included a “model” English agreementwritten in pure legalese, a model of everything self-respecting drafters try to avoid. Thankfully, a lawyer-translator present remarked how she and hercolleagues would be embarrassed to use suchlanguage.

Books on legal writing perpetuate legalese

The problem is worsened, however, by authors ofJapanese books on legal English giving tacit supportto this legalese mindset. Take this example of anEnglish purchase agreement in a popular Japanesebook, The Basics of English Contracts [EibunKeiyakusho no Kiso Chishiki]:

WITNESSETH:

WHEREAS, KOBAYASHI is desirous ofpurchasing requirements of certain productsfrom MIYANO hereinafter more particularlyspecified (hereinafter referred to as the“Products”) and reselling them to MORIhereinafter referred to ;

…

NOW, THEREFORE, in consideration of coven-ants and agreements herein contained, theparties hereto hereby agree as follows:

After stating that “[t]he winds of Plain English areblowing through the world of English contracts, andit seems that in drafting contracts, young lawyersare often choosing not to use Middle English,” thebook presents this “plain English” rewrite thatborders on satire:

WHEREAS, KOBAYASHI is desirous ofpurchasing requirements of certain productsfrom MIYANO hereinafter more particularlyspecified (hereinafter referred to as the“Products”) and reselling them to MORIhereinafter referred to;

…

NOW, THEREFORE, the parties hereto herebyagree as follows:

Translators need to look beyond Japanese books onlegal English if they are to translate well. If they readbooks by quality commentators on legal English,they would know the above mumbo-jumbo shouldbe avoided.

The Japanese authors merely describe what iscommonly found in legal texts, rather than describewhat constitutes good, clear legal English. Theycertainly do not explain how to write it. The pro-blem is that native Japanese writers and translatorsuse these books as guides on how to write in Eng-

Legal English in Japan: a translator’s perspective


lish, mistakenly assuming that if the language isgood enough for English agreements, it must begood enough for English translations. Considerthese examples from another popular reference,Reading and Writing English Contracts [Jissen—EibunKeiyakusho no Yomikata & Tsukurikata]:

the following terms shall have the respectivemeanings set forth below

MIYANO shall be liable for, indemnify and holdKOBAYASHI and/or MORI, including theirofficers, directors, employees, or agents, harm-less from all damages, claims, losses, expensesand/or reasonable attorneys’ fees including, butnot limited to, suits or claims for damages fordeath, human bodily injury, or other propertyresulting from any defects of the shipments ofthe Products …

The sloppy use of shall, the archaic set forth, thepretentious overcapitalisation, the ambiguous andmuch vilified and/or, and the “stylistically and sub-stantively indefensible”1 indemnify and hold KOBAY-ASHI …harmless from are enough to make carefuldrafters cringe. Yet, since not a word of warning ismentioned in these books, they impart a false senseof security, inculcate imprecision, and inure readersto poor writing. For these reasons translators shouldwean themselves from them.

Precision or imitation?

Translators should translate, not imitate. Often legal-ese terms in translations are incorrect or unjustifiedtranslations of plain Japanese terms. Phrases likemade and entered into and by and between in an Englishtranslation of a Japanese agreement reveal the trans-lator’s bias toward imitating flawed precedents,because Japanese agreements do not contain anysuch doublets. Likewise, Japanese agreements say2 weeks, not two (2) weeks and do not usually havehereby or any other here- or there- words.

But translators and Japanese lawyers are caught upin the myth of precision created by this type of legal-ese. Unjustifiably polluting translations with said orthe illiterate such (using it to mean the or that) is an-other problem. The most serious problem, however,concerns words of authority. These words are crucialto precise legal writing, yet the Japanese books brushover them with brief and simplistic explanations,creating a dangerous impression of infallibility.

For instance, the only discussion in Reading andWriting English Contracts on the uses of shall andmay is this:

In contracts, shall indicates the duty of “to haveto do,” the same as must. Other terms used toindicate a duty are, for example, be liable to andbe responsible for. Must and can are usually notused in contracts.

May indicates the right of “it’s okay to do.”Other phrases used to indicate a right are beentitled to and shall have the right to.

The Handbook for Drafting Contracts in English [EibunKeiyakusho Drafting Handbook] confusingly suggestscreating a duty by using shall, will, be obligated to, orundertake to, giving poor examples such as “JEXshall be responsible for providing direct supportwith its end users.”

The Basics of English Contracts wisely states “it isbetter not to use shall with a negative subject” butthen uses this formulation in its “model” licenseagreement: “[n]o disclosure shall be governed bythis Article to the extent that the informationdisclosed shall be: (a) publicly known ….”

Not only do such comments stand in stark contrastto the length and detail these words are dealt within English books, but after reading them, you wonderhow these books can then go on to give examples ofshall in so many different senses, such as these fromReading and Writing English Contracts:

Governing Law. The construction, interpretation,validity and performance thereof shall be gov-erned by the laws of _________ without regardto principles of conflicts of laws.

This agreement shall become effective on thedate of this Agreement and shall [be] valid forfive (5) years.

Neither party hereto shall be liable for failure toperform its obligations under this Agreementwhen caused by acts of God [or any of the other24 events listed].

These examples demonstrate the false imperativeusage of shall and are what modern drafters woulddescribe as nonsense. The Japanese books on legalEnglish don’t discuss the false imperative.

Disregarding the basics with the “provisofragment”

An error peculiar to J-to-E translators is how theycreate sentence fragments by placing Provided,however, that … at the beginning of sentences. This isa knee-jerk translation of the Japanese word tadashi,which creates the Japanese proviso. Translators fallinto this trap partly because tadashi comes at thebeginning of the Japanese sentence. But that is noexcuse for ending up with incomplete sentencessuch as this from The Handbook for Drafting Contractsin English:

Provided, however, that neither party shall beprohibited from making disclosures to the extentrequired by law.


The Basics of English Contracts even sanctions theproviso fragment, saying “you can also end the[previous] sentence with a period and begin [thenext one] with ‘Provided ….’” How to Write Contractsin English [Eibun Keiyakusho no Kakikata] confusesthe issue by stating “you occasionally come acrossdrafts that use however or but, but provided, however,that is the more established phrase.”

Poor grammar aside, no Japanese authors I haveread even mention that the proviso itself should beavoided in the interests of precision and clarity.

English translations of Japanese laws andthe future for legal English in Japan

The outlook for clear legal writing in Japan is notgood. The Japanese government is translating majorJapanese laws into English, an initiative which,done properly, would help lawyers, translators, andbusiness. But it seems the translations will end upin legalese.

The Consultation Group on Internationalization, agroup of experts involved in the translations, saysthat a Japanese term could be translated as shallapply to or shall apply mutatis mutandis to, dependingon the context. The group seems blissfully unaware,however, that shall is derided for its potential

Legal English in Japan:a translator’s perspective(continued)

ambiguity by case law and legal experts in English-language jurisdictions; that mutatis mutandis, beingLatin, is not going to be widely understood; and thatboth are poor choices when better options exist.

Plain English offers better, clearer alternatives thatthe Consultation Group, J-to-E translators, andJapanese lawyers would do well to use. If theypersist in using outdated legal English, they willonly hold Japan back.

© K Hill [email protected]

1 Bryan A. Garner, A Dictionary of Modern LegalUsage (2d Ed. 1995) 436

Kyal Hill did a 2-yearmasters degree in Japaneseinterpreting and trans-lation at the University ofQueensland, Australia.Halfway through that, heobtained his translator’squalification from theAustralian accreditationauthority and freelanced asa translator for 18 monthsbefore moving to Japan.Since then he has beenworking in Tokyo for 2years as a translator in theJapanese law firm MoriHamada & Matsumoto.

Silly signageFrom The Sydney Morning Herald, Friday 22 April 2005.

Paul Neary, of Rouse Hill, says it can take some time before buildingmanagers settle on the correct wording of a sign. “When the train linewas first opened at Sydney Airport,” he writes, “the buttons in the liftwere labeled Concourse 1 and Concourse 2. Fortunately, someonerealized that this was silly. The labels now read Planes and Trains.”



Lei-Theng Lim

Deputy Director, Legal Writing Programme,Faculty of Law, National University of Singapore

English is the official language of Singapore. We are nota country that regards English as a foreign language. YetSingaporeans cannot strictly be regarded as native usersof English. The multi-cultural environment affects howwe acquire and use language. Plain English in Singaporeis a struggle between ensuring that language use is gram-matical, and discouraging arcane, pompous verbiage.This article provides a brief overview of the plainEnglish movement in Singapore and focuses on theefforts being made to promote plain English through thelaw school.

This issue of Clarity focuses on how users of Eng-lish as a foreign language are faring. Singaporeansdo not consider English to be a foreign language.Yet it is sufficiently foreign for Singaporeans to faceproblems when they use the language.

English in legal practice

Singapore has four official languages: English, Malay,Mandarin, and Tamil. English is the language ofbusiness and administration. Almost all Singa-poreans understand or speak English to some degree.All lawyers, judges, civil servants and academicsspeak and write in English. Most even think inEnglish. The use of English is so pervasive that thegovernment has taken steps to preserve the culturalheritage by mandating “mother tongue” (nativelanguage) classes in school. Therefore, Singaporedoes not regard English as a foreign language.

Despite this, not all Singaporeans have the samelevel of proficiency in English. While this may alsobe true of countries where English is a native lang-uage, legal practitioners would usually be profi-cient in written and spoken English as this is anecessary tool of the trade. Unfortunately this is nottrue for Singapore, where some members of the legalcommunity have not mastered English grammar.The proportion of such lawyers is small but signif-icant enough for the judiciary and profession tocomplain about it.

Singapore’s legal system has its roots in the BritishEmpire. Although we have been independent formore than 30 years, we are still trying to cut the

apron strings. We still rely on English common law,so lawyers must read and apply English cases. Overthe last decade, we have been increasingly referringto Commonwealth decisions—mainly from Australiaand Canada. But the predominant source of caselaw remains England. And in Singapore there is acommon misconception that good lawyerly writingmust be the same as much of it used to be in Eng-land—that is, complex, convoluted, and liberallysprinkled with qualifications and indirect references.

Couple this fondness for convoluted writing withpoor grammar, and you have a picture of some of theworst writing that the legal profession can produce.Admittedly, it is hard to gather evidence of suchpoor writing. My impression is formed from readingother lawyers’ submissions and correspondence,and the time I served as a law clerk for the Judiciary,when I read submissions to the Court of Appeal.Most lawyers and judges that I have spoken to aboutthis share my view.

The plain English movement

It is hard to pinpoint a particular starting place forthe plain English movement in Singapore. Suffice itto say that today, the use of plain English in legalpractice is promoted and encouraged in severalways.

The first glimmers of interest in plain English beganwhen the Law Society of Singapore ran severalworkshops on plain English. Then the Board ofLegal Education introduced plain English into thePostgraduate Practice Law Course (“PLC”). ThePLC is a 5-month fulltime course that culminates inwritten examinations. It is compulsory for admis-sion to the bar in Singapore. The legal profession inSingapore is a fused profession where there is nodistinction between advocates and solicitors. ThePLC therefore trains potential advocates and soli-citors. In the PLC, Michael Hwang, a respectedSenior Counsel (the Singaporean equivalent of aBritish Queen’s Counsel) introduces students toplain English. Then students learn to draft in smallgroups supervised by practising lawyers. The draft-ing classes cover the gamut of legal practice fromwills and pleadings to affidavits and agreements.

In 2003, the Chief Justice, Yong Pung How, requestedthat “changes be made to the terminology and lang-uage of the courts in Singapore to make the legal

Plain English in Singapore: preparing the next generation of lawyers


process more understandable to the public”. A yearlater, in January 2004, the Singapore Academy ofLaw’s Law Reform Committee released the PlainEnglish Guide to Latin Expressions (available onlineat <www.sal.org.sg>). The Singapore Academy ofLaw (“SAL”) is a body created by statute and gov-erned by a Senate that includes all members of theJudiciary, the Attorney General, the Solicitors Gen-eral, the Dean of the Law School, and the Presidentof the Law Society. The SAL’s functions includeproviding continuing legal education.

In May 2004, the SAL invited Dr Robert Eaglesonto present workshops on Drafting in Plain English.Over 150 attended the workshops, includinglegislative drafters, and there were rave reviews.

The Law School’s involvement in plainEnglish

The Faculty of Law in the National University ofSingapore is the only institution in Singaporeallowed to offer a degree in law that qualifiesgraduates for entry to the bar. For this reason, thereis intense competition for admission to the 4-yearundergraduate law degree.

In 2001, the law school implemented a new CoreCurriculum programme. A major part of the prog-ramme is the Legal Writing Programme, which seeksto develop law students’ skills in legal analysis,writing and research. The Legal Writing Programmeemphasises plain English writing skills.

The Legal Writing Programme spans the first 2 yearsof the undergraduate law course. The first year ofthe programme is the most rigorous and pays mostattention to legal writing. In Legal Analysis, Writingand Research (“LAWR”), students begin by readingcases. From reading one case and extracting the rule,students progress to reading several cases and extract-ing or synthesizing a rule to apply to a particularset of facts. Next, students are introduced to legalresearch, where they undertake a research projectrequiring them to develop a research plan, discoverthe applicable law, formulate arguments, and findsupport for them. The students present their find-ings orally, and go on to prepare an appellate mootargument.

Throughout the LAWR course, students receive writ-ing assignments to test their learning. These assign-ments also serve to teach the elements of good legalwriting. They include a case brief, a predictive legalopinion, a client letter, and persuasive writtenarguments for an appeal. Some assignments consistof rewriting a previous piece of work to reinforcelearning points, and to inculcate in students thehabit of editing their work.

The mainstay of the first-year LAWR course is itslegal writing instructors. Most of the instructors arepractitioners or former practitioners with experiencein corporate practice or litigation. When markingwriting assignments, the instructors take greatpains to give constructive feedback. Over the 10weeks of a semester, a student sees their instructorat least twice for a one-on-one conference on theirwritten work. Instructors often spend an hour, orlonger, marking an assignment. Assignments rangefrom 1,500 to 3,000 words.

Early in the LAWR course several classes are devotedto plain English grammar as an introduction to thebasics of good writing. The main course text isRichard C. Wydicks’s Plain English for Lawyers.Supplementary materials are also used. Learningis reinforced by written assignments, feedback andrewriting.

Plain English is also about good organization. Thisis emphasized in the LAWR course through therubric of CRuPAC (Conclusion, Rules, Proof, App-lication, Conclusion) as described by Richard K.Neumann, Jr. in his book Legal Reasoning and LegalWriting, another text used in the LAWR course.

The main problems with plain English

The LAWR course hits students in their first week atlaw school, to prevent the students from developingthe habit of relying on Latin phrases and archaiclanguage. Lists of Latin phrases and commonlyused legalese are given to students so they have aclear picture of what we discourage.

The main problem for the instructors is not thearchaic form of the language used, but grammaticalerrors mixed into convoluted sentences and para-graphs. I set out below 3 examples of the students’writing. Let me extend my apologies in advance forthe headaches these may cause you.

Sample 1

This stand is further supported by Lord Steyn,who in Cattanach was said to have expressedhis repudiation for the public policy consider-ations believed to be grounded in the Englishcase of McFarlane which disallowed recoveryof upbringing costs.

Sample 2

Firstly, when it came to awarding damages forthe cost of education, it was assessed whethersuch an education were to be provided to thechildren of the family, as seen in Benarr wherethe cost of private education was allowed asthe child was born into an upper middle class.

Plain English in Singapore: preparing thenext generation of lawyers(continued)


Sample 3

Kirby J.A.’s dicta in Cattanach rightfully statesthat Judges have no authority to adopt arbitrarydepartures from the basic doctrine of law on thefooting of personal beliefs concerned in the formof legal principles asserts the view that Judgesshould decide a case based on legal principlesrather than policy considerations.

Improving the writing is not merely the (relatively)simple task of editing the work. LAWR’s student-oriented approach emphasises that students mustfind their own answers instead of being given them.

For the instructor marking these papers, improvingthe writing begins with identifying the problemunderlying poor construction. The simplest answerwould be the student’s failure to edit but this wouldnot explain the underlying problem. Having ident-ified the problem, the instructor then has to find away for the student to identify the underlyingproblem, and solve it.

Has there been an improvement ?

The Legal Writing Programme is now in its thirdyear, so the pioneer group of students is completingits third year of law school. According to theacademic staff, the standard of legal writing hasimproved. Instructors have tracked the develop-ment of their students over each academic year, andnoted significant improvements. For example, astudent whose first written assignment was inco-herent, ended up near the top of the class in firstyear, and beat more senior students in his secondyear to win a competition for the best-written appell-ate arguments. The effect this pioneer batch willhave on the legal profession will only be seen afterthey graduate in July 2006. We are optimistic.

© L Lim [email protected]

Lei-Theng Lim (LL.B.Hons. NUS, LL.M. Harv.)taught at the Faculty ofLaw, National Universityof Singapore from 1992 to1999. After several yearsas a litigator in privatepractice, she returned toacademia in June 2003 toserve as Deputy Directorof the Legal WritingProgramme. She has runworkshops on teachinglaw and mooting skills inSingapore, Hong Kong,Thailand and Laos, andrecently taught a Negotia-tion Workshop in Vietnam. Lei-Theng coaches the NUS SpaceMoot Team. She is an accredited mediator with the SingaporeMediation Centre, and editor of a new publication, The AsianJournal on Mediation.

Clarity seminarson clear legal writing

(accredited by the Law Society for CPD)

Mark Adler uses many before-and-afterexamples to teach the theory andpractice of clear, modern, legal writing,covering style, layout, typography, andstructure. One handout gives an outlineof the lecture, which is interspersed withexercises and discussion; the other givesmodel answers to the exercises.

The seminars are held on your premises,and you may include as many delegatesas you wish, including guests fromoutside your organisation. The normalsize ranges between 4 and 25 delegates.

The full version lasts 5 hours (apartfrom breaks) and costs £750 + travellingexpenses + VAT. But the arrangementsare flexible, with shorter versionsavailable.

Contact Mark Adler on+44 (0)1306 741055

[email protected]

• Do you have any helpful drafting tips ortechniques that might interest our readers?

• Do you need help with a puzzlingdrafting problem? Our readers may be ableto help.

Please email one of our next guest editors:

Nicole Fernbach [email protected], or

Edward Caldwell [email protected]

Wanted: drafting discussion


Mike Unwalla

Documentation consultant, Sheffield, UK

This article explains the benefits of using a ‘controlledlanguage’ to create technical documentation.

English is the international language of the aero-space industry. ASD Simplified Technical English(ASD-STE100) is used in the aircraft industry toensure that aircraft maintenance instructions areclear and unambiguous. This is especially importantfor readers who use English as a foreign language.Since the first publication of the specification in1986, other non-aerospace industries have adoptedthe principles of ASD-STE100 for their own docu-mentation.

Beyond plain English

Plain English saves industry and commerce millionsof dollars every year. Important guidelines for writ-ing plain English include writing short sentencesand choosing words appropriate to the reader.

Words such as short and appropriate are open to inter-pretation. English abounds with verbs and nounsthat have two or more meanings. Plain English isnot sufficient to eradicate ambiguity. A controlledlang-uage overcomes ambiguity by limiting word useand by specifying permissible grammaticalstructures. ASD-STE100 (originally called AECMASimplified English) is an example of a controlledlanguage.

How ASD-STE100 works

ASD-STE100 provides a set of writing rules anda dictionary of words and their meanings. ASD-STE100 limits the number of words that can be used,it allocates each word to a particular part of speech,and it specifies the meaning of each word.

1. Limited number of words

Different words may have a similar meaning. Forexample, consider the sentence ‘Locate the pin in theaperture’. Synonyms for the verb locate are fit, mount,position, place, put, set, situate. Which one should awriter use? ASD-STE100 specifies put to mean, ‘tocause something to move or to be in a position’.

Similarly, instead of deactivate, choose: stop, disconnect,or isolate.

The majority of the ASD-STE100 specifications arein a dictionary of keywords that is sufficiently largeto express any technical idea. The dictionary distin-guishes between approved words (chosen for theirsimplicity and common usage) and disapprovedwords. Approved keywords and examples are incapitals, as shown in Figure 1.

2. Parts of speech

In English, one word may be used in different ways.For example, the word oil can be used both as a nounand as a verb:

• The oil is contaminated.

• Oil the bearings liberally.

For each word, ASD-STE100 specifies how you canuse the word. For example, you are allowed to usethe word oil as a noun, but you are not allowed touse it as a verb.

Figure 1. Part of a dictionary page from the AECMA SE specification (now ASD-STE100). Reproduced with the kindpermission of ASD.

capable (adj) CAN (v), APPROVED THE POWER UNIT CAN The power unit is capableSUPPLY 28 VDC. of producing 28 VDC.

AN APPROVED PERSON Vital checks are to beMUST DO THE carried out by a capableIMPORTANT CHECKS. person.

CAPACITY (n) The maximum quantity THE CAPACITY OF THEthat something can hold FIN FUEL TANK IS 564or make LITERS.

AECMA SIMPLIFIED ENGLISH

Keyword(part of speech)

Assigned Meaning/USE APPROVED EXAMPLE Not Acceptable

ASDASDASDASDASD simplified simplified simplified simplified simplified

technical technical technical technical technical EEEEEnglishnglishnglishnglishnglish


3. One word, one meaning

In everyday English, a single word can have manydifferent meanings. Usually, we can understand themeaning from the context. For example, the noundrive may have more than one meaning:

• The drive is faulty. (Context tells us this is acomponent of a machine.)

• The drive is tedious. (Context suggests this is acar journey.)

One word might have different interpretations. Forexample, the sentence ‘Replace the filter’ could meaneither of the following:

• Put back the filter that you took out.

• Install a new filter.

For each allowed word, ASD-STE100 usuallyspecifies just one meaning. In the case of install,ASD-STE100 specifies that it means, ‘to removean item and to install a new or serviceable item’.

For product-specific terms, such as the names ofparts, ASD-STE100 recommends that the user addsto the dictionary’s word base.

4. Rules for writing text

There are many ways of categorising information.ASD-STE100 uses:

• Description to mean explanation, information, ora statement about something.

• Procedure to mean an instruction telling someonehow to perform a task.

ASD-STE100 has a set of rules that specify how towrite text. It does not teach people how to write Eng-lish; it states that the user should have good writingability and it assumes that the writer is familiar withthe basics of standard English grammar.

Many of the rules incorporate the best-practice guide-lines that most technical writers follow anyway. Forexample:

• Use short sentences. (In ASD-STE100 therecommended maximum is twenty words ina procedural sentence and twenty-five wordsin a descriptive sentence.)

• Avoid the passive voice.

• Be as specific as possible.

However, some rules are very specific:

• Use the conjunction that after subordinate clausesthat use verbs such as make sure and show. For ex-ample, write Make sure that the valve is open. Do notwrite: Make sure the valve is open.

• Introduce a list item with a dash (hyphen).

• Do not use clusters of more than three nouns.For example, instead of Runway light connectionresistance calibration write Calibration of the resist-ance on a runway light connection.

ASD-STE100 does not deal with formatting issuessuch as the typeface or its size, the width of margins,and the form of cross-references.

Compliance

Compliance with ASD-STE100 is sometimes requiredby contract. For example, the S1000D specificationfor military vehicles, which defines the layout andformat of technical documentation, demands com-pliance with ASD-STE100. Software tools that helpauthors to comply with the standard include:

• HyperSE from Tedopres:<www.simplifiedenglish.net>.

• MAXit from Smart Communications, Inc:<www.smartny.com>.

• Boeing SE Checker from Boeing:<www.boeing.com/phantom/sechecker/index.html>.

• Bespoke tools from Mekon: <www.mekon.com>.

Globalisation and ASD-STE100

Although ASD-STE100 was designed for use in theaircraft industry, the principles of a controlled lang-uage apply to all technical fields. ASD-STE100 hasbeen modified for many industries, including theautomotive, banking, engineering (civil, electrical,and mechanical), retail, software, and telecomsindustries.

Globalisation and outsourcing presents a majorlinguistic challenge. According to John Smart1 ,some of the benefits of using a controlled languageare:

• Reducing call-centre and product-support costs.

• Training technical people faster.

• Creating legally-defensible technical manuals.

• Reducing the cost and time needed to writetechnical documentation.

Translators know that to produce high-qualitytranslations, it is important that the original copy-writing is precise. Documents that are written usingASD-STE100 or other controlled languages are ex-cellent source material for translation because theyare precise.

There can be a further benefit if a translator usesa translation memory (TM) system to help createtranslations. A TM system is used with documentsthat are in electronic format. Essentially, it is a data-base that contains previously translated segmentsof text. When a new document is translated, each


segment of text is compared with previously trans-lated segments. Good matches are automaticallypresented to the translator, who can accept, reject ormodify them. This methodology greatly improvesboth the speed of a translation and its consistency.

Discussion

For many years, I have believed in controlling thelanguage that I use in technical documentation.Working with ASD-STE100 has reinforced my belief.I learnt a lot from reading the specification, andalthough I needed to know about it for a particularproject, I feel it was well worth the money in general.

Many of the writing rules are based on best practicebut some rules go beyond this, for example, by speci-fying the number of words in a sentence.

A very few rules are unduly restrictive for some formsof technical writing. For example, the specificationdoes not allow the continuous tenses (also knownas progressive tenses or ‘ing’- verb form). Thus thesentence we are working on the XYZ project wouldhave to be rewritten.

The dictionary is for the aircraft industry, so manyterms are not relevant to other domains. While thespecification allows for tailoring the dictionary, therules advise against introducing synonyms. I thinkthat for some types of writing this rule is toorestrictive.

A sentence may follow all the rules of grammarand all the rules of ASD-STE100, and still it couldbe ambiguous. Following the rules blindly is notsufficient—writers must use their intelligence.

For technical and business writers, the specificationis a good resource. Not so for writers of marketingand publicity materials because it does not allow for

Mike Unwalla FISTC isa freelance documentationconsultant. He writes userguides, online help systemsand reference manuals forcomputer software appli-cations. Many years ago hetaught English as a foreignlanguage. His doctoralthesis dealt with how tosplit very large files indatabase systems. Thatcombination of languageskills, teaching skills andtechnical ability means thatMike can talk to technicalpeople in their languageand then re-present the information for the non-technicalreaders of the documentation. The British StandardsInstitution appointed Mike as Principal UK Expert forSystem Software Documentation in November 2004.

persuasive language (see my comments in <www.techscribe.co.uk/techw/se.htm>). Would legal writersbenefit from using it? I leave that to you to decide.

ASD-STE100 is available from:

• InfoVision Systems Ltd: <www.infovision.co.uk>(GBP 131)

• Air Transport Association (ATA) of America, Inc:<www.air-transport.org> (USD 300).

For more information about the history of ASD-STE100 see <www.simplifiedenglish-aecma.org>

© M Unwalla [email protected]

1 The author would like to thank John Smart fromSmart Communications, Inc for providinginformation about the use of ASD-STE100 outsidethe aircraft industry.

ASD simplified technical English(continued)

Has “exit” made its exit?From The Sydney Morning Herald, Thursday 14 April 2005.

Dr Barry Williams, of Baulkham Hills, asks if the word “exit” has madeits exit. “A sign on a door in a newly built facility in the Children’sHospital at Westmead reads ‘Emergency egress only’. Perhaps ‘egress’ isan upmarket version.” And probably needlessly confusing for patientsand parents whose mother tongue is not English.



Margaret van Naerssen

Lecturer, Immaculata University, Immaculata,Pennsylvania, USA

By law, consumer contracts in the State of Pennsylvaniahave to be “easy to read and understand”. When a for-ensic linguist ran her Clarity magnifying glass over aconstruction contract she found it failed the test.

US courts accept testimony from forensic linguistsabout contract language1. Recently, I analysed thecompliance of a construction contract with the

guidelines of the Pennsylvania Statutes Trade andCommerce (Title 73) Plain Language Consumer ContractAct (the Plain Language Act). Those guidelines ad-vise on writing contracts that are “easy to read andunderstand”.

The plaintiff consumer’s attorney, Max Lieberman,relied on my analysis to try to prove that parts of thecontract were “unfair and deceptive” as a conse-quence of violating the Act’s guidelines for readablewriting. The case was settled out of court so myreport is unrecorded. This article summarises myunreported analysis.

§ 2505. Test of readability.

(a) General rule.All consumer contracts executed after the effective date of this act shall be written,organized and designed so that they are easy to read and understand.

(b) Language guidelines.In determining whether a contract meets the requirements of subsection (a),a court shall consider the following language guidelines:1. The contract should use short words, sentences and paragraphs.2. The contract should use active verbs.3. The contract should not use technical legal terms, other than commonly understood

legal terms, such as “mortgage,” “warranty” and “security interest.”4. The contract should not use Latin and foreign words or any other word whenever

its use requires reliance upon an obsolete meaning.5. If the contract defines words, the words should be defined by using commonly

understood meanings.6. When the contract refers to the parties to the contract, the reference should use

personal pronouns, the actual or shortened names of the parties, the terms “seller”and “buyer” or the terms “lender” and “borrower.”

7. The contract should not use sentences that contain more than one condition.8. The contract should not use cross references, except cross references that briefly

and clearly describe the substance of the item to which reference is made.9. The contract should not use sentences with double negatives or exceptions to

exceptions.

(c) Visual guidelinesIn determining whether a contract meets the requirements of subsection (a), a courtshall consider the following guidelines:• The contract should have type size, line length, column width, margins and spacing

between lines and paragraphs that make the contract easy to read.• The contract should caption sections in boldface type.The contract should use ink that contrasts with the paper.

A A A A A fffff rensic test of arensic test of arensic test of arensic test of arensic test of a P P P P Pennsylvanian contractennsylvanian contractennsylvanian contractennsylvanian contractennsylvanian contract

Plain Language Act — readability test


Linguistic analysis

To decide whether the contract was “easy to readand understand” I needed to apply the readabilityguidelines to the disputed provisions. The difficultyhere was that some of the guidelines are vague. Iovercame this by referring to appropriate US sourceson legal writing and applying my own expertise tospecify the vaguer guidelines2.

The linguistic evidence took the form of frequencycounts. But simply counting the violations of theguidelines would not be much help to the fact-finders (judge and, possibly, jury). They needed toknow to what extent the guidelines were violated.Thus, I looked at the linguistic evidence in terms of

• accumulation of violations by sentence andparagraph; and

• clustering of violation types.

Applying the readability guidelines

In my court report I ordered the evidence by theguidelines in the Act. In this article I group theguidelines in five plain language categories: Length,Terminology, Syntax, Referencing, and Visual guide-lines. The guidelines are each followed by a bracketedabbreviation to tie in with the graphs.

The basic unit of analysis was the paragraph as thisis the organization a consumer encounters. HoweverI had to count words and sentences as evidence ofviolations of the guidelines.

Length [LNG]

Guideline 1. The contract should use short words,sentences and paragraphs.

This guideline does not define “short” so I set thefollowing criteria:

• length of paragraphs: best if under 100 words aparagraph

• length of sentences: best if average 20 words asentence, upper limit 25

• avoidance of extra words such as “and/or” andnumber doublets such as “twenty-five (25)”

• exclusion of captions of sections and subsectionsfrom the word count.

Terminology

Guideline 3. The contract should not use technical legalterms, other than commonly understood legal terms, suchas “mortgage,” “warranty” and “security interest.”[LEG]

Garner also advises against the use of such wordsas “shall,” instead of “will” or “should” and back-referencing words (“anaphora”), including “such,”“same,” and “said.”

Guideline 4. The contract should not use Latin andforeign words or any other word whenever its use requiresreliance upon an obsolete meaning.

I only found one violation—”per”—used twice.

Guideline 5. If the contract defines words, the wordsshould be defined by using commonly understoodmeanings.

The violations referred to definitions outside ofa paragraph and vague definitions.

Syntax

Guideline 2. The contract should use active verbs.

This guideline does not require expert interpretation.

Guideline 9. The contract should not use sentences withdouble negatives or exceptions to exceptions.

This guideline does not require expertinterpretation.

Guideline 7. The contract should not use sentences thatcontain more than one condition.

After considering several concepts of “conditions,”I finally realized I had to interpret “conditions” in alegal context, specifically as they are understood incontracts. I used Blum’s definitions:

“A condition is an event that is not certain to occur.”

“A promised performance under a contract issubject to a condition if the parties agree that theperformance is contingent on the occurrence of theuncertain event.”

I also used Blum’s four purposes of using conditions ina contract (below) to verify that what I had identifiedwere conditions.

1. As a complete or partial “escape clause.”

2. To permit the exercise of judgment by one ofthe parties or a third party.

3. To provide for alternative performances.

4. To regulate the sequence of performance.

In ambiguous cases I made decisions and recordedthe types and examples. As I was not able to arrangefor a second coder, I made one final check for consist-ency of all the conditions against the purposes andverified my decisions on ambiguous instances. Belowis an example of a sentence with two conditions.

Such agreed costs of changes shall be added to thetotal consideration, to be paid in case byBuyer[condition] prior to the making of suchchanges[condition].

A forensic test of a Pennsylvanian contract(continued)


Referencing

Guideline 6. When the contract refers to the parties to thecontract, the reference should use personal pronouns, theactual or shortened names of the parties, the terms “seller”and “buyer” or the terms “lender” and “borrower.” [P-REF]

Seller and Buyer are used throughout contract, exceptfor one inappropriate use of it in reference to theBuyer.

Guideline 8. The contract should not use cross references,except cross references that briefly and clearly describe thesubstance of the item to which reference is made. [X-REF]

I counted cross-references to documents outside thecontract as violations because the consumer cannoteasily access them.

Visual guidelines

• Format [FRMT]: The contract should have type size,line length, column width, and margins, spacingbetween lines and paragraphs that make the contracteasy to read.

I identified only two types of violations: using allcapitals in words, phrases, and sentences (font ortype size); using long noun series across text lines(instead of listing). During my deposition I waschallenged about the use of all capitals. Isupported my testimony with evidence fromreading and cognitive-processing research.

• Captions [CAPT]: The contract should caption sectionsin boldface type.

I found no violations.

• Contrast: The contract should use ink that contrastswith the paper.

The only violation I identified was the use ofunderlining instead of boldface.

Summary of violations in Section 6

Three contract sections were disputed. In Table 1and Graph 1 below I summarise my analysis ofSection 6.

Table 1: Summary of violations in Section 6.

Section 6

Paragraphs: 6 Sentences: 21 Words: 698

Paragraph Violations of Violations notthe guidelines covered by the

guidelines

(a) 14 03

(b) 32 04

(c) 08 04

(d) 12 04

(e) 07 0

(f) 05 01

Total 78 16

0

5

10

15

20

25

30

35

a b c d e f

Graph 1: Summary of violations in Section 6.

Section 6, paragraphs a-f

Vio

lati

ons

Sec. 6


• Notwithstandinganything to thecontrary set forthherein

• with respect thereto• thereof• in the event

• hereof• hereunder• such• said• in Seller’s sole discretion• pursuant to Paragraph

25 hereof

The Terminology criteria (legalese and wordiness)are violated by the following:

Violations

• Act guidelines: 32• Outside of guidelines 04

Guideline 7 (one-condition rule) is violated by fiveof the six sentences in Section 6(b). Sentences 1, 2and 4 have two conditions. Sentence 3 has seven.Sentence 5 has five.

Statistics

Total words: 239Lines: 24 (original text)Line spacing: SingleSentences: 6Words/sentence: 20, 26, 86, 36, 56, 15Max words/sentence: 86Min words/sentence: 15Average words: 39.8

Section 6 (b)

This paragraph, which had the most violations,reads:

Only such changes as are ordered in writing byBuyer and approved by Seller, at agreed costs,will be made. [20] Such agreed costs of changesshall be added to the total consideration, to bepaid in case by Buyer prior to the making of suchchanges. [26] Notwithstanding anything to thecontrary set forth herein, in the event Buyerorders in writing changes which are approvedby Seller or selects extras as provided in thisParagraph, any required payments by Buyermade with respect thereto are not refundable toBuyer under any circumstances (including butnot limited to the provisions of Paragraph 7hereof regarding Buyer’s inability to obtain amortgage commitment), unless settlement doesnot occur because of Seller’s default hereunder orunless this Agreement is terminated pursuant toParagraph 25 hereof. [86] Buyer must make allcolor selections (e.g., carpet, tile, etc) and selec-tions of upgrades and extras, and pay for allupgrades and extras within twenty-one (21) daysfrom the date of the Agreement of Sale. [36] Ifwithin the twenty-one (21) day period Buyer failsto make color selections, Buyer’s color selectionsare incomplete, or Buyer fails to pay any addi-tional charge for upgrades or extras, then Sellershall have no obligation to make any upgrades orextras, and Seller may choose the color selectionsfor the Premises in Seller’s sole discretion. [56]Exterior selections, upgrades, and extras are subjectto Seller’s approval in Seller’s sole discretion. [15]


Violations

Graph 2: Number of violations of Section 6(b) by guideline

12 guidelines for plain language + other cognitive complexity features

12

11

10

9

8

7

6

5

4

3

2

1

G1LNG

G2ACT/P

G3LEG

G4FOR

G5DEF/M

G6P-REF

G7COND

G8X-REF

G9DB NEG

G10FRMT

G11CAPT

G12CONTR COGN


The guidelines do not include embedded clausesand big gaps between the subject and verb. Based onmy background in psycholinguistics, I consideredthese features as additional violations. Researcherson memory and cognition agree4.

There were two challenging areas in this case that Iwould like discuss in more detail.

First, I chose to interpret the guidelines using plainlanguage principles. As an alternative, colleaguessuggested I test people with a similar background tothe plaintiffs or even the plaintiffs’ understandingof the specific contract sections. Below are myconclusions.

1. This type of testing would have been beyondthe scope of the legal question. Plain languageexperts had already established certain prin-ciples in the Act necessary to promote access.Legally it was not my job to test or justify thoseprinciples.

2. Testing the texts with similar populationswould not really take into consideration theeffect of background knowledge or the needsand motives of the plaintiffs with regard to thecontract content. All three are factors in pro-cessing language.

3. It would have been impossible to determinehow objective the plaintiffs would be inresponding to a comprehension check.

Syntactic tree diagram of Section 6 (f)

The first sentence in Section 6(f) is relatively easy toread with just 13 words.

Buyer acknowledges that Seller may changebasement window locations depending onoutside grading.

This diagram3 shows that this sentence has a mainsentence with a single subject and a single verbfollowed by a that-clause. Together they contain twosentence nuclei (S1, S2) composed of noun, verb,adjective, and prepositional phrases (NP, VP, AP, PP)and their elements: nouns (N), verbs (V), adjectives(A), prepositions (P), and modal auxiliaries (AUX, M).

A syntactic tree shows that words, phrases, andsentences are not simply linearly processed, oneword after another. To understand the meaning ofa sentence the reader has to hold in memory therelationships of words and phrases across the sen-tence. Imagine how complex the diagram would befor the longer sentences (56, 61 and 86 words) foundin Section 6(b).

How readable was the contract?

I could not testify about how difficult the plaintiffsfound parts of the contract to understand. I couldtestify, however, that I believed that someone unac-customed to reading contracts would very likelyfind those parts difficult to understand. Using thebar graph to show how violations of the guidelinesbuild up across Section 6(b), I could imply that thegreater the build-up, the more likely it is to ad-versely affect a reader’s cognitive processing.

AdjP

PP

NP

NAdjP

Adj

Adj

outside

grading

dependingP

on

NP-COMP

S2-NUCLEUS

V

acknowledgesC

that NP

N

Seller

V

change

VP

AUX-Modal

may

S1-NUCLEUS

VPNP

N

Buyer

Adj

basement

Adj

window

may

NP

N

locations

AdjP


4. If I had become acquainted with the plaintiffsand their specific contract comprehensionissues, this would have compromised mystatus as an “objective” expert witness. Evenwhen I finally had to meet the plaintiffs to pre-sent my report, I told them I had to avoid gettingto know anything about their backgroundsand about their specific concerns regarding thecontract. Even while getting coffee from theattorney’s office kitchen, we only exchangedsocial pleasantries. This avoidance strategypreserved my independence which proved tomy advantage at the deposition hearing whenI was aggressively cross-examined about myknowledge of the plaintiffs’ background andconcerns.

Second, I was initially unsure what to do aboutGuideline 7 which provides no definition for “condi-tions”. Eventually I decided to go to contract law fordefinitions after rejecting the idea of trying to locateminutes from the state legislative drafting committeeto identify the drafters’ intent.

I did not have time for this type of research. Whendoing linguistic work on a live case, a linguistdoesn’t have the luxury of time for designing andimplementing a detailed research study. Plain lang-uage guidelines did not help me much. When I triedto apply rules of grammar and logic, I found thatthey either did not apply or that they producedmany micro-level conditions for a single sentence. Ifelt that this would be overkill; I did not think thejudge and attorneys would find such analyses usefulor credible. I realize now that reference to Coode’srules for legal drafting might have been helpful inunderstanding the meaning of the word “condition”in Guideline 7. However, I could not be sure thatthese British rules would be relevant to the Penn-sylvania Plain Language Act.

I could not ask the plaintiff’s attorney for help be-cause I had to maintain my independence. Instead Iconsidered the socio-cultural context of the contract.I could not look at language in isolation from thevalues and concepts of the community that uses it. Idid draw on contract law for help as I felt the attor-neys and judge would probably find this perspec-tive credible. In the end I feel the definition andprinciples I found provided a strong, rational basisfor interpreting the Act’s guidelines.

I would like to exchange ideas with anyone who istesting or has tested linguistically a plain languageact or regulation in court.

© M van Naerssen [email protected]

1 Kimble, Joseph. 1992. “Plain English: A charter forclear writing.” Thomas M. Cooley Law Review, 9:1,1-58. He summarizes laws addressing insurancecontracts. Roger Shuy, “Warning labels: Language,law, and comprehensibility” in American Speech,1990, Vol. 65. Plain language has been tested inShuy’s analysis of a warning label on a tamponpacket in the case Karen Rinehart v. InternationalPlaytex (the “Tampons toxic-shock” case).

2 Blum, Brian A. 2001. Contracts, 2nd ed. New York:Aspen Publishers, 467-495. Garner, Bryan A. 2001.Legal Writing in Plain English. Chicago: The Uni-versity of Chicago Press. Fraser, Helen. 2003.“Issues in transcription: Factors affecting thereliability of transcripts as evidence in legalcases.” The International Journal of Speech, Languageand the Law: Forensic Linguistics, 10 (2): 215-226.

3 The diagramming system I’ve used follows thoseset out in The Grammar Book by Larsen-Freemanand Celce-Murcia (2001). I am responsible for anyerrors in the interpretation of their system.

4 Fraser, The International Journal of Speech, Languageand the Law: Forensic Linguistics (2003). Larkin &Burns (1977) in Memory & Cognition. Mathews &Chodorow (1988) in the Journal of Memory andLanguage.

Margaret van Naerssen(PhD in Applied Ling-uistics, University ofSouthern California, MSGeorgetown University(Portuguese/AppliedLinguistics)) is adjunctcoordinator of graduateprogram in TESOL,Immaculata University.She is also consultant forEducational Testing Ser-vices, US Department ofState (overseas) on lang-uage education grants,individual contracts inrefugee centers, and is anexpert witness/consultant in forensic linguistics.

Her long-term assignments have been in Washington DC,Michigan, California, China (as co-director of language center,Chinese Academy of Sciences/UCLA), Hong Kong, andSingapore. She has also worked short-term in Brazil, Egypt,Italy, Japan, Kazakhstan, Morocco, Pakistan, the Philippines,Sri Lanka, Thailand, Uzbekistan, and Venezuela.



Portuguese Irregular Verbs

Alexander McCall Smith

Published by Polygon, Edinburgh, 2003Paperback, 128 pagesRecommended retail price AUS$7.99ISBN 0954407563

In this delightful, brief, and gently satiric piece,McCall Smith (author of the best-selling The No. 1Ladies’ Detective Agency) pokes fun at the narrow-ness and preciousness of German academics, inparticular German professors of philology. He alsopaints a portrait of its pathetic central character,Professor Dr Mortiz-Maria von Igelfeld, whose oneclaim to fame (if not fortune) is his ‘seminal work onRomance philology’, Portuguese Irregular Verbs. Thetome is 1200 pages, and is ‘a work of such majestythat it dwarfed all other books in the field’, theresult of ‘years of research into the etymology andvagaries of Portuguese verbs’.

The book traces the adventures and endeavours ofvon Igelfeld (rather like Mr Bean, that hapless comiccharacter invented by British comedian RowanAtkinson). He is accompanied throughout by histwo friends, Professor Dr Dr (honoris causa)Florianus Prinzel and Professor Dr Detlev AmadeusUnterholzer. Their attempt to master tennis, whichnone of them has played before (using only ‘anancient dog-eared handbook’ from the gamescupboard), is, in a word, a ‘hoot’—not only for thereader, but also for the other guests of the HotelCarl-Gustav who watch from their windows.

Perhaps the most pathetic moment (of many) in thebook is von Igelfeld’s thwarted courtship of hisdentist, Dr Lisbetta von Brautheim. Deciding thatshe is the one for him, he presents her with a copyof his book. He also tells Unterholzer about herexcellent dentistry. Not only does Unterholzer getthe girl, but the girl finds a pratical use for ‘such alarge book’: being quite short, standing on it bringsher up to the right height for her patients when thedental chair is reclined.

Each of the eight chapters (numbered in German)provides a delightful vignette of von Igelfeld’spathway through life and love—wanting through itall to be respected and loved. It ends with a lament,with a certain echo of Eeyore (AA Milne, The Houseat Pooh Corner):

Oh! He thought. And then Oh! again. Why have Ihad such bad luck in this life? Why? All I want islove, and a tiny bit of recongition from thePortuguese, and I get neither. And soon it will be toolate; nobody will read my book any more, and therewill be nobody to remember me.

Perhaps McCall Smith’s underlying message inPortuguese Irregular Verbs is that while academicwriting can serve a range of functions—such asfilling gaps in the literature (or as the reviewer ofvon Igelfeld’s work comments, ‘There is nothingmore to be said on the subject. Nothing.’), its value,one would hope, lies beyond the fate of von Igelfeld’swork. When only 200 copies of the book are actuallysold it is to be rebadged with the title ‘PortugueseIrrigated Herbs’ and used as ‘book furniture’.

In this work McCall Smith gives us another exampleof the extraordinary range of his writing talents—beyond crime fiction, and his own academic writingsas a Professor of Law at Edinburgh University,where he is best known for his works in medicallaw and criminal law. Portuguese Irregular Verbs is adelightful read and, like David Lodge’s books on theidiosyncracies and peculiarities of academic life, iswritten with an insider’s knowledge, amusementand apparent affection for the academy (in spite ofitself). For those who find great entertainment in thepreciousness of much academic (or quasi-academic)writing and the pretentiousness that can accompanyit when the message is lost in the lard of languagelaid over it, don’t miss this book!

Rosalind CroucherProfessor and Dean of LawMacquarie University, Sydney, [email protected]

Clarity back numbersYou can download recent issues (but not thecurrent one) from the website <www.clarity-international.net>.

Mark Adler will supply individual earlierones on request, without charge, as pdf files,if you don’t ask for too many.

Order from: Mark [email protected]

Book reviews


Oxford Guide to Plain English

Martin Cutts

Published by Oxford University Press,Oxford, 2004Second edition, Paperback, 202 pagesReccommended retail price GB£5.99 (CAN$17.50)ISBN 0-19-861011-4

From Brazil to Belgium, America to Australia, law-yers end their letters with with the clichéd invitation:Please do not hesitate to… But once they have readMartin Cutts’ pocketbook guide (from OUP’s refer-ence series) lawyers will never end a letter this way.They will realise that formulaic endings rob theirletters of effectiveness and sincerity, and will under-stand the benefit of closing letters thoughtfully. Forexample, to get action a lawyer could end the letterwith a checklist of tasks for the reader to tick off. Orwhen a matter is completed, sincerely thanking theclient for their business would foster the futurebusiness relationship.

In this revised second edition of his popular Guide,Cutts has expanded his advice on legal writing andadded a chapter on email; he has enlarged the intro-duction to reflect progress and added new examplesthroughout the book. If you already know the firstedition, you will find the second even more useful.

Cutts offers 21 guidelines (not inflexible rules) in asmany chapters “to help you write and set out essen-tial information clearly”. These guidelines applyequally to native users of English and to foreignusers. When English is read by an internationalaudience, writers need to avoid cultural myopia.Cutts cites the example of a spam email from theUS where a female “freshman” tells of having beenbusy at college “pledging a sorority”. Don’t knowwhat this means? Then you know how it feels whena writer blithely assumes a shared cultural back-ground that doesn’t exist. Lawyers easily fall intothis trap when they assume lawyers in other juris-dictions understand their legal system, Latin orabbreviations.

To write clearly one must think clearly. Obviously.But how do writers clarify their thoughts? Cuttsdeals with this problem in Guideline 14 (Planningeffectively). Here writers learn how to organise theirminds to help their readers grasp important infor-mation early and navigate their texts easily.

Guideline 15 (Using reader-centred structure) is amust-read for lawyers who find it difficult to standin a client’s shoes. By asking two questions—”Sowhat?” and “How does this affect me?”—after everysentence they write, lawyers will find they can distiltheir legal knowledge to match their clients’ needs.By writing less, and more relevantly, lawyers winclient applause.

Cutts reserves a chapter for legal writing. Guideline20 (Lucid legal language) opens with the tellingobservation of a 25-year-long campaigner for theconsumer’s right to clarity that: “The way many law-yers write is disappointing to their friends and obnoxiousto their clients”. While acknowledging that legalwriting has the special challenge of thwarting self-serving readers from twisting text to their advantage,Cutts points out that plain English is up to the taskwhen used cautiously and appropriately. He offerslawyers four proven techniqes to make their writingmore lucid: chop up “snakes” (long sentences), putpeople into writing, add headings and cut out orreplace words with legal flavouring. To back up thelast tip Cutts points out that only a few words, suchas estoppel, indemnity, negligence, are genuinely termsof art and that a competent writer can easily explainsuch words and should do so to save the readerhaving to ask what they mean or, worse, risk a mis-understanding.

Opaque business writing is born of two fearsaccording to Cutts: losing “wriggle room” and notbeing taken seriously. As to the second fear, lawyerscan gain comfort from the research Cutts quotes. Astudy showed that 70% of scientists preferred scien-tific writing in plain English with 75% perceivingthe plain writer to be “more competent and have abetter organised mind”. Readers of Clarity knowthat similar research into legal writing has proventhat readers (both lay and expert) prefer and betterunderstand plain language texts while judgesperceive lawyers who use legalese as the least ablepractitioners.

Good writers care about writing well because therewards make the effort worthwhile. Lawyers whoapply Cutts’s 21 guidelines will improve theirwriting no matter what their skill level. Give thisbook to people you care about. I do. I give it to myclients.

Catherine RawsonLegal language consultant and [email protected]

Book reviews(continued)


Organising Committee

Co-Chairs:Anne WAGNER, Maître de ConférencesUniversité du Littoral Côte d’OpaleandProf. Joseph KIMBLEPresident and Membership Secretary of ClarityThomas M. Cooley Law School

Members:Nicole FernbachJurilinguistJuricom, Inc® and Centre International de Lisibilité,Inc®

Francesca QuintBarrister, Statute Law Society and 11 Old Square

Pierre-André LecocqProfessorDirector of the research center : IRIEDUniversité de Lille II

Conference Office:

Catherine Wadoux and Monique Randon34 Grande RueB.P. 75162321 Boulogne-sur-Mer CédexTel: 03-21-99-43-00Fax: 03-21-99-43-91

Email: [email protected]: Samuel Adam

Program Committee:

Co-chairs:Anne Wagner, Maître de ConférencesandNicole Fernbach, Jurilinguist, Centre Internationalde Lisibilité®

PROGRAM

TUESDAY, JULY 5Registration and opening of the conference

Official introduction by French officials andacademics. Presentation by Clarity and introductionby its President, Professor Joseph Kimble, and theHonourable Justice Michael Kirby, High Court ofAustralia.

WEDNESDAY, JULY 6Keynote speakers

- Madame Catherine Bergeal, Director of LegalAffairs, Ministry of Defence, Paris, France, “ Thequality of regulations: A political issue”

- The Honourable Justice Michael Kirby, HighCourt of Australia

Writing the law(Common session for all cultures and languages)

Panel Chair: Sir Edward Caldwell, LawCommission, UK

INTERNATIONAL CONFERENCE

Clarity and Obscurity in Legal LanguageFrom 5 to 9 July, 2005

Boulogne-sur-Mer (France)Université du Littoral Côte d’Opale

Conference Website: http://www.univ-littoral.fr/confinter2.htm

OFFICIAL LANGUAGES: French and English

Organised under the auspices of CERCLE, équipe VolTer (Vocabulaire, Lexique et Terminologie) and ofLARJ (Laboratoire d’Analyse et de Recherche Juridiques)–Université du Littoral Côte d’Opale incollaboration with Clarity.


Clarity and Obscurity in Legal Language(continued) Clarity in communication with citizens

Panel Chair: Peter Tiersma, Professor, Loyola LawSchool, USA, “Textual traps for theunwary”Lawrence Solan, Professor, BrooklynLaw School, USA

Readability in European institutions

Panel Chairs: Pascale Berteloot, Head of Unit onAccess to Law, Publications Office ofthe European Union, LuxemburgDaniel Fasquelle, Professor,Université du Littoral Côte d’Opale,France

Issues in plain-language writing

Panel Chairs: Anne Wagner, Senior Lecturer,Université du Littoral Côte d’Opale,and Olivier Carton, Member of theLARJ, Lecturer, Université du LittoralCôte d’Opale, France

Plain language in civil law cultures(French-speaking and others)

Panel Chair: Nicole Fernbach, Jurilinguist, CentreInternational de Lisibilité®, Montréal,Canada

Professional development of legal writers &drafters

Panel Chair: Richard Foley, Lecturer, University ofLapland, Finland

EXHIBITIONS

- Legal Publishers, LEXIS NEXIS, BRUYLANT,THEMIS, THOMSON, CARSWELL,BRIDGETERM (TBC), Blackhall PublishingPROPELX Parliamentary Workbench

- DUSA (French government agency responsible forsimplification) and software (LARA, Bullfighter,and some lexicons and writing guides)

FRIDAY, JULY 8Keynote speech: Jean-Paul Gauzès, Member

of Parliament, EuropeanParliament

Master Class in English:Writing the law in plain language I

Panel Chair: Conrad Dehn, QC, Barrister,Fountain Court Chambers, StatuteLaw Society Council, UK

Master Class in French:Writing the law in plain languageBilingual or multilingual law and the searchfor clarity

Panel Chair: Lionel Levert, Special Advisor,Legislative Drafting, InternationalCooperation Group, Department ofJustice, Canada

Master Class in English:Writing the law in plain language II

Panel Chair: Joseph Kimble, Professor, Thomas M.Cooley Law School, USA

Master Class in French:Writing the law in plain language

Panel Chair: André Labelle, Chief Jurilinguist andLegislative Counsel, Department ofJustice, Canada

THURSDAY, JULY 7Keynote speech: James Kessler, QC,

Practitioner, English RevenueBar, UK, “Objectivity andsubjectivity in interpretation”

Plain language in the judicial context

Chairs: Lawrence Solan, Professor, BrooklynLaw School, USAPierre-André Lecocq, Professor,Université de Lille II, France

The computer tools of plain language:technical workshop

Panel Chair: Jean-François Richard, BridgeTerm,Canada

Fuzziness in legal language

Panel Chairs: Jan Engberg, Professor, AarhusSchool of Business, DenmarkAnne Wagner, Senior Lecturer,Université du Littoral Côte d’Opale,France


From plain English to plain languages:A multilingual effort

Panel Chairs: Vijay Bhatia, Professor, CityUniversity of Hong Kong, China, andSophie Cacciaguidi-Fahy, Lecturer,National University of Ireland,Galway, Ireland

Impact of technology on access to law

Panel Chair: Danièle Bourcier, LaboratoryDirector, CERSA, Université Paris II,France

Plain language in multidisciplinary contexts

Panel Chairs: Maurizio Gotti, Professor, Universityof Bergamo, Italy, and Ross Charnock,Senior Lecturer, Université Paris 9,France

Past and future of plain language, or plainlanguages (European): informal roundtables

Panel Chairs: Nicole Fernbach, Jurilinguist, CentreInternational de Lisibilité®, Canada,and Catherine Rawson, LegalWriting Consultant and Trainer,Australia

Past and future of plain language, or plainlanguages (international): informal roundtables

Panel Chair: Peter Butt, Professor of Law,University of Sydney, Australia

Issues in French legal writing: two debates(gender-free writing and simplification of spelling)

Panel Chairs: Michèle Lenoble-Pinson, Professor,President of the Belgium Associationfor the Implementation of SpellingRecommendations (APARO),Belgium, “De la Demanderesse à lajuge, Féminisation des noms deprofessions et de fonctions enBelgique” (Fr.) and Olivier Carton,Member of the LARJ, Lecturer,Université du Littoral Côte d’Opale,France

How to make clarity mainstream:overcoming the obstacles to plain language

Panel Chair: Christopher Balmford, CEO,Cleardocs.com, Sydney, Australia

Wrap-up and closing of the conference

(Vice-President, Conseil scientifique, ULCO)

SATURDAY, JULY 9

Guided excursion and luncheon

Departure at 9:00 am to visit “La Coupole”

Located in the Pas-de-Calais, 5 km from the Town ofSaint-Omer, LA COUPOLE is a giganticunderground bunker designed by the Nazis, in1943-1944, to store, prepare and launch the V2rockets (first missiles to reach the stratosphere), thesecret weapon that Hitler was counting on todestroy London and reverse the course of the war.<www.lacoupole.com/en/default.asp>. Luncheonat a local restaurant. Guided Tour « Les deux Caps :Cap Gris-Nez et Cap Blanc-Nez »<www.mincoin.com/php1/wiss.php>

For registration forms and conditions, as well asdirections to Boulogne, see the bilingual site<www.univ-littoral.fr/confinter2.htm>.

Conference contact details

Anne WagnerDépartement DroitUniversité du Littoral Côte d’Opale21, rue Saint-Louis, B.P. 77462327 Boulogne-sur-Mer-CédexFrance

Tel: +33 (0) 3 21 99 41 22Fax: +33 (0) 3 21 99 41 57

Email:

Inquiries, registration andaccommodation forms:

[email protected]

Website:

<www.univ-littoral.fr/confinter2.htm>


November 3–6, 2005Loews L’Enfant PlazaWashington, DC, USA

Susan Milne, Chair of Plain Language AssociationINternational (PLAIN) sends this update about thefifth biennial plain language conference inWashington, DC, on from November 3-6, 2005.

The conference theme is “Adding up the Benefits.”Presentations and workshops will focus on bothtangible (cash savings, time saved ... ) and intang-ible (happy customers, informed clients ... ) benefitsof plain language. Focusing on benefits should beenormously useful, especially if you have a toughtime selling the benefits of plain language to clients.And we all do, on occasion!

Bryan Garner is a confirmed conference speaker.Bryan is senior editor of Black’s Law Dictionary, andhas authored several widely used books on legalwriting, including A Dictionary of Modern LegalUsage and The Elements of Legal Style.

Session topics include financial disclosure, healthliteracy, updates on national and internationalprograms, plus many others.

We’re offering a basic plain language workshop(“Just the facts, ma’am!”) on Thursday afternoonbefore the conference begins. For those who want todo a little sight-seeing instead, there’s a trip to theNational Archives. There’ll be exhibit space whereyou can review publications and, best of all, networkwith colleagues from the USA, Canada, the UK andaround the world.

The location of the conference hotel couldn’t bebetter. The Loews L’Enfant Plaza is in the centre ofWashington, right on the Mall and in walkingdistance to the Capitol, the White House and theSmithsonian museum. Special hotel conferencerates are $153 US per night.

For information about rates and early bird regis-tration, please go to <www.plainlanguagenetwork.org/conferences/2005/> or contactSarah Cooper, Program Chair, at<[email protected]> or phone 202 833 4456x103 (within US & Canada) or +1 202 833 4456 x103(international).

Looking forward to seeing you in November.

Susan Milne, ChairPlain Language Association INternational

Next guest editors—Clarity No 54

Plain LanguageAssociation INternational

Fifth Biennial Conference

Our next guest editorsfor Clarity No. 54,Nicole Fernbach andEdward Caldwell, willpresent highlightsfrom the conferenceto be held in Boulogne,France, in July 2005(see page 65). Nicole isboth a lawyer trainedin France and a linguist.She has practised legaltranslation in Canadafor the past 30 years.Edward is an Englishlawyer who has beendrafting legislation for the UK Government for 36years. They will aim to show the vitality and widereach of the plain language movement.

Legal writers all strug-gle with the issue ofclarity, whether theyare legislative drafters,judges or magistrates,professors or scholars,linguists or civil ser-vants, legal translatorsor revisers, andwhether they workin English, French oranother language.Clarity No 54 (dueNovember 2005) willshow how writingclearly has evolved

into a profes-sional and multidisciplinary en-deavour. It will examine the universal appeal ofplain language from different angles, reflectingissues that arise in common law and civil lawcontexts, and from cultural differences.

Edward Caldwell

Nicole Fernbach


This will be the last issue of Clarity before our Julyconference in Boulogne, France. If you have not yetregistered, there’s still time. And if you need furtherencouragement, please look over the program sum-mary in this issue, or look over the full program atthe website <www.univ-littoral.fr/confinter2.htm>.The conference promises to be exceptional—threefull days of sessions; a great range of topics; leadingpractitioners, drafters, academics, and governmentofficials from around the world; a reception, a galadinner, and a guided excursion on the fourth day,Saturday; and all in a beautiful setting.

Who could have imagined, even a few years ago,that Clarity would be involved in a conference likethis or would be approaching 1,000 members orwould have representatives in 17 countries? I’msure that Clarity’s founder, John Walton, would nothave imagined it when he produced Clarity No 1, afour-page newsletter, in August 1983. And if a toastis appropriate, Boulogne would be the place to do it.

My thanks, on behalf of Clarity, to Anne Wagnerand Nicole Fernbach for their work in organizingthe conference.

My thanks, too, to allthose who deservecredit for having nowdelivered the last fiveissues of Clarity righton schedule—MichèleAsprey, our superbeditor in chief; guesteditors Robert Eagleson,Peter Butt, David Elliott,Jacquie Harrison &Nittaya Campbell, andCatherine Rawson; andour layout specialist,Trish Schuelke. Clarity is a high-quality, profes-sional, and informative journal—the internationaljournal of plain language.

Finally, let me welcome two new country represent-atives. Christoper Williams is replacing AlfredoFioritto in Italy. Christopher is an accomplishedteacher, editor, translator, and author. He is currentlyan Associate Professor of English at the Faculty ofPolitical Science at the University of Bari, Italy. AndVictor Eleazar is our new representative for thePhilippines. Victor is a practicing lawyer and afaculty member at Arellano University School ofLaw, where he teaches legal writing. I hope we seeyou in Boulogne.

Joe KimbleLansing, Michigan, USA

From the President

Australia 121Austria 1Bahamas 2Belgium 5Bermuda 2Brazil 1British Virgin Islands 1British West Indies 4Canada 60Denmark 4England 370France 1Germany 5

Members by countryGran Canaria 1Hong Kong 10India 6Ireland 3Isle of Man 1Israel 2Italy 2Jamaica 1Japan 6Jersey 3Luxembourg 1Malaysia 1Malta 2

Netherlands 5New Zealand 16Philippines 1Scotland 11Singapore 12South Africa 34Spain 1Sweden 12Switzerland 2Thailand 1Trinidad and Tobago 1USA 257Wales 9West Indies 2

Total 980


Letter to the editor

On 5 February 2005 at Lincoln’s Inn, London. Ninemembers came, including two from Sweden. Officerswere re-elected. The treasurer’s and membershipreports were given. UK finances in 2004 were helpedby a surplus from the Cambridge conference, butonly about one third of UK members appear to bepaying subscriptions. Invoices are to be issued to allmembers who have not paid.

Joe Kimble’s presidential report was read.

• Anne Wagner and Nicole Fernbach have done anenormous amount of work on the second Clarityconference, in Boulogne from 5-9 July 2005.Details are on the conference website and Claritymembers are urged to attend.

• Country reps are urged to keep membershipdetails and subscriptions up to date.

• The last four issues of the journal have been onschedule—thanks to the efforts of Michèle Asprey,as editor in chief, and guest editors.

• Finances are in fair shape, certainly enough forthe 2005 journals.

• There are new country representatives in Italy(Chris Williams), South Africa (Annelize Nienaber)and Singapore (Lei-Theng Lim) and Victor Eleazaris recommended for the Philippines, [He has sincebeen appointed—Ed]. We are looking for repre-sentatives for Spain and Mexico. The work ofcountry reps is vital to Clarity’s success andgrowth. Thanks to all.

Discussion centred on issues raised at recent AGMs.

• We should do more to promote Clarity amongstudents at college, legal practice courses, othercourse providers and bar school. Others suggestedgovernment departments, professional supportlawyers’ organisations, trainee solicitors groupsand the Institute of Legal Executives.

• What is Clarity’s mission? If it is a forum forexchanging ideas we need to do more. Start aweb-based discussion group? Hold more regularmeetings? Use the journal to promote draftingtips? Has the journal become too academic? Doesit adequately cater for new members?

• Should Clarity be actively promoting plainlanguage? If so, how—apart from the work ofindividual members?

Other business. Congratulations on the redesignedweb site! We do not qualify as a charity under UK

law. We are checking that we comply with UK DataProtection legislation. We have booked 4 February2006 for the 2006 AGM. Please come if you can.

After coffee, Paul Clark, UK rep, illustrated from UKcases in the 21st century what can happen whendrafting goes wrong. And we then had lunch at alocal restaurant.

Reported by Paul [email protected]

Suggestions for the journal:basic principles and drafting tips, anda short history of Clarity?

Paul ClarkTunbridge Wells, Kent, United Kingdom

A few UK members have given as their reason forresigning from Clarity recently the fact that theorganisation is now “too international”, “notrelevant to my practice any more”. The commentwas made at the [February 2005] AGM that thejournal has become more academic.

It occurred to us during discussion that althoughthe older members of Clarity have grown with theplain language movement, and for them the journalhas become an ideal medium for advanced study,we are trying to attract new and younger memberstoo. We therefore wonder whether space can befound in the journal for a regular section on basicprinciples and drafting tips—something thatperhaps needs to be repeated every few years?

Since the AGM a further idea has occurred to me.The 52 issues of the journal are a rich resource. Veryfew members have access to all issues. Might it bepossible to include a page in each journal: “Itemsfrom the past”? Or even to recycle the best of thematerial by devoting the whole of a future journal to“the best of Clarity since 1983”—perhaps including ashort history of the organisation by the founders,before it is forgotten? If we printed extra copies ofsuch a journal it would make an ideal recruiting tool.

Clarity 2005annual meeting

Congratulations ...to Clarity past-President Peter Butt onbeing awarded the degree of Doctor ofLaws (LL D) by the University of Sydney,for published works on land law and legaldrafting.


AustraliaCarol LawsonLegal Communications JapanSeacliff

Stephanie Pursley, PartnerFreehillsNew South Wales

Felicity RogersNational Library ManagerFreehillsNew South Wales

BelgiumMarie BourkeMember of DGTEuropean CommissionOverijse

BermudaAndrew Jones, Associate AttorneyCox Hallett WilkinsonHamilton

CanadaTannis AtkinsonOntario

BC Securities CommissionBritish Columbia

Pierre CharbonneauLegislative DrafterMinstère de la JusticeQuebec

Community Legal EducationOntario[Caroline Lindberg]Ontario

Richard DenisDeputy Clerk/CounselHouse of CommonsOntario

Francis DesCoteauxQuebec

Robin Erica FordCommissionerBC Securities CommissionBritish Columbia

Marie France LemoineTranslation CounselMinistry of Attorney GeneralOntario

Eugene MeehanLang Michener LLPOntario

Zzeem Inc[Erin Roberts]Ontario

EnglandDerrick Balsom, PartnerOnions & DaviesShropshire

Julia BucklandDarley NookDerby

James ChatfieldRawlison ButlerWest Sussex

Margaret EddisonKeoghsLancashire

Ian FrameWindsorBerkshire

Mark GlenisterMatthew Arnold & BaldwinHertfordshire

Simon JeffreysCMS Cameron McKennaLondon

Jayne SweeneyPoemsKent

GermanyChristine MertzlufftUniversity of FreiburgFreiburg

Hong KongThe Hong KongMortgage Corporation Limited[Ms Susie Cheung]Central

IrelandClodagh McCarthyPlain English ProjectNational Adult Literacy AgencyDublin

ItalyChristopher WilliamsAndria

JapanMori Hamada & Matsumoto[Ms Tomoko Nakamura]Tokyo

TMI Associates[Ms Michiko Hamada][Ms Lisa Hew]Toyko

NetherlandsDavid RM Alexander, DirectorWays with WordsEnglish Language ServicesMolenweg

New ZealandThe Lawlink Group Ltd[Ms Vicky Stark]Auckland

Write Group Limited[Ms Lynda Harris]Wellington

NigeriaGodwin Gabriel UmohLegal DrafterMinistry of JusticeAkwa Ibom

PhilippinesVictor EleazarMakati City

ScotlandIsla CrudenUHI Millennium InstituteInverness

Ian MacDonaldWright, Johnston & MackenzieGlasgow

SwedenAnki MattsonOrd-i-alloHägersten

Eva OlovssonMangold-Olovsson HBStockholm

United StatesScott MeyerSole PractitionerOhio

Regina MullenLitigation Data Services, PLCMichigan

Laurel Prokop, PresidentTechstyle Group LLCTexas

Margaret van NaerssenTeacher/LinguistPennsylvania

New members


1 IndividualsTitle Given name Family name

.........................................................................................................................

..................................................................Position ....................................

2 Organisations

.........................................................................................................................

3 Individuals and organisations

.........................................................................................................................

.........................................................................................................................

..................................................................Fax ...........................................

.........................................................................................................................

Application for membership of ClarityIndividuals complete sections 1 and 3; organisations, 2 and 3

How to join

Complete the application form andsend it with your subscription toyour country representative listedon page 2. If you are in Europeand there is no representative foryour country, send it to theEuropean representative. Other-wise, if there is no representativefor your country, send it to theUSA representative.

Please make all amounts payableto Clarity. (Exception: our Euro-pean representative prefers to bepaid electronically. Please sendher an email for details.) If you aresending your subscription to theUSA representative from outsidethe USA, please send a bankdraft payable in US dollars anddrawn on a US bank; otherwisewe have to pay a conversioncharge that is larger than yoursubscription.

Privacy policy

Your details are kept on a com-puter. By completing this form,you consent to your details beinggiven to other members orinterested non-members but onlyfor purposes connected withClarity’s aims. If you object toeither of these policies, please tellyour country representative. Wedo not give or sell your details toorganisations for their mailinglists.

Name

Firm

Qualifications

Contact Name

Name

Phone

Address

Main activities

Email

Annual subscription

Australia A$35Brazil R50Canada C$30

France ∈25Hong Kong HK$200India R1225Israel NIS125

Italy ∈25Japan ¥3000Malaysia RM95New Zealand NZ$50Philippines 1500Singapore S$40South Africa R100Sweden SEK250Thailand THB1000UK £15USA US$25Other European countries ∈25All other countries US$25

P