Language and the Law by Paul Danon, UK


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Exploring the US 2010 Plain Language Act and other countries are exploring options. Paul Danon, UK compares guides and discusses what's out there, the need for collaboration and ethical implications.

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  • America’s 2010 plain writing act purports to define its subject as “writing that is clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience.” In using the combination of “clear” and “concise”, the law actually breaks itself. Google defines concise as “Giving a lot of information clearly and in a few words; brief but comprehensive.” This makes the law’s use of “clear” tautological and an offence against the very brevity which the act mandates.Worse than that, the act fails to define the very thing which it sets out to regulate, surely itself an offence against clarity. It basically says that plain writing is plain and (vaguely and verbosely) refers to appropriate best practices in undefined “fields”. The act is thus a good example of just the type of unhelpful, waffly language which it forbids.The American writing-industry has come up with some guidelines which one hopes might shed light on the act’s verbal obscurity, but first let’s look at the tradition of trying to discern and describe plain language.
  • Two years after that edition of the Chicago Manual of Style was issued, a seminal work on this subject was published by Professor Deborah Cameron, currently of Worcester College, Oxford. She found a gulf between linguistics and the practice of editing, and asserted that the idea of style wasn’t a natural phenomenon. Rather, it was something that the editors had created.A number of the points on this foil confirm the fact that there’s by no means a consensus, even among editors, on how you write plainly. As Cameron points out, if there is something out there that amounts to good usage, you’d expect the guides and practitioners to agree on what it was. And they don’t. For example, the rules in George Orwell’s 1946 Politics and the English language forbids some things which other experts allow. My own study of several guides (conducted in the last decade) found wide disparities between the guides, and you can prove this for yourself by comparing any two guides’ rules on the same subject. The same applies (in my personal experience) to editors and writers.Neither I nor Prof Cameron is saying that there’s no such thing as plain language; just that it’s poorly defined, if at all.
  • But what does research prove? Here’s one study that was carried out in California in the middle of the last decade, using a sample of 60 jurors.
  • Here are some of the conclusions. The reference to “treated” is to do with the application of something called the Transcend Readability Index. This appears to be a proprietary system for clarifying writing and, while the results are encouraging, the article gives little away about what that index’s rules are. I also found this when I unsuccessfully approached several style-software vendors to ask them what their products did. Their commercial coyness is understandable but it doesn’t help us know what clarity is. Furthermore, none of the vendors would tell me how they distilled their principles – whether from anecdote or empirical research.I’ll return to the matter of research at the end of this presentation.
  • The Federal Plain Language Guidelines could be taken to be the flesh on the bones of the 2012 plain writing act.The document’s May 2011 edition (still current on 21 August 2012) makes these points about what it calls audiences and, as you can see, they rather tumble over each other. We have the need to identify the audience and to write for it, but we also have the separate need to get the audience’s attention. You’ll note that the first rule is to write for one’s audience.
  • The next two points from the federal guidelines each tell you how to “start”. You’ll recall that the document says that the “first rule” is writing for one’s audience. However, the guidelines here tell you that you should first identify the audience’s current knowledge. Note that it doesn’t tell you to “start” by identifying that audience. The guidelines also say that you should “start” by stating the document’s purpose. We thus have one “first rule” and two, different ways of starting. One of those ways is to do with planning, the other with execution.We’re then told to put the key information at the beginning. This may seem fair enough but the guidelines also recommend your ordering material in terms of readers’ likely questions – and they might not ask the most important questions first. We thus have two contradictory pieces of advice on structure.In fact, these rules on planning and structure are themselves poorly planned and structured. Muphry’s law survives.
  • Here are the guidelines advising on singular nouns and verbs. What the before-and-after examples demonstrate isn’t mainly to do with number but with changing from an abstract statement to text which addresses the reader. The person doing the rewrite has somehow got “30 days” out of “in a timely manner” and there’s lots more in the rewrite that’s not in the original. The rewrite doesn’t even principally illustrate the point that the document is making. By the way, I’ve put all these points to the guidelines’ authors and have offered to help with a rewrite.
  • Here, the guidelines advise on headings. The table defines a statement-heading as using a noun and a verb yet the article contains two nouns, two verbs and an article. You can see the mistake that the writer’s made, but should there be mistakes in such important government documents?
  • The statement on this rule is plain wrong, and this is demonstrated by the first example. In both cases, it’s clear who’s responsible – the company. The same applies with the last two examples. Passive can sometimes involve the removal of the agent but not always, and it’s unhelpful to suggest that it always does.
  • Here’s a rather worrying prescription in the May 2011 guidelines – that passives are permitted when the law is the agent. What the rule seems to mean is that you can omit mention of the agent when the agent is the law. In the case of the example, it actually matters bigtime who does this termination. A private company? The state? A court? The United Nations? This is a prime example of a sentence where the passive is being used to keep things obscure, and I don’t see why the law should itself be above the law of clarity.
  • One more example from the guidelines: here it says you should use the present tense a lot, yet two of the three verbs in the “after” example are in the past. The point may be valid, but there must be better examples. Also, the example is better at demonstrating the switch from abstract to personal than the use of tenses.What is one to do when even guidelines from the government of the world’s greatest nation are (to put it politely) puzzling? Let’s return to the groves of academe to see if research gives an answer.
  • This 1981 source is based on real research beginning in the 1960s. It suggests that passives are permissible but it doesn’t mention whether the law has to be the agent. Rather, it approves of passives in sentences whose focus is the object of the action (grammatically, the subject of the passive verb). Now, armed with such research, one could produce a stylistic rule on passives which wasn’t just based on hunch, anecdote or antique grammar.
  • Here’s a more recent study which sends a bleaker message. We may know from research what clarity is but we seem not to use that research in producing our rules.
  • Julie Baker suggests that the principles of verbal clarity are anecdotal rather than scientific. No wonder the guides, mavens, editors, writers and complainers-to-newspapers don’t agree. Some or all of them are arguing in an evidential vacuum. Even if some of the guides (or pieces of software) are based on research such as the material I showed you from 1981, we can’t necessarily tell which of them are.
  • Ms Baker bravely tries to epitomise plain language but, as you can see, the result is as anodyne and insubstantial as the plain writing act’s definition.
  • I asked the world’s foremost linguistics-forum what its members thought of a law on plain writing and got this response from a recently-retired professor. The crux of what she says is that there are many ideas of what plain language is and that such a law could be a dangerous tool. I agree.
  • Language and the Law by Paul Danon, UK

    1. 1. Language-lawPaul Danon, London, England, for the 2012 virtual plain language day
    2. 2. “The term [sic]‘plain writing’means writing[sic] that is clear,concise, well-organized, andfollows other bestpracticesappropriate to thesubject or fieldand intendedaudience.”
    3. 3. Chicago Manual of Style (1993)• “The editor will know by instinct and (sic) learn from experience how much [substantive] editing to do on a particular manuscript.”• Experienced editors do not “tamper” with unusual figures of speech or idioms. Editors know when to: – change text – suggest a change – delete repetitions – point them out to authors• and they will know “many other matters” (sic).• “Since every manuscript is unique in the amount and kind of substantive editing desirable, no rules can be devised for the editor to follow.”
    4. 4. Cameron, Deborah (1995) Verbal hygiene. London: Routledge• Editors said inconsistency irritated readers; Simon Jenkins of The Times could not substantiate this• Language-historians seldom acknowledge editors’ existence• Uniformity and transparency are “products of the craft tradition [of copy-editing] itself.”• “… too many competing authorities touting different ‘standards’ might raise the suspicion that the whole enterprise was arbitrary …”• “… the conditions of the marketplace may encourage a proliferation of standards …”• Hattersley, Roy (1993) Guardian “Anyone who searches through a whole shelf of dictionaries will find virtually every possible variation on what is supposed to be standard English. … You buy your textbook and take your pick.”• “if there is a set of ‘facts of usage’, they should be the same facts regardless of who records them.”
    5. 5. Is Plain Language Better?Comparative Readability Study ofPlain Language Court Forms, MariaMindlin, Transcend, Davis,California, undated
    6. 6. Is Plain Language Better? Comparative Readability Study of Plain Language Court Forms• ”a marked and statistically significant improvement in reader comprehension when court forms [were] treated for plain language.”• 99% confidence in results• When asked what a document was for, fewer than a quarter of respondents could discern the original version’s role while more than two thirds understood the revised one’s purpose.
    7. 7. Problems of quality and authority• Guides cover same concepts but not always• Conflict (what does the reader do?)• Microsoft Word: “liase”• Aitchison, James (2001) Cassell’s guide to written English. London: Cassell and Co
    8. 8. Federal Plain Language Guidelines March 2011 - Rev. 1, May 2011• The first rule of plain language is: write for your audience.• Make sure you know who your audience is – don’t guess or assume.• a. Identify and write for your audience. You have to grab your audience’s attention if you want to get your ideas across.
    9. 9. Federal Plain Language Guidelines March 2011 - Rev. 1, May 2011• Start out by thinking about what your audience knows about the situation now.• Organization is key. Start by stating the document’s purpose and its bottom line.• Put the most important information at the beginning.• Think through the questions your audience is likely to ask and then organize your material in the order they’d [sic] ask them.
    10. 10. Federal Plain Language Guidelines March 2011 - Rev. 1, May 2011“Singular nouns and verbs prevent confusion about whether a requirement applies toindividual users or to groups. In the following example, the user might think that eachapplicant must file applications at several offices.”
    11. 11. Federal Plain Language Guidelines March 2011 - Rev. 1, May 2011
    12. 12. Federal Plain Language Guidelines March 2011 - Rev. 1, May 2011 “Passive voice obscures who is responsible for what”
    13. 13. Federal Plain Language Guidelines March 2011 - Rev. 1, May 2011 Use passive voice when the law is the actor In a very few instances, passive voice may be appropriate. For example, when one action follows another as a matter of law, and there is no actor (besides the law itself) for the second action, a passive sentence may be the best method of expression. You might also use passive when it doesn’t matter who is doing an action. For example: If you do not pay the royalty on your mineral production, your lease will be terminated…
    14. 14. Federal Plain Language Guidelines March 2011 - Rev. 1, May 2011
    15. 15. Nov 1981
    16. 16. And the Winner Is: How Principles ofCognitive Science Resolve the PlainLanguage Debate, Julie A. Baker,associate professor of legal writing,Suffolk University Law School,Massachusetts, 2011
    17. 17. And the Winner Is: How Principles of Cognitive Science Resolve the Plain Language Debate• “While [plain language in legal writing] has gone by many names and inspired much debate, its evolution has been entirely theoretical and anecdotal; scholarly research has not offered any direct, scientific support for its use.”• “[P]roponents of plain language have based their reasoning almost exclusively on anecdotal and behavioral research.”
    18. 18. And the Winner Is: How Principles of Cognitive Science Resolve the Plain Language Debate• “Writers employing plain language plan, design, and organize their documents in an overall effort [sic] to achieve clear communication with the reader,”• “Font, color, spacing, vocabulary, grammar, and myriad other characteristics [sic] of writing greatly shape how readers comprehend material.”• fluency aids comprehension• “more fluent words”• Plain language has “straightforward sentences and simple words”
    19. 19. Dr Anthea Fraser Gupta, emeritus of Leeds, Linguist-list, 10 Jan 2012 It is right for governments (and others) to make every effort to communicate clearly with the public, but to make this a legal requirement seems to me to be a problem. Notions of plain language vary … There would be scope for mischievous prosecutions.
    20. 20. Summary• The fact that there are disputes over what plain writing is need not mean that it doesn’t exist.• The way of establishing the truth in virtually all other disciplines is through empirical research.• Such research exists but it seems not to have been widely used in making rules.• Until we do the definitive research on plain language, we’re wrong to define it and it’s imprudent to make it the law.