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  • 1. Legislating plain language By David C Elliott 23 October 1992 JUST LANGUAGE CONFERENCE Vancouver, British Columbia.
  • 2. Contents First words..........................................................................................................................1 PART 1 FINANCIAL CONSUMERS ACT (ALBERTA).......................................................................1 What does the Act say about plain language? How can claims be defended? Ongoing "reasonable efforts" Enforcement Enforcement policy Regulation making powers PART 2 FUNDAMENTAL POLICY OF THE LEGISLATION............................................................4 Drafting policy Format of the Act What do readers think about what they read? How was the plain language section developed? Alberta's decision Experience in the United States...................................................................................................8 Consumer protection in the financial industry An overview of plain language laws in the United States Form of documents Overseas initiatives PART 3 THE OVERALL RESULTS OF PLAIN LANGUAGE LAWS IN THE UNITED STATES...........................................................................................11 The consequences Other commentators PART 4 BUT STILL, SHOULD WE LEGISLATE PLAIN LANGUAGE . . .?..................................12 Principles of Canadian law Three reasons why the legislature should intervene in private contracts 1 Efficiency 2 Fairness 3 To change legal writing
  • 3. The cost of compliance If plain language is such a good idea surely it will be adopted voluntarily PART 5 HOW CAN I DESIGN A PLAIN LANGUAGE DOCUMENT? ............................................16 ii
  • 4. LEGISLATING PLAIN LANGUAGE On 5 July 1990 the Alberta Legislature passed the Financial Consumers Act. The Act says that certain documents must be written in readily understandable language and form. This article explains the background to the plain language sections of the Act, describes United States experience with similar laws, and suggests some ways of complying with the plain language sections. First words "Word smog" is how Robert Dick describes legal writing. 150 years before, law reformer and philosopher Jeremy Bentham described legal writing as longwinded, redundant, obscure and over complex. And in Utopia, Sir Thomas More (Lord Chancellor 1529-32) wrote: All laws are promulgated to this end, that every man may know his duty; and therefore, the plainest and most obvious sense of the words is that which must be put upon them. For the first time in Canada, and seemingly in the Commonwealth, a Legislature has intervened to require that some legal documents be written in readily understandable language and form. PART 1 FINANCIAL CONSUMERS ACT (ALBERTA)(1) What does the Act say about plain language? The basic purpose of the Financial Consumers Act is to make sure individuals (called 'consumers' in the Act) have sufficient information to make informed decisions about certain named financial products.(2) The purpose statement of the Act (which is to be used to help interpret it and guide those who make decisions under the Act(3)) says one of the purposes of the Act is to encourage the use of readily understandable language in the financial marketplace.
  • 5. It is within the context of informing consumers about their rights and duties that section 13 of the Act says in part: Duty to use plain language 13(1) The following documents must be in readily understandable language and form: (a) application forms for consumers who wish to invest in named financial products; (b) agreements setting out the terms and conditions of named financial products; (c) any information provided to a consumer under section 10(2) or 11(1);(4) (d) any other documents described in regulations. (2) Subsection (1) does not apply to words or forms of documents that are required by law. How can claims be defended? The Act gives those whose documents are challenged a defence. It is a complete defence to prosecution or other claim if the defendant proves that reasonable efforts were made to comply with the plain language and form requirements of the Act. Section 13(3) of the Act puts it this way: (3) Proof that reasonable efforts have been made to comply and maintain compliance with subsection (1) is a complete defence (a) in a prosecution under subsection (1), or (b) in a dispute about whether the subsection has been complied with. The defendant has a choice - either • to defend the claim by arguing that the document challenged is in readily understandable language and form, or • showing that reasonable efforts were made to put the document in readily understandable language and form. 2
  • 6. (Of course in most cases the defence would be that a reasonable effort has been made to make the document plain and that the document is plain.) The key point of the second defence is that the defendant only has to show 'reasonable efforts'. The success of those efforts is largely irrelevant. The 'reasonable efforts' defence is part of the fundamental policy of the legislation – namely, to ask people to try to improve legal documents by making them more understandable. It is not intended to create a form of pencil police. Ongoing "reasonable efforts" A limitation on the plain language defence is that a defendant must maintain 'reasonable efforts' to comply with the plain language requirements. So, the reasonable efforts defence is available only if there is an ongoing effort to keep the documents readily understandable. Research into how people understand written texts has progressed enormously in the last 15 years. For example, 10 years ago some documents were designed using capital letters in the belief that this helped readability. Research shows that strings of sentences in capitals are in fact much more difficult to read than lower case letters. The requirement for 'ongoing efforts' should catch and implement research knowledge like this. It acknowledges that the search for clear communication is an ongoing one. Enforcement A wide range of options to enforce the plain language requirements are available. They range from prosecution for failure to comply (which could result in a fine of up to $10,000) to a civil action for damages if a consumer can prove loss as a result of the failure to comply with the Act. In between, and more likely, is action by the Director appointed under the Act to(5) • accept undertakings to stop, change or publicize new or revised business practices, or • issue orders to stop particular practices or change the practice. Failure to comply with an undertaking given to the Director, or a Director's order, can itself be the subject of prosecution. A Director's order can be appealed to the Court of Queen's Bench.(6) 3
  • 7. Another innovation borrowed from unfair trade practices legislation allows consumer organizations to ask the Court of Queen's Bench for a declaration that the plain language section has been contravened. Under the section the Court is limited to making the declaration (or refusing it) no other penalty follows. Enforcement policy With a 'reasonable efforts' defence available it is clear that the policy of the legislation is to act as a catalyst for change. It provides an incentive to try to write plain language documents. On the other hand, if the legislative policy is not followed there are enough teeth in the Act for effective enforcement. Regulation making powers The Lieutenant Governor in Council can make regulations affecting the plain language section. Although readability standards, sentence length, line length, typestyle, headings and the like are not likely to be prescribed, regulations could be passed defining what 'readily understandable language and form' means. But the strong preference, supported by leading writers in the United States, is to allow flexibility and experimentation in writing legal documents – in fact to encourage it. Regulations can also be made enlarging the number of documents that must be in plain language, by adding to the definition of "named financial product" or by making regulations under section 11 bringing registered retirement savings plans, registered education savings plans, registered retirement income funds and other plans under the Act. PART 2 FUNDAMENTAL POLICY OF THE LEGISLATION Drafting policy The Financial Consumers Act grew from the recommendations of the Report of the Ministerial Advisory Committee on Fair Dealing in Consumer Savings and Investments. (7) The Committee heard repeated calls from the public not only for 4
  • 8. disclosure of information but information in an understandable form. The Committee responded by recommending that financial documents be drafted using simple, readily understandable language in the context of its usual and everyday meaning(8) While deciding on the substance of the legislation – what it was to apply to and to whom it was to apply – two constant objectives were kept in mind • the legislation should be drafted in plain language, and • the documents to which the Act applies, describing the legal rights and obligations of consumers, must be written in plain language. Consequently the Act as a whole was drafted with this basic policy: To express the law as clearly as possible without affecting necessary precision, using language that is clear, direct and straightforward; language that allows readers to concentrate on the message conveyed not on the difficulty of the language used. Using the principles of plain language drafting, a writer uses all available tools to aid understanding including design and lay-out of the text. Described by some as 'folksy' and 'conversational' the words used in the Act were deliberately chosen to set a friendly tone, one more likely to be read and understood. Format of the Act The format of the Act was different from the traditional Alberta legislative style. With the cooperation of the Legislative Counsel Office, headings to sections replaced marginal notes and modified margin lines were developed, allowing subsection numbers and clause letters to stand out from the text. The usual format of Alberta legislation looks like this: Undertakings 33(1) In this section, "undertaking" means a binding written commitment to the Director by a supplier, agent or financial planner. (2) When the Director is of the opinion that a supplier, agent or financial planner is not complying with this Act, the supplier, agent or financial planner, as the case may be, can enter into an undertaking with the Director. 5
  • 9. (3) An undertaking can include any of the following agreements: (a) to stop engaging in the practice described in the undertaking or to change the practice; (b) to provide compensation to consumers who have incurred a loss; The Financial Consumers Act uses this format: Undertakings 33(1) In this section, "undertaking" means a binding written commitment to the Director by a supplier, agent or financial planner. (2) When the Director is of the opinion that a supplier, agent or financial planner is not complying with this Act, the supplier, agent or financial planner, as the case may be, can enter into an undertaking with the Director. (3) An undertaking can include any of the following agreements: (a) to stop engaging in the practice described in the undertaking or to change the practice; (b) to provide compensation to consumers who have incurred a loss; Notice how the section and subsection numbers, and clause letters, stand out from the text with a heavier type face. The intention was to use every effort to invite reading and improve readability. Some of these experiments have been adopted as the norm for all Alberta legislation. There is a growing recognition that the layout and format of documents is a vital element in drafting. Felsenfeld and Siegal say Design should take its place alongside consideration and third party beneficiaries as a principle of contract law. Attention to typeface, letter spacing, clear layout, and colour are important in making a contract intelligible and therefore legally enforceable.(9) This prophetic statement is coming true. In a recent case in Manitoba(10) the Court found a virtually illegible and incomprehensible exclusion clause (lawyers would call it 'boilerplate') to be ineffective. 6
  • 10. Canadian statutes have typically been much better designed and laid out than standard legal documents. Recent research on how documents can be designed to improve readability (saving time and cost) are now being adopted by Canadian legislative counsel offices. In due course we can expect more innovations, for example, the use of questions as headings to sections. Headings in the form of questions have been shown to help readers dramatically.(11) Questions bring legal text alive by inserting the questions readers are likely to have in mind when they read the text.(12) Framing a question helps the writer as well. It directs the writer's mind to the real issue - who must do what to comply with the law. What do readers think about what they read? Testing documents to see how well they actually function is a badly neglected activity in Canada. Until recently the legal profession has never shown much interest in what their clients think about what they are asked to sign. If a lawyer is satisfied a document does its job – what more needs to be done? Lots. If the law is to be relevant, respected, and followed it must be understood by those who are asked to comply with it. Every effort should be made to achieve that end. Testing documents to find out whether they really perform the functions they are intended to perform is a first step to identifying problems – and solutions to those problems. Was the new format of the Financial Consumers Act successful? Only an objective test could say.(13) How was the plain language section developed? Development of the plain language sections in Alberta's Financial Consumers Act resulted from a search for legislation to balance appropriate precision and clarity. Dissatisfaction with legal writing has been expressed for centuries. But in the past 30 years that dissatisfaction has turned into something of a populist movement. The plain language movement had its first legislative success in New York State with the enactment of a plain language law requiring certain consumer contracts for personal, household and family purposes to be written in a clear and coherent manner. 7
  • 11. The basis for the New York law was the desire of consumers to see plain language in business, Government and the law. It was explained by the Victoria Law Reform Commission of Australia in its report: Plain English and the Law, p3, this way: The central platform of the plain language movement is the right of the audience - the right to understand any document that confers a benefit or imposes an obligation. Alberta's decision Following research into the effect of plain language laws in the United States, Alberta Consumer and Corporate Affairs proposed a section designed to act as a stimulus to improve legal writing. Experience in the United States Consumer protection in the financial industry Consumer protection in the financial industry in the United States goes back at least to the 1933 Securities Act which required that investors be more fully informed. Through the 1960s and into the 1970s the emphasis was on disclosure in order to give consumers an informed basis for making decisions. During the 1970s the focus changed. Clear communication began to be seen as more important than disclosure. And so, in the United States, the movement towards plain language developed.(14) The concept of requiring the use of plain language by legislation did not emerge until Citibank's success in the mid 1970's with its consumer banking forms. Citibank proved what could be done. The aim of the New York law was simplification of consumer documents with the goal of increasing consumer understanding. The New York plain language law had influential supporters(15) and vigorous opponents. Although the first of its kind, the legal requirement for easily understood documents was not new. In 1974 the Employee Retirement Income Security Act required plans to be written in a manner calculated to be understood by the average plan participant Similarly the Magnasun-Moss Warranty Act (1975) required written warranties to disclose their terms and conditions "in simple and readily understandable language". Another example is The Federal Truth in Lending Act, passed in 1977, aimed at plain disclosure of information to help consumers(16) make informed decisions about financial investments. 8
  • 12. But the scope and approach of the New York plain language law was new and innovative. Over 30 States introduced legislation requiring some form of plain language in consumer documents. Despite the surge of interest in legislating plain language, by the end of 1983 only 7 States had adopted plain language laws. By mid 1987, 9 States had passed plain language laws; others are pending.(17) An overview of plain language laws in the United States Conceptually, plain language laws are quite simple. Typically the law (a) says consumer contracts (contracts for personal, household or family purposes) must be written in a clear and coherent manner and appropriately captioned and divided; (b) gives an exemption for language that must be included in the consumer contract because other legislation requires it (in other words, language required by other legislation need not be plain); (c) gives a defence to a claim if a good faith effort is made to write the document in plain language; (d) imposes penalties limited to actual loss sustained by a customer, and to fines. The legislation usually applies only to contracts worth less than a specified amount. States adopting plain language laws either choose the approach pioneered by New York (language must be clear and coherent . . .) or is prescriptive, requiring documents to meet certain tests. Sometimes the legislation gives a choice to those affected by it. Form of documents Most plain language laws in the United States recognise the need to put written language into an easily understood form. It is pointless to require plain language when the language is printed in type so small or so coloured (grey on grey for example) that it is barely legible. New York State requires that a contract "be appropriately divided and captioned by its various sections". Connecticut has detailed rules for type size, line length, margin width, spacing between paragraphs, average and individual sentences and average number of 9
  • 13. syllables per word. Connecticut has been criticised for over regulation and stifling innovative design. Some might argue that it is heresy to legislate good design of documents, that design is purely 'cosmetics'. But the Parliament of the United Kingdom was concerned with exactly that issue - the design of its Acts - when, in 1850, it made a law permitting its legislation to be split up into sections. Imagine, a law to allow section numbering! The law authorized what some printers had done for centuries - breaking up the legislative text into more manageable and so more understandable segments of information. The design of Acts has been a subject of ongoing interest to the Law Reform Commission of Victoria, Australia - its report, Access to the Law(18) makes innovative and thought provoking suggestions. The New Zealand Law Commission also commissioned a study on improving the design of legislation, but the recommendations have not been published.(19) Overseas initiatives Despite the apparent success of United States plain language laws comparatively few States have adopted the New York model. Overseas there have been virtually no legislative initiatives, despite public pressure. In 1984, the U.K. National Consumer Council argued strongly for a plain language law based on the United States model.(20) The Consumer Council continues to press for a plain language law. Ten years before, in the U.K. Consumer Credit Act 1974, certain information in files of credit reference agencies was required to be given to consumers in "plain language". One other Act in the United Kingdom, the Housing Act 1980, requires certain information about tenancies to be in such form as it considers best suited to explain (the effects) in simple terms. . . Elsewhere in the Commonwealth legislation requiring plain language has been minimal, although there are some legislative provisions calling for comprehensible disclosure of information in securities and insurance legislation. On the other hand Government initiatives in the United Kingdom, Australia, and more recently in Canada in the use of plain language in Government communication have been impressive. Thousands of forms have been eliminated or improved with cost savings running into millions of dollars.(21) 10
  • 14. *** The United States is entering its second decade of plain language legislation. What is its experience? PART 3 THE OVERALL RESULTS OF PLAIN LANGUAGE LAWS IN THE UNITED STATES The consequences None of the dire consequences or disasters predicted for U.S. plain language laws occurred. There was no mass confusion, nor an endless stream of litigation,(22) nor drastic penalties, nor uncertainty nor inability to enforce contracts written in plain language. Compliance rates, at least initially, appeared to be good. Rosemary Moukad, writing in 1981 commented that the primary goal of the New York law had been achieved although Most firms that have revised their forms have done so chiefly to comply with the law. In the process the goal of simplification was subordinated to that of technical compliance and self-protection.(23) Other commentators also record that even when revised, leases are still couched in legalese and are incomprehensible to most tenants.(24) Other commentators In 1983 Professor Millus commented . . . great progress has been made by large businesses and especially those in the business of producing legal forms in revising and simplifying their documents. This is surely a good beginning and, if it has done nothing else, the law has focused attention on the need for reform and has given the necessary impetus to jar the legal and business community off dead centre and force them to use their ingenuity and common sense to accomplish the goals the law has envisioned; this has to be a plus. . . Thus as far as can be judged at this relatively early period of the law's existence, the law, in New York at least, has been both effective and very much worthwhile.(25) The New Jersey plain language law has been said to work well.(26) There has been one case there against a gipsy moth exterminator who was using a poor standard form contract. 11
  • 15. The late Professor Reed Dickerson, a leading writer on legal drafting in the United States, says that without a collective jolt the legal profession as a whole is unlikely to institute effective action to improve the clarity or readability of legal instruments.(27) In an article in the New York Times, (Friday, September 15, 1989) Sharon Stein suggested that the growing move by law firms in the United States to hire linguistics and English experts was, at least in part, attributable to plain language laws. And Professor David Mellinkoff says: It would be better that legal writers mend their ways on their own; they can. But without the goad of some legislation, they won't. They need some encouragement, and not only on 'consumer' agreements. The 'plain language' movement may speed the disposal of much of the trash in the language of the law.(28) Carl Felsenfeld, one of the authors of Citibank's Plain Forms, said this: ... lawyers writing consumer contracts in New York today do so with simplicity and communicativeness as prime goals. Many companies employ language consultants and, as we shall see, even the design of contracts has become significant. This is a major step in the right direction and perhaps that is enough to ask of a statute of this type.(29) PART 4 BUT STILL, SHOULD WE LEGISLATE PLAIN LANGUAGE . . .? Principles of Canadian law Everyone is under a legal duty to comply with legislation. Ignorance or mistaken understanding of legislation is not accepted in law as an excuse for failing to comply with it. Consumer agreements are enforced on the theory that both parties have read, understood and agreed to every clause in the agreement. Neither of these principles reflects reality. They are convenient legal theories. Most consumer contracts are based on mass produced barely negotiable standard forms of contract. From insurance policies to bus rides to car rental agreements. Even if consumers do read the contracts they sign, most would not understand them because they are so poorly written and designed. The reality of incomprehensible legal documents that has grown from history and indifference need not remain unchallenged. If society applies principles assuming that its 12
  • 16. members know about and understand the public and private law that governs it, is it not incumbent on society • to do what can be done to make statute law as understandable as possible, and • to help the public understand legal documents? Once the public understands the documents they sign they will influence their contents. The past failure of the law to communicate to those affected by it is no reason to give up on the future. Three reasons why the legislature should intervene in private contracts 1 Efficiency Plain language brings efficiency to business. Studies around the world in a variety of jurisdictions have shown the efficiency and economy that comes from using plain language. 2 Fairness Justice demands that every reasonable effort be made to make the law as understandable as it reasonably can, whether it is law made by the legislature or law created by two or more contracting parties. In this context plain language laws can be seen as a form of legal aid – aid provided before legal advice need be sought (assuming it can be afforded). Failure to create understandable law results in costs burdening the justice system, the costs of which must be borne by society as a whole. Society, acting through its Legislature, is entitled to intervene to minimise the social cost. 3 To change legal writing Plain language laws force the profession which has exclusive rights over the practice of the law to improve itself. There are notable exceptions, but for the most part the legal profession does not think of the need for clarity in law. The legal profession claims to seek precision; but in its claimed quest it creates uncertainty and obscures what can be clear.(30) For centuries the legal profession has shown itself to be patently unable or unwilling to change its writing style and habits. It rarely makes an effort to do so. Time has run out. 13
  • 17. The patience of many consumers is exhausted. If those who are paid to write consumer contracts are unwilling to change then they must be persuaded. Nothing is more persuasive to the legal profession than the law. Will it take a law to start the change? Perhaps. But as the Canadian Bar Association/Canadian Bankers' Association Joint Committee points out, there is definitely a plain language movement underway in Canada and lawyers are part of it.(31) The cost of compliance If a form or an agreement must be rewritten it will take time. If it must be rewritten with the help of experts it will take time and costs money. Is the benefit gained by society as a whole worth the cost imposed on businesses, part of which will inevitably be passed on to consumers? In part the answer is purely subjective - depending on how plain language is viewed. In part the answer is based on experience gained from the United States, the United Kingdom, and Australia. The cost of rewriting agreements and forms is offset by • saving staff time in understanding forms; saving staff training time in understanding forms; and saving time in not having to explain and answer questions about forms from clients • reassigning staff to more productive activity. Staff are no longer needed to return so many improperly completed forms nor to check resubmitted forms • the use of plain language spreads to other written communication. Resources are used more effectively, efficiently and economically • the marketing benefits. Sales increase because most consumers really do want to understand what their rights and responsibilities are • other benefits, more difficult to prove but consistently claimed, that plain language documents reduce litigation because consumers know or can find out their rights and obligations "up front" and act accordingly. Forcing documents to be written in plain language is not immediately attractive. It smacks of cost, red tape, authoritarianism, and interferes with freedom to contract. Even so, it was some of the most enthusiastic advocates of the voluntary use of plain language – those who had taken plain language initiatives without legislation – who, having seen the benefits, became supporters of legislating plain language. Among the difficulties cited about plain language laws is one arguing that if documents are used in more than one jurisdiction the cost of complying with each plain language law 14
  • 18. naturally increases business costs. There is no doubt that whenever Canadian jurisdictions pass laws affecting businesses operating in more than one jurisdiction business costs go up. Certainly if each Province and territory legislated its own form of plain language law the difficulties of compliance and the costs of compliance would increase. The answer to this objection is for greater jurisdictional cooperation, perhaps through the adoption of a Uniform Plain Language Law by the Uniform Law Conference of Canada. It is not an argument for stopping good legislative initiatives. Other objections will be answered by experience. None of the objections are reason to impede attempts to improve understanding of things legal. It is easy to get caught up in thinking of plain language as only concerned with tinkering with words and attractive design. Of course it is the substance of the writing that is of ultimate importance; the rights and obligations imposed on those who sign a form – but the substance is only meaningful if it is comprehensible. A good rewriting program will inevitably ask important questions about the substance of the contract – that can be another real advantage to a voluntary rewriting approach. A legislated approach may force rewriting without improving the underlying substance of the contract. If plain language is such a good idea surely it will be adopted voluntarily A few major companies in the United States did very good work before plain language was legislated. Citibank and Sentry Life Insurance were leaders. Citibank was influential in the origin of the New York legislation. In large part as a result of Citibank's simplification of forms program the New York legislature realised that contracts written in plain language were not only desirable but also attainable.(32) In 1975 the Bank of America started a comprehensive review of its consumer related forms and to simplify them wherever it could.(33) In Canada, the Joint Committee's Report "The Decline and Fall of Gobbledygook: Report on Plain Language Documentation" urges Law Societies, law schools, law firms and individual lawyers to take up the cause of plain language drafting. The Report notes the "particularly impressive development training" undertaken by the Law Society of Upper Canada. But even that is an "optional one week course" and the response from law schools and Law Societies about their plain language activities seems to have been poor. (34) There has been little public reaction from the legal profession and banking industry to the Joint Committee's Report but the Report has stimulated some interesting projects. 15
  • 19. One difficulty in the voluntary widespread use of plain language in legal writing is that lawyers barely recognise the problem in their own writing, and even if they do recognize it, do not have the tools or training to resolve the problem. It is here that consumers and clients can have a significant impact on the attitude of the legal profession and business generally. The more clients there are who demand plain language documents the more likely they are to get them. In that respect the Joint Committee Report is helpful because it debunks some of the traditional myths about legal writing. A leading Australian law firm, Mallesons, has an ongoing commitment to plain language documentation. It is a clear leader in the area. In the United States it was significant that perhaps the most commercially active State, New York, was the first to legislate plain language. Important financial institutions supported the initiative. President Carter's Executive Order in 1978(35) that all Federal regulations be drafted in language "as clear and simple as possible" also added an important Government impetus to thought, talk, and action about, plain language. Governments in the United Kingdom and Australia, although not legislating plain language, have instituted major ongoing 'plain language programs' in their respective public services. Reports show savings in the millions of dollars tending to encourage business to like minded activity. While legislating for others, Governments could show leadership themselves if they simultaneously instituted broad based Government sponsored plain language programs, and encouraged others to do so.(36) PART 5 HOW CAN I DESIGN A PLAIN LANGUAGE DOCUMENT? Tomorrow a Very Important Client (VIC) in the financial industry walks into your office expecting to see the Senior Partner (SP). SP called in sick earlier and asks you to "look after" VIC . . . "But why wasn't I told about this?" VIC speaks almost before the introductions are complete, at the same time slapping a copy of Alberta's Financial Consumers Act on your desk, and pointing at section 13. You glance at the front cover ... Financial Consumers Act ... read something about that somewhere ...(37) "What is it about the Act that concerns you" you ask, stalling for time – and a chance to look at section 13.(38) 16
  • 20. "Its this plain language section" says VIC "what with this and the Report of the Joint Committee on Plain Language(39) Head Office is in a real tizzy. What is SP doing about this? We don't want to be branded as the only financial institution not on the cutting edge of consumer service." "Of course not" you mutter soothingly. By now you know what section 13 says ... but what does it mean? You quickly find that the plain language section was proclaimed in force on 1 May 1992. "The plain language section only recently came into force but I'm sure SP has everything in hand. Unfortunately SP was taken ill so suddenly that I have not had a chance to talk to him about this, or review the file. Let me do that and get back to you later this week. I'm sure there is no problem because all our standard forms are tested and tried, we have never had a problem with them, and ... " "But are they in plain language" VIC interrupts "Head Office has sent me a reading list!!" VIC explodes "Mellinkoff, Eagleson, Wydick, Dick,(40) Garner ... as if I didn't have enough to read ..." You mutter soothing lawyer like words as VIC is guided to the door. As the door closes you break into a cold sweat. What on earth was all that about? And what were those names again? You reach for the Act ... and who on earth can I call to find out ... (3 days later in VIC's office) "... so the first thing is that the Act only applies to a narrow range of financial documents, although regulations could enlarge the range". You have just started to lay out the problem and solution, but VIC is in a testy mood and interrupts. "I know that - I can read the definition section as well as you. What I want to know is if our documents can be challenged for not being in plain language." "Well of course" you reply a bit smugly "anything can be challenged but" you hurry on seeing storm clouds gathering "I have a process which I am confident will not only protect you from successful legal action but will make you a leader in the field." VIC looks doubtful, but you keep the initiative by explaining ... "... the first thing is to establish a process to review the documents you either must or want to establish as plain language documents". You warm to your explanation. "This can be quite a simple process or as elaborate as you want, but here are the essential components. 17
  • 21. Point 1: Establish a project team. As a minimum this should include a senior executive from your organization to provide policy direction, someone else to provide writing advice, and another to provide legal advice. VIC interrupts, "You are a lawyer why can't you write the stuff as well as give legal advice?" You reply candidly "I've been convinced by the authors you mentioned, lawyers do know the law but many of us don't write well. We are not trained to write," you add apologetically "at least not to the standard these plain language laws seem to require." You hesitate and add "Perhaps next year ..."(41) You continue with point 2. Next, identify customers who use the document - do they constitute an identifiable group, do they have identifiable characteristics? VIC interrupts again - "That is not a problem. We have customer profiles and I think that they can be broken down into the major users of each document – but why do you need to know that?" "Knowledge of the major users of each document – the audience – will help design the form" you explain. "You see, if we know who uses the document we can design it for their use - putting the information they are most interested in first, and organizing the form around their interests and questions. It can also help decide on things like type style – for example, if a major group of customers are seniors you may wish to use a larger type size." You continue "The other thing a knowledge of the audience of the document will do is let you ask members of that group what things they find good and bad about the present form. Have you ever asked customers about what they think about what they sign?" "No" says VIC "They just sign." "Of course we always ask if they have questions" VIC adds hurriedly, but adds "I suppose if they don't understand the document in the first place it is difficult to ask questions ..." You pause while VIC ponders. "We could turn this into a useful public relations exercise as well – asking our customers what they think about the documents we ask them to sign." VIC continues, "We will design a short questionnaire that new and old customers can be asked over a period of some weeks." "What next?" VIC's mood has changed. 18
  • 22. You continue with point 3 Next is the rewriting. Using the information you have from customers, we will take a close look at the language used in the standard documents and see how it can be improved without affecting its legal certainty. Other rewriting projects show that substantial policy issues inevitably arise at this stage. The rewriting often causes a re-evaluation of the substance of the document. We will also get advice from a writing consultant. What we need to do is look at the existing forms then see what we can do about things like • removing the legalese like "hereinafter", "hereunder", "said" and the like; • changing compound phrases into more direct words. For example changing "In the event that" to "If"; "by means of" to "by"; "in relation to" to "about" or "concerning"; • writing in the present tense - instead of using a false imperative like "shall" we will try the usual ordinary language to convey the meaning; • trying to keep the sentences fairly short and grouped together with convenient headings; • organizing the document logically with the reader's interests in mind. "I tested a couple of these ideas on some office precedents" you say "Look at the difference a few words make ..." You lay out 2 precedents, one a section of a will, the other from a collective agreement. The trusty precedent The rewrite Executors and Trustees Executors and Trustees (a) I appoint my spouse, JANE DOE, (hereinafter referred to as "my Spouse") to be the sole Executrix and Trustee of (a) I appoint Jane Doe as the Executrix this my Will, but if my Spouse does not and Trustee of my Will. survive me, or is unable or unwilling to act or to continue to act, then I appoint (b) If Jane dies before I do, or is unable my son, ROBERT DOE, to be the or unwilling to act when I die or at any Executor and Trustee of this my Will, later time, I appoint Robert Doe to be but if my said son does not survive me, the Executor and Trustee of my Will. or is unable or unwilling to act or to 19
  • 23. continue to act as Executor and Trustee, (c) If Robert or ceased to be a resident of Canada within the meaning of the Income Tax (i) dies before me, Act (Canada), then I appoint my daughter, JENNIFER DOE, as (ii) is unable or unwilling Executrix and Trustee in his place and to act when I die or at stead. any later time, or (iii) ceases to be a resident of Canada within the meaning of the Income Tax Act (Canada), then I appoint Jennifer Doe to be my Executrix and Trustee. "And look at this version of an article in a Collective Agreement" you say laying the next rewrite on the table: The original The rewrite GRIEVANCE PROCEDURE Grievance procedure In the event that a grievance arises If a grievance arises between between the employer and the Union on the one hand or the employer and one or (a) the employer and the Union, or more employees on the other hand, regarding the interpretation, application (b) the employer and one or more or alleged violation of this Agreement, employees, such grievance shall be settled by way of one of the following procedures of about the interpretation, application or settlement, as applicable: alleged violation of this Agreement, the grievance must be settled by using one of the following procedures: "That's the kind of change we would be looking at in your documents" you explain. You continue with your explanation of the rewriting process in point 4 Then we will get a forms designer to help with the lay out - then testing, making necessary revisions, and a regular check, say every year or so to see if anything can be improved. 20
  • 24. "Testing?" VIC asks. "Yes." You explain "Go back to your customers and see what they have to say about the new documents. While you do that we will have an independent legal audit to look at the old and new documents to see whether anything of substance has been inadvertently lost as a result of the rewrite." "I see" says VIC "And you say all this will guarantee I am not sued and that we will be an industry leader?" "Well," you reply confidently "as far as the Alberta Financial Consumers Act is concerned you will have defences that I have confidence in. You can show the document is in plain language, you can show that you used your best efforts to make it plain (which is a defence in itself) so I have no qualms – but I have got a couple of other ideas about that as well. Here is what I suggest ..." and the conversation continues. The interview is over. As you leave VIC glances at you and says "That suggestion about the Will - you know, writing it so my family and I can understand it - would you try that on my will when you have a few moments?" "I'll be glad to" you say, leaving the office smiling. *** The authors of Citibank's simplified forms, Carl Felsenfeld and Alan Siegal write Plainer legal language is better legal language. The use of plain language is not merely a service to the consumer and the public. In today's legal environment, contracts that are understandable to those who sign them are, in the technical sense, better contracts. The ability to write in this new legal idiom should be seen as part of the lawyer's craft, and an enhancement of the lawyer's service.(42) 21
  • 25. End Notes 1. Introduced by Alberta Consumer and Corporate Affairs Minister Dennis Anderson. Chapter F-9.5 Statutes of Alberta, 1990. 2. The list of "named financial products" in the Act reads as follows: (i) life insurance as defined in the Insurance Act except life insurance contracts that do not provide for a cash surrender value; (ii) an account on which interest is payable on cash balances by a treasury branch, credit union, trust company, bank or securities dealer or by any other person listed in regulations; (iii) a mutual fund unit which is a security that entitles the holder to receive, on demand or within a specified period after demand, an amount computed by reference to the value of a proportionate interest in the whole or in a part of the net assets, including a separate fund or trust account, of the issuer of the securities; (iv) an investment on which a specified rate of interest is paid or guaranteed, commonly known as an "investment certificate", "guaranteed investment certificate" or "term deposit", but does not include government bonds, corporate debt instruments, treasury bills or shares; (v) an investment described in regulations. 3. Section 1(2). 4. Section 10 requires certain information to be provided to consumers before they invest in named financial contracts and section 11(1) authorized the Lieutenant Governor in Council to make regulations about information to be given to consumers on various plans (including RRSPs, RESP and RRIF's). 5. Section 33-34. 6. Section 35 7. A Blueprint for Fairness, January, 1989, chaired by J. Patrick Cashion C.A. 8. p55, A Blueprint for Fairness. 9. Carl Felsenfeld and Alan Siegal: Writing Contracts in Plain English (1981) West Publishing Co. 10. Aurora TV and Radio v. Gelco Express Ltd. Unreported judgment of Judge Oliphant in the Manitoba Court of Queen's Bench, 10 May 1990, (referred to in the Canadian Bar Association and Canadian Bankers' Association Joint Committee Report: The Decline and Fall of Gobbledygook: Report on Plain Language Documentation (1990). 11. After all most people come to legislation with a question, how helpful if they find the same question and answer, in the Act. 22
  • 26. 12. Document Design Centre: Guidelines for document designers (November 1981) American Institutes for Research, Washington, D.C. 13. There are a wide range of tests that could be performed on legislation and other legal documents. For example, what are the preferred colours for type and paper, the best line length for different kinds of documents, the best way of designing documents and forms for different purposes. A research project would be no academic exercise without benefit. If one format for legislation is shown to improve readability or save time over another think of the massive cumulative saving of time that would result if the improved format were used throughout the statute book. 14. Albert J. Millus: Plain Language Laws: Are they Working? Uniform Commercial Code Law Journal vol 16:147 1983 p147. 15. Special Committee of Consumer Affairs of the New York Bar Association, March 1978 Committee Report. 16. Examples are given in Plain Language Legislation: A report by the Committee on Regulation and Consumer Credit, Section of Corporation, Banking and Business Law, American Bar Association, The Business Lawyer; Vol 35, November 1979 p297. 17. The following States have plain language laws: New York, Connecticut, Maine, New Jersey, Hawaii, Minnesota, West Virginia, Montana, Oregon. South Carolina has a resolution about plain language. In addition there are approximately 35 States with plain language insurance law requirements, but for the most part those rely on a mechanical formula that do not look at the substantive sense of the document. 18. Access to the Law: The structure and format of legislation, May 1990. 19. The New Zealand Law Commission commented on the importance of design in its Report Limitation Defences in Civil Proceedings NZLC R6 p146. 20. National Consumer Council: Plain words for consumers. The language and layout of consumer contracts: the case for a plain language law. (April, 1984). 21. Robert D. Eagleson: Writing in Plain English (1990), Australian Government Publishing Service, Canberra, Australia. 22. 6 years after Citibank started its simplification of forms program the Vice President, Carl Felsenfeld reported that Citibank had not been involved in any litigation over its new contracts. Moukad p 453 see fn 19. 23
  • 27. 23. Rosemay Moukard: New York's Plain English Law, 8 Fordham Urban LJ. (1980) p462. Later in the same article Rosemary Moukad says The flaws of the plain English Law are overshadowed by its triumphs. Its primary goal has already been achieved by virtue of overwhelming compliance. The most important function of the law is its recognition of a principle: plain language is desirable and achievable in consumer contracts. 24. Gertrude Block: Plain Language Laws: Promise and Performance, Michigan Bar Journal, November 1983, p951. 25. Albert J. Millus: Plain Language Laws: Are they working: Uniform Commercial Code Law Journal Vol 16:147 1983 p151-2. And for an interesting comment from an initially skeptical law book published see the footnote on p152. 26. Mark F. Hughes, Jr: History of the New Jersey Plain Language Statute, Seton Hall Legislative Journal Vol 8: 171. P 193. 27. Reed Dickerson: Plain English Statutes and Readability, Michigan Bar Journal, June 1985, p567. 28. D. Mellinkoff Legal Writing: Sense and Nonsense (1987) West Publishing Co. 29. Canadian Business Law Journal (1981-82) Vol 6, 408 at 418. The volume contains other comments, both for and against, plain language laws. 30. As with every sweeping statement, there are notable individual and group exceptions. It was a lawyer who helped promote the first plain language law in New York and lawyers in England have formed a movement to simplify legal English called Clarity. Lawyers are active participants in the Plain Language Centre in Ontario. They also actively participate in the Plain Language Institute and the Plain Language Project (both in British Columbia). The Alberta Law Reform Institute is also in the process of rewriting commonly used legal documents as a demonstration project. The Joint Committee Report of the Canadian Bar Association and Canadian Bankers' Association is another encouraging sign. 31. In Western Canada over 400 lawyers have taken specially designed legal writing programs from Wordsmith Associates, Calgary. The company is particularly active in Alberta and British Columbia. 32. Moukad p453 see fn 19. 33. Alexander Liosnoff: Don't Wait for a "plain English" Law, ABA Banking Journal. 24
  • 28. 34. 13 law schools returned completed questionnaires, only 4 Bar Admission Course directors returned questionnaires. As the Report says: Our survey indicates that plain language drafting is not receiving much attention from legal educators. p20. 35. Executive Order 12044. 36. Alberta's Consumer and Corporate Affairs have sponsored a rewrite of the real estate purchase contract – using plain language. Other projects are ongoing and a full time plain language coordinator is employed by the Department. 37. Ellen Roseman's article in the Globe and Mail on 26 June 1991 entitled Alberta wants to tell it straight. 38. Section 13 of the Financial Consumers Act (Alberta) reads: Duty to use plain language 13 (1) The following documents must be readily understandable language and form: (a) application forms for consumers who wish to invest in named financial products; (b) agreements setting out the terms and conditions of named financial products; (c) any information provided to a consumer under section 10(2) or 11(1); (d) any other documents described in regulations. (2) Subsection (1) does not apply to words or forms of documents that are required by law. (3) Proof that reasonable efforts have been made to comply and maintain compliance with subsection (1) is a complete defence (a) in a prosecution under subsection (1), or (b) in a dispute about whether subsection (1) has been complied with. 39. Report of the Joint Committee on Plain Language Documentation, Canadian Banker's Association/Canadian Bar Association released in London, England on 26 September 1990. 40. David Mellinkoff. Legal Writing: Sense and Nonsense, West Publishing Co. 1982. Richard Wydick. Plain English for Lawyers. Carolina Academic Press (2d) 1985. Robert C. Dick. Legal Drafting. Carswell and Co. (2d) 1985. Bryan A. Garner, The Elements of Legal Style, Oxford University Press, 1991. Also try: Flesch, Rudolf, How to Write Plain English: A Book for Lawyers and Consumers. Harper and Row 1979. Perrin, T. Better Writing for Lawyers, Law Society of Upper Canada 1990. 41. Carl Felsenfeld says, after describing some changes that eliminates bad writing 25
  • 29. "The resulting product immediately starts to look like English and is more available to the lay reader. It is not easy, however, for the lawyer to do because it means shaking the effects of a linguistic tradition professionally reinforced over centuries. Most lawyers do not in fact know they are writing legalese even when they do. Canadian Business Law Journal (1981-82) Vol 6, 408 at 412-413. 42. Preface p.v.11 C. Felsenfeld and A. Siegal: Writing Contracts in Plain English. This is an excellent book about all aspects of rewriting and redesigning agreements in plain language. 26