Your SlideShare is downloading. ×
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Private legal documents.doc
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×
Saving this for later? Get the SlideShare app to save on your phone or tablet. Read anywhere, anytime – even offline.
Text the download link to your phone
Standard text messaging rates apply

Private legal documents.doc

1,317

Published on

0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total Views
1,317
On Slideshare
0
From Embeds
0
Number of Embeds
0
Actions
Shares
0
Downloads
12
Comments
0
Likes
0
Embeds 0
No embeds

Report content
Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
No notes for slide

Transcript

  • 1. THE SIXTH ERIC AU MEMORIAL LECTURE The University of Hong Kong 28 February 2002 THE ASSUMPTIONS BEHIND PLAIN LEGAL LANGUAGE Peter Butt University of Sydney, Australia It is a great honour to be invited to give the Eric Au Memorial Lecture this evening. Many of you will have known Eric Au. He was one of that small band of lawyers whose work affects us directly in our daily lives, but who remain largely unheralded, out of the public gaze. I refer of course to parliamentary drafters – those who write the laws that govern us. Parliamentary drafters are a remarkable group of people. To use a modern buzz- word, they must be multi-skilled. They must be skilled in the law, for their work has to fit into the framework of the existing law. They must be skilled in writing, for their writing has to be precise and unambiguous. They must be clear thinkers, for you cannot write clearly unless you can think clearly. And they must be skilled in diplomacy, for the legislation they write must above all be workable, and this may
  • 2. 2 require persuading ministers and their departments that the laws they want may not work in practice. The late Eric Au had all of these qualities, and more. He was an honours graduate in law. He took up legislative drafting as a career in 1984, and in 1986 began working on the Hong Kong Government’s bilingual legislative drafting program. As you know, this involved drafting new legislation in both Chinese and English, and translating all existing laws into Chinese – a huge task. The program imposed a heavy and novel workload on the Law Drafting team. Eric became the program’s spearhead. Under his leadership, the program prospered. He rose to become the Deputy Law Draftsman of the Legal Department. But then, in 1992, tragically, he died at the very young age of 40. He will long be remembered as a leading builder of your justly-admired bilingual legislation system. I have called this evening’s Eric Au lecture “The assumptions behind plain legal language”. In the spirit of enquiry that was one of Eric Au’s hallmarks, I want to examine the assumptions that plain language drafters make when they draft laws in “plain” language. In many countries, the plain language movement in law is now reasonably well- established. In its modern phase, it has been going for over 20 years. In countries such as Australia, New Zealand and Canada, legal practitioners and parliamentary drafters now feel no compunction whatever in boasting about the “plainness” of their documents and legislation. In other countries, such as England, Ireland and the United States of America, my impression is that many lawyers still have strong Eric Au Memorial Lecture - 2002
  • 3. 3 reservations about using plain language. And, of course, we should think carefully before altering the way that lawyers have written for centuries. We should be wary about embracing change for its own sake – all the more so in law, where certainty and precision are such crucial requirements in statutes and legal documents. But whether we are enthusiastic or cautious about plain legal language – or even downright sceptical about it – it does us no harm to consider the assumptions that lie behind its use. What is plain legal language? I should begin by asking: what do we mean by “plain language” in law, or (as it is usually called) “plain legal language”? “Plain language” is a term used by many, and I suspect its meaning varies considerably from user to user. By “plain language” I mean language that is clear and idiomatic – for those who write in the English language, it is modern, standard English. I want to make the case this evening that we should draft legal documents, both public and private, in modern, standard English; that this can be done without loss of legal precision; and that it is in the interests of both lay persons and lawyers that we should do so. For some, the term “plain legal language” carries connotations of “dumbing down” the language of the law – a kind of Dick-and-Jane style of writing that panders to the lowest common denominator. But this is a misunderstanding of the true nature of “plain legal language”, at least as practised by skillful proponents. In skilled hands, Eric Au Memorial Lecture - 2002
  • 4. 4 plain legal language uses the techniques of the very best writers, to produce legal prose that communicates directly and effectively with its intended audience. Traditional legal language To put “plain legal language” into context, we should contrast it with some examples of “traditional” legal drafting. I will take the examples from the area of property law, because that is the area I know best; but you can find similar examples in any area of law. We will see that the examples illustrate two main features – verbosity and undue technicality. Most also ooze archaic language, illogical word order, complex grammatical structures, and sentences of excruciating length. I will take examples from both private legal documents and statutes. Private legal documents Leases are a prime example of all that is bad in traditional legal drafting. Suppose you want to impose on a tenant the obligation to repair the leased premises. You could write: “The tenant shall repair the premises” (or, preferably, “The tenant must repair the premises”). There is no doubt that, legally, this would suffice. “The premises” would be defined elsewhere in the lease. There would be no need list the various parts of the premises, because the term “the premises” would include all parts of the premises. And there would be no need to expand on the term “repair”, as it is an ordinary English word, whose meaning when used in leases has been elucidated by many judicial decisions. Yet compare that wording – “The tenant must repair the premises” – with the verbal excesses that appeared in the “repairing” covenant which Eric Au Memorial Lecture - 2002
  • 5. 5 gave rise to litigation in the English case of Ravenseft Properties Ltd v Davstone (Holdings) Ltd:1 “[The tenant shall] when where and so often as occasion requires well and sufficiently ... repair renew rebuild uphold support sustain maintain pave purge scour cleanse glaze empty amend and keep the premises and every part thereof ... and all floors walls columns roofs canopies lifts and escalators ... shafts stairways fences pavements forecourts drains sewers ducts flues conduits wires cables gutters soil and other pipes tanks cisterns pumps and other water and sanitary apparatus thereon with all needful and necessary amendments whatsoever ...”. This is rampant verbosity, a verbosity which makes the clause far more difficult to read than its subject matter requires. Probably, the verbosity was prompted by a desire to be legally precise. If so, it failed, because the clause still ended up in court in a dispute over meaning. This demonstrates one of the great misconceptions of traditional legal drafting — that somehow a complex, traditional style is more precise than modern, plain language. As you will know, this traditional style is not unique to English law and practice. It is found in all countries where English is the language of the law. One Australian lease which recently crossed my desk featured a tenant’s repairing covenant – one single sentence – containing 424 words. If you looked hard you would find 2 commas, but no other punctuation. (Lack of punctuation is a hallmark of traditional legal drafting.) Lord Hoffmann once called this style of legal drafting 1 . [1979] 1 All ER 929. Eric Au Memorial Lecture - 2002
  • 6. 6 “torrential”.2 In leases it is nothing short of endemic. Commercial leases, in particular, commonly run to 50 or 60 pages, making them impossible for lay readers to comprehend and forcing lawyers to trawl through reams of turgid prose to advise clients about the obligations the documents contain. Of course, the problem is not confined to leases. Mortgages are just as bad — perhaps worse. One of Australia’s leading banks uses a standard mortgage which contains a single-sentence clause of 763 words; it contains 2 commas, 1 semi-colon, 3 sets of brackets, but no other punctuation.3 As if not to be outdone by this Australian leviathan, a New Zealand bank’s standard guarantee form features an entirely punctuation-less sentence of 1299 words; and the same document has an average clause-length of 330 words. As the great English conveyancer, Davidson, once wrote: the legal profession prefers “to seek safety in verbosity rather than in discrimination of language”.4 To some, these drafting feats may evoke admiration: after all, it takes skill to write a grammatically-perfect sentence of 1299 words. But for most readers the drafting serves only to bewilder. Sometimes it bewilders even the drafters themselves. In a 1992 Australian case, a bank tried to enforce a guarantee which a customer had signed. One of the customer’s defences was that certain clauses in the guarantee were meaningless. Now, the guarantee form proved so tortuous that the bank manager, when challenged in the witness box, had to admit that he could not understand some of the clauses; and it got worse – for, when challenged by the judge, 2 . Norwich Union Life Insurance Society v British Railways Board [1987] 2 EGLR 137 at 138. 3 . See Memorandum filed in New South Wales Registrar-General’s Office No V581852, clause 1(g). 4 . Davidson’s Conveyancing Precedents, 3rd ed 1860, Vol 1, p 67. Eric Au Memorial Lecture - 2002
  • 7. 7 nor could counsel for the bank.5 In this context, I like to recall Professor Rodell’s aphorism: “There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground.”6 Statutes Many statutes exhibit the same regrettable verbosity. They also often retain the archaic language of earlier statutes. This produces a heady mix that tests both concentration and knowledge. The result is incomprehensible to all except hardened lawyers. I won’t bore you with quotations; you will all have come across plentiful examples. To me they call to mind Lord Justice Harman’s experience on reading the English Housing Act 1957: “To reach a conclusion on this matter involved the court in wading through a monstrous legislative morass, staggering from stone to stone and ignoring the marsh gas exhaling from the forest of schedules lining the way on each side. I regarded it at one time, I must confess, as a Slough of Despond through which the court would never drag its feet, but I have by leaping from tussock to tussock as best I might, eventually, pale and exhausted, reached the other side.”7 If you will allow me to mention one last example: the worst perpetrators of statutory obscurity are the four so-called “covenants for title”, used in conveyances 5 . Houlahan v Australian and New Zealand Banking Group Ltd (1992) 110 FLR 259. 6 . Rodell, “Goodbye to Law Reviews” (1936) 23 Virginia Law Rev 38. 7 . Davy v Leeds Corporation [1964] 3 All ER 390 at 394. Eric Au Memorial Lecture - 2002
  • 8. 8 and similar deeds to warrant title to land. They are so tortuous that no-one seems to have noticed that one of their sentences lacks a main verb. The English Court of Appeal described them as a “jungle of verbiage”.8 Perhaps their verbal eccentricity is not surprising: they were drafted by Sir Orlando Bridgman in England in the 1660s and are still used, virtually unaltered, to this day9 – illustrating how precedents preserve not only yesterday’s legal concepts but also yesterday’s legal language. The assumptions we make I hope I have said enough to persuade you that traditional legal language is not all that its exponents make it out to be. But as I said at the beginning, we should think carefully before altering the way that lawyers have written for centuries. This brings me, then, to consider the assumptions we make when drafting legal documents in plain language. I think we make at least four assumptions. Let me consider them one by one. Assumption 1: that it is possible effectively to express legal concepts in plain language This is the first assumption we make, and it is a central one: that it is possible to express legal concepts in plain language, without loss of certainty and precision, even in areas of law that are complex. 8 Slade LJ in Meek v Clarke (unreported, 7 July 1982). 9 Harpum, (1995) Clarity 33, p 24. Eric Au Memorial Lecture - 2002
  • 9. 9 The validity of this assumption is, I think, borne out by evidence from several different – and difficult – areas of law. One is corporations law. In Australia, much of our corporations law is now drafted in plain language – with (so far, at least) no litigation over meaning. This gives the lie, I think, to those who would say “complex law requires complex drafting”. Another example is taxation law. In a study back in 1991, the Victorian Law Reform Commission tested the comprehensibility of part of the then-current Australian income tax legislation. The result? To understand the legislation required 12 years of schooling plus 15 years of university - 27 years’ education in all.10 But this is now changing. Australia now has tax statutes drafted in language that is brutally plain; New Zealand is following suit; and the UK government has established a tax rewrite program to introduce plain language taxation laws. The validity of this assumption – that it is possible effectively to express legal concepts in plain language – is also borne out by experience with private legal documents. There is no evidence that plain language legal documents are more prone to litigation than conventionally-drafted ones. Indeed, the reverse seems to be the case. To illustrate: for more than 20 years, Australia’s largest car insurance company has been using insurance policies that are exceedingly plain. Some time ago the company’s managing director went into print to say that their policies had been entirely free of litigation.11 Now, a cynic might put this down more to good luck than good management – for eventually some plain language documents will end up in 10 See Australian Financial Review, 27 September 1991, p 19. 11 Neville King, “An Experience with Plain English” (1985) 61 Current Affairs Bulletin (January), p 21. To similar effect, in its submissions to the Australian Parliamentary Inquiry into Commonwealth Legislative and Legal Drafting (18 September, 1992), the same company (the NRMA) stated: “The NRMA has not experienced any adverse court decisions by reason of the ‘Plain English’ and subsequent ‘user friendly’ documents.” Eric Au Memorial Lecture - 2002
  • 10. 10 court; drafters are only human. But at least the evidence to date gives the lie to any argument that plain language documents are inherently prone to litigation. Here let me digress a little. Some aspects of legal “simplification” are quite easy to achieve. We merely apply to legal writing the same rules long-applied to other forms of writing. Let me mention some of the techniques: • Write for the audience. Effective writing concentrates on the needs of the audience. Who is the “audience”? The answer will vary with the circumstances. To use an example from the courts: when a judge decides a case, the primary “audience” is the parties to the case. But, of course, the audience includes others as well: the lawyers in the case; appellate judges to whom the case may go; and later readers, who may come to the decision for a number of reasons. Often, there will be more than one audience for any particular writing. It then becomes a case of discerning the dominant audience and writing for them. But this does not justify writing in a way that other audiences find incomprehensible. Almost always, we can accommodate the abilities of different audiences by applying the principles of clear writing. • Organise the material logically. By “logically”, I mean logically from the audience’s perspective. This requires putting the material into a framework that the audience finds easy, even if it seems strange to the writer. As a practical matter, this requires beginning with material that is important to the reader (even though less important to writer) and then moving to material that is less important to the reader (even though more important to the writer). Too often, legal writers organise material in a way that is logical for them, but not necessarily for their Eric Au Memorial Lecture - 2002
  • 11. 11 readers. They allow their habits of organisation to impede the comprehension of their readers. • Pay attention to layout and design. A well-designed document can help entice readers into the document; a poorly-designed document will almost certainly deter them. Good design techniques include the careful use of “white space”, attention to font size and typeface, the number of characters per line, and whether to justify the right margin. • Wherever possible, test the document on prospective users, to see if they understand it. Proponents of effective writing have long known the value of testing, although cost constraints often make it difficult to implement in the legal world. Testing is particularly important for standard-form documents that lawyers produce for large commercial clients — bank mortgages, insurance contracts, and the like. • Watch sentence length. Keep sentences short. Over-long sentences tax the short- term memory. All linguists agree on this, though they vary on the “ideal” length – something in the range of 20 to 25 words per sentence is generally regarded as acceptable. • Pefer the active voice to the passive. All writing texts say this. The active is more direct and effective; it helps drive home the message. The passive is less effective; it may even obscure the message. Yet the passive is endemic in legal writing. Its overuse probably reflects a misconception that the passive voice produces a better “tone”. This is not to deny that “tone” is important; but so is effective communication. • Prefer verbs to noun phrases. The practice of turning verbs into noun phrases — “nominalisation” — is endemic in bureaucratic and legal writing. For example, Eric Au Memorial Lecture - 2002
  • 12. 12 we rarely "decide" something; instead, we "make a decision". We don't "resolve", we "pass a resolution". We don't "sever" an interest in property, but "effect a severance". Circumlocution of this kind (and indeed of any kind) impedes effective communication. Verbs, especially strong verbs, communicate much more directly than noun phrases. • Avoid synonym strings. A common failing of much legal writing is the use of synonym-strings — lists of words with similar meanings. We can all recite examples: “give devise and bequeath”, “right title and interest”, “null and void” (or even, “absolutely null and void and of no further force or effect whatsoever”), and so on. There are interesting historical explanations for this practice, but nowadays the practice is almost always unnecessary. • Avoid archaic words. Perhaps in an effort to achieve a certain “formality” of tone, legal writers often invoke archaic words. By “archaic”, I mean words that once were common, but have long since fallen into general disuse. Lawyers may think that words of this kind add legal feel; but in fact they add no legal substance. Examples are: hereinbefore, hereafter, whereas, aforementioned, abovementioned, and so on. Almost always they can be struck out without loss of precision. Hereby is a favourite of lawyers; but it also can almost always be struck out. Is there any difference between “I hereby convey” and “I convey”? • Prefer “must” to “shall”. Almost nothing better reflects the difficulties lawyers have in moving to plain language than the "shall" vs "must" debate. For many, dispensing with “shall” as a word of obligation is an insurmountable barrier: unable to climb it, they are unable to progress into plain language generally. Can we drop "shall" from legal documents and replace it with "must"? Well, in my view (and the view of many in the plain language movement), this is really a non- Eric Au Memorial Lecture - 2002
  • 13. 13 issue. Almost always, we can replace "shall" with "must" to impose obligation. One problem with "shall" is that it has two elements: future and obligation. While lawyers delight in retaining "shall", in common speech it has almost entirely disappeared. In common speech, the future is now generally expressed by "will" and obligation by "must". It is true that some plain language drafters find "must" too peremptory, too heavy-handed. Recently, a large shopping centre owner in Australia introduced a plain language lease with a deliberately "soft" tone. They wanted to create a friendly, co-operative tone, to encourage good relations between landlord and tenant, while at the same time creating a legally-binding document. In the end they decided on “is to”, rather than “must”. Thus: “The tenant is to repair the premises”. Or “The tenant is to pay rent on the first day of each month.” • Use normal punctuation. There is a long tradition in legal drafting to eschew all forms of punctuation. In consequence, documents run on, line after line, sometimes page after page, with no punctuation aids to help the reader. There are interesting historical explanations for this practice also. And it is true that in some old cases, judges cast doubt on the relevance of punctuation in legal documents.12 But this view is now outmoded. Modern courts look to punctuation as an aid to construing a document.13 Well, enough of those techniques. There is nothing new or startling in any of them. However, for some reason we lawyers are reluctant to adopt them. Instead we adopt 12 For example in Sanford v Raikes (1816) 1 Mer. 646; 35 ER 808, the Master of the Rolls said: “It is from the words, and from the context, not from the punctuation, that the sense must be collected.” 13 For example, in Houston v Burns [1918] AC 337 at 348, Lord Shaw said: “Punctuation is a rational part of English composition, and is sometimes quite significantly employed. I see no reason for depriving legal documents of such significance as attaches to punctuation in other writings.” Eric Au Memorial Lecture - 2002
  • 14. 14 the convoluted, traditional style that lawyers have always adopted. This style is inculcated in law students.14 It is a sad fact, but true, that most law schools make no systematic attempt to teach students the principles of simple, direct writing. Indeed, the reverse is the case: students are encouraged to adopt a style that is formal and academic. This style might be thought appropriate for law review articles, but it is hardly effective to communicate information to non-lawyers — who, after all, are the consumers of most of what lawyers write. That same style is then reinforced in legal practice. It is also sometimes mirrored in judicial writing15 — a circumstance doubly unfortunate, given that judicial writing is a role model for law students. And so to recap – we would greatly improve legal writing by adopting well- known techniques of the kind I have mentioned. However, of course, legal writing poses special problems – problems not found in other forms of writing. A leading issue is, what do we do with legal “terms of art”, particularly those terms whose meanings have been judicially-defined? Here there are some differences of approach. Some plain language exponents do their very best to eliminate terms of art altogether – they find some other way of expressing the legal ideas inherent in the term. The danger with this, of course, is that legal precision can be lost unless the new words accurately capture the legal nuances of the original. This may require real skill, and a great deal of research. And so another way is to retain terms of art, but then to add an explanation of what the legal word or phrase means – a sort of “best of both worlds” approach. 14 . Miner, "Confronting the Communication Crisis in the Legal Profession" (1989) 34 NY Law School Law Rev 1. 15 . Stark, "Why Judges have Nothing to Tell Lawyers about Writing" (1990) 1 Scribes' Journal of Legal Writing 5; Kirby, "Is Law Poorly Written? A View from the Bench" [1995] New South Wales Law Society Journal (March) 56. Of course, some judges take care to write well: see Kirby, "On the Writing of Judgments" (1990) 64 ALJ 691 at 701-705. Eric Au Memorial Lecture - 2002
  • 15. 15 But whichever approach we adopt, we should not exaggerate the problem of terms of art. The problem is not nearly as great as many opponents of plain legal language seem to imagine. Research shows that, in any given area of law, the number of legal terms which have been judicially-defined, is likely to be quite small. For example, studies in the United States of America show that the proportion of judicially-defined terms in standard form contracts for the sale of land may be as low as three percent. 16 The implication is that you can play with the other 97% without losing the benefit of judicial exegesis. And of course some of the three per cent required judicial exposition because they were inherently uncertain – it would be best to avoid those terms altogether. But of course, there are yet further problems for legal drafters. We must take care not only at the micro-level of words or phrases, but at the macro-level of legal concepts. A document must be effective to create the legal entity or concept the drafter intends. This may require the use of particular words, phrases or structures. For example, consider the lease/licence distinction. To create a lease, the tenant must be given the right to exclusive possession; otherwise a mere licence results. This is not to suggest that the phrase “exclusive possession” must be used; but it might well be prudent to do so. A New South Wales judge has said that in discerning whether a document creates a lease or a licence, a general imprecision of language can point to a licence rather than to a lease; so too can the labels the parties use (for example, “agreement” rather than “lease”, and whether payments are described as “rent”) and also — significantly for plain language drafters — the absence of technical words of 16 . Barr, Hathaway, Omichinski and Pratt, “Legalese and the Myth of Case Precedent” (1985) 64 Michigan Bar Journal 1136. Eric Au Memorial Lecture - 2002
  • 16. 16 grant.17 Again, in the area of securities, failure to use the precise word “mortgage” could result in some lesser kind of security being created, with a consequent diminution in the remedies given to the lender. And yet again, when creating an easement or restrictive covenant, it is important to use language which shows that what is created is a proprietary right that runs with the land, not a mere contractual right that binds only the parties. That said, none of these matters justifies using jargon for its own sake. None justifies perpetuating linguistic eccentricities that serve only to enhance mystique, not legal effect. And yet we still introduce documents with "whereas". We "execute" them rather than sign them. We "demise" rather than lease. We "well and sufficiently repair" when "repair" will do. We declare something "null and void", when "void" will do. We insist on "shall" when the rest of the community uses "must".18 And so on. None of these hallowed words and phrases is a true term of art. All can be simplified, and some can be discarded completely. Assumption 2: that plain legal language saves money Here the evidence is unequivocal and overwhelming. Many studies show that plain language is more “efficient” and therefore saves money. 17 National Outdoor Advertising Pty Ltd v Wavon (1988) 4 BPR 973. 18 . On the use of "must" instead of "shall", see correspondence in the Australian Law Journal: (1989) 63 ALJ 75-78, 522-525, 726-728; (1990) 64 ALJ 168-169. For a more detailed survey, see Kimble, “The many misuses of Shall” (1992) 3 Scribes Journal of Legal Writing, 61-77. At least one Australian case has expressly recognised that "must" is quite sufficient to impose an obligation: South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35 at 38. Eric Au Memorial Lecture - 2002
  • 17. 17 By “efficient”, I mean that plain language documents are easier to read and comprehend. And so, for example, numerous organisations attest to saving substantial amounts of money by converting their documents into plain language. Insurance companies are a prime illustration: by rewriting documents into plain language, enquiries from customers about meaning are reduced; this allows the company to redeploy enquiry staff to other tasks. And by redrafting forms in plain language, error rates are reduced; this saves time and money for the company, and helps cut down frustration for the customer. Studies of other organisations – including government bodies – show similar results. To take a stark example: some years ago, British Post redrafted its redirection-of-mail forms. Before the re-draft, there was an 87% error rate when customers filled out the form. Royal Mail was spending over £10,000 a week to deal with complaints and to reprocess the incorrect forms. The new form reduced the error rate dramatically – so much so that Royal Mail saved £500,000 in just the next nine months.19 These efficiencies are not unique to lay readers. Lawyers, too, save time and money when documents are in plain legal language. Lawyers find plain language easier to read and digest, cutting down time and effort for them almost as much as for their clients. These efficiencies have been documented in a study by the Law Reform Commission of Victoria (Australia). In the study, lawyers read counterpart versions of the same statutes, one version written in plain legal language and the other in traditional legal language. The time taken to understand the plain language version 19 This and similar examples are given in Kimble, “Writing for Dollars, Writing to Please” (1996-1997) 6 Scribes Journal of Legal Writing 1. For other studies, see Kimble, “Plain English: A Charter for Clear Writing” (1992) 9 Thomas M Cooley Law Rev 1 at 25-26; Mills and Duckworth, The Gains from Clarity (Centre for Microeconomic Policy Analysis and Centre for Plain Legal Language, University of Sydney: 1996). Eric Au Memorial Lecture - 2002
  • 18. 18 was between one-third to one-half less than the time taken to understand the traditional version.20 Assumption 3: that judges prefer plain language This assumption is perhaps not as important as the others, but studies have borne it out just the same. Opponents of plain language have been heard to argue that plain legal language is “dangerous” because judges don’t like it. The argument goes that documents must be drafted to be litigation-proof, and for this it is important to get the judge “on side”; and as judges prefer traditional styles of drafting, it is safer to stick to traditional styles of drafting. This argument seems (to me) rather facile; but even if we accept this view of judges, the evidence is that, given a preference, judges would choose plain language. Studies in the United States show that something like 80% of judges surveyed prefer pleadings to be in plain language rather than in the traditional, convoluted American style.21 Interestingly, the same judges also thought that lawyers who drafted pleadings in plain language were better lawyers than those who stuck to traditional drafting. I don’t know of any similar studies outside of the USA, but I would imagine that similar results would follow in most jurisdictions. Certainly, in recent years some English and Australian judges have shown an increased willingness to condemn from the bench legal drafting that is convoluted and 20 . Eagleson, “Plain English - A Boon for Lawyers” [1991] The Second Draft (Legal Writing Institute) p 12. 21 Harrington and Kimble, “Survey: Plain English Wins Every Which Way” (1987) 66 Michigan Bar Journal 1024; Kimble and Prokop, “Strike Three for Legalese” (1990) 69 Michigan Bar Journal 418; Child, “Language Preferences of Judges and Lawyers: A Florida Survey” (1990) 64 Florida Bar Journal 32. For articles by judges themselves, see Mester, “Plain English for Judges” (1983) 62 Michigan Bar Journal 978; Cohn, “Effective Brief Writing: One Judge’s Observations” (1983) 62 Michigan Bar Journal 987. Eric Au Memorial Lecture - 2002
  • 19. 19 unclear. Epithets heaped upon offending clauses have included “botched”,22 “half- baked”,23 “cobbled-together”,24 “doubtful”,25 “tortuous”,26 “archaic”,27 “incomprehensible legal gobbledegook”,28 and “singularly inelegant”.29 (If I may be allowed some free advertising: you will find these and other examples in Butt and Castle, Modern Legal Drafting, Cambridge University Press, 2001, chapter 2.) To be even-handed here, I have to admit that some Australian judges have been less than enthusiastic about plain language statutes. For example, Callaway J of the Victorian Court of Appeal testily described certain re-drafted provisions of the Corporations Law (drafted in very plain English) as reflecting “the language of the pop songs”.30 Another, Meagher JA of the New South Wales Court of Appeal scathingly dismissed plain language as an excuse for split infinitives and woolly thinking. But these are isolated voices. I suspect that most judges would accept that modern Australian statutes, which are now increasingly being drafted in a plainer style, are far easier to read and apply than their traditionally drafted forebears. Assumption 4: that clients prefer plain legal language 22 . Re Gulbenkian’s Settlement [1970] AC 508 at 517 (Lord Reid). 23 Alghussein Establishment v Eton College [1988] 1 WLR 587, HL. 24 . The Alexion Hope [1988] 1 Lloyd’s Rep 311 at 320, CA (Purchas LJ). 25 . Overseas Union Insurance Ltd v AA Mutual International Insurance Co Ltd [1988] 2 Lloyd’s Rep 63 at 69 (Evans J). 26 . London Regional Transport v Wimpey Group Services Ltd (1987) 2 EGLR 41 (Hoffmann J). 27 . Trafalgar House Construction (Regions) Ltd v General Surety & Guarantee Co Ltd [1995] 3 WLR 204 at 212 (Lord Jauncey of Tullichettle). 28 . Houlahan v Australian and New Zealand Banking Group Ltd (1992) 110 FLR 259. 29 . NSW Rifle Association v Commonwealth of Australia, unreported, New South Wales Court of Appeal, 15 August 1997, Powell JA. 30 GM & AM Pearce and Co Pty Ltd v RGM Australia Pty Ltd (1998) 16 ACLC 429 at 432. Eric Au Memorial Lecture - 2002
  • 20. 20 This last assumption is also borne out by evidence – not just anecdotal evidence, but empirical evidence from large-scale research. Lay persons prefer legal documents and statutes to be in plain language. Amongst the research is a Canadian survey,31 which shows a widely-held public perception that lawyers care little about whether they communicate effectively with their clients. Lawyers, the public thinks, are pre- occupied with legal precision at the expense of clear communication – they are indifferent to whether their clients understand the documents they are asked to sign. As lawyers, we may think that we do care whether we communicate – but it seems that the public perception is otherwise. The evidence is clear. Members of the public – particularly those with no legal learning – prefer plain legal language. If they are clients, it gives them a better chance to understand the legal consequences of the documents they sign; if they are citizens, it gives them a better chance to understand the laws that bind them. (It is a sad irony of modern life that citizens are ruled from the cradle to the grave by laws they cannot understand.) Conclusion I said at the beginning that the plain language movement is now reasonably well- established. In its early days, it made the assumptions I have listed – assumptions about the benefits of plain legal language – without at that stage having verified the assumptions by empirical research. But now, about 20 years on, research has proved the assumptions to be correct. The evidence is overwhelming. Plain legal language 31 Survey carried out by the Plain Language Institute of British Columbia: see the Institute’s Preliminary Report, “Critical Opinions: The Public’s View of Legal Documents” (1992). Eric Au Memorial Lecture - 2002
  • 21. 21 brings substantial benefits to lawyers, to clients, and to citizens at large. It can be legally safe; it saves time and money; clients and citizens have a better chance of understanding it; and most judges prefer it. The evidence is all one way. I would suggest that there is no substantial reason to resist it. Thank you. Peter Butt website: www.plainlanguage.org email: peterb@law.usyd.edu.au Eric Au Memorial Lecture - 2002

×