I used this during a webinar for United Health Group on Oct. 22, 2013. The first part highlights some key reasons lawyers (and other decision makers) should use plain language. The second part discusses a few key skills that should help lawyers & non-lawyers create documents that are clear and unambiguous.

1. Professor Christopher R. Trudeau
Associate Professor
Thomas M. Cooley Law School
trudeauc@cooley.edu
@proftrudeau

3. •
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•
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Lawyers
Underwriters
Executives
Legislators

4. Two keys to plain language:
①
Will – getting people to buy in
to plain language.
②
Skill – learning the tools
needed to communicate
plainly.

5. Goals of this presentation:
①
To help convince you that clarity
and legal language are not
mutually exclusive.
①
To discuss some of the tools
needed to clearly convey
technical or legal information.

6. Two levels of convincing:
For more on this, read
Switch: How to Change
Things When Change is
Hard, by Chip & Dan Heath

7. Rational Arguments for PL
It is economical.
It helps develop a positive
brand.
The public prefers it.

8. The Cleveland Clinic (mid-90s)
o Revised a billing statement
using plain language.
Result?
o Recovered an extra
$1M/month.
o 80% increase in patient
payments.
NOW the Cleveland Clinic is a
leader in health literacy.

9. Los Angeles County
o Dept. of Consumer Affairs
redrafted docs, simplified
recorded messages, and
conducted PL training.
Result?
o Saved $50k
o Consumer calls fell by 30%
o Readability improved four
grade levels.

10. General Electric
o Revised hard-to-read
software manuals.
Result?
o Saved est. $22k to $375k per
customer per year for each
business customer using the
manual.

11. Branding influence of PL

13. The public prefers plain
legal language
Until recent, no U.S. study focused on
the public’s preferences when receiving
legal information.
In 2011, I conducted a study to fill this
gap.
Full results: The Public Speaks: An Empirical Study
of Legal Communication, 14 Scribes J. Legal
Writing 121 (2011-2012)

14. The Survey: 28 Questions in Four Categories
①
Experience with Attorneys

②
Designed to separate clients from non-clients.
Preferences for Attorney Communication

Designed to gather information in areas for which there is little or
no empirical data, such as
 The importance responders attached to understanding an
attorney,
 The percentage who have received a legal document that was
difficult to understand, and
 The responders’ reactions when reading material that was
difficult to understand.

15. Four Categories continued:
③
Choice-of-Language Questions

Designed to test whether responders preferred plain legal language
over traditional legal language.

Limited to the following areas:




④
Active voice v. passive voice (four questions)
Strong verbs v. nominalizations (two questions)
Plain words v. complex words (four questions)
Explaining a legal term v. not explaining that term (one question)
Demographic Questions

Designed to help categorize the results on age, education, etc.

16. Analyzing the Responses
 376
people responded to the survey.
 Clients
comprised 54.5% of the sample.
 Responses







in every age category:
59 (16.3%) were 18 – 29 years of age;
100 (27.6%) were 30 – 39 years of age;
64 (17.7%) were 40 – 49 years of age;
78 (21.5%) were 50 – 59 years of age;
46 (12.7%) were 60 – 69 years of age;
11 (3.0%) were 70 – 79 years of age; and
1 respondent (0.3%) was 80+ years of age.

17. Analyzing the Responses continued:
 Responses
by education level:
 32%
had less than a bachelor’s degree;
 29% had a bachelor’s degree;
 22% had a master’s or doctoral degree; and
 17% had a law degree.
 Caveat:
includes far more responders with advanced
degrees than the population as a whole.

But that is a benefit here because it allowed me to more
accurately measure the differences between the educational
levels.

18. The Results: Importance of Clear, Understandable
Communication
 Question:
How important is it for a client to understand
what an attorney is saying in a letter or document?
99.7% of responders thought
it was at least important to
understand an attorney!
88.3% said it was very
important.
11.4% said it was important.

19. But there is a disconnect:
 Question:
In your lifetime, have you ever received a
letter or document from any attorney that was
difficult to understand?
 71%
of responders indicated that they had received a
document that was difficult to understand at some point in
their lifetime.
 The
Takeaway: Nearly everyone thought it was important
to understand attorneys, yet 7 out of 10 have struggled to
do so at some point.
Clearly
attorneys should strive to do better!

20. Feelings about Latin or complicated words:
 Question:
How does it make you feel when an
attorney uses Latin words or complicated words in
written documents?

21. Reactions by frustrated clients
 Question:
Have you ever felt so frustrated when reading an
attorney’s letter or a legal document that you stopped
reading it before it ended?
 38% said they had stopped reading a document out of
frustration

22. It was all in the English
language, yet I could not
understand the mumbojumbo!! This for me feels
condescending and corrupt.
Because it made me feel
dumb. And I didn’t know
what was being said.
I used to work for some good
attorneys that treated people
as equals. So when I used my
own, I was mad that he was
using terms to make himself
sound better than me.
If you can’t understand the
document, there is little
motivation to read the entire
thing.
Lack of answer, simplicity,
and way too long.
Because of legal terminology.
I do not feel like I am a stupid
person by any stretch of the
imagination, but just imagine
how those feel of average or
below-average intelligence
due to lack of education,
social circumstances, etc.

23. The Results: Choice-of-Language Questions
Active v. Passive Questions
Question 14:
 57%
– The employer’s attorney questioned the
witnesses.
 43%
– The witnesses were questioned by the
employer’s attorney.
Question 16:
 72%
file.
 28%
– The Board of Directors decided to review the
– A decision was made by the Board of
Directors to review the file.

24. Question 22:
 68% – The court dismissed the case.
 32% – The case was dismissed by the court.
Question 24:
 79% – Michigan courts have consistently held
that homeowners must actually supply alcohol
to a minor to violate the statute.
 21% – It has been consistently held by
Michigan courts that a homeowner must
actually engage in the supplying of alcohol to a
minor to commit a violation of the statute.

25. Active v Passive: Overall
Respondents preferred the active voice
69% of the time.
Higher
than I expected because both options
were understandable on the first read
through.

26. The Results: Choice-of-Language Questions
Word-Choice Questions
Question 15:
 83% – Discovery may begin before the judge considers
the motion.
 17% – Discovery may proceed prior to the judge’s
consideration of the motion.
Question 17:
 90.5% – If this breach continues, my client will
immediately terminate this contract.
 9.5% – If there is a continuation of this breach, my client
will effect an immediate termination of this contract.

27. Word-choice questions continued
Question 18:
 97% – I have signed and enclosed the stipulation to
dismiss your case.
 3% – I am herewith returning the stipulation to dismiss
your case; the same being duly executed by me.
Question 19:
 81% – Under the statute, you must purchase insurance.
 19% – Pursuant to the statute, you must purchase
insurance.

28. Word-choice questions continued
Question 21:
 97% – The court, among other things, decided that the
defendant was negligent.
 3% – The court, inter alia, decided that the defendant was
negligent.
Question 23:
 80% – Before the injury, my client was able to work a full
week. Therefore, the injury has significantly impacted my
client’s ability to lead a normal life.
 20% – Prior to the injury, my client was able to work a
full week. Therefore, said injury has significantly
impacted my client’s ability to lead a normal life.

29. Word-choice questions: overall
Responders
chose the plain version 88%
of the time.
 Surprising
for two reasons:
①
I never asked people to choose the plain version; rather, I
simply asked them which passage they preferred to read.
①
Only a couple of traditional versions were difficult to
understand; the rest were fairly clear.

30. What about “legal terms of art”?
 Explaining
Legal Terms: Question 20
 22%
— If you don’t respond, the court will issue a default
judgment.
 78% — If you don’t respond, the court will issue a default
judgment. That means you’ll lose, and the court will give
the plaintiff what he is asking for.
 The
ONLY question where the longer version
prevailed!
 The
Takeaway: Normally, attorneys should reduce the
number of words in their documents. But if those
words are essential to explaining a term, then attorneys
should include that explanation.

31. Two levels of convincing:
For more on this, read
Switch: How to Change
Things When Change is
Hard, by Chip & Dan Heath

32. Overcoming the Myths
PL creates ambiguity.
PL means I can’t use legal terms.
PL means “dumbing it down.”
Judges & professionals don’t prefer PL.

33. Judges & professionals prefer PL
 See
Bryan Garner’s interviews with scores
of judges on www.lawprose.org.
 Warren

Buffett is a fan of clear writing.
Read any of his shareholder
letters:http://www.berkshirehathaway.com/letters/l
etters.html

34. Two keys to plain language:
①
Will – getting people to buy in
to plain language.
②
Skill – learning the tools
needed to communicate
plainly.

35. Vital skill for non-lawyers:
To understand a lawyer’s mindset
A
Reality: A lawyer’s
duty is to protect a
client’s interest. Clients
come before patients
& consumers.

36. Three keys to clear legal
writing
The writing level must match the
audience’s reading level.
Drafters must anticipate the arguments of
a “reader in bad faith.”
①
②

③
Ask yourself: “If someone were to try and get
around this document, how would they do
it?”
Eliminate ambiguity! But appreciate
vagueness because precision may not be
possible (or desirable).

37. Vagueness v. Ambiguity
Fact: Most people don’t know the difference –
including lawyers.
Vagueness is acceptable – even desirable
 It’s
flexible
 It allows for case-by-case analysis
 It avoids the problem of exhaustive lists
Ambiguity creates confusion and uncertainty.

38. Vagueness:

Creates uncertainty at the margins
Baseball
bat
AK-47
Dagger
Dangerous
Weapons
Serving Fork?

40. Vague Terms
 Reasonable
 Informed
care
consent
 Rid
segregation “with all deliberate
speed.” Brown v. Board of Education.
 Motor
 Does
vehicle v. automobile
a drivable cooler used at tailgates qualify
as a motor vehicle?

41. Embracing Vagueness
 Perfect
 Don’t
precision is nearly impossible.
fall into the trap of trying to spell everything
out.
 Who would think of a drivable cooler as a
motor vehicle? Or a fork as a dangerous
weapon?
 But
think it through. Vagueness can cause
problems.

E.g. Please do not ask permission to hunt.
 Can
people hunt without asking? Or are they prohibited
from hunting altogether?

42. First Latinism Key to Drafting: Expressio
Unius Est Exclusio Alterius
 “To
express one thing is to exclude similar
alternatives.” See Alan v Wayne County, 388 Mich
210,253 (1970) [Every state has a similar rule.]
 Creates
a negative inference that when a
document lists specific things, then the list is
exclusive.
 The
City Council may prohibit picnics, dances,
weddings, and parties during construction of
the gazebo.
 Can
it prohibit a protest?

43. Avoiding Expressio Unius
 Use
a broader term (car  vehicle)
 Use a modifier to limit or expand
 normally driven on public roads (limits)
 Applicant must substantially comply
(expands)
 Combine general terms (willing and able
buyer)
 But be careful if you combine the general
and the specific.

44. Second Latinism Key to Drafting:
Ejusdem Generis
 “Where
a general term follows a series of
specific terms, the general term is
interpreted to include only things of the
same kind, class, character or nature of
those specifically enumerated.” Neal v.
Wilkes, 470 Mich 661 (2004)

45. Ejusdem Generis: Example
You may not bring a pistol, semi-automatic
rifle, or any other weapon into the hospital.
What
 Key
about knives? Explosives?
tip: does not apply if the general term
comes first.
You may not bring any weapons into
the hospital, such as guns, knives, or
explosive devices.

46. Keys to avoiding the Latin maxims
when creating lists:
 Start
with a general, encompassing
term first.
 Then
list a few key things you want
the reader to be aware of.
 Use
(1) “such as” or (2) “includes,
but is not limited to” to lead into
these specifics.

47. Ambiguity
 Presents
more than one possible
meaning to the reader.
 Always
an error.
 Eliminating
ambiguity is the key to
clear drafting!
Example: I will be doing rounds on Saturday
and taking appointments if I have time.

48. Three Types of Ambiguity
 Semantic
Ambiguity
 Syntactic
Ambiguity
 Contextual
Ambiguity

49. Semantic Ambiguity
 Multi-meaning
words
 The
board sanctioned the conduct. [Does
sanction mean approve or disapprove?]
 Don’t

use “elegant variation.”
Ex. Cancelled v. terminated v. stopped
 Why?
Because courts will presume you
switched for a reason.

50. Syntactic Ambiguity
 Presents
 Usually
 Often
“or.”
an either-or choice.
the result of sentence structure.
created because of an “and” or an
 Example
I use with my students:
I
will grade your briefs and record the scores
carefully.
 Will
I only record their scores carefully?

51. Avoid Misplaced Modifiers
 To
avoid ambiguity, a modifier must be as close as
possible to the word it modifies.
 My
client has discussed your proposal to fill the
drainage ditch with his partners. (Did you just
propose to use your partners as fill?)
 While
sitting in the bathtub, the telephone rang?
(Was the telephone in the tub?)
 Our
neighbor was a lovely woman who wore
sweatpants named Inger. (Do you name your
sweatpants?)

52. Semantic Problems:
Ages & Dates
 Careless
phrasing can lead to serious
inadvertent ambiguity.
 Ambiguous:
 Open to anyone between the ages of 21
and 30.
 Ambiguous:
 The option expires on May 8, 2013.

53. Contextual Ambiguity
 Arises
when two different parts of a
document say contradictory things.
 Typically,
the contradictions are between
one or more sentences.
 In
longer documents, the contradictory
material is usually in different parts of the
doc.

54. Only the tip of the iceberg, but
remember these three things:
The writing level must match the
audience’s reading level.
Drafters must anticipate the arguments
of a “reader in bad faith.”
①
②

③
Ask yourself: “If someone were to try and
get around this document, how would they
do it?”
Eliminate ambiguity! But appreciate
vagueness because precision may not
be possible (or desirable).