What is Plain English in Legal Writing?
Plain English, at its most basic level, is what we refer to as language that is clearly understood by the average person with minimal legal training. Legal writing has gained a reputation for being overly complicated with jargon due to the way the legal profession (in some cases) tries to one up each other on how fancy they can make it. The thought process behind writing in this manner is not effective. It is not effective because the person receiving the document doesn’t know what you are trying to convey.
Legal writing should be clear and precise so that you and your client are on the same page, you and your co-counsel are on the same page, and whoever is reading the document is on the same page. The easiest way to ensure that everyone is on the same page is to make the page and all writings on it simple to understand . If I write a brief explaining what is essentially a pretty simple matter and then have a footnote explaining clearly what I meant, then I have not done a good job of informing my client and I have not done a good job of writing to my audience. Footnotes exist because the explanation was made overly complicated.
The benefits of using plain English go far beyond just making your life easier when writing. When you use plain English you ensure that your audience (whether it is a judge, your client or the general public) understands your point of view. However, we need to remember that it is okay to write complex documents. Some motions and briefs are truly complicated in the legal world. When this is the case, simply being clear in what you are trying to convey is more than enough.
It is important to note that when we advocate for using plain English, we do not suggest that you give up all grammatical rules. However, when speaking to the average person, it is helpful to simplify your grammar as well to ensure that the proper audience does not become confused.
The basics of legal writing in plain English
Once you have a strong foundation in legal writing, it’s important to apply those principles to the practice of plain English. The key principles of mastering legal writing in plain English include:
- Clarity: One of the main principles of legal writing, whether in plain English or not, is to be as clear and simple as possible. Back to our insurance policy example-most insurance policies have a section of definitions to explain the insurance terms being used in the policy.
- Simplicity: Avoiding complexity sounds like an easy concept, but sometimes it’s difficult to do, especially when you’re dealing with something complex in itself. If a concept is complicated, the best course of action is sometimes to break it down into smaller, simpler concepts before trying to explain the bigger problem. This may mean doing some further research, reading on the topic, and thinking the issue through before you start writing. It is better to spend more time figuring out the best way to communicate the complex nature of the issue than to attempt to tackle it head-on prematurely. You may know exactly what you mean to say, but if the reader finds something confusing, they may lose interest quickly. Conversely, tips for simplifying your writing will change from project to project and are often based on personal style; study the writing style of others in the office who are known to master clear, plain English. Observe how long the average sentence is, and what the common sentence length is in the documents that you typically read. Be sure to check your own writing for overall sentence length as well.
- Avoiding jargon: There will always be legal terminology in legal writing. However, any words or phrases that the average layperson is unfamiliar with should probably be explained in plain English in addition to the legal terminology. You may think that your audience knows what you are talking about, but often you will be surprised at the number of people who are unfamiliar with even common legal words and phrases. You know what the word "privity" means in a contract, but does every person reading your contract know? It’s always better to be sure and include a definition, just in case.
Common issues and fixes
Switching from legalese to plain English can be a tough transition for some legal writers, who might have gotten a fair amount of satisfaction in using technical terminology and concepts that only their desk drawer dictionaries truly understood. We must also be prepared for the professional pushback we may experience when opposing counsel feels more at home with the legal jargon than with the plain speak, or when judges express their preference for traditional legal writing styles.
A good approach to take is to call a truce, suggesting that we agree to meet in the middle. When drafting correspondence or pleadings, this can mean proposing that you both avoid terms of art, or specifically identify those terms. Likewise, judicial preferences can be helpful when you are required to submit briefing; it can feel like a win-win when you know that the judge prefers some formal rules of composition that you can happily follow. The most successful lawyers I know are never rigid about their legal style; they understand that writing is a social contract, and they will happily compromise rather than risk alienating a judge or losing the trust of a client.
Sometimes our clients don’t react well to our plain English suggestions. Although we must push them to respect appropriate boundaries of confidentiality, many clients blur the lines without meaning to, constantly alluding to their secret business plans or personal relationships. Relying on legalese can be a way to argue ignorance later, if you are questioned about a client’s words or behavior. Here again, we can take the opportunity to negotiate a middle ground. Legalese tends to be technical; plain English means more conversational language. Use style and tone to your advantage; sometimes it can be persuasive simply to show your client another way to think about the situation. In the case of a discovery dispute, for example, consider creativity by proposing that the client send a short e-mail to the requesting party inviting new ideas on getting the information but without asserting the privilege; ask whether e-mail is sufficient and whether the client needs to obtain a privilege log or if a conversation would suffice. If the requesting party is willing to work with your client’s limitations, you might have turned a discovery skirmish into a collaboration.
Another conversation you might have to have involves your billing. A common objection from clients is that plain English takes longer, costs more, and the results are the same anyway. After all, aren’t legal briefs supposed to be formal? If your work is becoming less efficient, you must determine whether the quality of your work is suffering or whether you are simply not focusing on what matters most. A hospice care lawyer in Texas revised the form language he was using to encourage physicians to complete and maintain Do Not Intubate orders. Never mind the ethics; the lawyer saved half an hour of dinking around each time he had to prepare the orders. If you are converting old forms to incorporate plain English phrases, you will save keystrokes and hours in the office; and your clients will appreciate your efforts.
Using PDF software to create a legal writing plan
To implement the plain English approach, it is important to create a legal writing plan. The key to all writing is to draft, revise, and edit your document. You should also slide PDF tools into your legal writing plan as well.
Draft
Using a PDF tool allows you to work directly from your PDF, which enables you do some drafting within your PDF without first creating a word processing document. You can leave comments and edit text directly on the PDF; however it should be noted that if you didn’t author the document, the text probably won’t be in a format that will cut and paste into the word processing program as it would if you created your first draft in Microsoft Word. Nonetheless, the ability to save time in drafting is what’s important here. Depending on the situation, I draft in Microsoft Word or directly in my PDF tool, simply depending on the time sensitivity of the document. If there is time, I will draft in Microsoft Word but time does not always allow.
Revise
Ok, so you’ve drafted in either Word or in your PDF editor, now it’s time to revise. The great thing about revising with a PDF tool is that all of the comments are in one place! Because PDF software keeps track of which changes were made by whom , you can easily review who made the last change to the document. You can choose who can make changes to the document and/or approve the changes. It’s much easier to accept or reject changes made by various parties when all the comments and changes are in one place.
Edit
The last thing you want to do is to actually edit the wording of the document. While you’ve been learning how to write plain English, do remember that formatting is key. Use a PDF software that allows you to change font, add subtitles, add bookmarks, and merge documents. With a system like Adobe Acrobat XI pro, which is a little more expensive than Adobe Standard, you can even apply final touches that may spell the difference between a good brief and an award-winning legal brief.
Sharing
Finally, a good rule of thumb is to first share the document within your team, then finalize before creating a copy to send out to opposing counsel. When working with a team, be sure to check permissions on the document. Keep in mind that sharing your document with others means they have permission to change your document. So, make sure you set permissions before sharing!! You will appreciate it.
Sample case studies for plain English legal writing
Numerous organizations have successfully adopted plain English approaches to their legal documents and have reaped the benefits in terms of clearer communication and improved understanding and compliance rates.
One notable case is the Federal Trade Commission, which designed and tested a new bankruptcy form. The FTC Consumer Response Center and Bankruptcy Project Trial Team entailed a massive rewording and redesigning, with the goal of decreasing the cost of bankruptcy. The program was highly successful – increasing comprehension and leading to a substantial improvement in consumer payments, especially self-represented payments.
Another case study involves the Securities and Exchange Commission. They undertook a thoroughly formal rulemaking process and performed a study in 1999 that resulted in new methods for filing and reviewing financial information, known as EDGAR (Electronic Data Gathering, Analysis, and Retrieval). EDGAR was a multi-media reporting system that is consumer-friendly, and included better instructions for consumers of various literacy levels and ages. EDGAR made reports prettier and more appealing, and standardized web content. As a result, EDGAR was able to shift wealth from insiders to outsiders, and to increase the number of U.S. public companies. However , EDGAR has fallen behind other reporting systems. It needs to be upgraded to modern standards.
Another example of a successful plain English program is the IRS. In the late 1970s, the Internal Revenue Service began distribution of the "New Tax Sheet" which tempers the complexity of tax law with clear and simple instructions. Then, in 1991, in response to much public concern over the complications consumers faced in filling out tax forms, the IRS added "Publication 551" which offered instructions on how to complete taxes. In 1998 the IRS switched to a fuller plain English approach with revised reporting systems and standards. The IRS’s plain English programs were so effective that they won first place in the "Best Family Friendly" Web site award from Family PC magazine in 1998-2001.
One of the best examples of plain English in action is the 1999 rule from the OSHA (Occupational Safety and Health Administration). Before the rule, each state had its own health and safety language for industries. States with more progressive regulations made their documents harder to read and understand, while conservative states had simpler documents. After OSHA overhauled the documents and hazmat labeling system, the new bright yellow design made the documents easier to read and understand; people intuitively knew what they needed to do. As a result, poisoning and injury was significantly reduced.
