Law Firm Management News October 2012 - International Plain Language Day

International Plain Language Day is here and law firms need to come to the party!

Bevan Frank*
bevanfrank@mweb.co.za

 

Thirteenth October 2012 is International Plain Language Day. Many in the legal profession have been slow to adapt to the recommended simple ways of plain language drafting. You, as an attorney or legal practitioner, need to take various steps to address plain language in the way you conduct your business and attend to your practice.

The essence of the plain language movement is simple, clear words that are easily understandable to readers who read those words for the first time. Language is going back to basics and thus there is a move away from the legal jargon and legalese that many in the legal profession take for granted on a daily basis.

There was a time where members of the legal profession could get away with documents heavily seeped in complicated legal terms and lengthy complex sentences. Most of the parties involved would be happy enough even though they didn’t have a clue what the finer meaning and nuances of the document entailed. Previously you could assure your clients that everything was under control and that they didn’t have to worry about understanding the relevant wording. ‘We’ve got you covered’ has been a common assurance. ‘This document will protect you in all the instances you seek protection. Don’t worry about the complexity of it all. We understand it all and that’s sufficient.’ Clients have trusted these types of statements.

Those days are over. Today your client needs to be able to understand every single word in your relevant documentation. And the reality is that complicated wording can have dire consequences for you, your firm, your client and your client’s business.

There are various jurisdictions and countries around the world that have already opted for plain language usage. In some of these places, plain language is seen as the order of the day and something highly desirable. In other parts of the world the use of plain language is required by legislation. (Incidentally, the date for International Plain Language Day was chosen to be 13 October because two years ago, on 13 October 2010, US President Barack Obama signed the Plain Writing Act of 2010).

So, however you look at it the way of drafting documents has changed. If you are still working with documents that your client or a lay person will not understand after one reading then you need to re-examine your work and take the necessary steps to change the way you work with words.

Types of documents that need to be simplified

There are various documents and communications that need to be written in plain language. These include (but are not limited to) the following:

  • contracts;
  • terms & conditions;
  • warranties;
  • agreements;
  • marketing material;
  • internal communications, for example, emails;
  • external communications, for example, newsletters;
  • product labels;
  • advertising;
  • product information; and
  • business information.

Consequences of complicated wording and legal jargon

It goes without saying that a client who is on the receiving end of an ambiguous or complex legal document is an angry and irate client. This is particularly so if the wording was not properly explained or executed in an easily understandable way. Do you really have time to waste to attend to the consequences of not having your document in plain English?

In addition to the penalties stipulated in the legislation, complicated legal jargon can also lead to (but not limited to):

  • unforeseen consequences such as more meetings with all the parties concerned;
  • further meetings with experts/specialists or industry ombudsmen;
  • contracts that may be cancelled or set aside;
  • unnecessary litigation; and
  • ultimately being on the receiving end of further costly legal bills.

A client who becomes prejudiced in a situation where your complicated documents were the cause of grief will unlikely step into your office again nor is it likely that you will ever get referrals from that client.

Useful tips to make your documents clear and understandable

For many legal practitioners, using complex legal words comes as second nature. You have been immersed in legalese for so long that often on a subconscious level you think that someone who will read the relevant document will know what is going on. Sadly this is not the case. This is why there is a growing amount of legislation advocating plain English. But as a way of getting you to change those bad drafting habits here are a few pointers in the right direction:

  • go through your document and look for all Latin and legal terms;
  • try to change these legal terms into terms that the ordinary reader would understand;
  • keep the wording simple;
  • ensure that your wording reflects the intended meaning;
  • replace long sentences with a few shorter sentences;
  • replace long paragraphs with a few shorter paragraphs;
  • insert more headings and subheadings if possible;
  • break points down, for example, by using bullets rather than shoving all your points into one long clumsy sentence; and
  • use diagrams where possible to illustrate various points.

In essence, the more you break down the document, the easier it will be for the reader to see and grasp your words. You are literally spelling it out to your readers.

Remember that you are not dumbing down the meaning of the words but merely simplifying them.

The last word

Practice! Many lawyers find the process of deconstructing legalese to be daunting and overwhelming. Just like when you learned to swim for the first time, you have to start somewhere. Don’t just dive in! Dip your feet into the clear language waters slowly. Soon you will be ready to stand knee-deep and before you know it you will be wading through complex material more easily than you originally thought. And after some practice, you can take the plunge completely and you’ll be able to keep your head above hot water!

In the words of Martin Cutts: ‘Writing plain English isn’t easy: you have to think hard about what you’re going to say, why you’re saying it and who will be reading it. But generally your readers will prefer it. Probably they won’t even notice, and that’s one definition of good writing.’1


Notes
* Bevan Frank is an attorney-turned-journalist and plain language practitioner and can be contacted at: info@writeinplainenglish.com.
1. M Cutts, Oxford Guide to Plain English, 3rd ed (2009), Oxford University Press, at vii.