Legal drafting workshop features expertise of three language experts

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by Cynthia Price
Legal News

Western Michigan University-Cooley Law School is fortunate to have been the final career choice for someone who literally wrote the book on plain language in legal writing.

Distinguished Emeritus Professor Joseph Kimble also wrote nearly-countless columns, articles, and presentations on the subject.

His books Lifting the Fog of Legalese: Essays on Plain Language; Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law; and Seeing Through Legalese: More Essays on Plain Language constitute a complete library of not only the reasons for writing in clear English, but also practical suggestions for doing so.

In particular, Lifting the Fog of Legalese is considered a classic in the field. “Add this volume to your shelf of indispensable books. Kimble's suggestions are clear, concise, and specific,’ says Rutgers University English Professor William Lutz in a review. And former Securities and Exchange Commission Chair Arthur Levitt adds  “...a superb, well-written book in understandable language (plain English) that some lawyers and bureaucrats will wish was never written.”

The Michigan Bar Journal has long featured his “Plain Language” column, and he is the senior editor of The Scribes Journal of Legal Writing. Kimble has won the prestigious State Bar of Michigan John W. Reed Lawyer Legacy Award in 2015, which fell into a long line of awards for championing plain language, including the first Plain Language Association International Award in 2007.

For a Nov. 1st “Better Legal Drafting” workshop held at the Lansing campus of WMU-Cooley, Kimble – who has given his name to, and is senior director of, the Kimble Center for Legal Drafting – joined Professor Mark Cooney and attorney Jeffrey Ammon. Cooney, formerly in practice with civil-litigation firms, wrote the book Sketches on Legal Style and has also won many awards including the WMU-Cooley Law Review’s Distinguished Brief Award before he taught there. Ammon, a Miller Johnson Grand Rapids attorney, has long worked closely with contract review and generation. Among many other accolades, Ammon has been the Grand Rapids Lawyer of the Year in several categories, including Banking and Financial Law, Closely-Held Companies and Family Businesses, Mergers and Acquisitions Law, and Construction Law.
Nothing could have been easier to see, in listening to this formidable group, than their love of language.

A group of about 75 students and local attorneys listened and participated in hands-on exercises.

Though the subject could be dry, all three enlivened it through their humor. For example, Cooney’s directions for an exercise in rewriting a section from Michigan’s Public Health Code, said: “Redraft Step 1: Read the original – and get confused.” “Redraft Step 2. Read the original again – and get confused again.” (These were followed by re-reading a third time and pulling out the big ideas in the passage, which were then made into headings and fleshed out.)

Kimble presented two principles for avoiding ambiguity – which he called “the worst sin in drafting.” First, he suggested being “ruthlessly consistent,” which entails always calling the same concept or item by the same name.

Second, he advised students to “manage vagueness [and] avoid ambiguity.” Kimble was not happy with those who confuse the two terms: vagueness is, he says, a legitimate way to avoid having to list every particular. While it is important when writing to include as much precision as possible in one’s vagueness and “shape” it, it is sometimes unavoidable.

But, he said, not so with ambiguity. He gave a very simple example of needless ambiguity, the phrase “tall women and men.” Are the men also to be considered to be tall? If rephrased as “men and women who are tall,” the reader still does not know if the men are to be considered as above average height.

Kimble went into some depth on how to avoid different types and cases of ambiguity. He pointed out that often bulleting items in a series may be all that is needed to indicate that one is not subsidiary to the other, and that setting off a phrase with em-dashes is another effective tactic. “If you’re hungry for em-dashes in Michigan statute, you’ll starve,” he said.

Ammon spoke about – or more precisely, against – “terms of art.” Though the definition he found of a term of art is “a word or phrase having a specialized meaning in a particular field or profession,” he went on to modify that definition  by describing a term whose meaning is unfamiliar to a non-lawyer, even a sophisticated one; which is interpreted by courts in “disturbingly” different ways; and/or is a”high-falutin’ term” for one that is more readily understandable.

One example he used was “indemnify and hold harmless.” Who exactly  holds whom harmless? He said about the phrase force majeure,” “Why are we speaking French?”

Ammon’s remedy for terms of art was to include very specific language about the question under consideration. “Let’s figure out what we’re really trying to do, and word the contract that way,” Ammon said.

The State Bar of Michigan Business Law Section sponsored the seminar, which is the first of many to be held by the Kimble Center for Legal Drafting.


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