Simply Put: Plain language movement may give legalese the boot

Sticks and stones may break a plaintiffs bones, but legal words can scramble everyones brains.

Such 15-dollar words like heretofore, abatement, and venire that have long confounded the public have actually been on their way out for a while, thanks to the plain language movement that aims to make academic, government, legal, and business writing easier to read and understand.

To the average person, much of this language is inaccessible, says Anne Marie Burr, director of legal research and writing at Wayne State University Law School, of the traditional style of legal writing.

A great example of the marked difference between legalese and plain English comes from this before-and-after revamp of Californias instructions to jurors in civil cases, which were converted to plain language in 2003.

Before: The amount of caution required of a person whose physical faculties are impaired is the care which a person of ordinary prudence with similarly impaired faculties would use under circumstances similar to those shown by the evidence,

After: A person with a physical disability is required to use the amount of care that a reasonably careful person who has the same physical disability would use in the same situation.

According to website, the federal movement began in earnest in the mid-1990s, including a 1998 executive memo from President Bill Clinton requiring government agencies to write in plain language. Later, the Office of Management and Budget organized a task force that in 2004 required all federal websites to be written using plain language.

But Joe Kimble, a professor of legal research and writing at Cooley Law Schools Lansing campus, was out in front of the trend as early as the mid-70s, when he was drafting court rules as a staff attorney for the Michigan Supreme Court. The Plain Language column he now edits for The Michigan Bar Journal has been around since May 1984.

I realized that there was something fundamentally wrong with the way lawyers write and draft, Kimble says now.

Not only does legalese create a barrier that prevents average citizens from understanding legal documents, Kimble says, but sometimes a lawyer cant even understand what another lawyer writes.

He adds that plain language goes beyond style: using it can also save tremendous amounts of time, energy and resources that are currently spent on deciphering legalese and officialese. Unclear communication costs business, government, and the legal process untold billions of dollars.

Plain language is about writing clearly for your audience, an emphatic Kimble says. Ive never heard a reader complain that a document was too clear or too easy to read.

In 2002, Kimble re-published in The Michigan Bar Journal an updated version of a 1992 article, The Elements of Plain Language, that originally ran in the Thomas M. Cooley Law Review and now appears under Definitions of Plain Language at the website.

Some of his suggestions in that article include:
Avoid legal jargon, using examples such as Now comes, In witness whereof, hereby, therein, wherefore, arguendo, inter alia, and/or, provided that, pursuant to, the instant case.
Avoid doublets and triplets (any and all; give, devise, and bequeath).
Replace wordy phrases (prior to, with regard to, in the event that).
Give shall the boot; use must instead.
In consumer documents, consider substituting you for consumer.

While Kimble acknowledges that, because most law schools are now teaching plain language in their legal writing classes, traditional legal style is giving way to its simpler alternative, its not changing as fast as it should.

There are reasons lawyers dont do it, but they come down to a lack of will or a lack of skill, he says.

He notes that while change isnt easy, it needs to be at least partly consumer-driven Consumers have to stop
putting up with it and demand that things be written in a way they can understand and requires lawyers to be open-minded and possibly learn something new.

But theres a fine line between plain language and informal language, and the latter is becoming increasingly prevalent among law students who stay connected
by the cropped text-ese of instant messaging. Burr says technology has made the way we all speak and write a lot less formal than it used to be.

To say you dont need to use legalese is not to say you dont need to say something in a precise way, Burr says, which is indeed one of the aims of the plain language movement.

Burrs colleague Amy Neville, whos been teaching legal writing at Wayne for 11 years, says its common to see an overuse of the thesaurus in early writing by law students.

In the beginning, there are very odd word choices, Neville says.

Since students dont want to use the same word over and over again, Neville explains that theyll choose words from the thesaurus on their laptops that dont necessarily mean what theyre trying to say when applied in a legal context.

Terms that regular people throw around, when lawyers throw them around, they mean something completely different, she says, citing words like
guilt and proof as examples.

Kimbles outline of the basics of plain language actually advocates repeating words: Be consistent; use the same term for the same thing, without thinking twice.

While its hard to imagine any real-life legal briefs, petitions or complaints using text-message terms like BTW (by the way) or completely replacing words like are, you, and youre with their single-letter phonetic representations r, u, and ur, its apparently become enough of an issue that, on the Illinois Board of Admissions to the Barand You website, part of a recent notice about the July 2010 bar exam stated, Excessive use of abbreviations, such as symbols, acronyms and text-talk, may result in score reduction.

So how do you think the Illinois Bar would classify usage of the word duh?

By Taryn Hartman

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