Research Paper for

Plain English in Legal

Writing

Plain English in Legal Writing – LAWS6950

Professor Peter Butt
Alice Hume – Student number 306061120
April 2014

Word Count: 3922

 Table of Contents
Research Paper for Plain English in Legal Writing .............................................................1
Introduction..........................................................................................................................2
What is Plain Language?.......................................................................................................3
1. What is meant by ‘plain language’ and ‘traditional legal language’ or ‘legalese’?...........................3
2. What do the detractors of plain language say?................................................................................6

The History of Plain Language.............................................................................................8

Meeting the needs of the audience.....................................................................................10
Language..........................................................................................................................12
1. Plain Language versus Traditional Legal Language.......................................................................12
2. Plain Language is capable of precision........................................................................................... 15
3. Plain Language reduces the need to litigate...................................................................................16

Structure..........................................................................................................................18
1. Telescoping - the importance of the conclusion and findings up front.........................................18
2. Connecting paragraphs and ideas – a thematic approach.............................................................18

Design...............................................................................................................................19
Additional elements............................................................................................................20
1. The power of thorough analysis..................................................................................................... 20
2. The importance of revision............................................................................................................. 21
3. The utility of user testing................................................................................................................ 21

Conclusion...........................................................................................................................22
The Ten Commandments...................................................................................................................... 22

Research Paper for Plain English in Legal Writing ii

 Alice Hume
Student number: 306061120

Plain English in Legal Writing

Professor Peter Butt
April 2014

Research Paper for Plain English in Legal

Writing

A leading US commentator has defined “plain language” in the following

terms:

“A communication is in plain language if it meets the needs of its audience

– by using language, structure, and design so clearly end effectively that the

audience has the best possible chance of readily finding what they need,

understanding it and using it.”

Discuss this definition. Do you consider that it adequately covers the

essentials of “plain language” in a legal context, or would you add other

elements to it?

Research Paper for Plain English in Legal Writing 1

 Introduction

Lawyers are widely and resolutely criticised for their writing and communication skills.

As Theodore Blumberg wrote: “Legal writing, despite centuries of criticism (constructive

and otherwise) remains steadfastly awful.” 1 So why do lawyers shirk their responsibility

to communicate clearly and effectively with their clients, who are, after all, paying their

bills? Is it that hard to communicate legal concepts clearly and effectively?

Plain language should be easy. It certainly sounds easy. In this paper, I will examine

the definition of plain language as stated above, describe what it means, what its

detractors say, its history and then discuss the 3 main elements of this definition –

language, structure and design. Finally, I will add a few more elements that are

particularly relevant to legal writing and conclude with my agreement that the definition

above is indeed a succinct and comprehensive one for written communication.

1
Theodore L. Blumberg, The Seven Deadly Sins of Legal Writing, Owlworks, 2008,
page 1.

Research Paper for Plain English in Legal Writing 2

 What is Plain Language?

1. What is meant by ‘plain language’ and ‘traditional legal language’ or ‘legalese’?

a. Plain language

Plain language is clear and simple language where the writer keeps the use of jargon or

technical terms to a minimum. It encompasses many different elements including

language, style, structure, form, grammar, punctuation and design. As one of the

leading commentators and supporters of the plain language movement, Professor

Joseph Kimble, writes in his famous work, Writing for Dollars, Writing to Please:

Plain language is not just about vocabulary. It involves all the techniques for

clear communication – planning the document, designing it, organising it,

writing clear sentences, using plain words, and testing the document whenever

possible on typical readers.2

Many people think that plain language is about using short, simple words, but as Peter

Butt and Richard Castle explain, plain language is not just about brevity of expression:

Plain English is language that is not artificially complicated, but is clear and

effective for its intended audience… [P]lain language is concerned with matters of

2
Joseph Kimble, Writing for Dollars, Writing to Please, 6 Scribes Journal of Legal
Writing 1, 1996-1997, page 2.

Research Paper for Plain English in Legal Writing 3

 sentence and paragraph structure, with organization and design, where so many

of the hindrances to clear expression originate.3

Michèle Asprey, another leading commentator, simply defines it thus: “Plain language

writing is just the practice of writing English (or French or German or whatever else) in

a clear and simple style. That’s all.”4

b. Traditional Legal Language or ‘Legalese’

Legalese refers to traditional styles of legal drafting that incorporate old English, Latin

and French terms and is considered “overly complex and arcane” 5, filled with

“unnecessary legalisms”6 and associated with “illogical word order complex grammatical

structures and sentences of excruciating length.”7 In other words, legal jargon that is

inaccessible to the legally uneducated person.

So where did the legal fraternity learn to write this way? Edward Good, author and

writing expert answers it this way:

We learned it from judges and legislators, regulators, headnote writers, treatise

writers, and editors… We learned to spew out poorly written judicial fluff,
3
Peter Butt & Richard Castle, Modern Legal Drafting: A Guide to Using Clearer
Language, 2nd edition, Cambridge University Press, 2006, pages 85-86 (quoting Law
Reform Commission of Victoria, Legislation, Legal Rights and Plain English 3 (1986)).
4
Michèle Asprey, Plain Language for Lawyers, Federation Press, 2003, page 11.
5
Kathryn O’Brien, Judicial Attitudes to plain language and the law, 32 Australian Bar
Review 204, 2009, page 206.
6
Wayne Scheiss, Legal Writing is not what it should be, 37 Southern University Law
Review 1, 2009-2010, page 8.
7
Peter Butt, What is Plain Language and the Law and why use it? 12 September 2002,
Law and Justice Foundation, at www.lawfoundation
.net.au/lfj/app/&id=/2FD34F71BE2A0155CA25714COO1739DA

Research Paper for Plain English in Legal Writing 4

 endless legislative goo, brow-wrinkling regulatory ooze, and mounds of words

posing as sentences. We learned to build these weighty sentences, stretching on

forever, with stuffy abstractions, piles of pillowy nouns and imprecise compound

prepositions. We learned to prefer the passive voice. We learned to proliferate

clauses. We learned to write like the stuff we read. We learned, in short, to break

every rule of style in the book.”8

Some of the many and much maligned elements of legalese are:

 Use of the word ‘shall’;

 Overuse of the passive voice;

 Use of Latin or French words and phrases;

 Use of archaic words and phrases;

 Excessive sentence length;

 Poorly punctuated sentences and paragraphs;

 Use of long, complex and rarely used words and phrases; and

 Use of nominalisations, i.e. turning a verb into a noun.9

One can see what a task it is to try to improve legal writing when so many elements are

in play and also ingrained in the trained professional’s psyche. Reliance on precedents,

forms or templates only serves to reinforce poor language, structure and document

8
C. Edward Good, Mightier than the Sword: Powerful Writing for the Legal
Profession, Lel Enterprises, 1989, page xx.
9
Wayne Scheiss, above n6 at 17.

Research Paper for Plain English in Legal Writing 5

design.10 Whilst they are necessary in order to save time and money, “even a good form

followed blindly, without proper regard to the factors of appropriateness of both style

and content, can often lead to stylistic monstrosities that utterly fail to accomplish the

desired purposes.”11

Some of the drawbacks of relying on precedents are:

 Complacency and hurried and lazy writing as they are easy to use;

 Out of date language and style;

 Multiple writers’ input and drafting styles which leads to an inconsistent

document where ideas are not coherently linked; and

 Unnecessary and verbose language and clauses or sections that just aren’t

relevant.12

2. What do the detractors of plain language say?

Plain language’s detractors believe that this style of writing is not precise enough and

that it even “debases the language”. (Kimble) Furthermore they believe that its

approach to communication is too narrow and that there is no evidence to support the

argument that it improves comprehension. It is considered unsophisticated and over

simplified and, even worse, “babyish” (Kimble). However, plain language’s supporters

make the obvious point that it is much more difficult to simplify then complicate. It

10
Peter Butt, Modern Legal Drafting: A guide to using clearer language, 3rd edition,
Cambridge University Press, 2013, pages 9-14.
11
Sidney F. Parham Jr., The Fundamentals of Legal Writing, The Michie Company,
1967, page 16.
12
Wayne Scheiss, above n6 at 11.

Research Paper for Plain English in Legal Writing 6

takes skill and time to make something understandable to a person not skilled in the

art.13

Detractors of plain language have also been known to mock the concept by saying that

“…advocates insist that legal writing be entertaining or fun…”14, but this is not the case.

As Ronald Goldfarb and James Raymond pose in Clear Understandings:

We are not so naïve as to suppose that lawyers should write like journalists or

novelists, or that their prose should always be entertaining as well as instructive.

On the other hand, we are persuaded that lawyers who have distinguished

themselves as great writers have in common with other good writers certain

techniques, certain resources, certain sensibilities to the nuances of language that

enrich the law, not encumber it, making its expression both pleasurable and

precise.15

Peter Butt and Richard Castle also support this notion: “[T]he modern English of a legal

document will never read like a good novel, but it can be attractive and effective in a

clean, clear, functional style.”16

13
Joseph Kimble, Answering the Critics of Plain Language, 5 Scribes Journal of Legal
Writing 51, 1994-95, page 53.
14
Wayne Scheiss, What Plain English Really Is, 9 Scribes Journal of Legal Writing 43,
2003-2004, page 67.
15
Ronald L. Goldfarb & James C. Raymond, Clear Understandings: A Guide to Legal
Writing, Random House, New York, 1982, page xv.
16
Peter Butt & Richard Castle, above n3 at 95.

Research Paper for Plain English in Legal Writing 7

 The History of Plain Language

The history of plain language, or at least plain English, can be traced all the way back to

Chaucer. Geoffrey Chaucer was a member of the rising London middle class in the

1300s. He wrote in a lively and more accessible manner than was known at the time and

aimed to reach out to people not from the ruling class, but the common man as

demonstrated by this line from The Canterbury Tales: “Speketh so pleyn at this time, I

yow preye, that we may understonde what ye seye.” Above all, Chaucer was a populist

and so wrote in a manner that could be understood as he wanted his writing to be widely

read.17

William Shakespeare, too, is credited with making language more accessible to the

masses as well as creating much of the English language we know today. He, like

Chaucer, was subjected to an education entirely in Latin, but preferred the lively (and

most certainly plainer for its time) language of his plays and sonnets to communicate

with his audience: “An honest tale speeds best being plainly told” he wrote in Richard

III.18

By 1731, the English Parliament passed a law stating that lawyers must write “in the

English tongue and language only, and not in Latin or French or in any other tongue or

17
Sally McBeth, A Brief History of Plain Language, Clear Language and Design,
Presented to the Fourth Biennial Conference of the PLAIN Language Association
International, Opening Plenary, September 27, 2002, page 2,
http://www.plainlanguagenetwork.org/conferences/2002/history/history.pdf
18
Ibid page 3

Research Paper for Plain English in Legal Writing 8

language whatsoever.”19 And from this point, there were repeated calls over the next

200 years to simplify legal writing so that the populous may better understand statutes,

contracts and other legal instruments and documents.20

Over the last 30 years, the ‘modern’ plain language movement has gained traction in

Australia, Canada, New Zealand, the US and UK.21 Committees such as Clarity in the

UK, the Plain English Committee of the State Bar of Michigan, chaired by Joseph

Kimble, and the Centre for Plain Legal Language at the University of Sydney Law

Faculty where Michèle Asprey and Professor Peter Butt have all produced seminal work

and commentary on the subject and are just three examples of organisations in the

English legal world trying to change old habits and bring legal language into the 21 st

century.

Meeting the needs of the audience

To meet the needs of their audience, a writer must first know who that audience is, the

purpose for which that audience will use their work as well as their audience’s

knowledge and level of reading comprehension.22

19
Records in English, 1731, as quoted by Plain English Campaign, Language on Trial:
The Plain English Guide to Legal Writing, Robson Books, London, 1996 and Sally
McBeth, above n17 at 3.
20
Kathryn O’Brien, above n5 at 208.
21
See Peter Butt & Richard Castle, above n3 at 76-109; Kathryn O’Brien, above n5 at
208; Sally McBeth, above n17 at 8.
22
Joseph Kimble, above n13 at 72.

Research Paper for Plain English in Legal Writing 9

In a legal context, the Parliamentary Council of New South Wales expressed the

importance of legislative drafters meeting the needs of their audience, namely the

public, this way: “The ordinary person of ordinary intelligence and education [should]

have reasonable expectation of understanding… legislation and of getting the answers to

the questions he or she has. This is of critical importance.” 23 This is sage advice not

only for legislative drafters, but also for anyone drafting a communication, contract or

advice for a client.

Legal writing, rather than being a form of self-expression or knowledge telling, is

analytical, hence considered “knowledge transforming.” 24 Consequently, legal writing is

“a form of expository writing in which the focus should be on the reader’s ability to

understand.”25 Unfortunately, lawyers are never taught to write this way. They must

muddle their way through and work it out for themselves and inevitably, most of them

don’t. As Professor Douglas Laycock points out:

When law firms and faculty say that we should teach our students to write better,

I think they mean something like this: Our students’ writing is often dull and

plodding, sometimes verbose, sometimes weakly organized, and we should help

them make their writing more readable, more effective, and more powerful. 26

23
Dennis Murphy, Plain Language in a Legislative Drafting Office, Clarity No. 33, July
1995, at 3, page 5.
24
Christine M. Venter, Analyze This: Using Taxonomies to “Scaffold” Students’ Legal
Thinking and Writing Skills, 57 Mercer Law Review 621, 2006, page 638.
25
Wayne Scheiss, above n6 at 2.
26
Douglas Laycock, Why the First-Year Legal-Writing Course Cannot Do Much About
Bad Legal Writing, 1 Scribes Journal of Legal Writing 83, 1990, page 83.

Research Paper for Plain English in Legal Writing 10

In defence of lawyers, they do have a rather large job on their hands before they even get

to simplifying and clarifying their words and making a document accessible to their

clients. When a client has a problem, or tricky legal question, a lawyer must:

 Determine the relevant facts of the problem;

 Determine the best course of research and find the relevant authorities to analyse

that problem;

 Analyse the legal question in light of the authorities and put that analysis in

writing; and also

 Express the counter arguments and discuss their probability in writing. 27

All this leaves little time to focus on the style of the advice especially as clients usually

have tight deadlines. However, in the end, it is the client who has to understand, digest

and act on the advice that their lawyer has provided. So what are the elements needed

for a clear communication from a lawyer? It must be said that the definition which is

the subject of this paper covers the main elements needed: Clear and effective language,

structure and design.

Language

Language needs to be clear, effective and relevant in order to convey a writer’s message.

Lawyers are often considered to be unable to use language in this way, perhaps because

all that has come before them in the large body of knowledge they study for years is
27
Wayne Scheiss, above n25 at 4.

Research Paper for Plain English in Legal Writing 11

considered verbose and complex. But is it overstating the case that lawyers are exposed

to “the largest body of poorly written literature ever created by the human race”? 28

1. Plain Language versus Traditional Legal Language

One of the aims of employing plain language in a legal document, or indeed any

document, is to make that document intelligible to a client with no legal education or

background. In this respect, the use of legal jargon, Latin phrases and the like are to be

discouraged. As Professor Kimble writes:

[P]lain language is not subverted by the need to use technical terms or terms of

art. Real terms of art a tiny part of any legal document. What’s more, lawyers

have an exaggerated notion of the extent to which legal terms are precise or are

settled and unchangeable. I invite anyone to find a case saying that give won’t do

in a will – that it has to be give, devise and bequeath.29

In his book, Modern Legal Drafting: A guide to using clearer language, Peter Butt

gives more great examples of redundant language that has managed to hang around the

legal fraternity’s vernacular for years, sometimes centuries. Many commentators have

posited as to why this is so – over reliance on precedents, lack of time or confidence to

come up with something else, fear of letting go a tried and tested phrase amongst

others.30 The use of doublets or triplets is a classic example of the legal professions’ over

complication of language.
28
John M. Lindsey, The Legal Writing Malady: Causes and Cures, 204 New York Law
Journal 1, 1990, page 2.
29
Joseph Kimble, above n2.
30
Peter Butt, above n10 at 5.

Research Paper for Plain English in Legal Writing 12

 a) The use of doublets and triplets

Why is it that lawyers use expressions such as ‘null and void’ when ‘void’ will suffice? 31

Plain language experts advise avoiding redundant doublets or triplets. 32 In many cases,

they are unnecessary and do not actually express different ideas. As Richard Wydick

advises:

When one [a doublet, triplet, or synonym string] looms up on your page, stop to

see if one of the several words, or perhaps a fresh word, will carry your intended

meaning… This is not as simple as it sounds… To check it in the law library will

take time, and time is the lawyer’s most precious commodity. But remember –

once you slay one of these old monsters, it will stay dead for the rest of your legal

career. 33

Easier said than done. Lawyers, especially junior ones, fear that by leaving out part of a

commonly used term, they will not cover the concept they are trying to convey.

b) The solemnity of legal language

Lawyers also believe that the doublets and triplets described sound lawyerly. They

worry that if their writing does not sound ‘legal’ then it won’t have the same impact on

clients or hold gravitas with other lawyers or judges. They believe that solemn sounding

legal language is what clients pay for and, indeed, expect. However, research suggests

that this is not the case. Clients, jurors and even judges would prefer to read clear,
31
Ibid at 27.
32
Thomas R. Haggard, Legal Drafting in a Nutshell, 2nd edition, 2003, page 318.
33
Richard C. Wydick, Plain English for Lawyers, Carolina Academic Press, 4th edition,
1998, page 21.

Research Paper for Plain English in Legal Writing 13

simple and relevant language devoid of jargon.34 As Justice Beazley said when asked

about the importance of plain language: “The plainer the better. There’s absolutely no

doubt about that. I think there’s a lot to be said for putting the proposition simply and

without a great deal of embellishment.”35

c) Breaking long sentences can reduce ambiguity

The human brain can only process a certain amount of information at any one time.

The longer a sentence is, the harder it is for the reader to read, understand and recall the

key points as they go along.36 So they have to go back and read it again, and perhaps

again, for clarity. A better way to help the reader is to break those long sentences down

into shorter ones to improve clarity and facilitate understanding. “The more

complicated your information is, the shorter your sentences should be.”37 Ideally,

sentences should be no more than 30 words in length.

2. Plain Language is capable of precision

There is a belief amongst plain language detractors that traditional legal language is

required for precision. However, it is asserted that plain language can convey legal

doctrines and concepts just as clearly as legalese. As Professor Peter Butt and Richard

Castle state:

34
Joseph Kimble, above n13 at 62-65; Kathryn O’Brien, above n5 at 214-16.
35
Kathryn O’Brien, above n5 at 215.
36
Richard C. Wydick, above n33 at 37.
37
Steven D. Stark, Writing to Win, Three Rivers Press, New York, 1999, page 33.

Research Paper for Plain English in Legal Writing 14

 Modern plain English is as capable of precision as traditional legal English. It

can cope with all the concepts and complexities of the law and legal processes.

The few technical terms that the lawyer might feel compelled to retain for

convenience or necessity can be incorporated without destroying the document’s

integrity.38

Traditional legal language often, but not always, requires more words, which can

contribute to ambiguity:

Elaboration in drafting does not result in reduced ambiguity. Each elaboration

introduced to meet one problem of interpretation imports with it new problems

of interpretation.39

To be precise and accurate takes time and revision. When drafting legal documents,

including contracts, advice and legislative texts, by trying to simplify and clarify whilst

still maintaining accuracy, often exigencies and unnecessary detail are exposed and can

be deleted.40 On the other hand, as detractors would point out, more words may be

required to explain a concept or define a word in order to make it clearer to the reader,

however, at the end of this process, the substance of the document will be improved.

38
Peter Butt & Richard Castle, above n3 at 95.
39
Bayless Manning, Hyperlexis and the Law of Conservation of Ambiguity: Thoughts
on Section 385, 36 Tax Law Review 9, 1982, page 11.
40
Plain English and the Law, Law Reform Commission of Victoria, Vol. 1, 1987, pages
29-33.

Research Paper for Plain English in Legal Writing 15

 3. Plain Language reduces the need to litigate

Plain language detractors argue that, with or without legalese, litigation will continue

unabated as the legal interpretation of meaning is the essence of the law. 41 However, as

Joseph Kimble points out, this argument ignores the “unnecessary litigation that poor

legal drafting produces.”42 Kimble goes on to explain the difference between vagueness

and ambiguity at law, pointing out that vagueness is often necessary as it gives the law

flexibility and the ability to be applied to different circumstances, for example, the use of

the word ‘reasonable’. Ambiguity, on the other hand, almost always causes problems of

interpretation and provides a “choice between alternative meanings”. 43

As Wayne Scheiss points out:

Language that causes litigation ought to be questioned, if not purged…. A vast

array of judicial decisions does not mean that the world or phrase is precise; it

more likely means that the word or phrase is so vague that it gets litigated a lot. 44

David Mellinkoff cites volumes of cases where the meaning of seemingly innocuous

words ended up in court which inevitably wasted the parties’ as well as the court’s time,

money and valuable resources.45

41
Robyn Penman, Unspeakable Acts and Other Deeds: A Critique of Plain Legal
Language, 7 Information Design Journal 121, 1993, page 125.
42
Joseph Kimble, above n13 at 78.
43
Ibid at 79.
44
Wayne Scheiss, above n14 at 62.
45
David Mellinkoff, The Language of the Law, Aspen Publishers, 1963, pages 305-10,
315 and 321-25.

Research Paper for Plain English in Legal Writing 16

By allowing clients with no legal background access to legal documents via the use of

plainer language, there is a reduced need to end up in court, as once their obligations,

rights and restrictions are more clearly enunciated, clients can find what they need,

understand it and then use it in the course of business.

Structure

A document that is well structured can guide a reader through a complex document and

aid their understanding by laying out concepts and arguments in a conscious order that

makes the material more comprehensible to them.46

1. Telescoping - the importance of the conclusion and findings up front

Many writers, especially lawyers, fail to state the conclusion and major findings of their

research up front, choosing instead to set out the information in sequential order. An

alternative is a method known as ‘telescoping’, where key information is put at the start

of a document in order to give the reader what they are looking for first, before they

potentially lose interest, and then provide the less important material and the detail in

the latter end of the document.47

2. Connecting paragraphs and ideas – a thematic approach

Linking paragraphs so that an idea progresses to the next is an important tool for

writers to lay out any information or arguments sequentially and helps the reader build

46
Peter Butt, above n 10 at 129.
47
Ibid at 130.

Research Paper for Plain English in Legal Writing 17

their knowledge in a logical fashion.48 Hence a thematic approach is good for

documents that require movement from one idea and concept to the next. A lease is a

good example where a writer may want to deal completely with one theme, for example

a lessor’s obligations, before dealing with the next, for example, a lessee’s obligations. 49

“Some legal writers have a tendency to write as though others can read their minds.

These writers omit transitions because the connections between the ideas are obvious to

them.”50 Failure to understand the material often plays out in poor unconnected

drafting, furthermore, lawyers have a tendency to cram too many ideas into one

sentence or paragraph. This is where a thematic approach can be helpful to a writer as it

forces them to think about the sequence of ideas and order them logically.

Design

The design of a document would appear to be the least substantive and merely aesthetic

of the three main elements required for clear communication. But this would belie its

importance. The lay out and design of a document can help a reader by guiding them to

information they need and the writer by enabling them to put their thoughts, arguments

and information in a more logical sequence due to the aid of headings, white space and

sections which make for a better laid out document.

48
Bryan A. Garner, The Elements of Legal Style, 2nd edition, 2002, page 65.
49
Peter Butt, above n10 at 132.
50
Anne Enquist & Lauren Currie Oates, Just Writing: Grammar, Punctuation, and
Style for the Legal Writer, Aspen Publishers, 2nd edition, 2005, page 59.

Research Paper for Plain English in Legal Writing 18

One commentator notes that judicial opinions are often laid out and displayed poorly:

“In contrast [to the user aids in a West published opinion], casebooks assigned to

beginning law students are stripped of even these convenient guides. Instead students

are presented with pages of choppy, edited opinions without headnotes, subtitles, white

space, coloured print, or other textual highlights.” 51 A case in point that poorly designed

and laid out documents can affect their readability.

Informative headings and the use of tables and charts, elements not usually used in legal

documents, can reduce the need for large slabs of text and make information more

accessible to the reader. These techniques can draw out information as well as make a

document look neater, sharper and more attractive.

Additional elements

Language, structure and design are vital to clear and effective drafting which enable a

reader to find what they are looking for, use and apply it. These three elements are the

most important, but in addition, there are other elements, although secondary, that are

relevant to the definition of plain language in a legal context.

51
Janeen Kerper, Let’s Space Out: Rethinking the Design of Law School Texts, 51
Journal of Legal Education 267, 2001, pages 268-69.

Research Paper for Plain English in Legal Writing 19

 1. The power of thorough analysis

Application of a rule, principle or concept “that is terse, abstract, general, and shallow

instead of specific, thorough, targeted, and convincing” can make for a weak analysis

and a wandering document to a reader. 52 Thorough analysis takes time and effort

though, however is another weapon in the arsenal of a great writer.

2. The importance of revision

Lawyers are under a lot of pressure. Most have more work than they can handle of any

given day and so not enough time is given to revision. A fresh eye is needed when one is

editing and the value of putting a draft down and reviewing when not drowning in it is

invaluable and always produces clearer and more effective writing. 53

3. The utility of user testing

Professor Joseph Kimble and organisations such as Clarity promote the value of

usability testing in document design. Usability testing can help writers identify

problems with their documents and reveals deficiencies in their drafting. 54 Thus a

writer can improve their draft and meet the needs of their audience before it goes to

print or to a client.55

52
Wayne Scheiss, Better Legal Writing: 15 Topics for Advanced Legal Writers, Wm. S.
Hein & Co., 2005, pages 173-74.
53
Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s
Guide to Effective Writing and Editing, 2003, page 298.
54
Joseph Kimble, above n13 at 75.
55
Anita D. Wright, The value of usability testing in document design, Clarity Vol. 30,
page 24.

Research Paper for Plain English in Legal Writing 20

 Conclusion

The Ten Commandments

At the end of all my research and in keeping with plain language principles, I believe the

simplest way to demonstrate my learnings and support the argument that language,

structure and design are the most important, but not the only, components of the

definition of plain language, is by listing them. Below is a list of the most important,

easily understandable and importable principles, as influenced by the writings (and

lists) of Peter Butt & Richard Castle, Wayne Scheiss, Joseph Kimble, Bryan Garner and

Ronald Goldfarb & James Raymond:

1. Keep sentences and paragraphs short;

2. Use simple language;

3. Delete unnecessary words;

4. Punctuate properly;

5. Use lots of headings;

6. Use the active rather than the passive voice;

7. Use lists, tables and charts to present repetitive or numerical information;

8. Use lots of white space;

9. Test your documents on your audience; and

10. Edit one more time.

Research Paper for Plain English in Legal Writing 21

As one commentator noted, “Lawyers have two common failings. One is that they do

not write well, and the other is that they think they do.”56 Let’s hope that with the light

that has been shone on poor communication by lawyers, especially in the past 3 decades,

our profession can step up and start conveying our meaning in plain language.

56
Carl Felsenfeld, The Plain English Movement in the United States, 6 Canada Business
Law Journal 408, 1981-82, page 413.

Research Paper for Plain English in Legal Writing 22

 Bibliography
1. Anita D. Wright, The value of usability testing in document design, Clarity Vol.

30, at 24.

2. Anne Enquist & Lauren Currie Oates, Just Writing: Grammar, Punctuation, and

Style for the Legal Writer, Aspen Publishers, 2nd edition, 2005.

3. Bayless Manning, Hyperlexis and the Law of Conservation of Ambiguity:

Thoughts on Section 385, 36 Tax Law Review 9, 1982.

4. Bryan A. Garner, The Elements of Legal Style, Oxford University Press, 2nd

edition, 2002.

5. C. Edward Good, Mightier than the Sword: Powerful Writing for the Legal

Profession, Lel Enterprises, 1989.

6. Carl Felsenfeld, The Plain English Movement in the United States, 6 Canada

Business Law Journal 408, 1981-82.

7. Christine M. Venter, Analyze This: Using Taxonomies to “Scaffold” Students’

Legal Thinking and Writing Skills, 57 Mercer Law Review 621, 2006.

8. David Mellinkoff, The Language of the Law, Aspen Publishers, 1963.

9. Dennis Murphy, Plain Language in a Legislative Drafting Office, Clarity No. 33,

July 1995, at 3.

Research Paper for Plain English in Legal Writing 23

 10. Douglas Laycock, Why the First-Year Legal-Writing Course Cannot Do

Much About Bad Legal Writing, 1 Scribes Journal of Legal Writing 83, 1990.

11. Howard Darmstadter, Hereof, Thereof, and Everywhereof: A Contrarian Guide to

Legal Drafting, American Bar Association, 2002.

12.Janeen Kerper, Let’s Space Out: Rethinking the Design of Law School Texts, 51

Journal of Legal Education 267, 2001.

13.John M. Lindsey, The Legal Writing Malady: Causes and Cures, 204 New York

Law Journal 1, 1990.

14.Joseph Kimble, Answering the Critics of Plain Language, 5 Scribes Journal of

Legal Writing 51, 1994-95.

15.Joseph Kimble, Writing for Dollars, Writing to Please, 6 Scribes Journal of Legal

Writing 1, 1996-1997.

16.Kathryn O’Brien, Judicial Attitudes to plain language and the law, 32 Australian

Bar Review 204, 2009, page 206.

17. Michèle Asprey, Plain Language for Lawyers, Federation Press, 2003, page 11.

18.Peter Butt & Richard Castle, Modern Legal Drafting: A Guide to Using Clearer

Language, 2nd edition, Cambridge University Press, 2006.

19.Peter Butt, Modern Legal Drafting: A guide to using clearer language, 3rd

edition, Cambridge University Press, 2013.

20. Peter Butt, What is Plain Language and the Law and why use it? 12

September 2002, Law and Justice Foundation, at www.lawfoundation

.net.au/lfj/app/&id=/2FD34F71BE2A0155CA25714COO1739DA

Research Paper for Plain English in Legal Writing 24

 21.Plain English and the Law, Law Reform Commission of Victoria, Vol. 1, 1987.

22. Plain English Campaign, Language on Trial: The Plain English Guide to

Legal Writing, Robson Books, London, 1996.

23. Richard C. Wydick, Plain English for Lawyers, Carolina Academic Press,

4th edition, 1998.

24. Robyn Penman, Unspeakable Acts and Other Deeds: A Critique of Plain

Legal Language, 7 Information Design Journal 121, 1993.

25. Ronald L. Goldfarb & James C. Raymond, Clear Understandings: A Guide

to Legal Writing, Random House, New York, 1982.

26. Sally McBeth, A Brief History of Plain Language, Clear Language and

Design, Presented to the Fourth Biennial Conference of the PLAIN Language

Association International, Opening Plenary, September 27, 2002, page 2,

http://www.plainlanguagenetwork.org/conferences/2002/history/history.pdf

27. Sidney F. Parham Jr., The Fundamentals of Legal Writing, The Michie

Company, 1967.

28. Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A

Lawyer’s Guide to Effective Writing and Editing, 2003.

29. Steven D. Stark, Writing to Win, Three Rivers Press, New York, 1999.

30. Theodore L. Blumberg, The Seven Deadly Sins of Legal Writing,

Owlworks, 2008.

Research Paper for Plain English in Legal Writing 25

 31.Thomas R. Haggard, Legal Drafting in a Nutshell, West Publishing, 2nd edition,

2003.

32. Wayne Scheiss, Better Legal Writing: 15 Topics for Advanced Legal

Writers, Wm. S. Hein & Co., 2005.

33. Wayne Scheiss, Legal Writing is not what it should be, 37 Southern

University Law Review 1, 2009-2010, page 8.

34. Wayne Scheiss, What Plain English Really Is, 9 Scribes Journal of Legal

Writing 43, 2003-2004.

Research Paper for Plain English in Legal Writing 26