The Craft of Simplicity

by Susan MacFarlane

The plain legal language movement in B.C. can be traced back to the Access to Justice Task Force. Its two reports, in 1984 and 1988, pointed to problems in the arcane wording of legal proceedings and documents.

Some believe that making language plain is a matter of rules about composition: shorter sentences, fewer syllables per word, larger type, or prohibitions on some words. The U.S. Securities and Exchange Commission, ICBC, banks and many other institutions specify attributes like margin width, type size, sentence length and word choice.

Other approaches to plain language attend to aspects of reception as well as composition. Mike Mangan is a lawyer and adjunct law professor who writes both for lawyers and lay people, and he is committed to using plain language. He looks at plain language from the viewpoint of reception, asking whether a reader of average intelligence who may have no legal training could understand, and how could the meaning be best conveyed to that reader. Phil Knight, former Director of B.C.’s Plain Language Institute and presently a member of the U.S.-based Legal Writing Institute, practises exclusively in drafting legal documents, predominantly legislation. He was recently involved in drafting a definition of plain language for South African credit legislation:

For the purposes of this Act, a document is in plain language if it is reasonable to conclude that an ordinary consumer of the class of persons for whom the document is intended, with average literacy skills and minimal credit experience, could be expected to understand the content, significance, and import of the document without undue effort, having regard to –

1. the context, comprehensiveness and consistency of the document;
2. the organization, form and style of the document;
3. the vocabulary, usage and sentence structure of the text; and
4. the use of any illustrations, examples, headings, or other aids to reading and understanding.

Today we see business actively embracing plain language. Business is motivated by regulatory guidelines set down by organizations like the SEC, enforceability concerns, and marketing goals. Government is also active in presenting plain-language companions to statutes and step-by-step procedural guides for lay litigants.

The legal profession has been slower to embrace plain language. Law students hear about plain language, but also learn that it’s easier and safer to use precedents and judicially considered phrases without trying to improve upon them. “The argument for judicially considered phrasing is overblown,” Phil Knight says. “No judge has ever said that’s all these words mean, or can mean, now and forever more.” However, knowing how words have been used is part of responsible research, he adds, and terms of art may be suitable in certain cases: “plain language can never be an excuse for carelessness or imprecision in writing or thinking.”

Making language “plain” is not simple. It requires skilled, careful attention to both composition and reception, and it asks lawyers to change their habits and expectations. Lawyers are expected to sound like lawyers, whereby billable rates increase in proportion to word and syllable counts. Challenging those expectations and making conscious changes requires confidence, and it can plainly be a radical thing to do.

Susan MacFarlane is a member of the BarTalk Editorial Committee, and she has been an editor for many years.

This article was published in the June 2006 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2006, all rights reserved.