In the early 1980s, Vancouver lawyer Kathleen Keating agreed to write about 100 scripts for Dial-a-Law, a just-emerging public service of the CBA-British Columbia. In the process, she learned just how important it is to be brief and be clear.
"To write a four-minute script on any subject was hard," she recalls. "You have to really understand something to explain it clearly, in a short space. It’s not as easy as it looks." From that point on, Keating became a committed advocate for the use of plain language in the law.
"It’s not an add-on," says Keating, who now works mostly on contract with the B.C. Ministry of the Attorney General. "Plain language, for me, is a synonym for clear communication." If she’s writing a letter to the Ministry, for example, she’ll use legal terminology — but if the correspondence is being copied to a non-lawyer, she’ll write it differently. It’s not a matter of using "simplistic" language, she says: "It’s just being clear."
In an era when Appeal Court judges no longer wish to be addressed as "Your Lordship" or "Your Ladyship," and a growing number of younger and high-tech clients prefer their lawyers to look and act the way they do, formality doesn’t hold the same sway over the legal profession that it once did. In that vein, plain language could be the most underrated and unappreciated way of improving lawyers’ relations with clients.
Plain language, Keating says, "takes down some barriers between lawyers and their clients. Sometimes clients seem confused, but they don’t indicate they don’t understand because they don’t want to look stupid. [Or] they may not understand your instructions, or you might not understand theirs.
"Plain language is all about meeting needs. Why wouldn’t a lawyer try to understand her client’s needs and meet them, rather than just [communicating] in a way that meets the lawyer’s needs?"
Writing clearly also has bottom-line advantages. Keating is now preparing written materials for Canada’s residential-school claims — or rather, she’s translating them from legalese. The government gave Keating and colleague Christine Mowat the compensation claim application and guide to the process, with instructions to convert them from the longer and more detailed versions into everyday language.
Appreciated effort
Lisa Teryl knows how to write plainly for the public: the Halifax-area lawyer has been producing a weekly column for the Sunday Daily News for over three years, answering readers’ legal questions. She also appears on CBC Radio’s MainStreet in Nova Scotia to talk about what’s new in the law, and worked for CBC-TV’s The Docket last winter, answering viewers’ questions submitted via the show’s e-mail address.
Teryl credits her newspaper column’s popularity to its strict avoidance of jargon and the degree to which it makes the law more accessible. It’s a habit that has carried over into her private law practice, Teryl Scott Lawyers, with excellent results.
"I had feedback from a client the other day; she was struck by the time, the care, the desire to explain the law to her," she says. "I think people appreciate having the extra amount of knowledge." And a client’s comprehension of the law also helps cushion the blow if Teryl has to deliver bad news.
"I think the public would dislike lawyers less if we made a habit of being more approachable, if we tried to bridge the gap," she believes. "I have a good client base because ultimately, I want to empower people. The plain-language approach is empowerment of laypeople — and people like that, so there’s an economic benefit."
Christine Mowat, Kathleen Keating’s partner in the residential-school claims project, is the president of Edmonton-based writing consultancy Wordsmith Associates. From her vantage point, the main benefit of plain language is greater access to justice. But at the same time, she can see how plainer language could actually mean less work for lawyers.
Mowat estimates she’s trained about 1,800 lawyers in her workshops. Some of the participants try to defend the use of legal language, arguing that its precision is necessary in legally binding communications. But Mowat points out that parties regularly wind up in court anyway, trying to determine the meaning of "precise language" that often was left intentionally ambiguous.
"The study of traditional legal language is the biggest obstacle for lawyers in good communication," she contends. "Too often, [lawyers] write for other lawyers and the court, not for their clients and the public, who should be the primary audience."
Plainly professional
It’s not just clients who appreciate clear writing: Mowat cites an American study that showed between 85 and 90 percent of judges polled in four U.S. states preferred plain language to legal jargon. Near-identical results have been reported in Australian and English studies.
"I think judges prefer clear, straightforward drafting," says Hugh Laurence, director of knowledge management at Goodmans LLP in Toronto. "They’re intelligent, capable people. They don’t need to be talked down to, but nobody likes to read turgid, rigid, incomprehensible prose.
"When writing a factum, you’re trying to tell a story," he adds. "You want to tell the story in a convincing and straightforward fashion that the court can understand."
Laurence’s firm instructs its students and associates to deliver plain, straightforward legal writing, and uses model documents to help drive home the point. "Persuasive writing has life, energy, passion," he says. "Successful negotiators are able to look at a story and put it together; it makes sense, it’s compelling. That’s what we need to do, rather than to robe ourselves in an academic distance."
David Elliott, who provides legislative drafting and labour arbitration services in Edmonton, has been using plain language for years. "For both legislation and writing decisions in arbitration, I look at who’s going to be reading it, and consequently try to make it as clear as I can," he says. "If people don’t understand the arbitration award, it doesn’t help the process. If it’s clearer, decisions are respected, even if [parties] don’t agree with it."
Plain communication has long been on the fringes of the profession, often talked about but all too rarely implemented. But that may be changing, as more practitioners and more institutions come to recognize its benefits. One of those organizations is the Canadian Forum on Civil Justice, a CBA-inspired clearinghouse for civil justice information and reform.
The CFCJ has recently embarked on a project to involve the public in civil justice reform. "The Civil Justice System and the Public" received funding in 2001 and should be completed by June 2006, says CFCJ Executive Director Diana Lowe. Research directors from the CFCJ and its host, the University of Alberta, have been joined by partners in academia, the judiciary, the profession, court administration, public legal education agencies, community organizations and the general public.
The project will conduct research and develop methods to improve communication between the courts and the public. Canadians who interact with the justice system will be asked to identify the kind of language that they find clearest and most meaningful to them in that context. And Lowe predicts: "There’s no question that plain language will be key."
When the project is completed, the CFCJ and its partners (including the CBA) will develop training programs, workshops, curricula and symposia to implement the lessons learned, while the project’s results will be published in academic and professional journals. Those findings may encourage legal professionals to consider switching from legalese.
"I think for the most part, lawyers don’t use plain language because they haven’t thought about using it," Elliott says, adding that many lawyers who’ve used plain language recommend it.
"A lot of people think lawyers like the mystique of Latin terms, but I don’t buy that," Keating concludes. "Some [lawyers] may think it sounds more professional to use big words, but more and more people realize clients expect them to relate to them as human beings.
"Professionals in general understand that their clients are consumers and need to be respected."
Elizabeth Raymer is a freelance journalist based in Toronto.