Clarity Journal 2011

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ClarityNumber 66 November 2011Journal of the

international associationpromoting plain legal language

Guest ditor for this issue:

Sally McBeth

Editor in chief:

Julie Clement

Guest editor for Cl ar it y67:

Anki Mattson

In this issue

Ann BlckertThe role of plain language in the writingtraining of law students 5

Howard WarnerPublic power: putting the case for the lay reader 8

Cheryl StephensWorking with lawyers on your projects 11

Mariana BozettiThe design and implementation of a plainSpanish writing-skills programme for

Argentinas leading law firm 14Justice John I. LaskinTeaching judgment writing in Canada 17

John L. GeigerA most dangerous clause: Plain languageprevents legal malpractice in software licensing 20

Rachel L. JonesNova Scotia regulations drafting:a collaboration that works well 23

Caroline Lindberg (with editing byKim McCutcheon)Developing legal rights information:Collaborating with external legal advisors 27

Tania McAnearneyA four minds approach to editingcreates clarity 30

Clarity and general news

3eussisihT

01ytiralCniojotwoH

62lanruojehtotgnitubirtnoC

Member and other news and events 26

Linguistic Lingo for Lawyers 32

43sweNecnerefnoC

Message from the President 35

e


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2 Clarity66 November 2011

Patrons The Rt Hon Sir Christopher Staughton; The Honorable Michael Kirby AC CMG; andSir Kenneth Keith, ONZ, KBE, and QC

Founder John Walton

CommitteePresident: Christopher Balmford ([email protected])Members: Country RepresentativesplusSimon Adamyk, Michle Asprey, Peter Butt, Sir Edward

Caldwell, Richard Castle, Annetta Cheek, Julie Clement, Jenny Gracie, Robert Lowe,John Pare, Daphne Perry, John Walton, Richard Woof.

Honor roll of donors to Clarity

Clarity is managed entirely by volunteers and is funded through membership fees and donations.We gratefully acknowledge those financial supporters who have contributed to Claritys success:

$2,500+ Plain English Foundation, one anonymous donor, Christopher Balmford

$1,000+ Joseph Kimble, Julie Clement

$500+ Nicole Fernbach

$100+ None

Country representatives

Slovak RepublicIng. Jn Rendek

[email protected]

South AfricaCandice [email protected]

Spain

Cristina [email protected]

SwedenHelena Englund Hjalmarssonhelena.englund@

sprakkonsulterna.se

UKDaphne [email protected]

USAProf Joseph [email protected]

ZimbabweWalter [email protected]

Other European countries:Catherine [email protected]

All other countries:Please contact the USArepresentative

ArgentinaMaximiliano Marzettimaximiliano.marzetti@

erasmusmundus-alumni.eu

AustraliaChristopher [email protected]

BangladeshA.K. Mohammad [email protected]

CanadaNicole Fernbach

[email protected]

ChileClaudia Poblete [email protected]

FinlandHeikki [email protected]

GermanySiegfried [email protected]

Hong KongEamonn [email protected]

IndiaDr. K.R. [email protected]

IsraelMyla Kaplan

[email protected]

ItalyChristopher [email protected]

JapanKyal [email protected]

Lesotho

Retsepile Gladwin [email protected]

MalaysiaJuprin [email protected]

MexicoSalom Flores Sierra [email protected]

The NetherlandsHlne [email protected]

New ZealandLynda [email protected]

NigeriaDr. Tunde [email protected]

PeruRicardo [email protected]

PhilippinesVictor [email protected]

PortugalSandra [email protected]


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Clarity66 November 2011 3

Clarity the journal

Published in May and November

An international associationpromoting plain legal language

www.clarity-international.net

This issue

I volunteered to guest edit this issue out of na-ked self interest. Im a clear languageconsultant with an honours degree in Englishand Sociology, a lifetime of experience as aprofessional editor, and no legal training at all.I have always felt intimidated by the argu-

ment that my clear editing might run afoul ofthe law in some obscure but dangerous way,causing harm to my clients.

A year ago, this quandary generated somelively discussion on the PLAIN list. I decidedto focus this issue on the lawyer/non-lawyerinterface in the plain language field. I guesswhat I really wanted to know was, whats theway forward? Heres what I learned from ournine wonderful contributors:

FromAnn BlckertI learned that even in ourrevered Sweden, first-year students are taughtto approach the law as an alien language.

Howard Warnerdid a good job of articulatingthe frustration that many of us feel about theintractability of legal language. Cheryl Stephenstaught me a lot about the lawyerly per-sonadefinitely not my personality type!

Thats the struggle, but so much of what Ilearned did point to a way forwardfor boththe legal and the plain language professions.

Mariana Bozetti, a university-level writingteacher, talks about the clear Spanish programshe helped to develop at one of Argentinaslargest law firms. JusticeJohn Laskindescribeshow he recruited faculty from Canadian col-leges and universities to teach judgmentwriting. Virtually every federally appointed

judge in Canada has taken the course, and ithas become an international model.

John Geiger,an attorney who acts expresslyas aplain language consultant on contract negotia-tion teams, shows how this collaborative model

can mitigate risk. At the Nova Scotia Depart-ment of Justice, Registrar Rachel Jonesheads upan office where plain language editors and

President

Candice [email protected]

Editor in chief

Julie ClementPO Box 13038Lansing, Michigan 48901Fax: 1 517 334 [email protected]

Advertising rates

Full page: 150Smaller area: pro rataMinimum charge: 20Contact Joe Kimble, [email protected]

Copyright policy

Authors retain copyright in their articles.Anyone wanting to reproduce an article inwhole or in part should first obtain theauthors permission and should acknowledgeClarity as the source.

Submissions

We encourage you to submit articles to be

considered for publication in Clarity. Sendsubmissions directly to editor in chief JulieClement. Please limit submissions to approxi-mately 1,500 or 3,000 words.


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regulations drafters work together with sharedpurpose and mutual respect. At CommunityLegal Education Ontario, Caroline Lindbergdescribes a collaborative model between legaland language experts. In New Zealand, Tania

McAnearneyworks with a four minds approachfor large legal projects. The team includes theclient, an editor with both legal and languagetraining, a professional copy editor with aplain language approach, and users for testing.

We plain language professionals cant all belawyers. We dont necessarily have to be, aslong as we work collaboratively. Those of uswho work as external consultants wouldgreatly benefit from specialized training tohelp us in our inevitable brushes with theclients legal department. My hope is that wewill see courses like that emerge as we movetoward accreditation in the plain languagefield.

Lawyers and judges cant all be plain lan-guage experts either. But an awareness of theduty to communicate and the techniques it re-quires should be instilled in the profession,from the first day of law school onward.

The sooner we can make both of those things

happen, the smoother the path to collabora-tion will be.

Sally [email protected]

Sally McBethmanages ClearLanguage and Design (CLAD)in Toronto, Canada. TheCanadian Centre forProfessional Legal Educationuses CLADs website asclassroom resource for bar

admission students.


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Ann Blckert

Uppsala University, Department of ScandinavianLanguages

In my dissertation1I present a study of hownew law students at Uppsala University aretrained in the use of legal language. The stu-dents are enrolled in a 4.5 year programme.

They do not need prerequisites, and about halfof them have not studied at university before.

My study focuses on the language norms andideals law students encounter. My core mate-rial consists of the teachers written commentson the students texts during the first year ofthe programme. By means of observations,surveys and interviews, I have documentedlanguage advice that the teachers provided indifferent types of instruction and the studentsview on writing training.

Belonging and alienation

When the students get their first graded writ-ing assignment back, some teachers point outthat legal Swedish is an entirely new lan-guage. I can imagine that these new lawstudents listen with great interest to this mes-sage. They are putting on new, unaccustomed,linguistic attire.

This can be perceived as something desirable.They are starting an education that is highly

sought-after. The situation can also be alienat-ing. I heard one student say, Some of theother students start talking legalese at once,

but I dont understand anything.

That feeling of distance can be reinforced bythe school. As a part of the teaching of legalmethod, there sometimes arises a picture of avery special lawyers guild. Lawyers speak alanguage that is alien to non-lawyers, statesone handbook on method.2

The teachers intention is probably to help thestudents understand the new context. From aplain legal language perspective, the condi-

tions and norms that the law teachers conveyto the students are very important, particu-larly at the beginning of law school, when thestudents search for clues to what legal studiesare all about.

The view that legal language is a new lan-guage can exaggerate the distance betweenlawyers and non-lawyers. In a questionnaire, I

asked third-year students whether they hadreceived some training in responding to theneeds of different reader categories and of alay audience. In their answers, two studentsshowed a noteworthy attitude:

Didnt happen. I just want other lawyers tounderstand what I write.

Has not occurred. Everyone can write fornon-lawyers, nothing that we need topractice in the course.

I think the first answer should not be inter-preted to mean the student wants onlylawyers to understand his texts. But it showsthat his focus is on the members of the guildhe is to enter. It seems as if he is struggling toachieve what he has imagined to be the appro-priate legal style and content.

The second answer shows a narrow concep-tion of what it means to write for non-lawyers.Formulating legal content that can be under-stood by different readers is definitely not an

easy task. This student had been in law schoolfor nearly three years. Apparently she has notacquired much of a meta-perspective on thelanguage use of the legal profession in relationto people and needs outside the profession. Ithink that this shows a deficiency in her edu-cation. Law school training often points outthat legal matters are difficult and can be fullyunderstood only by lawyers. The studentsought to be constantly reminded that legaltexts and matters deal in the main with the af-

fairs of non-lawyers.

The role of plain language in the writing training

of law students


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How students understand good legalwriting

A style guide that law students in Sweden areencouraged to follow presents writing simplyas a goal of legal Swedish.3Based on thisideal, the aim of the teachers is to mark word-

ing that is convoluted, wooden or archaic.Another aspect of the language ideal concernsviolations of conventional language rules,rules that educated older people learned in el-ementary or grammar school. These norms forgeneral written language here become a fun-damental part of the legal language practice.

When students summarized what they hadlearned about writing during the first semes-ter, they expressed a mixture of theimportance of accuracy in thinking, the ideal

of writing simply, and detailed linguisticnorms:

Be more careful with the small details oflanguage. Learn the importance ofthinking really carefully when formulatinga sentence.

I have learned and developed a great deal.I have learned to write clearly and simplyand not to have as many pronounreference errors.

The latter student has understood that she isrequired to write simply, but along with thatstands the benchmark of precision: Alwaysstrive for precision in pronoun reference!

Precision also means dealing with formalitiesin the conventional way. New students can beso preoccupied with formalities that this as-pect conceals more important facets of legalwriting. One first-year student, who had al-ready graduated from another universityprogramme, revealed that what she has

learned about the use of legal language is notvery profound:

How one should deal with footnotes andthe formal conventions of writing in thisdepartment. Other than that, I have only

become more confused.

In a handbook for new law students the im-portance of writing without any errors isstressed: The goal of correctness for you as awriter of memos is definitely realistic.4In ane-mail, one of the teachers in my study under-

scored this, describing a legal languageculture in which the standard is texts withouterrors:

Lawyers are formalists, in some respects. Ifa text contains noticeable spelling errors,only a few, it is typically perceived as lessimportant what it actually containsit can

be categorically dismissed, is not worthtaking seriously. To use the wrong word, totake another example, is to beincompetent.

Precision is a main norm in the law teacherscomments on the students texts, whether themarking refers to rules for general written lan-guage, to norms for an academic logical styleor to norms that are specific to the legal use oflanguagefor example, the correct profes-sional vocabulary, or how legal sources are to

be denominated.

Precision vs. plainness

Of course precision contributes to quality in astudents text. But, as Joseph Kimble haspointed out in his essay on the myths aboutplain language, the concept of precision is of-ten used to argue against plain legal language:

Myth Four: Plain English is impossiblebecause the law deals with complicatedideas that require great precision.5

In the striving for precision, the good must notbe the enemy of the best. Like Joseph Kimble,

I am convinced that plain-language principlesusually can make even complicated ideasmore clear.

The teachers written comments that I gath-ered for my dissertation frequently concernthemselves with word choice and style. Theteachers mark expressions that they think fitthe legal tone poorly in different ways. Thelegal tone is hard to describe, and the risk isthat the students, in their search for the correctlegal tone, rely on the conventional style that

they find in the course material, in jurispru-dence, and in old cases. They suspect thatwhat really counts in law school is establishedtraditionsand therewith legalese.

Quite often, the sentence structure in the stu-dents texts deviates from the ideal of writingsimply and clearly. Convoluted sentences can

be caused by a lack of ability or an attempt toimitate a legal style. The teachers commentson sentence structure may imply a kind ofdouble message to the students. In the course

literature, students often encounter complexsentence structure. One student, whoseteacher had told him to avoid dependent


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clauses, expressed his need for a functionallanguage:

But I write dependent clauses when I wantto clarify.

The students reaction shows how important itis to involve the students in a learning pro-

cessto help them analyse and problematizewhat writing simply means in practice.

To facilitate a plain-language orientation inlaw schools, both students and teachers need adeeper knowledge of the similarities and dif-ferences between language use in legalsettings and other types of factual prose andpublic language. Co-operation between law-yers and linguists is needed in thatknowledge-building process, as well as instriving for a plain legal language culture.

The gap between legal and non-legal languageuse that the students may perceive can be re-duced if more emphasis is given to thequalities that the students already can find intheir own language. Language socializationmust not work in the way that this first-yearstudent has encountered:

When you think that something is good,you can instinctively expect to get itslammed.

From the students point of view, legal lan-guage can be perceived as something new, butthere is a danger in presenting legal languageas a new language to first-year law stu-dents. It can legitimize a language that isdense and verbose and a language use inwhich it is the readers responsibility to un-derstand the text, not the writersresponsibility to make the text clear. Law stu-dents may be learning a new, subject-specificvocabulary and a new method for reaching

conclusions, but also they must see that thecriteria for a well-functioning legal languageare much the same as for many other types oflanguage use.

One of the law teachers in my study intro-duced me to a saying from German lawyers:

Two things get better with age, lawyersand Persian rugs.

From a plain-language perspective, we canhope that this saying implies that lawyers will

have the wisdom and the courage to lift thefog of legalese. But it is no simple thing tochange a culture. The language socialization

of law students is just a part of their socializa-tion into the larger legal culture. One of theirhandbooks encourages them to let them-selves be socialized, let themselvesso tospeaksink into the layers of the legal cul-ture.6The authors borrow a voice from theStar Trek Universe, whose message they per-haps mean summarizes the mechanisms of thelanguage socialization of law students:

You will be assimilated. Resistance isfutile.

The Borg Collective

A Blckert [email protected]

Endnotes1

Blckert, Ann, 2010:Juridiskaett nytt sprk? Enstudie av juridikstudenters sprkliga inskolning[Legalesea new language? A study of thelanguage socialization of law students]. Diss.Uppsala University, Department of ScandinavianLanguages

2 Melander, Jan & Samuelsson, Joel, 2003: Tolkning ochtillmpning[Interpretation and application]. 2 ed.Uppsala: Iustus, p. 193

3 Jensen, Ulf, Rylander, Staffan & Lindblom, PerHenrik, 2006:Att skriva juridik. Regler och rd[Writing Law. Rules and advice]. 4 ed. Uppsala:Iustus

4 Melander, Jan, 2006:Examinationer. Betraktelser verjuriststudenters skrivande. [Examinations. Essays on thewriting of law students]. Ordpolisen HB, p. 26

5 Kimble, Joseph, 2006: Lifting the fog of legalese. Essayson plain language. Durham: Carolina AcademicPress, p. 11

6 Melander and Samuelsson, p. 194

Ann Blckert, Ph.D., is aresearcher at the Department ofScandinavian Languages atUppsala University.Previously she has worked withlanguage cultivation at theLanguage Council of Swedenand as a teacher of Swedish.Her doctoral thesis deals withthe language socialization oflaw students. Her researchinterests are discourse analysis,linguistic norms, writing within educational and publiccontexts, and legal language.


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Howard Warner

Plain English People, New Zealand

When a lawyer drafts a legal document, thebottom line is whether it will hold up incourt So lawyers write with other lawyers inmind.

In reality, most legal documents are for thebenefit of laypeopleframing their rights andobligations so they can conduct their businesssafely and effectively. Obviously, they need to

be able to read and understand those docu-ments.

But how much do lawyers really care? And dothey have the skill to transform these docu-ments into crisp, modern, reader-focussedcommunications anyway? Or are they tooclose to the content, too mired in their age-oldconventions?

Maybe its time they looked outside the pro-fession for help in communicating with thepublic.

Unlettered in matters of law

Let me nail my colours to the mast. I am not ofthe profession. I have never drafted a brief orconstructed a contract. Im one of the hoi-polloi,the publican ordinary consumer of law.

As a professional plain-English practitioner, I

work with providers of specialist information,including lawyers. But I consider the lay audi-ences of those specialists to be my electorate,the people I truly represent.

Ive noticed how the legal profession describesitself in exalted terms, capitalising such termsas bench, judge, court, contract and crown, evenwhen used generically. So for this article, sinceIm putting the case for the lay reader, I plan toturn the tables. I shall exalt with capitals onlythose worthy institutions I represent: the Cus-

tomer, the Public, the Punters, the Lay Reader.

How Ordinary Folk view legal docs

Ordinary Folk like me have contact with thelaw almost daily, especially in written form.We may deal with a will or trust deed veryrarely. But most days well view an email orwebsite with a disclaimer; refer to a sales oremployment contract; receive a parking ticketor some other regulatory notice.

We come from all points on the reading-skillsspectrum. But when it comes to legal docu-ments, there are a few maxims we can take asread:

The longer the document, the less we read.

The smaller the type, the harder it is to focus.

The denser the text, the less we understand.

The more elevated the language, the lesswere inclined to question.

We seldom feel part of the legal-documentprocesseven though it is supposedly for our

benefit, and were the ones paying for it.

In employment, youre presented with a con-tractyou either sign or someone else gets the

job. In a property deal, lawyers and real-estateagents supply the contractsyou dont bringyour own. And in any online commercial trans-actions (booking a flight, buying a product,signing up to a subscription or membership),you cannot move on to the next step until youhave declared that you read and understoodthose 25 pages of small-print mumbo-jumbo.Most people just sign and hope.

Barriers to readability

So why cant the Public read legal documentsas easily as lawyers can?

Its not just the archaic words, the wherewithalsand aforementionedsand hereintos. Nor the jar-gon and redundancies (pursuant to, malfeasance,

cease and desist). Nor the prevalence of Latinexpressions in an age when pupils are morelikely to study Russian or Mandarin or Maori.

Public power: putting the case for the lay reader


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Nor the capitalised words, bracketed definitions,repetitions, references and all other devicesthat clutter up the text.

Its the sheer volume of text: the sentences thatare too long to digest, too complex to unravel;the headings that are almost as long as sen-

tences; the intricate, multi-layered numberingsystems; the mass accretions of qualificationsdelaying the all-important sentence subject.

What the Lay Reader really wants

By contrast, all the Lay Reader needs is:

the information in a logical order, so theycan find things easily

words they recognise

enough full-stops (periods) so they can

pause and process whats just been said

direct, clear subjects and verbs, and a logicalsentence order

a tone that makes them feel included

a typography that helps them focus.

What they dont want is a document theyhave to take back to their lawyeror anotherlawyerfor translation, probably at substan-tial extra cost.

Behind the lawyer-speak

Why are legal documents written in thisReader-unfriendly way? Ask a lawyer andtheyll say: to make sure everything is water-tight when its challenged in court, or becausetheyve always done it this way.

Bryan Garner, in Legal Writing in Plain English,talks of the age-old cycle of poor legal writingthat lawyers will never break until theyreready to change their thinking. And the non-

sense baggage they carry around about whatis right and wrong. And their ill-founded fearof being simple and, by implication, simple-mindedor perhaps seeming to lacksophistication.

Adam Freedman, in a recent Wall Street Jour-nal article, refers to lawyers trying to dazzletheir audience and put their erudition ondisplay.

An even more cynical view is that lawyers uselanguage to protect their professional mystique,

to preserve the distance between themselvesand the Hoi-polloi.

Stumbling blocks to progress

But the problem goes deeper. Throughout theworld, lawyers base much of their work onlegislation that is archaic, overblown and ob-tusecertainly beyond the understanding ofyour average intelligent Lay Person.

But the biggest stumbling block to the Publicbeing able to access the law is the lack of anyformal communication channel. Weve got noway of telling lawyers what we want, andthey arent rushing to ask.

In my native New Zealand, weve had a high-powered team working behind the scenes toreview all our legislation, supposedly for thepublics benefit. And the Parliamentary Coun-sel Office, which manages our legislativedrafting, has been working to a plain Englishpolicy for the past decade. Mind you, the leg-islative review team is all legal luminaries andacademics, and the Parliamentary Counsel Of-fice developed its policy internally, withoutpublic input.

Another stumbling block is the way lawyerskeep everything in house instead of usingconsultants for specialist tasks. Lawyers oftenfallaciously see plain English editing as a legaltask, if they recognise it at all. Our firm wasonce approached by a solicitor wanting to learnhow to edit, so she could offer her clients anadditional service of interpreting those tiredold templates shed been foisting on them. Weadvised her to hire real editors at her owncost, and use the fresh, modern, reader-friendly templates as a marketing point ofdifference. But the point was lost on her.

How external editors can help

It must be immensely hard for lawyers to cedeany part of a craft they have always owned.

They worry that an editor untrained in lawwill change their meaning and intent. But edi-tors are professionals too. They are trained toenhance text through manipulation of syntax,word usage, grammar, structure and visualpresentation. They are skilled at tidying uptextin the interests of consistency and pro-fessionalismthrough the fine shadings ofpunctuation, grammar, style and formatting.And they can do all of this without affectingany content.

Plain language editors take it a step further.They are specialists in matching language and


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presentation to lay readershipspeople withless understanding of the subject, less famil-iarity with specialist documents, even lesserreading ability (though not necessarily).

My business was engaged to edit a decades-old trust-deed template for a law firm. The

partner told us she was tired of trying to ex-plain it verbally to clients, doing little morethan repeating the words, but giving up half-way through because she was just as confusedand bored as they were.

Dinosaur alert

These are changing times. Traditionally shel-tered industries, such as law, are facingcompetition from unexpected quarters. ThePublic is demanding greater accountability,

through enforceable standards. Consumers arestanding up for their rights.

The business of law is less secure than ever be-fore. I see this in recent marketing efforts bysome law firms, where previously the status oftheir profession spoke for itself.

Unless lawyers start communicating with thePublic on their level, in their language, theyrisk becoming the dinosaurs of the informa-tion age. The whole industrynot just a fewenlightened individualswould have to un-

dergo a major shift in attitude towards thepublic.

There are some obvious steps they can take:

Rip up all those fusty old templates and startagain.

Use plain English editors.

Take advice (even training) from externalwriting specialistsrather than just otherlegal types who perpetuate the sameconventions.

Try user-testing.

If lawyers were to move in this direction, thenthe bureaucrats and others who worship at thetemple of legalese would follow, I suspect.

Australian plain legal-language expert DrRobert Eagleson, in a recent conference paper,urged his colleagues: We must be more flex-ible than ... in the past, more prepared to breakwith tradition, always open to the expecta-tions of our readers and disposed to select anarrangement that is congenial for them.

Id put it more bluntly, on behalf of my con-stituency: The Customer is always right. TheCustomer pays your bills. The Customerneeds to understand. So keep us happy andtalk to us, in our languagewhatever thattakes.

H Warner [email protected]

Howard Warner is executivedirector of Plain EnglishPeople, based in Auckland,New Zealand. He has beenediting all kinds of publicdocuments, from a wide rangeof sectors, for the past 20-oddyears. He also trainsgovernment and private-sectorgroups to write clearly and

effectively.

How to join Clarity

The easiest way to join Clarity is to visithttp://sites.google.com/site/legalclarity/,complete an application, and submit itwith your payment. You may use PayPal ora credit card to pay.

Prospective members in Canada, Italy, andthe United States may also pay by bankdraft. If you prefer to submit a hard copyof the application, you may contact yourcountry representative for submission in-structions. Country reps are listed on page2.


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Cheryl Stephens

Plain language consultant, Vancouver, Canada

As a plain language professional, you mayhave complained, The lawyers wouldnt letus. As a former lawyer, and after 20 year as aplain language consultant, I hope to help you

become more successful in your dealings with

lawyers.I will cover three topics:

1. What you need to know about lawyerswork

2. What we know about the lawyerlypersona

3. Ways to work more effectively withlawyers

1. What you need to know about

lawyers work

Traditionally, the legal profession distin-guishes documents that are part of daily lifecorrespondence, memos, and reportsfromthose that recognize rights and impose obliga-tions.

Producing the latter is called legal drafting.There is some debate about whether the verbto draftoriginates from solicitors seeing them-selves as draftsmen,who draw up documents,

or as professionals, who present preliminarydrafts for client review. Lawyers use the wordwith both meanings.

Lawyers draft two kinds ofdocuments thatdeal formally with rights, obligations, and

benefits.

The first kind are legal documents thatrecord dealings between two or morepeople. Examples are contracts, deeds, andincorporation papers. These have acquiredtraditional wording and grammar.

The second kind includes laws andregulations. This is called legislative draftingand has its own rules.

The heart of your frustrations with lawyersmay revolve around this simple fact: they areas attached to words and the rules of writingas you are.

2. What research says about the lawyerlypersona

There is a lawyerly persona, like the personas

we use in design, marketing, or usability toguide our decisions. We can also use the law-yerly persona to understand and bettercommunicate with the lawyers we work with.

Since the 1960s, law students and lawyershave been tested with many tools. In fact onetool, the Meyers-Briggs Typology Index, wasdeveloped to help a pair of psychologists un-derstand the temperament and behavior of alawyer who married into their family!1

Lawyer personalities differ from the generalpopulation. It is not settled whether lawschooling or the practice of law changes per-sonalities, or that people with certainpersonalities choose the law. As students, fu-ture lawyers are already internally insecure,awkward, and anxious.2

While lawyers are different from the rest of us,they are similar to each other in importantways. I will not discuss the 10 20% who dif-fer markedly from the typical lawyer.

Specifics of the lawyerly persona

Pessimism is the most common trait of law-yers. It serves them in their careers but is nothelpful in dealing with people.3Faced withconflict, the lawyerly persona will either avoiddealing with it or prepare for battle.

Our lawyerly persona(LP for short) is skepti-cal by nature and wants to see facts that can beverified by a reliable source. The LP insists onlogical, unemotional analysis of problems, but

wants matters brought to a quick conclusiondue to their sense of constant, high urgency.

Working with lawyers on your projects


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The LP hates disorganized situations, lack ofplanning, and inefficiencies. The LPgets up-set by surprises orbig or frequent changes.

While clinging to ageless customs, lawyersdraw on the lessons of history, hindsight, andexperience to deal with the here and now. The

LP sees justice in defined and expected out-comes, not as an abstract ideal.

3. Ways to work more effectively withlawyers

With your clients permission, involve thelawyer in the process early. Agree at the starton a protocol of communication between you.If you have a liaison at the client office, ask ifthey want to be copied on communicationwith the law office.

Create a work plan

Lawyers need detail and a clear picture ofgoals and objectives. They crave structure.

When faced with making a quick decision,they are most likely to give you a no an-swer. Show them there will be time for carefulconsideration. Remember that lawyers likeschedules, closure on decisions, planning, fol-low through, and a cut-to-the-chaseapproach.

You can build trust by creating a work planand abiding by it. This can reduce thelawyers perception of risk in your collabora-tion.

Make a plan that starts at A and ends atZ.

Move through the plan one step at a time; noskipping around.

Make each part and piece definite andseparate, even measurable.

Pay attention to detail or explain anydeviation.

Stick to deadlines; be clear that you expectthe lawyer to do the same.

Feed into the lawyerly desire for criticalanalysis

Lawyers are less likely to see the positive andwould be uncomfortable expressing it if theydid. They are primed to criticize and not to seethe benefits of change involving risk.

Do not expect a lawyer to praise your plainlanguage revision. Be prepared to face their

skepticism, pessimism, and cynicism. Appealto the lawyers competitive nature by suggest-ing that other lawyers are adopting plainlanguage, or that clients are increasingly de-manding it. Or, in some cases, point out thatthe law requires it!

Show respect for the legalitiesTreat the lawyer like as you would a subject-matter expert. I have found it wise to asklawyers for a memorandum on the law in-volved. By starting with their own report onthe law, we avoided arguments over legal in-terpretations.

You have to emphasize that (usually) your roleis to write for the client, or the public, so theycan understand the law in general application,not to take it as personal legal advice. Make itclear this is not an experiment but an eco-nomic or market imperative facing the client.Lawyers are ambitious; use it against them.Theyll want to be on the cutting edge.

If persuasion is needed:

Provide the lawyer with examples of plainlanguage. Show models of similar types oflegal documents in plain language.

Emphasize that clarity increases precision.Provide reading materials.

Do all you can to overcome the lawyersinstinctive conservatism and risk-aversenature. If necessary to concede on aparticular word, try to provide an in-textdefinition.

Respond to the argument that the language isapproved by the courts. Remind them that ifthe legal language was so clearly drawn, itwould not be litigated. And the truth is that itis seldom the choice of words that is the crux

of a court decision.On contentious issues, go to the law library tocheck several of the books described as com-pendia on legal words and phrases. You willfind support for the idea that the words inquestion are not settled in meaning.

Accept the lack of rapport

A lawyers cold reserve, and lack of interper-sonal connection with you, is about the lawyer,and the fact that law firms value technical

competence over emotional intelligenceit isnot about you!


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Recruit intermediaries. Ask the lawyer if youcan deal directly with her legal assistant orsecretary for most communication. Legal sec-retaries are more likely to have better peopleskills and theyll serve as a buffer of high emo-tion.

How to deal with this: Draw the lawyer out; think of the lawyer as

a shy flower!

Be aware that lawyers hear things literally.

Accept that they do not brainstorm.

Give them time to think by sending yoursuggestions to them in writing.

Expect a certain degree of aggressivenessfrom the lawyer; dont rise to the challengeor youll be drawn into their game.

Be flexible yet cogent

Lawyers prefer to look for a leverage pointthat will fix the problem with the least dam-age to the original. The lawyerly personaplaces a high value on minimizing both effortand risk.

The law tradition considers certain words sac-rosanct. That is because the law was oncememorized word-for-word, to be passeddown through the generations. Nowadays,lawyers want to find just the right wordnever mind that the original document is notright or concise!

How to deal with this:

Set out the pros and cons of wordings andambiguities.

Offer alternative wordings and be preparedto negotiate them.

Satisfy the lust for a cost-benefit analysis

emphasize the risk of keeping the legaleseintact.

As a last resort

Try using a plain language summary as a coverpage for a longer document. I had to do thisonce.

My client was a funding agency that neededto receive periodic progress and financial re-ports from its clients. The clients could notunderstand the four-page contract and repeat-

edly failed to file reports. Working with a lawfirm, we wrote a new contract in plain lan-guage. The lawyers decided the contract terms

were insufficient so they added about fivepages of information. Paragraph by para-graph, we had to negotiate the wording.Ultimately, we agreed on a two-page sum-mary of terms. Using this summary, the clientswere able to understand their reporting dutiesand comply with them. The summary in-cluded a disclaimer that in case of a conflict,the terms of the contract overrode the descrip-tion in the summary.

Although the result satisfied the agencys pur-pose, it was frustrating to me that the finaldocument was so long and needed an execu-tive summary.

C Stephens [email protected]

Endnotes1 Center for Applications for Psychological Type,

The Story of Isabel Briggs Myers, http://www.capt.org/mbti-assessment/isabel-myers.htm

2 Daicoff, Susan Swaim, Lawyer, Know Thyself: APsychological Analysis of Personality Strengths andWeaknesses,American Psychological Association(2004)

3 Seligman, Martin,Authentic Happiness,Why arelawyers so unhappy? pages 17779, Free Press(January 5, 2004)

Cheryl Stephens, BA (Hons),JD, has devoted 23 years of herlife to promoting plainlanguage, founding PlainLanguage AssociationInterNational, creating PlainTrain and PlainLanguage.com.She has written 4 booksavailable atPlainLanguageWizardry.com.Cheryl now manages the PlainLanguage Advocates group onLinkedIn. A detour led to the study of personal coaching

for lawyers.


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Mariana Bozetti

Marval, OFarrell & Mairal, Buenos Aires, Argentina

This paper describes the practical and theoreticalaspects of a long-term, in-house programme in

plain Spanish carried out in a law firm in BuenosAires, Argentina.

Beginnings

Since 1998, I have been teaching plain writingin Spanish at Marval, OFarrell & Mairal, oneof Argentinas largest law firms. Founded in1923, it has over 300 lawyers who work in allareas of the Law.

In 1997, Marval, OFarrell & Mairal hired awriter, Pedro Mairal, to give individual classesin improving writing skills for any interestedlawyer. Initially, this was simply one more

perk that the law firm offered. The aim of thiscourse was to provide the lawyers with a bet-ter skill set when it came to writing to enablethem to write more clearly and concisely. Thisindividual improvement turned out to be sosuccessful that the following year, the law firmdecided to implement systematic group train-ing. At this point Pedro Mairal invited me toshare his workload. I taught and still teachacademic writing at the Torcuato Di Tella Uni-versity, so had experience in writing itself aswell as dealing with the process of turning

ideas into words. I also had technical back-ground in teaching writing skills to those whoare supposed to already know how to write,which is the case for both University studentsand lawyers.

When it came to designing the first groupcourse, we could find no other similar projectin Argentina, nor could we find a bibliogra-phy on the subject. So we turned to classicalrhetoric, and two of the most important au-thors in English on the topic, Martin Cutts2

and Richard Wydick3, as well as a Catalan au-thor, Daniel Cassany, a professor at the

Universidad Pompeu Fabra, in particular hisbook La cocina de la escritura.4Cassany is a pio-neer in spreading the principles of languageclarification that come from the Anglo-Saxontradition to the Hispanic world. We also in-cluded aspects of cognitive sciences influenceon writing, such as works by Hayes andFlower5and Bereiter and Scardamalia6These

were the sources used to design an eight-partcourse which covered clarification of texts andfocused on writing as a process, consisting of

brainstorming, planning, writing and revision.The course also included one class dedicatedspecifically to punctuation, as a basic tool forany writer wishing to have dominion overtheir words.

This first course was extremely ambitious:each class plan included theory and practice,

based on working documents from Marval.

All exercises had a possible solution, which, aswell as providing a template, also encouragedparticipants to work on their own process ofclarification.

The first group course was aimed at lawyersof all levels in the firm, from partners to in-terns. We also set up a consultation helplineon e-mail and on the telephone and included aservice to revise texts on request. The objectivehas always been not to proofread, but to ana-lyze the text with the author once it has been

revised, in order to illustrate to the authorwhich points were obscure.

In 2002, we started to publish a bulletin, R&W,on a monthly basis, in collaboration with

Joanna Richardson, who teaches plain Englishat the firm. The bulletin includes quotes fromfamous authors and specialists on the guidingprinciples of our work: clarity, concision andsimplicity. We also analyze common errors inwriting and any recent queries.

At this point I should point out that the course

is optional, hence the need to raise awarenessof the advantages of plain style.

The design and implementation of a plain Spanish

writing-skills programme for Argentinas leading

law firm1


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Foundations

The theoretical framework behind our work isbased on the sources mentioned above,namely studies of readability and legibility,which are closely linked to classical rhetoric.Thus, both discourse analysis and textual lin-

guistics allowed us to refine our trainingprogram. For example, the concept of discur-sive genre by the Russian linguist MijalBajtn7was a breakthrough in the field tomake the step from micro to macro text. Bajtnproposes an analysis of communication withinspecific groups of people. He focuses on dis-course as social practice. This is particularlyapplicable to legal language, as it allows us toanalyze the distinguishing features of a par-ticular type of legal writing and work onsimplifying the documents design.

From the French perspective, la thorie delnonciation, the concept of speaker and lis-tener enables us to address problems in depththat used to be simply put under the label ofkeeping the reader in mind. Thus, the law-yer finds it easier to understand that if theyuse irony to excess, they are constructing aspeaker who is overly present, who draws at-tention to themselves, instead of basing theirargument on facts and proof; and that ulti-mately, this weakens their argument. Textuallinguistics, with its concept of text (or dis-course) as a complex and multi-layered object,allows for an exhaustive analysis of texts andallow us to classify exactly where the nuclei ofobscurity lie.

The program design and training have beenmy sole responsibility since 2008.

Centro de Escritura(Writing Centre)

As of 2010, Marval, OFarrell & Mairal named

the Writing Centre as a stand-alone depart-ment within the firms organizationalframework. Although for the moment I am theonly consultant, the Writing Centre hopes toincorporate new advisors in the future. Thecentre develops the following areas of writing:clarification of style, training in plain writing-skills, writing for specific purposes,proofreading and editing, document designand query-answering. This centre is a modelthat may be replicated within any institutionto implement plain language programmes.

The programme: five courses

Today, the plain Spanish training program isgiven in five courses throughout the year:Writing Skills I, Writing Skills II, Punctuationfor lawyers, Writing e-mails and Writing legaltexts. Each course has its own manual. The

consulting service continues, as does revisionof texts and the opportunity to consult on spe-cific queries that crop up while writing. Themonthly bulletin continues to publish queriesand common errors in writing.

Writing Skills I

Writing Skills I introduces the concept andcentres on the micro texton the simplifica-tion of words (lexis) and syntax, the sentenceand the paragraph. Then the concept of dis-course genre is introduced, which allows us tomake the jump to macro text and to the firstdivision of genre, destined for either judgesand lawyers or laypeople. This course finishes

by showing precisely where the texts have nu-clei of obscurity and how this alters readersunderstanding. It is divided into eight parts,each an hour and a half long.

Writing Skills II

Writing Skills II may only be taken after thefirst course. Although it continues to work on

clarification of style, the emphasis is placed onthe macro text and on the analysis and writingof four genres, which are frequently used inMarval: memo, contract, provisional offer let-ter and confidentiality agreement. Participantswrite within these genres and also analyzetheir own work as well as their peers in class.Topics also include reader-friendly layout anddocument design. The course is divided intosix parts, each an hour and a half long.

Punctuation for Lawyers

Punctuation for Lawyers completes the basictraining course of clear Spanish. This courseaddresses the pragmatics of punctuation asdefined by the Spanish linguist, CarolinaFigueras.8It focuses on punctuation as a toolwhich allows the writer to control the inter-pretation of their own discourse.

Writing E-mails

Writing E-mails is a three part course address-ing the main problems in this communication

channel and the social norms that govern it.Plain Spanish is a vital resource for this field.


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Writing legal texts

Writing legal texts is a two-part course specifi-cally designed for litigation lawyers. I teach itwith a former judge and a lawyer who hasmore than 40 years of trial experience. Thecourse analyzes problems that affect clarity in

litigation texts, such as excessive length, ambi-guity and use of quotes.

At the request of the lawyers, two newcourses will be added: How to write an ar-ticle and In search of a personalized clearstyle. The first is aimed at all those who areinterested in writing an article to publish inone of the main reviews in Argentina so thatthey leave the course with a first draft. Thesecond course is dedicated to lawyers who al-ready publish books and articles.

In my experience, short courses that focus onspecific points and genres work best. The de-sign must be flexible and adaptable to theneeds of the participants. The principles areconstant, but the focus must change in toshow the same concept from different angles.This reinforces the learning process. A widerange of courses reinforces the lawyers trustin plain language and gives them more oppor-tunities to confidently apply the guidelines intheir own writing.

Plain language in Spanish

In Argentinian legal circles, the clarification oflanguage is not as widely recognized as insome other countries. The texts that lawyersstudy at university tend to be obscure, com-plex and cryptic. When they start to work, thissituation continues and they have no experi-ence of the plain approach to writing. Thatsall the more reason for a wide range of practi-cal exercises in different types of text on our

courses, so that the lawyers can transfer theskills to their own work.

Moreover, in Spanish, clarification of legal lan-guage is a relatively new phenomenon.Therefore, it is necessary to create templatesfor plain Spanish. Just as in ancient times ora-tors used to model themselves on worthyexamples, lawyers need templates todaywhich do not exist in Spanish. Although thediscussion about clarity in language is as oldas the word itself, the reflection about the citi-

zen as a listener in legal texts is recent. InSpanish there are few legal authors who writeclearly with the reader in mind.

Also, the concept of a template is not well un-derstood, in the sense of a document offeringdifferent forms of specialized communicationin plain Spanish. The work carried out inMexico with Lenguaje Ciudadano(Citizen Lan-guage) is groundbreaking in this field andserves as a model for the whole Spanish-speaking world.

One of the most important teachings I haveacquired from this 13-year experience is thatignorance is the main ally of obscure writing.The lawyers, once they have been made awareof the possibility of clarification, accept itwidely and are happy to include it in theirwriting. This is why we must spread the wordabout clarity in Spanish legal writing: you canonly choose something you have been offered.

M Bozetti [email protected]

Endnotes1 A preliminary version of this paper was given at the

4thClarity International Conference, Lisbon, inOctober 2010.

2 Cutts, Martin, Oxford Guide to Plain English, OxfordUniversity Press [1995] 2004.

3 Wydick, Richard, Plain English for Lawyers, CarolinaAcademic Press, 1994.

4 Cassany, Daniel, La cocina de la escritura, Barcelona,Anagrama, 1995.

5 Hayes, J. R., y Flower, L. S. Identifying theorganization of writing processes. In L. W. Gregg yE. R. Steinberg (Eds.), Cognitive processes inwriting: An interdisciplinary approach, Hillsdale,Earlbaum, 1980.

6 Scardamalia, M. y C. Bereiter, Dos modelosexplicativos de los procesos de composicinescrita, Infancia y Aprendizaje, 58, 1992.

7 Bajtn, M. M., Esttica de la creacin verbal, Mxico,Siglo XXI, 1999.

8 Figueras, Carolina, Pragmtica la puntuacin,

Barcelona, Octaedro, 2001.Mariana Bozetti graduatedfrom the Universidad CatlicaArgentina, Buenos Aires, in1990 with a degree inLiterature. As well as her workat Marval, OFarrell & Mairal,Mariana teaches academicwriting at the UniversidadTorcuato Di Tella, andproofreading of specializedtexts at the LITTERAE. Shehas also been a researcher forthe Real Academia Espaola. In 2009/2010, sponsoredby the World Bank, she trained the anti-corruption teamfrom the Argentine District Attorneys Office in plainwriting skills.


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Teaching judgment writing in Canada

Justice John I. Laskin

Court of Appeal for Ontario

Judges have to decide cases. They also have towrite judgments. They have to explain whythey decided each case the way they did.

Unfortunately, in the 1950s, 1960s and 1970s,judgment writing in Canada had a bad reputa-tion. Some judgments were written clearlyand concisely. But many were not. They werevague and verbose. They used specialized jar-gonlegaleseunderstandable only tolawyers and other judges.

Fortunately a small group of reform-mindedjudges decided to do something about theproblem. They recognized that the role of

judges in Canadian society was changing, andwould change even more with the advent ofthe Canadian Charter of Rights and Freedomsin1982. They also recognized that, because judi-cial decisions touched the lives of allCanadians, these decisions had to be under-stood not just by the insidersthe legalprofessionbut by the consuming public.And they recognized that the public wanted

judgments to be more accessible, more trans-parent and more readable.

In 1981, this small group of judges establishedthe first judgment writing course in Canada.They recruited writing instructors to workhand in hand with the Canadian judiciary toimprove the clarity of Canadian judgments.Offered by the Canadian Institute for the Ad-ministration of Justice (CIAJ), this course has

been held annually for 30 years. It is now afour-day course and it is perhaps the mostpopular of the vast array of education pro-grams available to Canadian judges. Virtuallyevery federally appointed judge has taken thiscourse, usually soon after being appointed,and some have even returned for a refresher.

The course has profoundly improved the qual-ity of judgment writing in Canada.

The popularity and success of the course restson three pillars: the courses focus, the facultythat delivers it and the teaching methods thatare used.

The courses focus

The course is not at all concerned with sub-stantive legal analysis. Indeed the faculty

assumes that the legal analysis in the partici-pants decisions is unimpeachable. Instead,the course focuses on communicating that le-gal analysis clearly to the judges readers. Inshort, its focus is not substantive clarity butcognitive clarity.

Judges are taught the importance of writingan introduction about a page long, which tellsthe readers what the case is about and whatissues must be decided. They learn that a goodintroduction turns readers into smart read-

ers of the rest of the decision. They are taughtthe fundamental principle of clarity: give thecontext before the details. They learn thatreaders absorb and retain detailed information

better when they have a context for it first.They are taught different ways to organizetheir decisions, the importance of plain lan-guage and how to avoid legal jargon, andways to achieve a human voice in their writ-ing. And they are taught the importance of theword why:they must give adequate reasons

for their findings and conclusions. All of theseskills are aimed at helping the Canadian judi-ciary to communicate their decisions moreclearly to their many audiences.

The faculty that delivers the course

Because this is a course on written communi-cation, the founders wisely decided not to use

judges as instructors. Instead, as I have said,they recruited a faculty composed mainly ofexperts in written communication: writing in-

structors and English professors. (One or twojudges do teach and organize the delivery ofthe program.) The appeal of having these ex-


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perts is obvious: Canadian judges want to betaught and learn from those who have themost relevant experience.

When the course started 30 years ago, the fac-ulty was entirely composed of Americaninstructors. Over the years, however, we have

developed our own core of Canadian instruc-tors. The faculty is now almost wholly drawnfrom Canadian universities and communitycolleges. It is an experienced faculty which,loyally, returns to teach the course year afteryear.

The teaching methods

Judgment writing is a skill. It cannot be taughteffectively by lectures or demonstrationsalone. Judges have to learn by doing. Thus,

the course uses three different teaching meth-ods: lectures (normally aided by a PowerPointpresentation), small group workshops and in-dividual discussions with a writing instructor.

A typical day consists of two lectures and twosmall group workshops. Each workshop hassix or seven judges. A writing instructor leadsthe workshop and a judge is available as a re-source. The judges taking the course are askedto bring with them two judgments that theyhave written. During the workshop they are

asked to rewrite various parts of their judg-ments, applying the principles that they havelearned in the lectures. They receive feedbackon their rewrites from their writing instructorand colleagues in the workshop, and thenthey use the feedback to revise their rewrites.

By the end of the four-day course, judges willsee a marked improvement in their own writ-ing. I know that I did when I took the course!When they leave the course they will have amuch better understanding of how to make

their next judgment even better.Once concrete example of how the course hashelped judges is the writing of an introductionor overview. Before 1981, an introduction wasconspicuously absent from Canadian judg-ments, even among our best judicial writers.Now most of our judgments include an intro-duction, which describes what the case isabout and lists the issues to be decided.

The focus on communication, a faculty com-posed of writing instructors, teaching

methods that incorporate the principle oflearn by doingthese are the ingredients of asuccessful and enduring course in judgment

writing. But, at the beginning, the course hadanother ingredient that contributed greatly toits success: it had a champion. Justice BrianDickson, then a judge of the Supreme Court ofCanada and later its Chief Justice, and a mag-nificent writer, gave the opening address atthe first CIAJ judgment writing course in 1981.His mere presence added to the courses cred-ibility. Justice Dicksons speech has stood thetest of time. Every year, a copy is distributedto the new batch of judges taking the course.His words have inspired and continue to in-spire all of us to do better.

Here is but one excerpt from his speech:What is needed is clear, succinct, forcefulwriting. It is not easy. It is time consuming. Wemay sweat blood for a month over a judgment

but it is worth it if we can expunge clumsy le-galese, tedious, obscure prose, overblownphrases, the vagueness and verbosity whichare neither good law nor good literature.

Recent domestic and internationalinitiatives

The CIAJ judgment writing course has beenremarkably successful in its own right. It hasalso spawned two other initiatives, one do-mestic and one international. Last year, theCIAJ collaborated with the National JudicialInstitute to deliver an advanced judgmentwriting course, entitled Style and Context,which I believe is the first of its kind in NorthAmerica. To be eligible for this course, a judgehas to have taken the basic CIAJ course andhave been on the bench for at least five years.This new course is modeled on the CIAJcourse, but has introduced two significant dif-ferences. First, instead of working on

judgments that they have already written, theparticipants are asked over the four days to

write a judgment from scratch, using an actualtrial record. Second, instead of being led by awriting instructor alone, the workshops areco-taught by a writing instructor and an expe-rienced judge.

The opening talk at this new course was givenby Chief Justice Beverley McLachlin of the Su-preme Court of Canada. She is a superb writerand she spoke passionately about the impor-tance of writing well: Good judgmentwriting, she said, is inseparable from good

judging. Style and Context is being held againthis summer and will likely become an annualpart of our judicial education curriculum.


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For the last decade, Canadian writing instruc-tors and Canadian judges have travelled abroadto teach judgment writing and to help the ju-diciary in other countries develop their owncourse in judgment writing. Here, I cite twoexamples.

Ed Berry and Jim Raymond, two of our mostexperienced and very best writing instructors,travel regularly to Australia and New Zealandto lecture, either on judgment writing or onthe companion skill of delivering an effectiveoral judgment.

The National Judicial Institute, in partnershipwith the Canadian International DevelopmentAgency, developed a five-year LinkagesProject with the Supreme Peoples Court ofChina. This project included a component de-

voted to teaching the Chinese judiciary ourmethods for designing and delivering an ef-fective judgment writing course. Throughthese and other initiatives, we have exportedour knowledge about judgment writing tomany other countries.

The key to all of thisto the undeniable im-provement in judgment writing in Canadahas been the 30-year partnership between adedicated group of writing instructors and a

judiciary eager to make their decisions moreaccessible and more transparent to the Canadianpublic. For this we owe a debt of gratitude toour writing instructors, who have taught usthe critical elements of clarity.

John I Laskin [email protected]

Justice John Laskinis ajudge of the Court of Appealfor Ontario. For ten years heco-chaired the annual CIAJjudgment writing course. Lastyear, he helped organize Styleand Context, the first advanced

judgment writing course inCanada. He has taughtdecision writing at seminarsfor judges and members ofadministrative tribunals bothin Canada and abroad.


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John L. Geiger

Attorney, Los Angeles, California

We begin at the crossroads where contract law,copyright remedies, the Reciprocity Norm,and writing tight collide. This article exam-ines the process of contract authorship bynegotiations.

Negotiations as collaborative authorship

A contract is, by definition, a collaborativedocument. It expresses mutualintent. Thedominant metaphor, echoed by innumerablecourts, is that a contract reflects the partiesmeeting of the minds. And that meetingtypically takes place through negotiations. (Iexclude shrink-wrap, click-through, and othersuch routine consumer agreements enteredinto fleetingly and without legal counsel.)

A blank page is rarely the starting point. Usu-ally, negotiations begin with one partysstandard contact form on the table as the

baseline. A significant portion of the actualwriting has taken place outside the room andprior to actual negotiations.

Then, once the respective negotiations teamsare in the room, the boilerplate draft is ap-proached on an issue-by-issue basis. Thenegotiations team will (1) accept, (2) reject anddelete, or (3) reject and re-write the relevantclauses.

The frequency-mastery misconception

Every day of our lives involves some sort ofnegotiation. Negotiation as a fact of life isnot a new concept, but it newly pervaded ourpopular culture through the international bestseller Getting to Yes.1

Yet there is a widely held misconception aboutnegotiations, and, in particular, about negotia-

tors. Most everyone fancies themselves abetter-than-average negotiator. Indeed, a simi-lar misconception exists as to language use.

That is, since everyone uses language everyday, most everyone fancies themselves quiteproficient. Just ask around.

But sadly for lay practitioners, whether the artis oral negotiations or written language, theirsuccess is inherently limited. It comes fromhabit and force of personality, not by con-certed study and practice. They may have

some good tools, but not a full tool box.

The members of a negotiating team have dif-ferent approaches and different defaultpositions. How do they reconcile this withtheir unified goal to reach the best deal pos-sible?

A hypothetical example

Lets suppose youre procuring a software li-cense. Your negotiations team is:

your lawyer a plain language consultant

A lead negotiator (a company representativewho is neither a lawyer nor a plain languagewriter).

Youve been at the negotiations table awhile.The other side makes concessions only whenyou do. A few issues remain. One is the li-cense grant clause, which currently reads:

Licensor grants to Licensee a non-

exclusive, non-transferable, perpetuallicense to use the Software.

The other side wants an edit:

Subject to the terms and conditions herein,Licensor grants to Licensee a non-exclusive,non-transferable, perpetual license to use theSoftware.

A most dangerous clause: Plain language

prevents legal malpractice in software licensing


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Do you accept the proposed edit? Whatdoes your team advise?

Lawyer:

YES! Whats the harm? Its redundant. Justbelt-and-suspenders drafting to make sure they

get paid. Look, within the four-corners of thecontract, every clause affects every other clauseanyway. Breaching one sends the entirecontract into default.

Lead negotiator:

YES! Quid pro quo. Thats the negotiationsdance. We need reciprocity to keep movingand close this deal. Its our turn to giveone. Sounds like this is an easy one to giveup.

Plain language consultant:NO! If it adds nothing, dont add it.

Whom do you listen to? Who is correct? Inter-estinglyproblematicallythe answer tothose two questions is not always the same.

More mathematical, less rhetorical

When it comes to all things legal, lawyers holdthe trump card. Understandably so. Lawyersalso hold the greatest risk. As a specially li-censed professional in a highly-regulatedpractice, they owe their client a fiduciary dutyof care, and when they error even whenthey dont but the client is dissatisfiedtheyre subject to malpractice claims. Thatswhy lawyers usually carry exorbitantly expen-sive malpractice insurance.

Yet legal counsel is well advised to retain theservices of a plain language practitioner be-cause of the unique nature of contractdrafting. Contract drafting is unlike otherforms of writing familiar to law students, be-ginning lawyers, or even experiencednon-transactional lawyers. All are more famil-iar with exposition, writing to inform orpersuade, to engage with repetition (for em-phasis), metaphor (for visualization), andvaried sentence construction (for pacing).When such are employed well, the rhetoric be-comes poetic, giving way to a certain voiceinthe writing.

Contracts lack voice, as well they should. Con-tracts have a singularity of purposetoaccurately memorialize the deal in languagethat will be interpreted by later readers in pre-cisely the same way.2Contract writing is an

additive process. Much more mathematicalthan rhetorical, with nothing extraneous in theequation. This, as one of our esteemed plainlanguage colleagues elegantly opines, is writ-ing tight.3

So how should this negotiations team inter-

pret the proposed clause?

The rule against redundancy

The Lawyer and Lead Negotiator take thedangerous position that it is safe to add aclause because it adds nothing substantive.

But a contract must be read to find meaning inevery clause and word so that no clause orword may become redundant.4The risk is thatostensibly redundant language will be givenindependent and unintended meaning by the

courts. Thats the lurking malpractice trap.

The lurking dilemma: covenant or condi-tion?

Suppose we accept the proposed edit. Thenlater, we stop paying the license fees under thecontract. What happens? The remedies and re-sults are very different depending uponwhether the clause is construed as a covenantor a condition.

Covenant = contract law = just moneySubject to and provide that phrases arewhat I call tying clauses. They attempt to tietwo otherwise separate and independentclauses together, usually for some added legaleffect.

Without the added tying clause here, thepromise to pay the license feesundoubtedlyfound elsewhere in the contactis a mere cov-enant. No payment made? Then the licensorcan declare a breach, terminate the contact,

and seek the unpaid balance. We might retainlicense rights, but only after payment in full.In effect, we will be liable for standard con-tract damages.

Condition = copyright remedies = money &more

Over the years, Ive seen attorneys make theseemingly benign concession to add a tyingclauseto a software license grant provision.Their doing so always offended my plain lan-

guage sensibilities. But it wasnt until recentlythat courts began to find meaning to theseotherwise redundant tying clauses.5


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Software licenses are really copyright licensesin thinly veiled disguise.6As such, the grantclause is subject to federal copyright rules andremedies that do not impact the rest of thecontact. But tying clausesplaced in front of anotherwise unrestricted license grant createsqualifiers. In effect, wed lose our license if wefail to pay the license fees. But also, we arenow subject to copyright infringement rem-edies, which are broader than mere contractremedies, and include injunctive relief andstatutory attorneys fees.

Even if we were not aware of the esoteric legalrule behind the proposed edit in the hypo-thetical example, we could still avoid themalpractice trap by adhering to plain lan-guage drafting principles. The corollary issimilarly instructive. If the boilerplate had thetying clause already, the Lawyer and Negotia-tor would likely advocate for no deletion,tolerate the redundancy, push for a speedyclose. A plain language professional on theteam would have likely spotted the redun-dancy and removed the problem.

Toward a new collaborative model

In this hypothetical example, the negotiationsteam is segmented to isolate concerns and ap-proaches. Of course, not all negotiation teamsare so conveniently segmented. Teams may beconsolidated, with members having multipleroles (e.g., attorney-lead negotiator). Or teamsmay be further expanded (e.g., lead negotiatorrole shared among several company depart-ments, such as production, marketing & sales,finance, and risk management). But whetherconsolidated or expanded, a team is most suc-cessful through the full consideration andprioritization of cross-disciplinary concerns.

Risk mitigation in contract negotiations cer-tainly suggests the need for a newcollaborative model. Because of the additivenature of contract drafting, and the rule

against redundancy in contract interpretation,plain language is more than a mere aestheticpreference.

To this end:

Lawyers, in collaboration with plainlanguage editors, should not add language

unless it adds substantive content, and

Plain language editors, in collaboration withlawyers, should not delete language unlessit lacks substantive content.

J Geiger [email protected]

Endnotes1 Robert Fisher and William Ury, Getting to Yes

(Houghlin Mifflin Co. 1981)

2

Charles M. Fox, Working with Contracts: What LawSchool Doesnt Teach You.Practicing Law Institute2002, Sec. 1.3 - Contracts: A Unique Type ofWriting.

3 Martin Cutts, Oxford Guide to Plain English, ThirdEdition.Oxford University Press 2009, Chapter 3 -Writing Tight.

4 California Civil Codesection 1641 (Effect given to allof a contract, every clause and word).

5 Jacobsen v. Katzer(Fed. Cir. 2008) 535 F.3d 1373, 1380.6 David W. Tollen, The Tech Contact Handbook: Software

Licenses and Technology Services Agreements forLawyers and Businesspeople.American BarAssociation Publishing 2010, p. 14.

John L. Geigeris an attorneywith more than 25 years oftransactional experience. He isauthor of the award-winningGovernment Contracts inPlain Language for SmallBusiness, recognized by theLos Angeles County Quality &Productivity Commission,California State Association ofCounties, National Association

of Counties, and Center forPlain Language.


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Rachel L. Jones

Registrar of Regulations, Nova Scotia Department ofJustice, Canada

The editors and lawyers in Nova Scotias De-partment of Justice work together to developlaws that are clear not only to the lawyers andsubject-matter experts, but also to the every-

day people who are governed by the laws. Itsa good example of how a collaborative rela-tionship between plain language practitionersand lawyers can work, and a success storythat Im very pleased to share. Top-down sup-port, cooperation, respect and trust are thekeys to the success of this collaborative pro-cess.

Regulations influence the lives of ordinarycitizens daily. They regulate everyday con-duct, licensing schemes, programs, benefits

and prohibited behaviours, so it is imperativethat they be clear and accessible. As plain lan-guage practitioners, we are fortunate at ourworkplace because plain language drafting iswell supported from the top downacrossgovernment and within the Department.

This means that plain language editing is wellreceived and the need for plain language israrely challenged. Plain language is recog-nized as being essential to good government,enhancing government transparency and effi-

ciency and enabling true participatorydemocracy and direct citizen involvement.

Background on the Office of the Registrarof Regulations

Unlike in most other Canadian jurisdictions,our Legislative Counsel draft statutes only;they dont draft the regulations made pursu-ant to statutes. Regulations are drafted either

by senior policy staff in the respective admin-istering departments, or by Department of

Justice lawyers. Either way, they must be re-viewed by Department of Justice lawyers toensure that they are legally authorized under

the enabling statute and do not contravene theconstitution or any other general statutes orprinciples of natural law and justice.

In drafting and reviewing regulations, lawyersare therefore performing the dual tasks of leg-islative drafting and advising the clientdepartment on the legal issues surroundingthe proposed regulated subject areatasks

that are usually divided between the lawyerand the legislative counsel in other jurisdic-tions.

The Office of the Registrar of Regulations reg-isters, publishes, consolidates, and maintainsNova Scotias regulations, ensuring public ac-cess to the laws. Our office is currently staffed

by three editors and two clerks. None of theeditors has any specialized training in plainlanguage drafting; rather they have learnedthrough on-the-job training and from the col-

lective experience and expertise oforganizations such as Clarity and PLAIN. Twoof the editors have law degrees, while thethird has more than 20 years of experienceworking with legal documents.

As a central office with quick access to relatedand comparable legislation, and familiaritywith similar regulatory schemes and provi-sions, we are a natural fit to assist with thedrafting process. The editors role in regula-tion drafting is to ensure that the regulations

are consistent in style and format and are inplain language. Over time, the role hasevolved to fill in some of the gaps left by nothaving dedicated legislative drafters. The re-view is now a much more substantial plainlanguage review, and the office has developedplain language standards and guidelines toprovide consistency and guidance to drafters.

Statutory review of draft regulations

Under Section 11 of Nova Scotias Regulations

Act, the Deputy Attorney General has a dutyto ensure that the form and draftsmanship ofthe proposed regulation are in accordance

Nova Scotia regulations drafting: a collaboration

that works well


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with established standards. In 2005, theDepartments Style and Procedures Manualwasupdated to include guidelines and standardsfor plain language regulation drafting. Ini-tially this was to support the statutes revisionpowers and to assist departments in under-standing what revisions would be made andthe rationale behind the changes. These revi-sion powers are quite broad and include thepower to:

Alter the language of the regulations as maybe required in order to preserve a uniformmode of expression

Make such minor amendments to theregulations as are necessary in order to statemore clearly what the Registrar deems tohave been intended thereby

Make such amendments as are required toreconcile seemingly inconsistent regulationsor to correct clerical, typographical orprinting errors.

While the Registrars revision powers haveyet to be exercised, the manual has not onlyprovided the office with a valuable tool that isnow shared with drafters, but also with ahandy carrot and stick to ensure the guide-lines are followed. Drafters soon realized theadvantage of including plain language at the

drafting stage when they still have some inputinto the language instead of having changesimposed on them through a revision after thetext has already become law. As they becomemore familiar with the benefits of plain lan-guage, drafters are equally attracted by themany benefits of plain languagethe carrot

being laws that are easier to understand,easier to administer and easier to enforcethroughout the justice system.

This more thorough review allows the office to

fulfill its primary responsibilityto providepublic access to the lawby ensuring that thelaws are not only available, but are also read-able.

The process

Unlike many business situations, where pro-posed plain language wording is sent tolegal, our offices review is done afterthepolicy staff have established the regulatory re-gime, and afterthe lawyer has signed off onthe substantive legal effect of the draft regula-tions. The draft regulations are submitted tous and reviewed, then returned to the law-

yerusually a few times back and forthun-til the final text is agreed upon. The exactprocess depends on working styles and the re-lationship between the editor and lawyer.Only after both have signed off on the draftcan the regulations proceed into law. Anychanges required to the draft after this stagemust be reviewed again by both.

The editors are primarily looking for:

ambiguities created by word choice, wordplacement and structure

issues of syntax

unnecessary use of passive voice,nominalizations, legalese and jargon

natural word order

logical organization

informative headings

division of text into short and effectiveprovisions.

In a process where actual audience testing isoften impracticable, the objective review of theeditor serves as a form of audience testing. Assomeone who is not intimately familiar withthe subject area, the editor can place them-selves in the shoes of the everydaypersonidentifying unclear procedures, in-structions or requirements and misleading ormissing information.

When deconstructing complex sentences anduntangling tongue-twisting technical jargon,inevitably questions about the intended mean-ing of the text arise. Editors are able toidentify these problematic provisions, askquestions about the intended meaning andsuggest alternatives. Often these questions canlead to important policy and legal issues beingfurther examined and resolved. This results ina better and more complete final product.

Often, there is an added benefit to the reviewprocess. It helps policy staff to better under-stand their own legislation and regulations,and the role these play in their work and forthe public.

When even the smallest changes to punctua-tion can radically change the meaning of asentence, editors have to be particularly awareof the legal effect of the changes they are sug-

gesting. Editors therefore are encouraged to: clearly explain the reasons for their changes


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not only identify ambiguities, but explainwhy the text is ambiguous

identify and explain any assumptions madeabout the intended meaning or legal effect

offer alternatives for any other likelymeanings.

Why it works

One of the questions Clarityposed for this is-sue was: Should plain language professionalsreceive training in principles of clear legalwriting as an accredited skill? To this, Iwould answer a firm yes for our office. Ihave three reasons.

1) The lawyers are much more comfortablediscussing changes to the text when they

are confident that the editors appreciatethe legal nuances of the text and how thelanguage choices can affect the legalmeaning.

2) The lawyers and editors can engage inan open and informed dialogue aboutwhat they are trying to accomplish withthe text.

3) With this shared understanding, thelawyers and editors are working towardshared goals, not from competing

priorities and agendas.

The editors spend much of their time breakingdown provisions into their grammatical andlogical pieces, and then reassembling them ina clearer and more straightforward languageand legislative structure. They eliminate syn-tactical ambiguity and strive to limit the textto one idea per provision. To do this effec-tively, the editors must understand theunderlying intended legal purpose and effectof a provision. Is it creating rights, duties,

powers or prohibitionsor exceptions to anyof these?

They must also be able to identify the compo-nents of the legislative provisionthe legalsubject, the legal action, the circumstances un-der which it applies and any limitations orexceptionsnot only to ensure that the provi-sion is complete, but to identify superfluouswords or phrases. The editor must be able toexplain the reasons behind their choices whenthe language is challenged, and be persuasive

when the issue is one of clarity rather than le-gal substance.

A strong legal background means that editorscan help the lawyer select the most appropri-ate, and simplest, choice within the legalcontext. Suggested changes enhance andcomplement, rather than alter or compromisethe legal effect. Lawyers and editors canfrankly discuss obstacles, issues or ambigu-ities and explore creative solutions together.

Lawyers have come to see the review as an in-valuable, fresh perspective on the text afterhaving been hip-deep in the details while con-sulting with policy staff. The editors have aslightly different way of looking at things thatenables the lawyers to step back and see theregulations afresh.

The culture

When the lawyer and the editor understandand respect what each is trying to accomplishwith the regulatory text, you have the founda-tion for productive collaboration. Editors andlawyers interact daily and are very accessibleto one anothercasual conversations can takeplace around the water cooler. In a day andage where so much work is conducted imper-sonally via e-mail, this face-to-face interactionprovides a much better opportunity for rela-tionship building.

The process is not perfect. Inevitably there aretimes when political deadlines arise and thereview must be expedited, or when draftersand departments are wedded to particularlanguage choices and nervous about change.But all in all, there is a fairly good understand-ing that any wording the department andlawyer come up with is subject to change onceit is reviewed by our office.

Even when the process proves to be more timeconsuming and painful than was expected by

the drafters and policy staff, feedback fromlawyers and departments is resoundinglypositive. It is precisely this respect for editorsand the work they do that helps bridge the le-gal and plain language professions.

These documents do not go away once theyare made law. Everyone wins when laws can

be read and understood by the citizens whoare governed by them, the officials who ad-minister them, and the lawyers who mustinterpret and advise on them.

Rachel L. Jones [email protected]


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Rachel L. Joneswas born inBirmingham, England, andemigrated with her family as ayoung child to the shores ofbeautiful Nova Scotia, whereshe still makes her home inHalifax. Rachel is an alumnusof the University of KingsCollege Foundation YearProgram, has a BA in Englishfrom Carleton University inOttawa, and a law degree fromDalhousie University. She is currently employed withthe Nova Scotia Department of Justice as Registrar ofRegulations for the Province, and has spent most of thelast 15 years trying to bring its regulations into the 21stcentury.

From Neil James:

Some high-level support is beginning toemerge in Australia for a plain language pro-gram within the Commonwealth Government.

In March, the new Commonwealth Ombuds-man asked the Foundation to brief hisleadership team about plain language andwhat is happening in various parts of theworld.

Hes now given a speech diagnosing poorcommunication as a chief cause of the com-plaints he receives, and arguing for a plainlanguage program as the first part of a 5 pointplan for reforming government.

You can read the speech at: http://www.ombudsman.gov.au/files/6_September_2011_Why_do_good_policy_ideas_turn_into_porridge.pdf

It was reported in the Canberra Times at:http://www.canberratimes.com.au/news/

local/news/general/bureaucrats-language-on-notice/2283247.aspx

In November, the Ombudsman is holding anational conference on government. The pro-gram is not published yet, but it will include aworkshop on plain language. You can followthe details at: http://www.ombudsman.gov.au/pages/about-us/events/national-confer-ence-2011/

Secondly, at the recent national editors confer-ence, a motion was supported that the

Institute of Professional Editors (the nationalaccreditation body for editors in

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Clarity Journal 2011

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