Clarity, issue 66 - Clarity International — An international ... Number 66 November 2011 Journal of the international association promoting plain legal language Guest ditor for this

ClarityNumber 66 November 2011

Journal of theinternational associationpromoting plain legal language

Guest ditor for this issue:Sally McBeth

Editor in chief:Julie Clement

Guest editor for Clarity 67:Anki Mattson

In this issueAnn BlückertThe 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 forArgentina’s leading law firm 14

Justice 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

3eussi sihT01ytiralC nioj ot woH62lanruoj eht ot gnitubirtnoC

Member and other news and events 26Linguistic Lingo for Lawyers 32

43sweN ecnerefnoCMessage from the President 35

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2 Clarity 66 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 Representatives plus Simon Adamyk, Michèle 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 Clarity’s 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. Ján [email protected]

South AfricaCandice [email protected]

SpainCristina [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 [email protected]

ChileClaudia Poblete [email protected]

FinlandHeikki [email protected]

GermanySiegfried [email protected]

Hong KongEamonn [email protected]

IndiaDr. K.R. [email protected]

IsraelMyla [email protected]

ItalyChristopher [email protected]

JapanKyal [email protected]

LesothoRetsepile Gladwin [email protected]

MalaysiaJuprin [email protected]

MexicoSalomé Flores Sierra [email protected]

The NetherlandsHélène [email protected]

New ZealandLynda [email protected]

NigeriaDr. Tunde [email protected]

PeruRicardo Leó[email protected]

PhilippinesVictor [email protected]

PortugalSandra [email protected]

Clarity 66 November 2011 3

Clarity … the journalPublished in May and November

An international association promoting plain legal language www.clarity-international.net

This issueI volunteered to guest edit this issue out of na-ked self interest. I’m 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, what’s theway forward? Here’s what I learned from ournine wonderful contributors:

From Ann Blückert I learned that even in ourrevered Sweden, first-year students are taughtto approach the law as an alien language.Howard Warner did 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-sona”—definitely not my personality type!

That’s the struggle, but so much of what Ilearned did point to a way forward—for 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 Argentina’slargest law firms. Justice John Laskin describeshow he recruited faculty from Canadian col-leges and universities to teach judgmentwriting. Virtually every federally appointedjudge in Canada has taken the course, and ithas become an international model.

John Geiger, an attorney who acts expressly as aplain language consultant on contract negotia-tion teams, shows how this collaborative modelcan mitigate risk. At the Nova Scotia Depart-ment of Justice, Registrar Rachel Jones heads upan office where plain language editors and

PresidentCandice [email protected]

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

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

Copyright policyAuthors retain copyright in their articles.Anyone wanting to reproduce an article inwhole or in part should first obtain theauthor’s permission and should acknowledgeClarity as the source.

SubmissionsWe encourage you to submit articles to beconsidered for publication in Clarity. Sendsubmissions directly to editor in chief JulieClement. Please limit submissions to approxi-mately 1,500 or 3,000 words.


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, TaniaMcAnearney works 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 can’t all belawyers. We don’t 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 theclient’s legal department. My hope is that wewill see courses like that emerge as we movetoward accreditation in the plain languagefield.

Lawyers and judges can’t 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 thingshappen, the smoother the path to collabora-tion will be.

Sally [email protected]

Sally McBeth manages ClearLanguage and Design (CLAD)in Toronto, Canada. TheCanadian Centre forProfessional Legal Educationuses CLAD’s website asclassroom resource for baradmission students.


Ann BlückertUppsala University, Department of ScandinavianLanguages

In my dissertation1 I 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 students’view 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 highlysought-after. The situation can also be alienat-ing. I heard one student say, “Some of theother students start talking legalese at once,but I don’t 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, Iasked 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:

Didn’t 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 aneasy 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 trainingof law students


How students understand “good” legalwriting

A style guide that law students in Sweden areencouraged to follow presents writing simplyas a goal of legal Swedish.3 Based 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 idealof 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 haslearned 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 onlybecome 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.”4 In 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 contains—it canbe 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 teachers’comments 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 oflanguage—for example, the correct profes-sional vocabulary, or how legal sources are tobe denominated.

Precision vs. plainness

Of course precision contributes to quality in astudent’s 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 thatthey find in the course material, in jurispru-dence, and in old cases. They suspect thatwhat really counts in law school is establishedtraditions—and therewith legalese.

Quite often, the sentence structure in the stu-dents’ texts deviates from the ideal of writingsimply and clearly. Convoluted sentences canbe 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 courseliterature, students often encounter complexsentence structure. One student, whoseteacher had told him to avoid dependent


clauses, expressed his need for a functionallanguage:

But I write dependent clauses when I wantto clarify.

The student’s reaction shows how important itis to involve the students in a learning pro-cess—to 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 reader’s responsibility to un-derstand the text, not the writer’sresponsibility to make the text clear. Law stu-dents may be learning a new, subject-specificvocabulary and a new method for reachingconclusions, 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 willhave 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 themselves—so tospeak—sink into the layers of the legal cul-ture.” 6 The 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 Blückert [email protected]

Endnotes1 Blückert, Ann, 2010: Juridiska—ett nytt språk? En

studie av juridikstudenters språkliga inskolning[Legalese—a new language? A study of thelanguage socialization of law students]. Diss.Uppsala University, Department of ScandinavianLanguages

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

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

4 Melander, Jan, 2006: Examinationer. Betraktelser överjuriststudenters 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 Blückert, 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.


Howard WarnerPlain English People, New Zealand

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

In reality, most legal documents are for thebenefit of laypeople—framing their rights andobligations so they can conduct their businesssafely and effectively. Obviously, they need tobe 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 it’s 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. I’m one of the hoi-polloi,the public—an ordinary consumer of law.

As a professional plain-English practitioner, Iwork 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.

I’ve 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, sinceI’m 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 we’ll 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 lesswe’re inclined to question.

We seldom feel part of the legal-documentprocess—even though it is supposedly for ourbenefit, and we’re the ones paying for it.

In employment, you’re presented with a con-tract—you either sign or someone else gets thejob. In a property deal, lawyers and real-estateagents supply the contracts—you don’t 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 understood’those 25 pages of small-print mumbo-jumbo.Most people just sign and hope.

Barriers to readability

So why can’t the Public read legal documentsas easily as lawyers can?

It’s not just the archaic words, the wherewithalsand aforementioneds and 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


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

It’s 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 canpause and process what’s 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 don’t want is a document theyhave to take back to their lawyer—or anotherlawyer—for translation, probably at substan-tial extra cost.

Behind the lawyer-speak

Why are legal documents written in thisReader-unfriendly way? Ask a lawyer andthey’ll say: to make sure everything is water-tight when it’s challenged in court, or becausethey’ve always done it this way.

Bryan Garner, in Legal Writing in Plain English,talks of the “age-old cycle of poor legal writing”that lawyers will never break until they’reready 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-minded—or 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-tuse—certainly 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. We’ve got noway of telling lawyers what we want, andthey aren’t rushing to ask.

In my native New Zealand, we’ve had a high-powered team working behind the scenes toreview all our legislation, supposedly for thepublic’s 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 she’d 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 uptext—in the interests of consistency and pro-fessionalism—through 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


presentation to lay readerships—people 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. Thepartner 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 industry—not just a fewenlightened individuals—would 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 specialists—rather 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.”

I’d 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 language—whatever 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 andeffectively.

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.


Cheryl StephensPlain language consultant, Vancouver, Canada

As a plain language professional, you mayhave complained, “The lawyers wouldn’t letus.” As a former lawyer, and after 20 year as aplain language consultant, I hope to help youbecome more successful in your dealings withlawyers.

I will cover three topics:

1. What you need to know about lawyers’work

2. What we know about the lawyerlypersona

3. Ways to work more effectively withlawyers

1. What you need to know aboutlawyers’ work

Traditionally, the legal profession distin-guishes documents that are part of daily life—correspondence, memos, and reports—fromthose that recognize rights and impose obliga-tions.

Producing the latter is called legal drafting.There is some debate about whether the verbto draft originates 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 of documents thatdeal formally with rights, obligations, andbenefits.

• 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 personaswe 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.3 Faced 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, butwants matters brought to a quick conclusiondue to their sense of constant, high urgency.

Working with lawyers on your projects


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

While clinging to ageless customs, lawyersdraw on the lessons of history, hindsight, andexperience to deal with the here and now. TheLP sees justice in defined and expected out-comes, not as an abstract ideal.

3. Ways to work more effectively withlawyers

With your client’s 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-chase”approach.

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

• Make a plan that starts at “A” and ends at“Z.”

• 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 lawyer’s 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 legalities

Treat 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.They’ll 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 lawyer’sinstinctive 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 cruxof 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 lawyer’s cold reserve, and lack of interper-sonal connection with you, is about the lawyer,and the fact that law firms value technicalcompetence over emotional intelligence—it isnot about you!


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 they’ll serve as a buffer of high emo-tion.

How to deal with this:

• Draw the lawyer out; think of the lawyer asa 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; don’t rise to the challengeor you’ll be drawn into their game.

Be flexible yet cogent

Lawyers prefer to look for a “leverage point”that 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 word—never 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 agency’s 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 177–79, 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 coachingfor lawyers.


Mariana BozettiMarval, O’Farrell & Mairal, Buenos Aires, Argentina

This paper describes the practical and theoreticalaspects of a long-term, in-house programme inplain Spanish carried out in a law firm in BuenosAires, Argentina.

Beginnings

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

In 1997, Marval, O’Farrell & Mairal hired awriter, Pedro Mairal, to give individual classesin improving writing skills for any interestedlawyer. Initially, this was simply one moreperk 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 turningideas 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.4 Cassany 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 science’s influenceon writing, such as works by Hayes andFlower5 and Bereiter and Scardamalia6 Thesewere the sources used to design an eight-partcourse which covered clarification of texts andfocused on writing as a process, consisting ofbrainstorming, 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 beenrevised, 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 withJoanna 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 courseis optional, hence the need to raise awarenessof the advantages of plain style.

The design and implementation of a plain Spanishwriting-skills programme for Argentina’s leadinglaw firm1


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 MijaílBajtín7 was a breakthrough in the field tomake the step from micro to macro text. Bajtínproposes 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 document’s design.

From the French perspective, la théorie del’énonciation, the concept of speaker and lis-tener enables us to address problems in depththat used to be simply put under the label of“keeping 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, O’Farrell & Mairal namedthe Writing Centre as a stand-alone depart-ment within the firm’s 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. Theconsulting 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 text—on 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 finishesby showing precisely where the texts have nu-clei of obscurity and how this alters readers’understanding. 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 onclarification 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.8 It 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 communicationchannel and the social norms that govern it.Plain Spanish is a vital resource for this field.


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 inlitigation 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. That’sall the more reason for a wide range of practi-cal exercises in different types of text on ourcourses, 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

4th Clarity 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 composiciónescrita”, Infancia y Aprendizaje, 58, 1992.

7 Bajtín, M. M., Estética de la creación verbal, México,Siglo XXI, 1999.

8 Figueras, Carolina, Pragmática la puntuación,Barcelona, Octaedro, 2001.

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


Teaching judgment writing in Canada

Justice John I. LaskinCourt 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-gon—“legalese”—understandable only tolawyers and other judges.

Fortunately a small group of reform-mindedjudges decided to do something about theproblem. They recognized that the role ofjudges in Canadian society was changing, andwould change even more with the advent ofthe Canadian Charter of Rights and Freedoms in1982. They also recognized that, because judi-cial decisions touched the lives of allCanadians, these decisions had to be under-stood not just by the insiders—the legalprofession—but by the consuming public.And they recognized that the public wantedjudgments 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 hasbeen 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 course’s focus, the facultythat delivers it and the teaching methods thatare used.

The course’s focus

The course is not at all concerned with sub-stantive legal analysis. Indeed the facultyassumes 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 informationbetter 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 reasonsfor 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 usejudges 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-


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 havedeveloped 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 areasked 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 maketheir 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, teachingmethods that incorporate the principle oflearn by doing—these 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 course’s cred-ibility. Justice Dickson’s 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 judgmentbut 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 onjudgments that they have already written, theparticipants are asked over the four days towrite 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 goodjudging.” Style and Context is being held againthis summer and will likely become an annualpart of our judicial education curriculum.


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 People’s 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 this—to the undeniable im-provement in judgment writing in Canada—has been the 30-year partnership between adedicated group of writing instructors and ajudiciary 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 Laskin is 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 advancedjudgment writing course inCanada. He has taughtdecision writing at seminarsfor judges and members ofadministrative tribunals bothin Canada and abroad.


John L. GeigerAttorney, 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 mutual intent. Thedominant metaphor, echoed by innumerablecourts, is that a contract reflects the parties’“meeting 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 party’sstandard contact form on the table as thebaseline. 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 havesome 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

Let’s suppose you’re 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).

You’ve 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 languageprevents legal malpractice in software licensing


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

Lawyer:

YES! What’s the harm? It’s redundant. Justbelt-and-suspenders drafting to make sure theyget 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. That’s the negotiationsdance. We need reciprocity to keep movingand close this deal. It’s our turn to giveone. Sounds like this is an easy one to giveup.

Plain language consultant:

NO! If it adds nothing, don’t add it.

Whom do you listen to? Who is correct? Inter-estingly—problematically—the 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 err—or even whenthey don’t but the client is dissatisfied—they’re subject to malpractice claims. That’swhy 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 voice inthe writing.

Contracts lack voice, as well they should. Con-tracts have a singularity of purpose—toaccurately memorialize the deal in languagethat will be interpreted by later readers in pre-cisely the same way.2 Contract 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.4 The risk is thatostensibly redundant language will be givenindependent and unintended meaning by thecourts. That’s 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 money

“Subject 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 fees—undoubtedlyfound elsewhere in the contact—is 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, I’ve seen attorneys make theseemingly benign concession to add a tyingclause to a software license grant provision.Their doing so always offended my plain lan-guage sensibilities. But it wasn’t until recentlythat courts began to find meaning to theseotherwise redundant tying clauses.5


Software licenses are really copyright licensesin thinly veiled disguise.6 As such, the grantclause is subject to federal copyright rules andremedies that do not impact the rest of thecontact. But tying clauses placed in front of anotherwise unrestricted license grant createsqualifiers. In effect, we’d 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 attorney’s 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 languageunless 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 Law

School Doesn’t 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 Code section 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. Geiger is 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 Associationof Counties, and Center forPlain Language.


Rachel L. JonesRegistrar of Regulations, Nova Scotia Department ofJustice, Canada

The editors and lawyers in Nova Scotia’s 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. It’sa good example of how a collaborative rela-tionship between plain language practitionersand lawyers can work, and a success storythat I’m 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, benefitsand 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 down—acrossgovernment 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 don’t draft the regulations made pursu-ant to statutes. Regulations are drafted eitherby senior policy staff in the respective admin-istering departments, or by Department ofJustice 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 area—tasksthat 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 Scotia’s regulations, ensuring public ac-cess to the laws. Our office is currently staffedby 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 editor’s role in regula-tion drafting is to ensure that the regulationsare 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 Scotia’s RegulationsAct, the Deputy Attorney General has a dutyto ensure that “the form and draftsmanship ofthe proposed regulation are in accordance

Nova Scotia regulations drafting: a collaborationthat works well


with established standards.” In 2005, theDepartment’s Style and Procedures Manual wasupdated to include guidelines and standardsfor plain language regulation drafting. Ini-tially this was to support the statute’s 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 Registrar’s 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 thedrafting 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 language—the “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 tofulfill its primary responsibility—to providepublic access to the law—by 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 office’s review is done after thepolicy staff have established the regulatory re-gime, and after the 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-

yer—usually a few times back and forth—un-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 everydayperson—identifying 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


• 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 Clarity posed 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 theyare 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 competingpriorities 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 prohibitions—or exceptions to anyof these?

They must also be able to identify the compo-nents of the legislative provision—the legalsubject, the legal action, the circumstances un-der which it applies and any limitations orexceptions—not 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 persuasivewhen 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 another—casual 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 bythe 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 canbe 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]


Rachel L. Jones was 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 Kings’College 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.

He’s 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 theInstitute of Professional Editors (the nationalaccreditation body for editors in Australia)work with the Plain English Foundation tolobby the Commonwealth over plain lan-guage. If anyone else in Australia would liketo get involved with this push, please get intouch with me.

As a famous Australian poem opens:‘There was movement at the station’.

Member News

Contributing to the journal

Clarity often focuses on a specific theme(like conferences or drafting or standards),but we also publish articles on a varietyof other plain language topics. Please sub-mit your articles to the editor in chief forconsideration.

Would you like to be a guest editor? Ourguest editors gather articles, work withthe authors, make layout decisions, andedit and proofread a single issue. If youwould like to guest edit an issue of theClarity journal, send an email to the editorin chief.

Finally, if you have ideas about improv-ing the journal, the editor would like tohear from you, as well. Our editor in chiefis Professor Julie Clement, with the Tho-mas M. Cooley Law School. Email her [email protected].


Caroline Lindberg (with editing by KimMcCutcheon)CLEO (Community Legal Education Ontario/Éducation juridique communautaire Ontario)

I work as a staff lawyer at a publicly-funded,community-based organization in the Cana-dian province of Ontario. We develop legalrights information in plain language forpeople with low incomes and other disadvan-taged groups. It is important to us that theinformation we produce be useful, respond toneeds, and be both understandable and legallyaccurate.

We have what may be a unique model for pro-ducing plain language legal information. Wehope others will see in it approaches they canapply in their work. The strengths of ourmodel, we believe, lie in collaboration, sharedcommitment to goals, and the recognition thatthere are varieties of expertise involved.

Our staff includes both lawyers and editorswith clear language and design skills. For eachproject, a staff lawyer and an editor work to-gether. We also work with external lawyerswho are currently practising in relevant areasof law.

As a CLEO staff lawyer, I connect with theoutside practitioners, seeking and managingtheir input. While staff lawyers at CLEO de-velop knowledge in the relevant areas of law,we count on lawyers who are practising in thefield to help us achieve legally accurate infor-mation that is useful to the intended audience.Most of these lawyers are providing servicesfunded through Ontario’s legal aid system forlow-income people. They volunteer their timeto us because they believe in the value of ourwork and find our materials useful for theirclients.

I will discuss my role and the role of these out-side lawyers by addressing three topics:

• deciding on projects

• applying plain language

• determining legal accuracy.

Deciding on legal information projects

As the leading producer of public legal educa-tion materials in Ontario, we are often askedto develop materials on particular topics. Butbefore we embark on a project, we need toconsider whether it will be effective. We needto know the purpose of the document and theaudience for it. We need to have a plan for get-ting the information into the hands of thepeople who need it.

Lawyers who work with the communities weserve are often able to identify legal informa-tion needs in those communities. Sometimesthey contact us to suggest that we develop re-sources in response to those needs. Our role isto ask the questions that determine whethersuch information is likely to be useful and ef-fective. For example, we heard from theselawyers that people were being cut off disabil-ity benefits after getting an inheritance. Theydid not know that they could have protectedtheir right to continue receiving benefits. Withthe assistance of lawyers dealing with theseclients, we developed a publication that hasbasic information about the implications of aninheritance and when and where to get legalhelp. In the past few years, we have distrib-uted almost 30,000 copies and people haverepeatedly told us how much the informationhas helped them.

But while lawyers on the front lines can tell usabout needs, we may conclude that plain lan-guage legal information would not be aneffective response. For example, people whoapply for disability benefits must show thatthey meet the relevant definition of disability.Many applications are refused, but there is aright to appeal to an independent tribunal. Le-gal aid clinics represent people who appealbut the need often exceeds the clinics’ capac-ity. Clinic lawyers asked us to produce

Developing legal rights information: Collaboratingwith external legal advisors


“self-help” materials for people who could notget representation. We did not think thiswould be effective for two reasons: many ofthe appeals involve people with psychiatricillnesses or cognitive impairments who facegreat challenges in advocating for themselves,and preparing a successful appeal often re-quires medical reports that clinics obtain usinglegal aid funds. In one community, exploringthese issues with clinics led them to adopt adifferent strategy—training private bar law-yers to take these cases, coupled with acommitment from the local legal aid office tofund that work.

Applying plain language

External legal practitioners help us developthe content of a publication and review thetext before we finalize it. When we send themtext for legal review, we explain that we areasking for their expertise in the relevant areasof law. We identify the intended audience andnote that the text has already been edited ac-cording to clear language principles. We askreviewing lawyers to tell us if any changes areneeded to make the information accurate.These changes could involve adding, remov-ing, or revising content. We ask them to bespecific and explain their reasons.

It is my job to consider their feedback. When Istarted working at CLEO, I was told that thereviewing lawyers would “know the law” andmy job was to rely on their legal opinions sothat I could ensure that the legal accuracy ofthe text was not compromised by plain lan-guage. Over time, I have come to a morenuanced understanding of my role and an ap-preciation of how plain language contributesto the accuracy of information. To begin with,I need to determine whether a reviewer’sfeedback reflects concerns about legal accu-racy, as opposed to writing style. I may needto review the authorities relied upon by thereviewer, so that I can consider the bases oftheir opinions.

More often than not, reviewing lawyers sug-gest additions to the text. I believe this arisesfrom a tendency towards including all or al-most all of the information that may berelevant. Sometimes the added informationwill be helpful for the intended audience. Oc-casionally the information is essential, aswithout it the text would be misleading orsimply wrong. But often it merely provides

additional legal information that goes beyondwhat is needed, given the purpose of thedocument and its intended audience. Thesesuggestions may add to my understanding ofthe legal issues and they reflect the expertiseof our reviewing lawyers. However, my job, inconsultation with a plain language editor, is todetermine whether adding the information isnecessary.

For example, we produce a publication calledPolice Powers: Stops and Searches. User feedbackincluded the suggestion that, in our next edi-tion, we add information about the rights ofminors when they are arrested and detained.The draft text that our reviewing lawyer pro-vided included information about the rules ofevidence that govern admissibility of state-ments made by minors in custody. This washelpful to me in understanding the scope ofthe rights involved but went beyond what weneeded to include, given the focus of the pub-lication. In the context of our plain languagelegal work, the final decisions about contentrest with CLEO, not our reviewing lawyers.

Determining legal accuracy

A wide range of community organizations or-der our materials because they trust us toprovide legally accurate information. The re-sponsibility for legal accuracy rests withCLEO staff lawyers. I see the goal of legal ac-curacy as comprising two elements:

1. I understand the legal information thatthe text is intended to communicate and,in my opinion, the text is a correctstatement of that information.

2. I believe that others and, in particular,members of the intended audience, willinterpret the text the same way I do.

Understood in this way, what we call legallyaccurate information is essentially informationthat is unlikely to mislead the intended audi-ence. To imagine an absolute or purelyobjective standard for legal accuracy is todeny the role of the audience. Reviewing law-yers who have expertise in the subject matterwill be qualified to confirm the first but notnecessarily the second element of legal accu-racy.

Legal accuracy means more than just “thelaw” as it is written or judicially interpreted. Itmeans that the information should reflect theway the law is applied. Sometimes there is a


gap between what the law says and how itworks. For example, Ontario’s legislation onthe right to public health insurance gives anapplicant who is refused coverage by a localoffice the right to appeal to an independenttribunal. In practice, there is a preliminary,less formal appeal not reflected in the legisla-tion. We could have produced a clearlanguage document on this topic on our own,but without the input of a health law practitio-ner, this crucial piece of information wouldnot have found its way into our publication.

Our reviewing lawyers advise and representindividuals, so they are accustomed to apply-ing the law to one set of facts at a time. Inworking on public legal education materials, Ineed to think about how legal informationmay apply in a variety of situations. Andwhile we recommend that people seek legaladvice, we still need to think about the impactof information on someone who has yet toconsult a lawyer or may not have access toone.

Take as an example the deadline for filing anapplication with a court or other tribunal. Of-ten it is possible to seek an extension. When aclient comes in for help, a lawyer can deter-mine whether the deadline has passed andassist, either with filing the application ontime or seeking an extension. When we pre-pare materials, the audience includes peoplewho can still meet the deadline and peoplewho have missed it. Because an extension isnever guaranteed, we want to emphasize theimportance of meeting the deadline. But, wedo not want readers who have already missedthe deadline to be discouraged from pursuingtheir legal rights. We need to choose ourwording carefully, keeping both sets of readersin mind.

While your context may be quite different, ourhope is that you will find aspects of our modelthat you can apply when working with out-side legal experts. We start with a sharedvision and commitment, clearly defined roles,and respect for the varieties of expertise thatdifferent contributors bring to the work.

© Caroline Lindberg & Kim McCutcheon [email protected]@lao.on.ca

Caroline Lindberg is a lawyerwho began in private practice,then worked in variouscommunity legal clinics, andnow specializes in public legaleducation. She is a graduate ofthe University of Toronto LawSchool.

Kim McCutcheon is an editorat CLEO and has been a clearlanguage editor for more than15 years. Before that, sheworked for many years in non-profit housing. She has degreesin Journalism and Sociology.


Tania McAnearneyPrincipal, To a T, New Zealand

Lawyers, it seems, prefer to work with law-yers. This is especially true when it comes tofine-tuning their legal writing. They prefer towork with someone who speaks their lingo,someone who is legally trained and who un-derstands the subtle nuances of legal wordsand phrases.

I acknowledge that my introductory statementis very generalised. However, in my ten yearsof legal editing and writing experience, I haveyet to meet a lawyer who hasn’t needed theassurance that I am indeed a lawyer myself,before allowing my free reign on their work.For example, last year, I met with a representa-tive from one of the most prestigious firms inNew Zealand. She wanted to find out aboutplain language training. I was well-equippedto tell her all about the qualifications and ex-perience of the plain language trainers fromthe company I worked for at that time. Thatdidn’t interest her. She knew I was a plain lan-guage editor with a qualification in law. Sowhat she really wanted to know was, could Ido the plain language training?

Lawyers need to be assured that their docu-ments are still absolutely in line with the law.They want someone whom they can trust todo that—someone of their own kind. And by‘trust’, I am in no way undermining the valueof the services of other plain language profes-sionals. I’m suggesting something quitedifferent. I suggest that a way to make sure alegal document gets the best plain languageedit is to tackle it from the perspective of fourminds: the lawyer-client (or firm), a plain le-gal-language editor (such as myself), aprofessional editor (such as my colleague) andthe reader (user).

This is exactly how I tackled a complex con-struction contract last year. When a colleagueof mine was approached with a plain lan-

guage edit of a 100-page standard contract fordesign and build, he immediately contactedme. He felt that without legal knowledge, hewouldn’t do justice to the contract—quite lit-erally. And I jumped at the opportunity to sinkmy teeth into so much legalese.

Our first task was to give our client an esti-mate of the hours we’d take to complete aplain language edit of the contract. Beforeworking this out, we asked who the intendedaudience—the—user, would be. We were toldthat the document was intended for civil engi-neers and construction managers—in otherwords, people who most likely had a tertiaryeducation, but no legal knowledge.

Then we had to estimate how long it wouldtake us to complete the plain language edit.We reckoned that the process would take usabout 80 hours altogether. Next came the hardpart. Any editor worth their salt would under-stand why this document would take so longto edit, but explaining this to our client was adifferent story. So we took time to considerhow we would divide up the editing betweenus. We eventually decided on using a six-stageprocess: a light edit, a structural edit, a first‘line’ edit (also called ‘text’ edit or ‘sentence-level’ edit), a second line edit, a proofread anduser-testing. I would attend to the first threestages, my colleague to the second two andthe document would finally be ‘tested’ on afew laypeople in the construction industry. Af-ter we explained this process in a report to ourclient, he readily agreed to us going ahead.

Light editing stage

This contract was a classic example of tradi-tional legal writing—at its worst. So before Itackled the structural edit, I spent quite sometime making sense of a number of thecontract’s barely comprehensible clauses. Iwanted to make sure that the text was clearenough for me to properly and comprehen-sively do the structural edit. To do this, I

A ‘four minds’ approach to editing creates clarity


edited clauses where there was a lot of repeti-tion or cross-referencing and started changingsentences from the passive voice to the active.I also couldn’t help myself from editing anyglaring grammatical errors!

Structural edit

To say that the clauses in this contract were inabsolutely no order is putting it mildly. I did amajor overhaul of the structure of the documentand moved clauses around so that the textflowed logically and made sense. Deciding onwhere each clause best fit took up a substantialpart of the structural editing phase. I added amuch-needed table of contents with parts andclauses and added plenty of white space (theoriginal contained hardly any). I deleted thedefinitions section, which was unnecessary andmade the document far more complex that itneeded to be. I didn’t want to burden the userwith cross-referencing between clauses eachtime a definition appeared in the text. So, I didone of two things:

• chose a simpler word or phrase to use inplace of the original word

• placed the definition of the word in bracketsnext to the word the first time it appeared inthe text, and then again in the next part ofthe document.

I also changed some headings. For example, Ifelt that ‘passing of ownership’ better describeswhat ‘passing of property and vesting’ meansto people without a legal background.

First line edit

I then moved on to the first stage of our copy-editing process. And this is where my foreignlegal qualification sets me aside from otherplain language lawyers (I am originally fromSouth Africa). I looked at the document froman outsider’s perspective: was it clear, conciseand readable on a first read through it? How-ever, I also knew how far to take the plainlanguage edits of this legal document: I knewwhat legalese could be rewritten and I knewwhen a term of art needed to remain unchanged.

Heaps needed changing. I used ‘workers’ in-stead of ‘servants, workmen and staff’. And Ichanged various legal phrases, such as, ‘makinggood defects’ to ‘rectifying defects’ (but keptthe name of the certificate as ‘the certificate ofmaking good defects’).

I encountered the usual hurdles of having toconvince our client that the first and secondperson is, in fact, formal enough. And onceour client was convinced, it took ages to re-place the parties’ references with personalpronouns, such as ‘you’ and ‘we’. I madesome stylistic changes, such as using bulletsinstead of roman numerals and deleting theobsolete margin notes. I also spent a lot oftime cross-referencing clauses from the origi-nal contract to the edited version and deletingrepetitive text.

If I didn’t understand a specific point of law, Ididn’t attempt to assume anything. I queriedit with the client (using the comments func-tion in Word), so that I could decide whetherto rewrite it or keep it as it was. When I re-ceived the answers back, I made anynecessary changes and then handed the con-tract over to my colleague for his part in theediting process.

Second line editing stage

At this level, my colleague focussed on a fewkey areas that helped lighten the sheer load ofwords in sentences and improve the contract’sreadability. Here they are, in order of impor-tance (and probably also difficulty):

• restructuring and reformatting lists, whetherbulleted or in-sentence

• changing the last few passive sentences toactive

• breaking up over-long, multi-clausesentences (especially those with excessqualifications) into more discrete, reader-manageable bites

• removing excessive repetition

• shortening or simplifying wordy phrases,especially those that tended towardsvagueness

• making the punctuation serve the syntax.

Note that there were three editing levels forchanging passive phrases to active and for re-moving excessive repetition. Some documents,like this one, simply contain so much passivewriting and repetition of text that it took twogoes, one by me and one by my ‘second pairof eyes’ to make sure we’d caught them all (ormost of them at least!).


Proofreading stage

My colleague then perfected the plain lan-guage edit and proofread the contract to makesure we didn’t miss any spelling or grammarerrors. He also did a very detailed check forconsistency of formatting, punctuation, terms,syntactic structures and so on. And we jointlyprepared a report to our client summarisingthe main changes we made.

User-testing stage

We then arranged for the document to betested on a few industry users to see how wellour plain language edit worked.

The result of our efforts was an extremely sat-isfied client and contented users. It’s clearthat, with complex legal documents, a ‘fourminds’ approach to editing truly can createclarity.

© Tania McAnearney, [email protected]

Tania McAarney is NewZealand’s only dedicated plainlegal-language editor. Anassociate member of the NewZealand Law Society, she hasan LLB (with distinction) anda certificate in legal writing.She is currently studyingtoward a publishing diploma,with the editing modulealready under her belt. Taniahas several years of plainlanguage editing experience on documents ranging fromsolicitors’ letters and contracts, to editing risk manualsand trust deeds.

Linguistic Lingo forLawyers—possessivepuzzles

The apostropheFound on both sides of lettersThe right side and wrong.

So complains communications trainer CraigHarrison on the National Punctuation Daywebsite (http://www.nationalpunctuationday.com/)—and I’m sure Clarity readers canfeel his pain. Possessive apostrophes cause noend of problems: misplaced apostrophe’sprevalence is prolific, not to mention peoplestendency to omit necessary marks and to addsuperfluous ones’. (Don’t write in: I jest!) Ifonly everyone could learn and apply the rules!Dreaming of this punctuation-perfect para-dise, I’d covered the basics some time ago in‘Tip of the month’, a regular slot in Pikestaff,the monthly newsletter I write for Plain Lan-guage Commission.

But a recent request from a customer ratherrocked the boat, highlighting an area madetricky by both the regular plural and the pos-sessive of English nouns being formed byadding ‘s’:

Please settle an argument.

A few years back a man set up an illegalbusiness that basically comprised himmaintaining a list of workers from theconstruction industry who, at some pointin their working lives, had taken part inindustrial action. He hawked this aroundto all the major construction companiesoffering, for a fee, to check whetherprospective employees were on his list.The question is about the line below.Should ‘workers’ have an apostrophe? It’snot their list, they just happen to be on it.Construction industry workers blacklist

As the customer notes, the blacklist clearlydoesn’t belong to the workers, so some peoplemay claim that an apostrophe is unnecessary.Not so, as William Sabin points out in TheGregg Reference Manual (McGraw-Hill Irwin,2010):

627a. Possessive forms may express anumber of different relationships,only one of which refers literally topossession or ownership:


my boss’s approval (meaning the approval ofmy boss)

Belknap’s farm (meaning the farm possessedor owned by Belknap)

IBM’s product line (meaning the productline made or sold by IBM)

Faulkner’s novels (meaning the novelswritten by Faulkner)

Matisse’s paintings (meaning the paintingscreated by Matisse)

Frank’s nickname (meaning the nicknamegiven to or used by Frank)

A two weeks’ vacation (meaning a vacationfor or lasting two weeks)

627b. To be sure that the possessive formshould be used, try substituting an ofphrase or making a similarsubstitution as in the examples above.If the substitution works, thepossessive form is correct.

Substituting any of the phrases listed in 627adoesn’t really work for our ‘blacklist’ example.And Sabin continues:

628a. Do not mistake a descriptive formending in [plural] s for a possessiveform.

sales effort (sales describes the kind of effort)

savings account (savings describes the kindof account)

news release (news describes the type ofpress release)

earnings record (earnings describes the typeof record)

So it seems we must interpret meaning, de-ducing the relationship between the nounhead (in our example ‘blacklist’) and thepremodifier (‘construction industry workers’).The latter phrase does seem to describe thetype of blacklist, so it seems we’re sorted: noapostrophe it is.

But the guidance here is quite complex and re-quires skills in interpreting linguisticsubtleties: I wondered, isn’t there a simple testwe could apply? This could be particularlyuseful in explaining the rule to people withoutexpertise or fluency in English (either in thetraining room or in writing—I could feel an-other ‘Tip of the month’ coming on). So backto Bill’s bible (that is, the bible belonging to

me but written by Bill) I went:

628b. Some cases can be difficult todistinguish. Is it the girls basketballteam or the girls’ basketball team? Trysubstituting an irregular plural likewomen. You wouldn’t say the womenbasketball team; you would say thewomen’s basketball team. By analogy,the girls’ basketball team is correct.

Based on the dilemma arising only with nounsthat have regular plurals (in ‘s’), this soundssuch a neat and simple test. But it doesn’tseem to me to work with the irregular pluralsuggested: construction industry women blacklistsounds distinctly wrong. In fact, is there anyphrase where ‘women’ (or ‘men’ or ‘children’)can be used as a noun modifier? I couldn’tthink of one.

When I went looking in the other usage manu-als on my bookshelf for alternative tests, Ifound none, but I did think one up based onwhat I read in Greenbaum & Quirk’s AStudent’s Grammar of the English Language(Longman, 1995):

Plural nouns [that premodify] usuallybecome singular, even those that otherwisehave no singular form:

The leg of the trousers ~ The trouser leg

So the test is: if in doubt about whether thepremodifier is possessive or descriptive, checkif it makes sense in the singular. If it does, it’sdescriptive, not possessive. The test seems towork in most cases—for example, ‘construc-tion industry worker blacklist’ sounds fine,while ‘girl basketball team’ doesn’t. But itdoesn’t work where the singular of thepremodifier has a different meaning.Greenbaum & Quirk give ‘the arms race’ as anexample—where ‘arm’ has a completely dif-ferent meaning—while Sabin’s examples ofdescriptive premodifiers sound similarly un-suitable in the singular, though more subtly so(sometimes through the removal of the ‘s’making the premodifier into a different part ofspeech): ‘sale effort’, ‘saving account’, ‘new re-lease’ and ‘earning record’.

So this may be a useful test for linguists, butit’s not a particularly simple one. In fact, betteradvice to beginners and non-native Englishspeakers may be to ‘unpack’ the phrase. Inany case, multiple noun modifiers aren’t inkeeping with plain language, and restructur-


Conference News

The 2012 Clarity Conference:Washington DC, National Press Club

Clarity’s fifth international conference will beheld in 2012 from May 21–23 at the NationalPress Club, a unique venue in Washington DC.Clarity will co-host the conference with theCenter for Plain Language (www.centerforplainlanguage.org) and Scribes—The American Soci-ety of Legal Writers (http://www.scribes.org/).

Theme and focus

The conference will celebrate the US PlainWriting Act. We will explore the strategies thatpeople everywhere are using to implementplain language. US government agencies thatwill be there to discuss their programs includethe Internal Revenue Service and the Depart-ment of Homeland Security. Read about theAct at http://centerforplainlanguage.org/plain-writing-laws/plain-writing-act-of-2010/.

Program

The conference program will feature the usualwide range of speakers and topics. We willhave high-profile speakers from both the USand abroad addressing legally-relevant topicsincluding financial disclosure, legislativedrafting, jury instructions, clarity in balloting,court rules, international standards for plainlanguage, benefits of plain language for law-yers, and a summary of plain languagelegislation around the world. For updates tothe program and other conference informa-tion, visit the conference website at https://sites.google.com/site/claritydc2012/.

The conference schedule will run as follows:

• Monday May 21—evening welcome reception;

• Tuesday May 22—all day conference sessions;

• Tuesday May 22—evening dinner; and

• Wednesday May 23—all day conferencesessions.

Dinner and ClearMark Awards

The conference dinner will be on the eveningof May 22 at the National Press Club at 7 pm

ing (and perhaps simplifying) these types ofphrase may remove the whole apostrophe di-lemma. For example, why not say ‘blacklist ofconstruction workers’?

If you do decide to be brave and keep a nounwith a regular plural as a premodifier, thenyou’ll need to think carefully about the in-tended meaning, and apostrophise (or not)accordingly. At least then you’ll have thepeace of mind of knowing you can justify yourchoice if anyone challenges you on it. And re-member too that with interpretation ofmeaning comes subjectivity, which means nei-ther can be unarguably right—or thereforewrong.

The only exception is in names, where wemust accept the preference of the organisation,product or publication, however unsatisfac-tory we may find it. In the idealism of youth, Idevoted much energy to the Save Bart’s Apos-trophe campaign (a singularly clear-cut case, itmay appear): my hair is greying, while BartsHospital it remains.

Sarah Carr has a first degree in modern languages andEnglish, and an MBA. She has worked as a generalmanager in the National Health Service, and as a fellowat the University of Manchester. Sarah is now a plain-English consultant (www.carrconsultancy.co.uk) andfreelance associate of Plain Language Commission(www.clearest.co.uk). Sarah’s publications include‘Tackling NHS Jargon: getting the message across’(Radcliffe Medical Press, 2002).

To subscribe to Pikestaff (it’s free), please visithttp://clearest.co.uk/?id=49.

If you’d like to write for this column or itstwin, Legal Lingo for Linguists, please contactJulie Clement, Clarity’s editor in chief.


with a reception at 6 pm. In addition to thedinner speaker, the Center for Plain Languagewill present its annual ClearMark awards dur-ing the dinner. The ClearMark Awards—nowin their third year—celebrate some of the bestdocuments in the United States, and pokesome gentle fun at some of the worst. To readmore about the awards and see some previouswinners, visit http://centerforplainlanguage.org/awards/. You can also submit entries(open through March 3) from that same page.

The Clarity Band—our editor, Julie Clement,and her husband, Rush Clement—will per-form after the dinner. If the dancing at ourconference in Lisbon, Portugal is anything togo by, then the Clarity Band is reason alone tobe at the conference and dinner.

Hotel

We have arranged discounted rooms at TheCapital Hilton Hotel. The hotel is just twoblocks from the White House and five blocksfrom the conference venue, the National PressClub.

To get the hotel discount, you need to reservea room by April 20. Provide:

• the group name = Clarity Conference

• the group code = NPS.

Reserve by phone on 1-800-HILTONS or on-line at http://www.hilton.com/en/hi/groups/personalized/D/DCASHHH-NPS-20120520/index.jhtml?WT.mc_id=POG

Early bird discount—conference fee

The conference fees (in US$) are:

• for government employees and members ofClarity, the Center, or Scribes, $450, but ifyou book before March 1, the fee is only$400; and

• for others, $500, but if you book beforeMarch 1, the fee is only $450.

Register online for the conference at http://www.natalieshear.com/clarity/

Help us spread the word about the Conferenceto your friends and associates. If you are inter-ested in helping sponsor the conference (wealways need help with sponsorships) orwould like to place an ad in the conferenceprogram, email Christopher Balmford [email protected].

Message from the President

Thank you to all who tookpart in the Clarity survey this year. I am pleased to share the highlights with you now, with a detailed analysis in the next Clarity newsletter.

Unsurprisingly, 68% the 134 members who took the sur-vey want Clarity to retain its focus on legal issues. Almost 95% feel that Clarity member-ship is valuable for sharing experiences and advice with other practitioners.

Over 75% of you feel plain-language standards are important. But you are split over whether to certify plain-language practitioners: 40% of you say it is not important; 40% of you say it is important. The balance is indifferent.

While over 60% of you do not want Clarity to be incorporated, close to 64% of you want the power to approve the constitution. This indicates strong support for developing a constitution, even if Clarity is not incorporated at this stage. (We may have to review this in view of fund-ing and tax.) As a next step, the Constitutional sub-committee will discuss the nature of that Constitution.

You can find the full survey results in three parts at: http://claritysurvey.wufoo.eu/reports/ clarity-international-survey-part-1-of-3/.

I wish you well over the festive season and look forward to seeing you at the conference in Washington. It promises to be outstanding. For more information, see page 34.

Warm regards

Candice Burt President of Clarity


Documents

Clarity, issue 66 - Clarity International — An international ... Number 66 November 2011 Journal of the international association promoting plain legal language Guest ditor for this