Will Rogers, famous comedian,on the way lawyers write

The minute you read something and you can’t understand it, you can almost be sure that it was drawn up by a lawyer.

Will Rogers (November 4, 1879 – August 15, 1935) was an American cowboy, comedian, humorist, social commentator, vaudeville performer, actor, and one of the best-known celebrities in the 1920s and 1930s.

Then if you give it to another lawyer to read and he doesn’t know just what it means, why then you can be sure it was drawn up by a lawyer.

If it’s in a few words and is plain and understandable only one way, it was written by a non-lawyer.

Legalese is a style of writing used by lawyers that is incomprehensible to ordinary readers.

Canadian Bar Association and Canadian Bankers Association Joint Committee Report (1990)

“The Declineand Fall of Gobbledygook: Report on Plain Language Documentation”

Is legal writing different from (or superior) to ordinary writing in English?

UCLA Prof. David Mellinkoff:

If it’s bad writing by the standards of ordinary English, it is bad legal writing. If it’s good writing by the standards of ordinary English, it is more likely to be good legal writing.

Richard Wydick

Professor Emeritus at the University of California at Davis School of Law

Lecturer, International Legislative Drafting Institute presented in New Orleans by the Public Law Center, a joint venture of Tulane and Loyola law schools

Is legal writing different from (or superior) to ordinary writing in English?

Good legal writing should not differ, without good reason, from ordinary well-written English....In short, good legal writing is plain English.

National University of Singapore,Legal Writing Programme, 2001

Judge Gerald Lebovits, New York City Civil Court;faculty member: Columbia University - Law School, Fordham University School of Law, and New York University School of Law

The hallmark of good legal writing is that anintelligent lay person will understand it on the first read.

“Free at Last From Obscurity: Clarity — Part 2”

Legal writing should be directed to smarthigh-school students. If they understandyou, so will a more educated readership.Keep your words, sentence structure, paragraphs,and organization simple. Complex prose is weakprose. The erudite explain difficult concepts in easy-to-read language.

“Legal-Writing Myths — Part II”

US Supreme Court Justice Clarence Thomas on accessibility

I’d love one day for someone at a gas station who is not a lawyer to come up to me and say to me, “You know, I read your opinion, and I don’t agree with you.” Wouldn’t that be wonderful? “I’m not a lawyer, I read your opinion, I understood it, I don’t agree with you, but thanks for making it accessible.” So we talk of it in terms of accessibility.

Bryan Garner’s interviews withUS Supreme Court justices

US Supreme Court Justice Stephen Breyer on clarity for ordinary persons

If an ordinary person who is not a lawyer can understand it, I think that gives weight to what the Court does, and law is supposed to be intelligible. They should be able to follow it without having to take special vocabulary courses.

And the purpose of an opinion is to give your reasons, and you give your reasons both for guidance, but also it should be possible for readers to criticize the writer. Now, people can’t criticize what I say, they can’t explain why they think it’s wrong, unless they can understand.

Garner: Do you think it matters whether ordinary people can understand judicial opinions?

Michigan Bar Journal article

What is legalese?

• wordy• unclear• pompous• dull

Seeking to be precise, we become redundant. Seeking to be cautious, we become verbose. Our sentences twist on, phrase within clause, within clause, glazing the eyes and numbing the minds of our readers. The result is a writing style that is:

Prof. Richard Wydick, UC Davis School of Law, in “Plain English for Lawyers” (1979)

We lawyers cannot write plain English. We use eight words to say what could be said in two. We use old, arcane phrases to express commonplace ideas.

Four elements of legaleseProf. David Mellinkoff, UCLA School of Law, in hisbook “Legal Writing: Sense and Nonsense” (1982)

1. Formalisms, such as comes now

2. Archaic words, such as hereby

3. Redundancies, such as each and every

4. Latin words, such as per curiam

aforementioned

foregoing

henceforth

hereafter

hereby

herewith

hereunder

heretofore

thereafter

thereof

therewith

whereas

wherein

whereof

Characteristics of legalese (1/3)The legal vocabulary is commonly archaic and inflated. It abounds in:

doublets and triplets (give, devise, and bequeath);

here-, there-, and where- words (herein, thereto);

multiword prepositions (with regard to, subsequent to);

other wordy phrases (in the event that, until such time as);

strange, useless jargon (inter alia; Further affiant sayeth naught; In witness whereof, the parties hereto have affixed their signatures).

Prof. Joseph Kimble, Cooley College of Law, Michigan, USA; Burton Award for “Reform in Law” Federal Rules of Civil Procedure (2007); Federal Rules of Evidence (2011)

Characteristics of legalese (2/3)

Passive voice and abstract nouns (in place of strong verbs) are overused.

Conditions are often piled up at the beginning of the sentence.

Main verb is delayed by putting lists of items in the subject or by embedding clauses between the main subject and verb.

Exceptions are tacked onto the end (sometimes in so-called provisos) instead of putting them in a new sentence.

Legal sentences tend to be long and flabby.

From BSP Circular No. 702(protection of credit card holders from unfair collection practices)

Banks/quasi-banks and their subsidiary or affiliate credit card companies shall also provide the following information to their cardholders:

1. A table of the applicable fees, penalties and interest rates on credit card transactions, including the period covered by and the manner of and reason for the imposition of such penalties, fees and interest; fees and applicable conversion reference rates for third currency transactions, in plain sight and language, on materials for marketing credit cards, such as brochures, flyers, primers and advertising materials, on credit card application forms, and on credit card billing statements: Provided, That these disclosures are in addition to the full disclosure of the fees, charges and interest rates in the terms and conditions of the credit card agreement found elsewhere on the application form and billing statement; and

2. A reminder to the card holder in the monthly billing statement, or its equivalent document, that payment of only the minimum amount due or any amount less than the total amount due for the billing cycle/period, would mean the imposition of interest and/or other charges;

Provided, That such table of fees, penalties and interest rates and reminder shall be printed in plain language and in bold black letters against a light or white background, and using the minimum Arial 12 theme font and size, or its equivalent in readability, and on the first page, if the applicable document has more than one page.

235 words in one sentence

Characteristics of legalese (3/3)

More generally, legal writing tends to be poorly organized and poorly formatted.

And in its effort to be precise and exhaustive, it becomes excessively detailed and too often sinks into redundancy, ambiguity, and error.

The result is legalese — a form of prose so jumbled, dense, verbose, and overloaded that it confuses and frustrates most everyday readers and even many lawyers.

Kimble in “Lifting the Fog of Legalese”

Legalese violates nearlyevery principle of good writing 1/4

“One L” by Scott Turow

Classic account of life during the first year at Harvard Law School

Mark S. Mathewson, Director of Legal Publishing for the Illinois State Bar Association (Michigan Bar Journal January 2003)

“It was something like stirring concrete withmy eyelashes.”

Legalese violates nearlyevery principle of good writing 2/4

The irony of legalese:

the more you know about words and how to arrange them, the more frustrated you are by a ‘‘language’’ that violates nearly every principle of good writing.

For the most part, the substance of the law—the stuff you thought would be difficult—is easy compared to the words, phrases, clauses, sentences, and paragraphs under which it is buried.

Legalese violates nearlyevery principle of good writing 3/4

Some distinctive features of legalese include the following:

Arcane and archaic vocabulary Overspecificity and redundancy Abstraction and indirectness Long sentences and complex,

convoluted constructions Grammatical complexity

Legalese violates nearlyevery principle of good writing 4/4

Jury instructions

It will be your duty, when the case is submitted to you, to determine from the evidence admitted for your consideration, applying thereto the rules of law contained in the instructions given by the court, whether or not the defendant is guilty of the offense as charged.

Your duty is to determine whether the defendant is guilty of the offense charged. You must do this by applying the law contained in these instructions to the evidence admitted for your consideration.

Reasons to avoid legalese

The costs of legalese are not entirely stylistic. Many studies have shown how it costs clients money, impairs persuasiveness, and generally detracts from a writer’s reputation.

“Lifting the Fog of Legalese” by Joseph Kimble

Australian company sues because it didn’t understand the contract

Alternative to legalese: Plain English

These questions demand focuson message, respect for audience, and intent to be coherent. Good legal writers write the documentin a way that best serves the reader. They convey ideas withthe greatest possible clarity.

Many lawyers don’t know how to write in plain English. They never unlearned the bad habits they gleaned from the poor role models they read in law school. Although knowledgeable in the law, lawyers — society’s best paid writers — need to learn more about communication.

Plain English requires the writer to take each sentence and ask:

Will this be misunderstood?

Is this the clearest, most efficient wayto write it?

Is this word necessary?

Lawyers’ objection to Plain Language

Painting with print: Incorporating concepts of typographic and layoutdesign into the text of legal writing documents, by Ruth Anne Robbins

The need to express complex ideas precisely makes plain language impossible.

In defense of Plain Language

Plain English used in the UK Inland Revenue Tax Law Rewrite project (started 1996 and ended March 2010)

Rewritten laws (since 1996):

Capital Allowances Act 2001 Income Tax (Earnings and

Pensions) Act 2003 Income Tax (Pay as You Earn)

Regulations 2003 Income Tax (Trading and

Other Income) Act 2005 Income Tax Act 2007 Corporation Tax Act 2009 Corporation Tax Act 2010 Taxation (International and

Other Provisions) Act 2010

The project’s total cost: £26m

Savings for businessesand individuals: £4bn a year

From legalese to Plain English

Bryan A. Garner, editor in chief, Black’s Law Dictionary

Disclaimer by American Bar Association:

“The materials contained herein represent the opinions and views of the author, and should not be construed to be the views or opinions of the law firms or companies with whom such persons are in partnership with, associated with, or employed by, nor of the American Bar Association, unless adopted pursuant to the bylaws of the Association.”

Plain English disclaimer by Garner:

“The essays in this volume represent the author’s views -- not those of the American Bar Association.”

Garner’s Dirty Dozen (words to avoid)

1. and/or

2. deem

3. herein

4. know all men by these presents

5. provided that provided, however, thatproviding

6. pursuant to

7. said

8. same

9. shall

10. such

11. whereas

12. witnesseth

Legalese: formalisms and archaic words

Legal language in regulations and other documents is a major source of annoyingjargon. Avoid the following terms, among others:

above-mentioned aforementioned foregoing henceforth hereafter hereby herewith hereunder

heretofore thereafter thereof therewith whatsoever whereat wherein whereof

Plain English in construction contracts 1/2

CICC Model Terms Of Construction Contracts For SubContract WorksPrimary drafter of the Model Contract: Sr Noushad Ali NaseemAmeer Ali, Professor in University Technology Malaysia

Before: This Contract shall be deemed to be a Malaysian Contract and shall accordingly be construed according to the laws for the time being in force in Malaysia and the Malaysian Courts shall have exclusive jurisdiction to hear and determine all actions and proceedings arising out of this Contract and the Contractor hereby submits to the jurisdiction of the Malaysian Courts for the purposes of any such actions and proceedings.

After:

Malaysian law governs this contract and Malaysian courts have exclusive jurisdiction.

Before: 69 words in one sentence

After: 11 words

Plain English in construction contracts 2/2

Examples from Rhode Island 1/3

Before

The plan covering the patient as a dependent child of a person whose date of birth occurs earlier in the calendar year shall be primary over the plan covering the patient as a dependent of a person whose date of birth occurs later in the calendar year provided.

“Plain English Is the Best Policy” by John Aloysius Cogan Jr.

After

What happens if my spouse and I both have health coverage for our child?

If your child is covered under more than one insurance policy, the policy of the adult whose birthday is earlier in the year pays the claim first. For example: Your birthday is in March; your spouse’s birthday is in May. March comes earlier in the year than May, so your policy will pay for your child’s claim first.

Examples from Rhode Island 2/3

After

What happens if I am legally separated or divorced?

If your child is covered by your policy and also by the policy of your separated or divorced spouse, the policy of the parent with legal custody pays first. In other words, if you have legal custody, your plan pays first. The same rule applies even if your child is covered by a health insurance policy of a stepparent. For example: Your former spouse has legal custody, and his/her new spouse’s policy covers your child. The new spouse’s policy will pay your child’s claim first.

Before

However, in the case of a dependent child of legally separated or divorced parents, the plan covering the patient as a dependent of the parent with legal custody, or as a dependent of the custodial parent’s spouse (i.e., stepparent), shall be primary over the plan covering the patient as a dependent of the parent without legal custody.

Examples from Rhode Island 3/3

Before

In the event a third party, including your employer/agent, is or may be responsible for causing an illness or injury for which we provided any benefit or made any payment to you, we shall succeed to your right of recovery against such responsible party. This is our right of subrogation. If you do not seek damages for your illness or injury, you must permit us to initiate recovery on your behalf (including the right to bring suit in your name).

After

Your injury or illness may have been caused by someone else. If so, we can collect from that person any claims we pay on your behalf. For example, if we pay for your hospital stay, we can collect the amount we paid for your hospital stay from the person who hurt you. We can also collect payment from that person even if he or she agreed to pay you directly or has been ordered by a court to pay you. If the person who caused your injury has already paid you, we can collect from you the amount he or she has already paid to you. This is called subrogation. In addition, if you do not try to collect money from the person who caused your injury, you agree to let us do so in your name.

Before

I give my Agent the power to exercise or perform any act, power, duty, right, or obligation whatsoever that I have or may hereafter acquire, relating to any person, matter, transaction, or property, real or personal, tangible or intangible, now owned or hereafter acquired by me, including, without limitation, the following specifically enumerated powers. I grant to my Agent full power and authority to do everything necessary in exercising any of the powers herein granted as fully as I might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that my Agent shall lawfully do or cause to be done by virtue of this Power of Attorney and the powers herein granted.

After

I give my agent the power to do anything thatI have a right or duty to do, now or in the future.

From the State Bar of Michigan Plain English Committee 1/2

From the State Bar of Michigan Plain English Committee 2/2Before

“[Name] informed you of the procedures for calculating interest for insufficient estimates. If the enclosed invoice(s) include charges for insufficient estimates, a detailed insufficient estimated [sic] used to calculate these charges is also enclosed.”

After

“How to pay your bill: To avoid penalties as well as further interest, you must pay this bill by its due date.”

Examples from Kimble 1/3Before

Please be advised that I am in receipt of your letter in regard to the above matter and have enclosed my response to the same.

From a jury instruction:

The fact that the defendant did not testify is not a factor from which any inference unfavorable to the defendant may be drawn.

After

I received your letter about the Spann case and have enclosed my response.

Although Mr. Charles didn’t testify, you should not hold that against him. Don’t consider it in any way.

Before

In case any building or structure is erected, constructed, reconstructed, altered, converted or maintained, or any building, structure or land is used, or any land is divided into lots, blocks or sites in violation of this article or of any local law, ordinance or other regulation made under authority conferred thereby, the proper local authorities of the town, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, conversion, maintenance, use or division of land, to restrain, correct or abate such violation, to prevent the occupancy of said building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises.

After

If any use of land or of a structure — or if the structure itself — violates this article or a local law or regulation, the proper town authorities may take legal action to correct or end the violation and to prevent any illegal use of the premises.

Examples from Kimble 2/3

Examples from Kimble 3/3

Before (from a standard provision in contracts):

If any term, provision, Section, or portion of this Agreement, or the application thereof to any person, place, or circumstance, shall be held to be invalid, void, or unenforceable by a court of competent jurisdiction, the remaining terms, provisions, Sections, and portions of this Agreement shall nevertheless continue in full force and effect without being impaired or invalidated in any way.

After

If a court invalidates any portion of this agreement, the rest of it remains in effect.

Example from bank document

Acceptance by the bank of payments in arrears shall not constitute a waiver of or otherwise affect any acceleration payment hereunder or other right or remedy exercisable hereunder. No failure or delay on the part of the bank in exercising, and no failure to file or otherwise perfect or enforce the Bank’s security in or with respect to any collateral, shall operate as a waiver of any right or remedy hereunder or release any of the undersigned, and the obligations of the undersigned may be extended or waived by the bank, contract or other agreement evidencing or relating to any obligation or collateral may be amended and any collateral exchanged, surrendered, or otherwise dealt with in accordance with any agreement relevant thereto, all without affecting the liability of any of the undersigned.

Irregular Payments

You can accept late payments or partial payments, even though they are marked “payment in full,” without losing any of your rights under this note.

Insurance company form letter

Before

We have recently implemented an enhancement to our computer system that will enable us to provide better service to our valued customers. This has resulted in a slight delay in the processing of your renewal. The difference you will notice is in the payment schedule. Your annual policy premium has been divided over 11 (eleven) months, and as a result your monthly payment will have increased due to the reduced number of monthly installments.

After

We are a little late in sending your renewal documents because we have made a change in our computer system in order to provide better service. Your annual premium will now be divided over 11 months instead of 12 so the monthly payment will increase slightly.

Example: DSWD website

Does availing of the 20% senior citizens discount on hospitalization or medical services preclude utilizing PHILHEALTH benefits at the same time?

No, a senior citizens discount on hospitalization and/or medical services can be availed of separately. Thus, PHILHEALTH coverage can still be utilized on top of the 20% senior citizens discount.

Can I use the 20% senior citizens discount on hospitalization or medical services and my PHILHEALTH benefits at the same time?

Yes.

Educational Benefits

Who may enjoy the benefits?

The following persons who have never heretofore enjoyed educational benefit under Philippine law nor under United States law, who desires to study, shall upon certification of the Administrator, be admitted to any school, college, university or institution authorized by the Government.

A. Veterans of the Philippine revolutions against Spain and the Philippine-American War;B. Veterans of the Philippine Army or of any recognized or deserving guerilla organization

who took active participatin in the resistance movement and/or in the liberation drive against the enemy during World War II from 8 December 1941 to 2 December 1945;

C. Veterans of the Philippine Expeditionary Forces to Korea (PEFTOK) during the period from 15 September 1950 to 31 May 1955;

D. Veterans of the Philippine Civic Action Group or Philippine contingent in Vietnam (PHILCAG) during the period from 31 August 1964 to December 1969.

E. The unmarried surviving spous of the deceased veteran; or F. One (1) direct descendant of a veteran in whose favor he renounces such right or one

(1) direct descendant of the deceased veteran in whose favor such right is applied for by the surviving spouse or legal guardian of such descendant.

The term “descendant” shall refer to a child of the veteran, or if no one is qualified, to a grandchild, and so on.

heretofore

Example: PVAO website

Possible revisions without legalese

Educational Benefits

Who may enjoy the benefits?

The following persons who have never heretofore enjoyed educational benefit under Philippine law nor under United States law, who desires to study, shall upon certification of the Administrator, be admitted to any school, college, university or institution authorized by the Government.

Educational Benefits

Who may enjoy the benefits?

Upon certification by the Administrator, the following persons who have not previously enjoyed educational benefit under Philippine law or United States law will be admitted to any institution authorized by the Government:

Legalese: PVAO citizen’s charter

ACCRUED / POSTHUMOUS PENSION

Represents pensions and other benefits, to include arrears or unpaid pensions, which were not received by a veteran or a surviving spouse before his or her death. The benefit/s therefore accrue/s to the deceased pensioner’s legal beneficiaries. Processing of Accrued / Posthumous pension involves two major stages 1) computation of arrears and 2) issuance of statement of distribution which takes time due to its quasi-legal nature.

quasi-legal

benefits

Lawyers on the whole don’t write well and have no clue that they don’t write well.

While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words.

“Why lawyers can’t write”Bryan A. Garner, American Bar Association Journal, March 2013

Dunning-Kruger effect (1999 study, Cornell University)

Unskillful or unknowledgeable people:

(1) often think they are quite skillful or knowledgeable,

(2) can’t recognize genuine skill in others,

(3) uniformly fail to recognize the extremity of their own inadequacy, and

(4) can recognize and acknowledge their own previous unskillfulness only after highly effective training in the skill.

Skillful people tend to overestimate others’ skills and underestimate their own.

Dunning-Kruger effectBryan A. Garner, American Bar Association Journal, March 2013

Designing and improving websitesfor lower-literacy users

Improving websites for lower-literacy users can also help higher-literacy users.

Jakob Nielsenis consideredas “the world’s leading expert on Web usability” byU.S. News and World Report.

People capable of understanding complex information nonetheless preferred more straightforward information.

Revising the text for a broad consumer audience makes a good site excellent and benefits all users.