The Eighth Annual (1999) Clarity Awards
By George H. Hathaway
Why do journalists write negative articles about legal writing? They think it's good for business,
because bad news sells better than good news. Dan Seligman's article in
the September 7, 1998 issue of Forbes Magazine is the latest example. Here
are excerpts from the article [with our comments in brackets]:
Why do lawyers
write so lousily? They think it's good for business. Among nonlawyers there
is broad agreement that legal writing is god-awful. From outpourings of
the American Bar Association to Supreme Court decisions, obvious klutziness
abounds....A lot of lawyers are themselves quite agitated about their profession's
murky prose.... Many big-league law firms now have writing coaches....[M]ost
of them are partisans of the plain language movement....It has...a newsletter
(Rapport)...and...a Web site (www.plainlanguage.com)....It is supported
by some state bar associations....In 1995, the Michigan Bar embraced a
goal of abolishing legalese by 2000, but progress on this front has apparently
been, shall we say, de minimus....[Hold it, Dan. Among the many things
that are probably de minimus is your knowledge of the facts. You're wrong
about Michigan almost as many times as Lee Corso is. But go on...] So who's
against plain language? Gazillions of lawyers. Many in the profession want
to be obscure. Despite what they've been told in law school writing programs,
a lot of young lawyers thrill to the idea that they are now members of
an exclusive club whose members communicate in a language incomprehensible
to the uninitiated.
they come to believe that this language has genuine cash value. More important
still, this belief is not entirely crazy. Worth quoting at length in this
connection is one response to the ProfNet query. It comes from Michael
Bowen, a Milwaukee attorney (Foley & Lardner), novelist (eight so far)
and traitor to his class.
Says Bowen: "Lawyers
write obscure and impenetrable prose for the same reason the medieval Church
didn't want the Bible printed in the vernacular. They want to control and
limit access to vital information. They don't want a sales manager to look
at a statute and decide for himself that his rebate program is legal; or
a plant operations manager to read an EPA regulation and figure out how
to get his effluent discharges within the legal limit. The legal profession
wants them to call lawyers to do these things for them." [Not quite, Mike.
The reasons are not so deliberate as that. Your explanation of legal writing
to Dan reminds us of the blind leading the blind. Instead of being wrong
about the motives for legalese, why don't you accept some responsibility
for legal writing and form a Plain English Committee of the State Bar of
Wisconsin, as we did in Michigan? Anyone can criticize legalese; it takes
blood, guts, sweat, tears, and long, lonely, thankless years of persistence
to persuade your fellow lawyers to actually eliminate legalese. Now go
on, Dan.] All of which tells us that there is a certain inescapable tension
between two of the professions's priorities: (1) responding to all the
reasonable complaints about legaldegook and (2) maintaining the billings
at reasonable levels. Guess which usually wins out.
There are two
types of people in this world: those who complain about problems and those
who try to solve them. Unfortunately, for every one hundred people who
complain, there is usually only one person who tries to solve. The differential
ingredient is a sense of responsibility. David Mellinkoff has it.1 He took
time off from his law practice in the early 1960s to write The Language
of the Law, the book that started the plain-language movement in the law.
His preface says it all. "With communication the object, the principle
of simplicity would dictate that the language used by lawyers agree with
the common speech, unless there are reasons for a difference....If there
is no reason for departure from the language of common understanding, the
special usage is suspect.... This is no crusade for the propagation of
a new language....It is an endeavor to make an existing language better
perform its function....This is a beginning. The goal is nothing more modest
than the rationalization of the language of the law."
Bryan Garner also
has it.2 He gives seminars to practicing lawyers around the U.S. on clear
writing in legal documents. Many of our previous award winners attended
And we select lawyers
and judges who have it for our Plain English Committee. For the last 15
years, we have tried to persuade Michigan lawyers to write in plain language.
We have also asked lawyers who are already involved in the plain-language
movement in other states to form plain-language committees in their states.
Texas did it in 1989, Missouri in 1993, and Pennsylvania in 1998.
Here we explain who we are, how we started,
and what we do. We list all our 15 years of monthly "Plain Language"
articles. You can directly download the last four years of these columns.
We also list all our Clarity Award winners and include plain-English examples
from 20 types of legal documents. Somehow you missed our website, Dan.
Instead, you stumbled onto the web site of Cheryl Stephens of The Precedents
Group in Vancouver, Canada. Everything about this group is first-class.
We have contributed to many issues of their newsletter, Rapport. They are
writing experts who are trying to persuade Canadian lawyers to write clearly.
They are doing this from outside the practicing bar. We are practicing
lawyers and judges within the State Bar of Michigan. We write legal documents
and are promoting plain English from within the State Bar. And you either
missed or ignored the progress we have made, Dan.
The State Bar
of Michigan has the following goals and priorities:
Our Plain English
Committee supports these goals and priorities through its goal of promoting
the use of clear writing by legal professionals. In 1992, we added a specific
goal of eliminating legalese from all legal documents in Michigan by the
year 2000. If we promote legal documents that are written in plain English
without legalese, we directly promote the rationalization of the language
of the law, and indirectly promote the public understanding of and respect
for the profession.
Goal VII-Public Understanding
of and Respect for the Justice System and Profession.
of the Profession.
Key Priority of Long-Range
Plan-Image of the Profession.
We promote our
goal by doing three things. First, we divide all legal writing into five
general categories and 20 specific types, and focus on only one specific
type at a time. Second, we identify the specific lawyers or group of lawyers
who write each type of document. We thus concentrate on only one relatively
small group of lawyers at a time. And third, we find clearly written examples
of each specific type of document, give them Clarity Awards, and promote
them as good examples to follow. We search for good examples throughout
the year and then give Clarity Awards on Law Day, May 1, of each year.
See Figure 1 for photos of this year's winners. We search for Clarity Awards
in the categories shown in Figure 2. Our search for the Eighth Annual (1999)
Clarity Awards is discussed below.
The Search for
(www.michiganlegislature.org, under Journals) are written by the 110 representatives
(only 11 of whom are lawyers) and 38 senators (only five of whom are lawyers)
in the Michigan Legislature, and by the clerks of the House and Senate.
Our subcommittee on resolutions (former Representative Nick Ciaramitaro
and Karen Willard; Clerk of the House Mary Kay Scullion; Bill Steude, of
the Michigan Municipal League; and Pat McAvoy, Director of Legislative
Affairs of the Michigan Township Association) has been trying to persuade
the Legislature to remove the legalese such as Whereas and Now, therefore
from state resolutions. The only state resolutions that have been written
in plain English are Representative Ciaramitaro's 1988 HR 691 and Representative
Willard's 1995 HR 302.
We also promote
plain English in the resolutions of the 210 cities in the Michigan Municipal
League and of the 1,242 townships in the Michigan Township Association.
This year we give Clarity Awards for the following resolutions:
Grand Rapids City
Commission Resolution No. 64015, by City Manager Kurt Kimball;
City of Ferndale Resolution
of October 26, 1998, on Tobacco and Alcohol Laws, by the Ferndale City
Council and Mayor Chuck Goedert;
City of Sterling Heights
Resolution of December 15, 1998, by City Attorney Paul O'Reilly and Assistant
City Attorney Neil Lehto; and
City of Flint Resolution
Approving the Fair Housing Study and Action Plan, by Chief Legal Officer
Karen McDonald Lopez.
under Public Acts 1998 Table) are written by the Legal Division of the
Legislative Service Bureau. We have given Clarity Awards to Michigan statutes
for many years. Our subcommittee on statutes (Carol Cousineau, Director
of the Legal Division of the LSB; and Joe Kimble, a legal-writing teacher
at Thomas Cooley Law School) believes that most of the statutes in Michigan
are written in reasonably clear plain English. And even if a statute is
not written as clearly as it could be, it is most likely because of all
the competing political interests that influence the passage of a bill,
not because the drafter wrote it badly on purpose. We also promote plain
English in city and township ordinances. This year we give a Clarity Award
for the following city ordinance: ù City of Dearborn Ordinance No.
98, on Alarm Systems, by City Attorney Debra Walling, Deputy Corporation
Counsel Laurie Sabon, and Corporal Susan Gomolak of the Dearborn Police
rules are written by the 19 departments of state government, reviewed by
the Governor's Office of Regulatory Reform, and edited by the Legal Editing
Division of the Legislative Service Bureau. Our subcommittee on administrative
rules (Mike Zimmer, Director of the Governor's Office of Regulatory Reform;
Roger Peters, Director of the Legal Editing Division of the LSB; and Diana
Pratt, Director of the Legal-Writing Program at Wayne State Law School)
believes that most of the administrative rules in Michigan are written
in reasonably clear plain English. Each year, we select one clearly written
rule for a Clarity Award. This year we give a Clarity Award to the following
administrative rule: ù Rule 432.1831, Destruction of Counterfeit
Chips and Tokens, by Nelson Western and Eric Eggan.
To summarize our
15 years of analyzing the writing style of statutes and rules, we believe
that lawyers do not write unclear statutes and rules on purpose, and that
most Michigan statutes and rules are written with reasonable clarity-far
better than they were written even a generation ago.
The Search for
Plain-English Lawsuit Papers
are written by members of the Michigan Trial Lawyers Association, Michigan
Defense Trial Counsel, Litigation Section of the State Bar, and Michigan
Association of Legal Support Professionals. Here there is more reason for
your comments, Dan-because there is a strong refusal by litigators to eliminate
legalese such as Now Comes and Wherefore from their lawsuit papers. But
this refusal is not going to be overcome by occasional magazine articles
criticizing the legal profession or by awards for the worst-written lawsuit
on lawsuit papers (Hon. George Steeh, Jr., of the U.S. District Court for
the Eastern District of Michigan; John Mayer, Court Administrator of the
U.S. District Court for the Eastern District of Michigan; Hon. Chad Schmucker,
Chief Judge of Jackson County Circuit Court; Keith Beasley, Court Administrator
of Macomb County Circuit Court; Matt Rick, an Assistant Attorney General;
and Greg Ulrich, a former Commissioner of the State Bar) have assumed the
responsibility for helping to promote clear writing in lawsuit papers.
They believe that the following Clarity Awards will help promote this goal:
Complaint for Divorce,
the Legal Aid Bureau of Southwest Michigan, by Executive Director Ward
McDonough and Managing Attorney Richard Kupferschmidt.
Complaint for Divorce,
Legal Aid of Central Michigan, by Don Reisig, Director of Litigation (and
former President of the State Bar of Michigan) and Yvette Willson.
Answer to Complaint
in Cirenese v Willauer, by David Viar and Donald DeNault, Jr.
Motion and Order for
Admission to Practice Law, by Macomb County Bar Association, Lori Finazzo,
Stipulation and Order
for Dismissal in Liberty Home Builders v City of Monroe, by Karen Mendelson.
Release and Covenant
Not to Sue, by Daniel Bretz.
for Plain-English Contracts
We have written
many previous articles about contracts.3 Most of these articles can be
directly downloaded from our web site. The following Clarity Awards not
only prove that contracts can be written in plain English, but will help
promote clear writing in future contracts:
Vehicle Retail Installment Contract of Ford Credit, by the Ford Credit
In-House Counsel Group.
and Disclosure Statement of Standard Federal Bank, by David Trahan, Ron
Palmer, and Greg Clark.
of Hughes Transactions, by Warren Andersen, Attorney of General Motors
for Plain-English Real-Estate and Estate-Planning Documents
and estate-planning documents are written by the 3,000 members of the Real
Property Law Section and the 3,000 members of the Estate Planning Law Section
of the State Bar of Michigan. These are the lawyers who can do the most
to improve the clarity of real-estate and estate-planning documents. In
previous years, we have given Clarity Awards to a clearly written real-estate
sales contract, a durable power of attorney for property transfer, a durable
power of attorney for health care, a will for property transfer, and a
living will for health care. Clear examples prove that real-estate and
estate-planning documents can be written in plain English. The implication
is: If these documents can be written in clear language, then why can't
you write your documents in clear language?
We have never
claimed that our Clarity Award winners are perfectly written legal documents-if
there is such a thing. In fact, even in the short excerpts below, we have
offered some gentle editorial suggestions [in brackets]. What we do claim,
though, is that the award winners are plainer than traditional documents
of their kind-and less pitted with legalese. We are trying to recognize
and promote change and progress. To anyone who thinks they can do better,
we say go for it. Instead of criticizing a document, send us a document
for a future Clarity Award. We have been asking this for years.
In 1995, Davis
Merritt, editor of the Wichita Eagle, wrote Public Journalism & Public
Life. He said that for decades the pervasive model of American journalism
had been distance. Now, however, he advocates becoming more actively involved
in the news. Public journalism moves beyond the limited mission of "telling
the news" to a broader mission of helping public life go well. It moves
from detachment to being a fair-minded participant. It moves beyond just
describing what is "going wrong" to also imaging what "going right"
would be like. Newspaper reporters and magazine columnists could help the
plain-English movement by practicing public journalism and writing balanced
articles about legal writing.
We are now in
our fifteenth year and our Eighth Annual Clarity Awards. The clear writing
that David Mellinkoff recommends in The Language of the Law and that Bryan
Garner teaches in his seminars can be used in current legal documents if
enough lawyers assume the responsibility to promote it. This year we have
identified many lawyers who are assuming that responsibility. They include
private practitioners, city attorneys, in-house counsel for General Motors,
Ford Credit, and Standard Federal Bank, and a past president of the State
Bar of Michigan who is now the Director of Litigation for a legal-aid clinic.
Progress may be hard, but it's not de minimus.
The Language of the
Law (1963; 11th printing, 1990); The Conscience of a Lawyer (1973); Lawyers
and the System of Justice (1976); Legal Writing: Sense and Nonsense (1982);
Mellinkoff's Dictionary of American Legal Usage (1992); How to Make Contracts
Illegible, 5 Stanford L Rev 418 (1953); The Language of the Uniform Commercial
Code, 77 Yale L J 185 (1967); The Myth of Precision and the Law Dictionary,
31 UCLA L Rev 423 (1983); Plain English in the Law, 73 Mich B J 22 (January
A Dictionary of Modern
Legal Usage (2d ed 1995); The Elements of Legal Style (1991); Black's Law
Dictionary (1996); Guidelines for Drafting and Editing Court Rules (1996);
Finding the Right Words, 67 Mich B J 762 (August 1988); Excerpts from a
Dictionary of Modern Legal Usage, 69 Mich B J 1066 (October 1990); An Excerpt
from the Elements of Legal Style: Rooting Out Sexism, 70 Mich B J 942 (September
1991); Judges on Effective Writing: The Importance of Plain Language, 73
Mich B J 326 (March 1994); Excerpt from the Indispensable Book: Garner's
Dictionary of Modern Legal Usage, 74 Mich B J 1062 (October 1995).
Motor Vehicle Leases
(December 1995); The Word from the Securities and Exchange Commission:
Put It in Plain English (December 1996); Don't Stop Now: An Open Letter
to the SEC (August 1997); Plain English Subcommittee on Contracts (October
1997); Plain English in Car Loans (August 1998); Plain English in Home-Equity
Agreements (October 1998); Plain English in Contract Recitals and Boilerplate
Award Categories (for 20 Specific Types of Legal Documents)
Motions, and Orders
Sworn Statements and
Proofs of Service
and Settlement Agreements
Consumer Finance Contracts
Sales Contracts and
Deeds and Easements
Notes and Mortgages
of Plain English
Durable Powers of
1. Grand Rapids
a 23rd Year Community Development Block Grant Agreement in a form to be
approved by the City Attorney between the City and Family Talk, Inc. for
a youth counseling program for the period of November 1, 1997 through September
30, 1998, in an amount not to exceed Twelve Thousand Dollars ($12,000)
[just the numbers] is approved and the Mayor is authorized to execute the
Agreement for the City. [Better yet: "The Commission approves.... The
Mayor may sign...."]
2. Ferndale Resolution
The Ferndale City
Council realizes the importance of early intervention programs that are
designed to stop underage drinking and smoking.
3. Sterling Heights
law, the application for transfer of control of the cable television franchise
is automatically approved if it is not acted upon unfavorably ["not denied"?]
within 120 days.
4. Flint Resolution
IT IS RESOLVED
that the City of Flint and the Flint City Council approve the fair housing
study and action plan entitled "Analysis of Impediments to Fair Housing
in Genesee County, including the City of Flint."
5. Dearborn Ordinance
98 to amend Section 14-10 of the City Code: (a)(3) Any person affected
by the assessment of a false alarm fee may request and shall be granted
a hearing on the matter before the security systems board. Such ["The"]
person shall file a request for hearing in the office of the chief of police
within ten days of the assessment of the false alarm fee. The burden of
proving an alarm was not a false alarm shall be ["is"] on the alarm user.
(1) This rule
applies to a casino licensee and a casino license applicant.
(2) All of the
following provisions apply to the notice of counterfeit chips and tokens:
(a) A casino licensee
shall notify the board and the executive director, in writing, immediately
upon the discovery of a counterfeit chip or chips or token or tokens that
results in a loss of more than $1,000 to the licensee.
7. Complaint for
Divorce of Legal Aid Bureau of SW Michigan
Therefore, I am
requesting that the court grant me a divorce consistent with the relief
requested in this Complaint.
8. Complaint for
Divorce of Central Aid of Central Michigan Plaintiff and Defendant were
married on the following date: ______________, in the following place:
9. Answer to Complaint
Shelby Township and the Shelby Township Water Department, for their Answer
to the complaint to remove wetland easement, state as follows:...
Shelby Township and the Shelby Township Water Department respectfully request
that this Court grant such relief as is equitable and just under all the
circumstances presented to the court during the course of this proceeding.
[Omit everything after "just"?]
10. Motion and
Order for Admission to Practice Law
that this Court enter an order admitting the candidate to the practice
of law in the State of Michigan.
and Order to Dismiss
IT IS ORDERED
that Joseph Schumaker and G. John Schumaker are dismissed without prejudice.
12. Release and
Covenant Not to Sue
that she will keep the terms of the Release confidential and will not disclose
its terms to anyone.
13. Ford Credit
Vehicle Retail Installment Contract
You must insure
yourself and the Creditor against loss or damage to the vehicle. The type
and amount of insurance must be approved by the Creditor. If the Creditor
obtains a refund on insurance or service contracts, the Creditor will subtract
the refund from what you owe. Whether or not the vehicle is insured, you
must pay for it if it is lost, damaged, or destroyed.
14. Standard Federal
Equity Line Agreement
You may use the
proceeds of a Loan for any legal purpose, except
(a) the purchase
of ["buying"] stocks or bonds, or (b) the making of ["making"] any
payments required under this Agreement.
15. General Motors
THE HUGHES TRANSACTIONS
We are proposing three related transactions to enhance the value of the
businesses operated by our Hughes Electronics subsidiary. We need your
consent in order to accomplish these "Hughes Transactions." (1) Hughes
Defense. We propose to spin off the defense electronics business of Hughes
Electronics to our common stockholders. We call this business "Hughes
Defense." Immediately after the spin-off, Hughes Defense will merge with
Raytheon Company. Based on the Recent Raytheon Stock Price, these transactions
have an indicated value of approximately ["about"] $9.5 billion.
"Plain Language" is a regular feature of the Michigan Bar Journal, edited by Joseph Kimble for the State Bar's Plain English Committee. The assistant editor is George Hathaway, chair of the Committee. The Committee seeks to improve the clarity of legal writing and the public opinion of lawyers by eliminating legalese. Want to contribute a plain English article? Contact Prof. Kimble at Thomas Cooley Law School, P.O. Box 13038, Lansing, MI 48901. For information about the Plain English Committee, see our website. George Hathaway is a senior real estate attorney at the Detroit Edison Company and chair of the Plain English Committee of the State Bar of Michigan.