By George H. Hathaway
Everyone criticizes legalese. It's easy to do, and it's the first step toward eliminating legalese. But just criticizing legalese isn't enough, because there is a tremendous gap between just criticizing legalese and actually writing clear legal documents. To fill that gap, you must not only criticize, but also recommend, teach, and persuade.
Legal-writing teachers not only criticize legalese, but also recommend ways to write clear legal documents. They do this primarily in the textbooks and articles they write.
Legal-writing teachers also take the third step by teaching clear writing in legal-writing classes in law school. But here is where the gap begins. First, law-school legal-writing classes concentrate more on writing office memos and appellate briefs than on writing transactional documents such as consumer-finance contracts, deeds, or durable powers of attorney. Second, even if law-school writing classes did cover these documents, when law students become lawyers they usually follow the existing legalese styles and forms that practicing lawyers have always used.
Therefore, the critical last step is to persuade practicing lawyers to actually write clear legal documents. Many people assume that this is the job of legal-writing teachers. Not so. The main job of legal-writing teachers is to teach legal writing to law students. Thus the gap between law-school writing classes and what practicing lawyers actually write. This gap can only be filled by the State Bar. And that's why we have formed the Plain English Committee. The job of the Plain English Committee is to finish the drive by persuading practicing lawyers to actually write clear legal documents. But how do you do it? How do you overcome all the ignorance, stubbornness, and deceit covered up by all those excuses that legalese must be used because of complexity, case precedent, statutes, precision, and tradition? You do it with Clarity Awards and persistence.
In 1992 we started giving Clarity Awards for legal documents that are written without legalese. We did this because we believe the best way to promote clear writing in legal documents is to publicize the legal documents that are already written in a plain style.
By publicizing actual documents, we eliminate the rationales and excuses that legal documents must be written in legalese because of complexity, case precedent, statutes, and precision, or that people won't eliminate legalese because of tradition and inertia.
We have organized these documents into 5 categories and 20 types. We then look for Clarity Award winners in each of the 20 types of legal documents.
In the first five years we have given the 23 awards shown in Figure 1. These Clarity Award documents prove that legal writing can be free of legalese.
Elements of Unclear Writing
As we have said before, clear writing is hard to define. In our November 1992 column we published Joe Kimble's list of 36 "Elements of Plain English." But it's hard to coordinate a review of 36 items. Therefore, we take a more manageable approach for our review. We use what we call "basic elements of unclear writing" and separate these into "legalese" and "legalese compounded." See Figures 2 and 3.
We believe that you can improve the clarity of writing-and begin to move lawyers off dead center-if you eliminate these eight elements of unclear writing. That is our goal-to at least eliminate these eight elements of unclear writing in legal documents in Michigan by the year 2000. If more can be done, either by or after 2000, to encourage lawyers to use all the various elements of plain English, that's great. But for 400 years, regardless of definition or theory, no one has been able to persuade lawyers to stop using even the simplest of unnecessary words such as hereby. We believe we can do it with this approach.
In addition, we also developed a legalese list of the most common formalisms, archaic words, and redundancies that legal-writing instructors have been encouraging lawyers to eliminate for the last 20 years. These words are actually a plain-English hit list. If lawyers, legal assistants, and legal secretaries do not eliminate these egregious words and phrases, then they certainly are not going to adopt any of the other elements of clear writing.
We discussed the clarity of current legal documents in our July 1996 and September 1996 columns. And we discussed sample tests for determining the clarity of documents in our November 1985 column and January 1994 overview article. The table at the right is an update.
Some types of legal documents in Michigan, such as statutes and insurance policies, are now written in a much clearer style than they used to be. Other types, such as purchase agreements and trusts, still contain much legalese. The best way to persuade Michigan lawyers, legal assistants, and legal secretaries to continue to voluntarily eliminate legalese and improve the clarity of legal documents is through Clarity Awards and persistence.
"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.