Legalese List for Laws
By the Plain English Committee
The Plain English Committee has previously reviewed the category of laws (which we now call laws and lawsuits).1 We summarized the documents in that category and gave Clarity Awards for well-written documents. The documents that we reviewed are shown in Figure 1.
Now we offer our legalese list of words to eliminate and documents to improve.
We reviewed newly written statutes in 1993 and found that they generally reflect the clear and modern style of legislative drafting. Therefore, we gave a Clarity Award to the Legal Division of the Legislative Service Bureau. But one of the continuing blemishes is the wordy phrase pursuant to, which still appears in newly written statutes. An example is 1994 PA 39, MCL 35.1092(d)(iii):
"Veteran" means any of the following: . . .
(iii) A member of a reserve branch of the armed forces at the time he or she was ordered to active duty pursuant to section 672(a) . . . .
And this, even though every legal writing textbook recommends that this wordy phrase be replaced with under.2 Many federal statutes, incidentally, use under instead of pursuant to. Example-39 USC 3629:
The functions and activities of this chapter shall be considered to be inherently Governmental functions. The drafting of strategic plans, performance plans, and program performance reports under this section shall be performed only by employees of the Postal Service.
Michigan Honorary Resolutions
There are two types of legislative resolutions-joint and honorary. Joint resolutions are proposed amendments to the state constitution. An example is 1993 House Joint Resolution G, which proposed changes to school financing in Michigan. Joint resolutions are written by the Legislative Service Bureau's Legal Division and are published about every two months in West's Michigan Legislative Service pamphlets. Honorary resolutions (also referred to as nonbusiness, commemorative, congratulatory, sympathy, ceremonial, house resolutions, senate resolutions, house concurrent resolutions, or senate concurrent resolutions) are written by the Legislative Service Bureau's Legislative Research Division and published in the daily House and Senate Journals. These resolutions still begin with the archaic word Whereas. An example is 1992 House Resolution 884:
A resolution of tribute honoring . . . .
Again, every legal writing textbook recommends that whereas be eliminated.3 And as David Mellinkoff points out in his entry "whereas" in Mellinkoff's Dictionary of American Legal Usage, p 685:
Whereas, It is a pleasure to join with . . .
Whereas, The problems of auto theft . . . ;
now, therefore, be it
Resolved by the House of Representatives,
That tribute be hereby accorded . . . .
Worst of all, as lawyers stubbornly cling to whereas, it has become an unneeded pejorative for the profession. [Those lawyers and their whereases.]
and City Ordinances
Most county boards of commissioners, township boards of trustees, and city councils do not pass many ordinances. They usually average fewer than one ordinance a year. Furthermore, even if they do pass an ordinance, it is not published in a regular journal. The exception is the Detroit City Council, which passes many ordinances a year that are published in the Journal of the City Council. These ordinances contain no obsolete formalisms. They do, however, contain the archaic word hereby. An example is City of Detroit Ordinance 7-92, shown in Figure 2. And notice the passive voice: "It is hereby ordained by the people of the City of Detroit," instead of "The people of the City of Detroit ordain." The first sentence of Section 2 again contains the unnecessary word hereby. And the second sentence contains 73 words, with multiple conditions and qualifiers.
and City Resolutions
Most county boards of commissioners, township boards of trustees, and city councils pass many resolutions each year. However, like ordinances, they are not published in any regular publication. The exception again is the Detroit City Council, which passes many testimonial resolutions each year that are published in the Journal of the City Council. These resolutions contain the word whereas. They are also passed by a yea-nay vote instead of a yes-no vote.
Governor's Executive Orders
These orders are written by the Executive Office's Legal Division and are published in the monthly Michigan Register. They contain whereas, pursuant to, and hereby. Furthermore, they are dated "Given under my hand and the Great Seal of the State of Michigan this 25th day of August, in the Year of our Lord, One Thousand Nine Hundred Ninety-Four, and of the Commonwealth, One Hundred Fifty-Eight," instead of simply "August 25, 1994." See Executive Order 1994-22 in Figure 2.
The archaic words whereas and hereby and the wordy phrase pursuant to are three of the worst examples of legalese in Michigan. Yet these words are still prominently used in Michigan statutes, honorary resolutions, ordinances, and executive orders. At long last, why not let them die?
1. Plain English Committee, "Plain English in Laws and Rules," 79 Mich BJ 566 (June 1993); Hathaway, "A Summary of Our Review of Legal Writing," 74 Mich BJ 50 (January 1995).
2. Dick, "Legal Drafting," p 157; Dickerson, "The Fundamentals of Legal Drafting" (2d Ed), p 212; Dickerson, "Materials on Legal Drafting," p 293; Eagelson, "Writing in Plain English," p 117; Felker, "Guidelines for Document Designers," p 59; Felsenfeld, "Writing Contracts in Plain English," p 143; Flesch, "The ABC's of Style," p 234; Garner, "The Elements of Legal Style," p 184; Mellinkoff, "The Language of the Law," p 19.
3. Dick, "Legal Drafting," p 145; Felsenfeld, "Writing Contracts in Plain English," p 151; Flesch, "The ABC's of Style", p 294; Garner, "The Elements of Legal Style," p 144; Mellinkoff, "The Language of the Law," p 321, and "Legal Writing: Sense and Nonsense," p 187; Weihofen, "Legal Writing Style" (2d ed), p 40; Wydick, "Plain English for Lawyers" (3d ed), p 53.
"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.