Promoting Plain English in Laws, Lawsuits, and Contracts
By George H. Hathaway
In July we discussed five categories and 20 types of legal documents, and referred to many of the articles that we had written about each type of document. We also discussed the level of clarity in each type and problems in clarity that are still unresolved. In this article we discuss what we have done and are doing to promote plain English in the first three categories--laws, lawsuits, and contracts.
We are focusing on Michigan House and Senate resolutions that are published each day in the House and Senate Journals. These resolutions have always contained the unnecessary word Whereas. Two members of the Michigan House of Representatives, Karen Willard and Nick Ciaramitaro, are members of our Plain English Committee. They have been trying to eliminate Whereas. In October 1995, Representative Willard wrote a resolution that did not contain the word Whereas. But even though it is against the law to alter what a legislator writes, someone added the Whereases after she had submitted the resolution to the clerk's office. She discovered this in time to publish the resolution without Whereas.
Therefore, of the approximately 400 resolutions published in the House Journal in 1995, one resolution had no Whereas and 399 had Whereas. This indicates that neither the legislators nor the civil servants in the clerk's office are going to eliminate Whereas easily. We plan to do this in steps. First, the Michigan House; second, the Michigan Senate; third, the Detroit City Council; and fourth, the cities and townships in the Michigan Municipal League.
We are focusing on Michigan statutes published about every two months in the Michigan Legislative Service pamphlets, and each year in the Public and Local Acts of Michigan. In 1994 we reviewed these newly written statutes and gave a Clarity Award to the Legal Division of the Legislative Service Bureau for these statutes. The Director of the Legal Division, Carol Cousineau, is a member of the Plain English Committee. We are now going to look at city of Detroit ordinances and ordinances written by cities and townships in the Michigan Municipal League. We plan on giving a Clarity Award each year to a clearly written state statute, city ordinance, or township ordinance.
These orders have always been written in classic legalese, and the current administration does not want to change the format.
We are focusing on the rules published each month in the Michigan Register and compiled each year in the Michigan Administrative Code Supplement. For an unfortunate example, see Figure 1. They are written by the 12 departments of state government and edited by the Legal Editing Division of the Legislative Services Bureau. In 1996 we gave a Clarity Award to the Michigan Department of Treasury for the clearly written real-property tax-affidavit forms that they wrote. Furthermore, LuAnn Frost of the Attorney General's Office is a member of the Plain English Committee. In the future we hope to give a Clarity Award each year to a clearly written state administrative rule or opinion of the attorney general.
We are focusing on the lawsuit papers that Michigan lawyers write, especially complaints, answers, motions, and orders. And we are trying to eliminate legalese such as Now Comes, Wherefore, and hereby from these lawsuit papers. Here are some of the things we have either done or participated in:
- In 1985 the State Bar sent a copy of Irwin Alterman's book Clear and Accurate Style in Lawsuit Papers to every lawyer in Michigan.
- In the late 1980s the State Court Administrative Office developed many plain-language court forms that have since been published each year by West Publishing.
- In 1990 we developed the "No Hereby" symbol (the word hereby in a circle with a diagonal line through it) as a symbol for eliminating legalese.
- In 1991 we asked the Representative Assembly of the State Bar to recommend that Michigan lawyers eliminate Now Comes.
- In the 1990s we have given Clarity Awards to the State Court Administrators Office, Lawyers Cooperative, Judge Elden, and Keith Beasley for their work in clarifying lawsuit papers and forms. Elden and Beasley are now members of our committee.
- In 1993 the Michigan Judges Association and Michigan Defense Trial Counsel endorsed our recommendations to eliminate Now Comes, Wherefore, and hereby from lawsuit papers.
- In 1993 we started a friendly contest with plain-English proponents in several other states to see which state could be the first to eliminate the word hereby from all legal writing in their state.
- In 1993 and 1995 we took sample surveys of federal, circuit, and district courts to determine the prevalence of Now Comes, Wherefore, and hereby.
- In the future we hope to give a Clarity Award each year to a legalese-free complaint, answer, motion, and order.
Briefs are of course written lawyer to lawyer. The general public rarely sees briefs, so we are not concentrating on them.
Affidavits should be called sworn statements and written in plain language. They can be now. But to act as a catalyst and promote their use, we wrote an amendment that Representative Ciaramitaro introduced into the Committee on Regulatory Affairs as House Bill 5173 in September 1995. This bill has not yet been reported out of committee.
We already gave Clarity Awards to standard civil and standard criminal jury instructions. Therefore, we won't concentrate on jury instructions anymore, although we may still take an occasional look.
Again, the general public doesn't read judicial opinions, and we won't concentrate on them. But we are willing to consider a model opinion-clear and tight-for a Clarity Award.
In 1995 we gave a Clarity Award to NBD Bank for its credit-card application and disclosure statement. However, most consumer-finance contracts in Michigan still contain legalese. Ciaramitaro has been trying since 1981 to pass a plain-language bill in consumer contracts in the Michigan Legislature, but it has never passed.
Insurance contracts are now written in plainer language than they were for many years. In 1990 Ciaramitaro succeeded in passing an amendment that requires plain English in insurance contracts (1990 PA 305, MCL 500.2236; MSA 24.12236, effective 1/1/92); it is now administered by the Michigan Insurance Bureau. We gave a Clarity Award to Blue Cross-Blue Shield for its health-insurance contracts. And Lisa Varnier of Blue Cross-Blue Shield is now on our committee.
This is the category of contracts that contains the most legalese. For example, see Figure 2. But a few of these contracts are written in plain English. In 1996 we gave a Clarity Award to Ford Motor Company for its motor-vehicle lease. In the future we hope to give a Clarity Award each year to a contract in this category.
The clarity of most investment contracts, referred to as prospectuses, is terrible. But in September 1994 the new chair of the Securities and Exchange Commission decided to do something about it. Now, mutual funds are experimenting with profile prospectuses that are written more clearly. Furthermore, the SEC's corporate securities group is now gearing up to persuade corporations to write their prospectuses in plain language. This year we hope to join forces with the SEC and begin annual Plain English Committee/Securities and Exchange Commission Clarity Awards for clearly written prospectuses.
In 1995 Davis Merritt, the 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 only describing what is "going wrong" to also imagining what "going right" would be like. We will try to get newspapers to practice public journalism in legal writing. We will try to get them to go beyond simply criticizing legalese to promoting clear legal writing by publicizing Clarity Awards.
Legal-writing texts have already been written for the three categories that we are concentrating on-laws, lawsuits, and contracts. See The Fundamentals of Legal Drafting (2d ed), by Reed Dickerson; Plain and Accurate Style in Lawsuit Papers, by Irwin Alterman; and Writing Contracts in Plain English, by Carl Felsenfeld and Allen Siegel. What we are simply trying to do is persuade practicing lawyers to write laws, lawsuits, and contracts the way these authorities suggest. The best way to do this is to give Clarity Awards to the growing number of legal documents that are now being written without legalese.
"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.