By George Hathaway and Karen Willard
The English-speaking international legal-writing community, composed of representatives from the United States, Canada, England, and Australia, is presently trying to define the term "plain English." Janice Redish, a former Director of the Document Design Center of the American Institutes for Research in Washington, D.C., defines the term as follows:
We have always defined plain English and document design, not as a single set of style guidelines, but as a process that results in a document that works for its users. Plain English has always meant a process of planning that includes understanding:
- what all the interested groups within the organization want to achieve
- who all the users are (inside and outside the organization)
- what tasks users need to accomplish
- how different people are going to use the document(s)
- how the document fits into the system
Plain English has always meant developing documents that meet the needs of the users, deciding what type of document is appropriate for the users and the situation, selecting guidelines for organization, style, layout, and graphics that are appropriate to the users and the situation, and testing iteratively with users, revising with users until we know that we have made good choices.
This definition includes so-called text-based, reader-oriented, and collaborative approaches. A text-based approach concentrates on what is on the page-words and sentences, and their organization and design. A reader-oriented approach tests the document by asking readers about their understanding and impression of the text. A collaborative approach lets readers help write the text.
This definition and its approaches may be useful for a legal-writing consultant in developing a major document for a client. But for many individual documents, you will never get the attention of a practicing lawyer, legal assistant, or legal secretary if you ask them to use "a process that results in a document that works for its users." To persuade legal personnel to routinely write in a "clear, user-friendly" way, you must offer "clear, user-friendly" advice, with some concrete examples.
That's why our committee has defined basic legalese as the unnecessary words that lawyers use that are different from the words the general public uses: 1) formalisms such as Now Comes, 2) archaic words such as hereby, 3) redundancies such as any and all, and 4) Latin words such as per curiam that are not terms of art. Eliminating legalese is an important, liberating first step toward clearer and more acceptable legal writing.
To make any progress, you must apply the definition of legalese to specific legal documents. That is why we have categorized legal writing as shown below.
In our analysis of legal writing in Michigan, we have separated legal writing into five categories (laws, lawsuits, contracts, real estate, and estate planning) and 20 specific types of documents, as shown in the table on the previous page.
We are now going to ask readers to comment informally on some of these documents. (We are not aiming for scientific accuracy.) We will start with the first category, laws, which consists of legislative resolutions and statutes, executive orders and administrative rules, and jury instructions and judicial opinions. We begin with the shortest and easiest document-resolutions. We will first determine a) what the writer wants to achieve, b) who the readers are, and c) how the reader will use the writing. We will then ask the readers 1) for their understanding of the document, 2) for their impression of the way the document is written, and 3) whether they would prefer a legalese or non-legalese version.
Resolutions are passed by the house and senate to honor a particular person or event, or to express a position on an issue. Resolutions use a standard format that includes the archaic Whereas.
The archaic Whereas is high-profile legalese. The question then becomes, Why doesn't the Legislature eliminate Whereas from resolutions? The reason given is that the resolutions are written for the legislators' constituents, and the constituents are supposedly impressed by the flowery language. This, however, appears inconsistent. People criticize lawyers every day for using legalese, but do these same people want the legalese in a resolution? Furthermore, if you eliminate high-profile legalese such as Whereas from resolutions, do you then have a better chance of eliminating legalese from other legal documents? To answer these questions, we first determined:
- What does the writer of the resolution want to achieve?-To recognize achievement by an individual or group, or to send a message to another unit of government.
- Who are the readers?-The people who receive the resolutions, and the general public as well, because many of these resolutions are framed and hung on walls.
- How will the readers use the resolution?-The people who receive the resolution will often display it as a recognition of achievement, or the general public will read it to learn what position the Legislature is taking on a particular issue.
We then asked ten members of the general public about the resolution shown in Figure 1:
1) Can you understand the following resolution? (We did not test comprehension on before-and-after versions.)
2) What is your impression of the way the resolution is written?
3) Would you prefer the resolution with Whereas or without Whereas? All ten replied that they could understand the resolution, but only four said that the resolution was written in a satisfactory way. Nine preferred the resolution without Whereas. The one who preferred the resolution with Whereas did so because it sounded more official. The other nine commented as follows:
- It is easier to read if the whereas is eliminated . . . I feel like I have to catch my breath before each whereas.
- Be user-friendly . . . go without whereas and be it resolved.
- The whereas adds nothing.
- Not personalized . . . language is too stiff and formal . . . The language of Shakespeare is not used in today's society. As written, I imagined a town crier ringing his bell as he read the proclamation. Without the legalese, the resolution is focusing on the individual or event being recognized.
- The use of whereas is often a clue that superfluous information, complexity, and awkward phrases will follow in an attempt to bolster credibility or influence.
Last year, state Representative Karen Willard took a straw poll of constituents in her district as to whether they preferred the plain language or the traditional form of resolutions. People overwhelmingly replied that resolutions should be easy to read and understand. However, when she introduced a resolution written in plain English (with no Whereas), the resolution was blocked on the house floor and never passed. This was a resolution (urging military-base commissaries to be open to all disabled veterans, not just those with 100% disabilities) that had passed out of committee unanimously with bipartisan support.
Government should communicate with its citizens in clear language, not in language that has been criticized by every English teacher and writing instructor from third grade through law school. Legal-writing books and instructors teach lawyers to eliminate the archaic Whereas. Furthermore, the general public prefers resolutions without the word Whereas. Yet the writers of resolutions refuse to eliminate it. And if the writers refuse to eliminate just one word, no wonder it is so hard to persuade lawyers to improve the clarity of legal writing.1
In the future we suggest the following user-friendly format for resolutions: [Statements concerning the honoree.] Therefore, the Senate/House resolves to unanimously honor ______ for ______ , and to send ______ a copy of this resolution.
1. A second example is the phrase You are hereby commanded, which was recently read on TV from a federal subpoena concerning the recent bombing in Oklahoma City. The phrase you are hereby commanded sounds as though it was issued from the Star Chamber. A clear, direct You are ordered is much more appropriate. Another example is the Yea/Nay voting designation of the U.S. Congress. Why not a clear, direct Yes or No?
George Hathaway is a Senior Real Estate Attorney at the Detroit Edison Company and the chair of the Plain English Committee of the State Bar of Michigan.
Karen Willard is a member of the Michigan House of Representatives (82nd District), a former legal writing instructor for the University of Detroit School of Law, and a leader of a movement within the Michigan Legislature to remove legalese such as Whereas from resolutions and other legislative documents.
"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.