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Plain Language Chronological Index of Columns
A Summary of Our Review of Legal Writing By George H. Hathaway The Plain English Committee has now finished its two-year review of legal writing in Michigan. We began in January 1993 by separating legal writing into four categories (laws and lawsuits, real estate and insurance, consumer finance and other contracts, and wills and trusts) and by outlining the method we were using to improve clarity and eliminate legalese.1 In the following months, we reviewed the categories and, in a series of columns, summarized our review of each category.2 In each review, we subdivided the category, identified specific documents in each subdivision, and analyzed the documents. Elements of Unclear Writing Clear writing is hard to define. In our November 1992 column, we published Joe Kimble's list of 36 "Elements of Plain English."3 Most legal-writing experts agree with these principles. However, there is still no universally accepted definition of plain English in the international legal-writing community. But debating the definition of clear writing, or plain English, or plain language (or whatever you want to call it) doesn't eliminate the unclear writing that we still constantly see in actual legal documents. Since it is hard to coordinate a review of 36 items-some of them general, as guidelines tend to be-we took a more manageable approach for our review. We developed what we call "some basic elements of unclear legal writing" and separated these into "legalese" and "legalese compounded." We defined legalese as the following four types of words: formalisms, archaic words, redundancies, and Latin words (other than terms of art such as "res judicata"). And we defined legalese compounded as the following four types of problems associated with poor general writing: long average sentence length; overuse of passive-voice verbs and of weak verbs with nominalizations; wordy phrases; and unnecessarily long words. See Figures 1 and 2. We believe that you can significantly improve the clarity and appeal of your writing if you eliminate these eight characteristics of traditional legal writing. That is our goal-to at least eliminate these eight negative elements 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 elements of plain English, that's great. But for 400 years, regardless of the 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. Summary of Specific Documents Our summary table for all these categories, subcategories, and documents is shown in Figure 3. Our list of specific documents actually consists of 29 documents, 15 reference forms, and 6 sample surveys. We say that these 50 documents, forms, and samples represent legal writing in Michigan. We have rated these documents on their level of clarity, have given Clarity Awards to some documents and forms, and have identified major problems in other documents, forms, and samples. We do not claim that these ratings are perfectly accurate or mathematically precise. Our "basic elements" are more of a negative measure than a guarantee of quality. We offer the ratings and Clarity Awards in the spirit of improvement, trying to move lawyers off dead center after four centuries. Laws and Lawsuits For laws, we gave these awards:
But governor's executive orders and legislative honorary resolutions contain the worst examples of legalese in Michigan. Administrative rules, attorney general opinions, civil jury instructions, and court opinions are all somewhere in between. For lawsuit papers, we gave these awards:
But Michigan lawyers still purposely refuse to eliminate "Now comes," "Wherefore," "hereby," and "SS." Real Estate and Insurance In real estate, we gave these awards:
But the main printers and users of real estate forms still purposely refuse to write their documents in plain English. In insurance, we gave these awards:
Furthermore, we found that as a group, insurance policies are among the better-written legal documents in Michigan. Consumer Finance and Other Contracts We have announced these awards:
However, most wills, trusts, and other estate planning documents are still badly written. Legalese List In addition to the Clarity Awards, we also developed a list of specific words that lawyers continue to use, even though legal-writing experts and commentators have been recommending for many years that lawyers eliminate these words. These words are actually a plain-English hit list. If lawyers, legal assistants, and legal secretaries do not eliminate these words, then they probably are not going to pay attention to any of the other elements of plain English. (See table below.) Conclusion Categories and types of legal documents are hard to identify. They tend to blur, like the eyes and mind of someone who has to read them. Our list of well-known documents, forms, and samples at least gives us something on which to focus. Instead of generalizing by saying, "We've come a long way, but it will be years before most lawyers write well," we can now concentrate on these specific documents, forms, and samples to measure our progress. Plain-language advocates in other states can make up similar lists for their states. Concentrating on specific, well-known documents, forms, and samples is the best way to encourage lawyers to write in actual practice the way they were taught to write in law school, if they were taught at all. 1. Plain English Committee, 1992-1993 Agenda for the Plain English Committee, 72 Mich B J 72 (January 1993). 2. See the columns for March, June, July, September, October, and December 1993; and February, May, September, and October 1994. 3. Kimble, Plain English: A Charter for Clear Writing (Part Two), 71 Mich B J 1190, 1192 (November 1992).
"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. |
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