Definition of Plain English
Clear writing is hard to define. In our November 1992 column we published Joe
Kimble's list of thirty-six "Elements of Plain English." Many legal writing
instructors agree with this list. 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. And it is hard to coordinate a review of thirty-six 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 1 and 2. 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 thirty-six
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.
Figure 1--Basic Elements of Unclear Writing
| Legalese |
Legalese
Compounded |
| 1. Formalisms such as "Now
Comes" |
1. Long average sentence
length |
| 2. Archaic words such as
"hereby" |
2. Weak passive voice verbs-see Figure
2 |
| 3. Redundancies such as "any
and all" instead of "any" |
3. Wordy phrases such as "prior
to" instead of "before" |
| 4. Latin words such as "per
curiam" instead of "by the court" |
4. Unnecessarily long words such as
"utilize" instead of "use" |
Figure 2--Combinations of Active/Passive Voice and Strong/Weak
Verbs
| |
Active voice |
Passive Voice |
| Strong Verb |
courts decide cases |
cases are decided by
courts |
| Weak Verb with
nominalization (noun made from verb) |
courts make decisions on
cases |
decisions on cases are made
by courts |
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 twenty years. These words are actually a plain English hit list. If
lawyers, legal assistants, and legal secretaries do not eliminate these words, then they
certainly are not going to eliminate any of the other elements of unclear writing.
| |
Formalisms |
Archaic words |
Redundancies |
| Complaints |
1. Now comes |
1. hereby |
1. any and all |
| |
2. Wherefore |
2. herein |
2. by and between |
| Affidavits |
3. SS |
3. hereinafter |
3. consent and agree |
| |
4. being first duly sworn deposes and
says |
4. hereof |
4. due and payable |
| |
5. further deponent saith not |
5. hereon |
5. each and every |
| Contracts |
6. Whereas |
6. hereto |
6. fit and proper |
| |
7. Now therefore |
7. heretofore |
7. free and clear |
| |
8. Witnesseth |
8. Therein |
8. Null and Void |
| |
9. In Witness Whereof |
9. thereof |
9. terms and conditions |
| Real Estate |
10. Know all men by these presents |
10. thereon |
10. true and correct |
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