An Overview of the Plain English Movement in the Law—15 Years Later
*This article was originally accompanied by several tables and charts. To see these tables, please refer to the January 2000 issue of the Michigan Bar Journal, pages 30-35.
The great enemy of clear language is insincerity. When there is a gap between one's real and one's declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish [octopus] squirting out ink.
-George Orwell, Politics and the English Language (1946)
The principle of simplicity would dictate that the language used by lawyers agree with the common speech, unless there are reasons for a difference....If there is no reason for departure from the language of common understanding, the special usage is suspect.
This is no crusade for the propagation of a new language....It is an endeavor to make an existing language better perform its function.
This is a beginning. The goal is nothing more modest than the rationalization of the language of the law.
-David Mellinkoff, The Language of the Law (1963)
I hereby resign the Office of President of the United States.
-Richard Nixon (1974)
It is ordered that this case be, and it is hereby, dismissed.
-Presidential Impeachment Proceedings (1999)Cab drivers have a unique way of describing lawyers. An L.A. cab driver was doing this as he drove me to the airport one day in July 1998. I had told him that I had attended a legal conference in California and had taken the opportunity to stop off at UCLA Law School to visit David Mellinkoff, the lawyer who started the plain English movement in the law. After the driver described a recent experience that he had had with a lawyer, the driver asked me about Mellinkoff's book on the language of the law. The driver was interested in finding a copy of the book, and jotted down the title.
This confirmed what I had always known. If someone as anti-lawyer as this cab driver was interested in reading a book a lawyer had written on plain English in legal writing, then the general public definitely supports plain English in the law.
In 1996, the Representative Assembly of the State Bar of Michigan adopted 10 basic goals. Two of these goals are:
Goal VII: Public understanding of and respect for the justice system and profession
Goal VIII: The openness of the profession
The Plain English Committee of the State Bar of Michigan supports these State Bar goals with the goal of the committee-To promote the use of clear writing by legal professionals. The challenge is how to promote the use of clear writing in a way that actually produces results. It's easy to write articles that criticize legalese, and it's relatively easy to write 'how to' articles, but practicing lawyers are reluctant to eliminate legalese from their documents and to write in plain English. Eliminating 400 years of legalese seems impossible to do-like Don Quixote tilting at a windmill. Nevertheless, here's how we've been helping to demolish the windmill.
In 1981, the State Bar formed our committee to provide input on the two bills that had been introduced in the Michigan Legislature by Representative Nick Ciaramitaro. (These bills required that insurance contracts and consumer contracts be written in plain English.) In November 1983, with the encouragement and support of State Bar President George Roumell, Jr., we published our first plain English theme issue (with 'An Overview of the Plain English Movement in the Law'). In May 1984, we started our monthly 'Plain Language' column. In 1992, we started our Clarity Awards for clear legal writing and adopted a goal of eliminating legalese from all legal documents in Michigan by the year 2000. In January 1994, we coordinated another plain English theme issue (with 'An Overview of the Plain English Movement in the Law-10 Years Later').
In this present theme issue, we discuss the progress that has been made toward the goal of eliminating legalese. We have been fortunate in these efforts, in having the continuous support of Nancy Brown, editor of the Michigan Bar Journal; the Board of Commissioners of the State Bar; and every president of the State Bar since our committee was formed.
Practice v Academics
In our early 'Plain Language' columns and previous theme issues, we included academic articles about 'how to' write clearly in plain English. However, in recent years and in this millennium issue, we are concentrating on quantifying the amount of present-day legal writing in Michigan that is in plain English versus the amount that is still in legalese.
Divide and Conquer
The first problem in discussing legalese is getting lost in generalizations. To avoid this, we first separate legal writing into five substantive categories-laws, lawsuits, contracts, real estate, and estate planning-and then identify a total of 20 specific types of documents in these categories. (See figure 1 above.)
The key is to focus on one type of document at a time, identify the lawyers who write that document, and persistently search for a good example of a clearly written document of that type.
We don't criticize bad examples of legal writing. The approach we have taken to encourage lawyers and legal secretaries to eliminate legalese is to promote good examples. We do this by giving Clarity Awards for clear legal writing. Clarity Award documents prove that legal documents can be written in plain English, without legalese. You only have to find one example of a clearly written document to disprove the myths that legalese is required because of complexity, case precedent, statute, and precision. You need more and more additional examples, however, to help dispel the myths and encourage lawyers and legal secretaries to follow the clearly written examples. We list all our Clarity Awards on our website (www.michbar.org/committees/penglish/pengcom.html). We discuss each of our five categories below.
Most state, county, city, and township resolutions are still written in legalese. The only state resolutions that have been written in plain English are Representative Ciaramitaro's 1988 HR 691 and Representative Willard's 1995 HR 302. The cities of Ferndale, Flint, Grand Rapids, and Sterling Heights have also written clear resolutions. These state and city resolutions show that resolutions can be written clearly and do not have to contain the archaic whereas or now, therefore format. Nevertheless, even though current examples of clear resolutions exist, most writers of resolutions still do not follow the clear examples.
Most Michigan statutes are written in reasonably clear plain English. The Legal Division of the Legislative Service Bureau continues to promote the clear style of recent statutes by nominating the clearest ones each year for Clarity Awards. We have given Clarity Awards to four recently written Michigan statutes.
We also promote plain English in city and township ordinances. We have given a Clarity Award for a City of Dearborn ordinance on alarm systems.
Most Michigan administrative rules are now written in reasonably clear plain English. The Legal Editing Division of the Legislative Service Bureau continues to promote the clear style of recent rules by nominating the clearest ones for Clarity Awards. We have given Clarity Awards to six recently written Michigan administrative rules.
One of the departments of state government, the Attorney General's Department, has especially emphasized clear writing in its documents. This Department writes rules, lawsuit papers, and Opinions of the Attorney General.
To summarize our evaluation of the writing style of resolutions, statutes, ordinances, and rules as we enter the new millennium, we believe that most Michigan statutes and rules are written with reasonable clarity-far better than they were written even a generation ago. The style of most resolutions and ordinances has still not changed enough to eliminate legalese. Members of the Michigan Legislature, Michigan Municipal League, and Michigan Townships Association are working on this, and the clarity of these documents will improve each year.
Most of the lawsuit papers filed in Michigan courts still contain unnecessary legalese. This is despite the fact that the State Court Administrative Office has developed clear forms and published them through West Publishing for the last 15 years. The Michigan Institute for Continuing Legal Education has also published many clear formbooks, such as Michigan Causes of Action Formbook.
Some Michigan lawyers are beginning to follow these formbooks and have filed lawsuit papers in plain English; whenever we have discovered these documents, we have given them Clarity Awards.
We have given Clarity Awards for complaints, answers, motions, orders, sworn statements, proofs of service, releases, and opinions. Furthermore, we have published model lawsuit papers on our website. These examples show that lawsuit papers can be written in plain English, without legalese. It is now up to the members of the groups who write the papers to follow the good examples.
Consumer finance was one of the first topics of the plain English movement in the law. We will separate this topic into three parts-unsecured loans (such as credit cards), loans secured by personal property (such as car loans), and loans secured by real property (such as home equity loans).
Credit Card Loans. In 1995, we gave a Clarity Award to the NBD Bank credit card agreement. Nevertheless, most credit card documents in Michigan are still hard to read and understand.
Car Loans. Many car-loan agreements are still poorly written. This is unfortunate because we have found three agreements that are good examples of plain English-the car-loan agreements of Standard Federal Bank, Comerica Bank, and Ford Credit. These three examples prove that car-loan agreements can be written clearly, and that all car-loan agreements could be written as clearly if the financial institutions writing them wanted to. For example, the Michigan Bankers Association formbook needs to be improved, and the car-loan agreements for many of the other banks in Michigan are terrible. Standard Federal, Ford Credit, and Comerica have shown that it can be done voluntarily. If all the other financial institutions would voluntarily follow these examples, it would be done.
Home Equity Loans. Most of the home equity loan agreements are poorly written and contain much legalese. Again, this is unfortunate because the Standard Federal Home Equity Line of Credit shows that these agreements can be written clearly.
Plain English Bill. Due to term limits, Nick Ciaramitaro is no longer in the Michigan Legislature. However, Rep. Gieleghem has taken over and is now sponsoring a bill that would require plain English in consumer contracts. The Board of Commissioners of the State Bar has always supported the plain English bill in the state Legislature, but the Michigan Bankers Association has always opposed the bill. This is unfortunate. Individual banks in Michigan have proven that all bank documents can be voluntarily written in plain English. Why not voluntarily do it, instead of opposing mandatory requirements? We need to find an Arthur Levitt in the Michigan banking industry.
It is possible to write these documents in clear language, but so far we have not found a good example of one.
Sales of Goods and Services
Most of these contracts still contain legalese, we have, however, found some that don't. We include leasing of goods in this category, and the best example is the very popular Ford Credit Red Carpet Car Lease.
Employment contracts still contain much legalese. We've looked for a long time, and we're still looking, for that first labor agreement between a large car company and a large automotive union that is written in clear language without legalese. It would be so easy to do.
Arthur Levitt, Jr., chair of the SEC, has led the way in plain English in investment contracts. Effective October 1, 1998, SEC Rule 421(d) requires plain English in prospectuses. We have given Clarity Awards to prospectuses written by General Motors and Daimler-Chrysler, and to proxy statements written by Ford Motor, Detroit Diesel, and Tecumseh.
Insurance policies were the first types of legal documents written in plain English. Insurance companies and the insurance industry have promoted clear writing; therefore, most life, health, car, and home insurance policies are written in clear language. We have given Clarity Awards to Michigan Blue-Cross Blue-Shield for their health insurance certificates and riders, and to the Michigan statute that requires plain English in insurance policies, 1990 PA 305.
Real-estate documents contain the most legalese of all legal documents in Michigan. Finding Clarity Awards in this category is difficult, nevertheless, it can be done.
(Also referred to as sales contracts or buy-sell agreements.) Two forms for plain English purchase agreements have been written in Michigan. The first was written in 1988 by the Forms Committee of the Michigan Association of Realtors (MAR). (However, most of the 3,000 member companies of the MAR have not used this form. Instead, they continue to use about 1,000 differently worded purchase-agreement forms written in legalese.) The second was written by, and is currently being used by, the Ann Arbor Area Board of Realtors (for which we gave a 1997 Clarity Award.) These two forms again prove that purchase agreements can by written in clear language. Nevertheless, most of the purchase agreements used in Michigan continue to be written in legalese.
Most of the land contracts in Michigan are written on forms distributed by title-insurance companies (such as First American or Lawyers Title) or boards of realtors (such as the Grand Rapids Board.) These forms contain much legalese. Drafts of plain English land-contract forms have been prepared, but there has not yet been enough interest to print, distribute, and use these forms.
Most of the deeds written in Michigan contain legalese, however, clear examples of warranty deeds (Fall 1999 Clarity Award) are available in the ICLE Estate Planning Handbook. All deeds can be clearly written if they follow the same format as these deeds.
Most of the easements written in Michigan still contain legalese. As yet, we have found no published easement that is clearly written.
Leases are the most poorly written of all legal documents in terms of clarity. Although leases can be written just as clearly as other legal documents, we have not found any examples of clearly written leases.
As in all states, most notes and mortgages in Michigan are written on forms that are developed and distributed by the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation. The notes are written in reasonably clear language (Fall 1999 Clarity Award).
The mortgage documents developed by FNMA/FHLMC are not as clear as their notes. There is a lot more that could be done, but again, we need to find people in the right places who are willing to do it.
Members of the Probate and Estate Planning Section of the State Bar of Michigan write most of the estate-planning documents in Michigan. Many of these documents still contain much legalese, however, almost all of these documents are produced by inserting names, addresses, ages, and other specific client information into selected form clauses and shell documents. Therefore, clear estate-planning forms are the key to clear estate-planning documents. Several excellent formbooks with clear forms are now available in Michigan.
Estate Planning Handbook. The most recent, widely publicized, and available of these formbooks is the Estate Planning Handbook by the Michigan Institute of Continuing Legal Education. About a dozen of the leading members of the Probate and Estate Planning Section of the State Bar contributed to and edited this handbook. This book has it all-clear explanations and clear forms for all the main types of estate-planning documents. The clauses and forms in this handbook prove that estate-planning documents can be written in plain English.
Durable Power of Attorney for Finances. Furthermore, Bradley Geller, Counsel of Washtenaw County Probate Court in Ann Arbor, has written two pamphlets, Durable Power of Attorney for Finances and Advance Directives, that contain the most clearly written forms in Michigan for durable powers of attorney and living wills.
Estate Planning Formbook. Finally, the Estate Planning Formbook of Comerica Bank, the largest Michigan-owned bank in Michigan, contains a plain English Durable Power of Attorney form and a Will form.
Plain English forms are now readily available for all the main types of estate-planning documents. Michigan lawyers can write clear estate-planning documents without legalese if they use these forms.
The Internet offers a convenient way to monitor the progress of plain English in legal documents. It's the latest in technology, but electronic legalese in still produces electronic legalese —ELI-ELO. The websites in Table 6 are useful.
The good news is that the many existing examples of plain English documents prove that legalese is not required by complexity, case precedent, statute, or precision. The bad news is that many lawyers and legal secretaries still don't follow the existing plain English examples. So where do we go from here?
The answer lies in people-leaders who have the interest, ability, and courage to write and promote legal documents in clear language without legalese, and most importantly, the ability to get the job done. We need to find names in specific fields to replace the question marks in Table 7 below.
How much longer will it be before we can find these people and they can get the job done? How much longer before hereby and all the other hallmarks of legalese are regarded in the same category as ain't in general writing? How much longer before legalese is instantly detected as the putrid smell of decaying flesh, slowly rotting away on the page? How much longer before legalese simply becomes forgotten words no longer used by young lawyers and legal secretaries in the new century? How much longer before the public understands and respects the writings of the justice system and the profession? How much longer before the public perceives the openness of legal writing? How much longer does my L.A. cab driver have to wait before lawyers overcome their reluctance to give up legalese and write their documents in plain English?