Most non-lawyers would probably agree that legal writing is difficult and hard to understand. Latin, French, Old English and Anglo-Norman terms abound, as do double negatives and coupled synonyms (like “null and void”). This jargon is strewn across lengthy, complex sentences that may need to be read several times – with a legal dictionary – to understand, if at all.
While frustrating, there are reasons for the strangeness of legalese. It should not allow any ambiguity, which means the language needs to be as precise and accurate as possible, to the point where specialized terms and lengthy, comprehensive text are sometimes necessary. Everyday speech evolves all the time and can cause disagreements, while the constancy – hence antiqueness – of legal language is intended to prevent these disagreements.
The danger of misinterpreting the law and legal documents is, of course, why people need lawyers. Unfortunately, lawyers are too expensive for most people to afford. They are also surprisingly few: for every 10,000 Marylanders, there are only 40 lawyers available, and there are just 1.49 lawyers who provide pro bono or low-fee services for every 10,000 low-income Marylanders. As a result, there is a huge number of people fending for themselves in the court system. That said, shouldn’t the lawyer-less, who are still subject to local and federal laws, be able to understand those laws without an interpreter?
A great number of people and organizations say yes, hence the passage of the Plain Writing Act of 2010. This act requires all federal agencies publish their documents in plain language. While legal language is intended to minimize ambiguity, it is probably safe to say that most people skip reading lengthy and incomprehensible legal documents. When is the last time you checked “accept” for an online agreement without taking the time to scroll through the small print? These poorly understood contracts can enable unpleasant surprises down the road and cause the very disputes they are meant to prevent.
Some of the guidance on plain writing best practices, such as white space, bullet points, headings, and active voice, could benefit legal professionals as well. While research studies on this last point are scant, a 1987 study by Robert Benson and Joan Kessler did suggest that documents written in clearer, plainer English are deemed more convincing by judges.
That said, writing clearly, plainly, and accurately in a way most people can understand is hard. In writing this blog post, I could not make its readability go below an 11th grade level, according to Microsoft Word’s readability statistics (here’s how to find that function). There are information hubs, guidelines, tools, and samples to help with this, however.
Here are a few resources:
- Writing for Self-Represented Litigants: https://mdcourts.gov/sites/default/files/import/mdatjc/pdfs/writingforsrls.pdf
- Plain Language Writing: http://www.plecanada.org/ple-processes/plain-language/
- Plain Language in the Legal Profession: https://www.plainlanguage.gov/resources/content-types/legal-profession/
- Drafting Legal Documents: https://www.archives.gov/federal-register/write/legal-docs
- Transcend Before and After Example Documents: https://www.transcend.net/services/PL/beforeAfter.html
- Write Clearly.Org Plain Language Library: https://sites.google.com/a/lawny.org/plain-language-library/library
- Michigan Bar Journal Plain Language Column: https://www.michbar.org/generalinfo/plainenglish/home
- Plain Language Guide: How to Incorporate Plain Language into Court Forms, Websites, and Other Materials: https://nacmnet.org/wp-content/uploads/NACM-Plain-Language-Guide-20190107.pdf
- Wydick, Richard. Plain English for Lawyers. 5th edition. [AACPLL catalog record]