Plain Language Legal Writing: Part I – Writing as a Process

Introduction: What is "Plain" language?

Plain language is language that is clear and understandable – and as simple as the situation allows. Legal language that is plain poses special challenges, but is not impossible. Clearer, simpler writing – stripped of complexity but not of style – will also help to improve your client relations.

What is Plain Legal Language?

Plain legal language is language that is clear and comprehensible to its intended reader. As a writer of plain legal language, your aim is always to be understood. Sometimes, you will aim to be understood by the ordinary reader, but not always. At times, you know you need only reach those who are familiar with the context and understand the terminology.

The Benefits of Plain Language

Confidence

Plain language inspires confidence in both the reader and the writer. Clear writing is evidence of clear thinking. Garbled thinking = garbled language. If your thinking is clear, you can be confident that your written product will be of better quality than the average law office precedent.

Clients like to know what the documents you ask them to sign actually say. They can understand and act upon their rights and obligations when they receive adviceand documents in plain language. They can make informed decisions and avoid legal complications. This inspires confidence in themselves and confidence in you.

A survey by the B.C. Plain Language Institute found that the more experience a person has with lawyers and legal documents, the more likely the person feels frustrated and angered. Why – because the more often a person deals with a lawyer or reads legal documents, the higher that person’s expectation that they will acquire the skill to decipher legalese. Unfortunately, that doesn’t usually happen because legalese is nothing more than incomprehensible legal language.

So the client loses confidence in the whole process, in the lawyer, and in their own ability to function effectively in legal situations. By using plain language you reduce your client’s frustration and increase his or her confidence and rapport with you. This is bound to enhance your own confidence.

Cost-Efficiency

Plain language can make your practice more cost-efficient as it has in business and government. These are a few of the ways you and your clients save:

• You save valuable time in teaching your articled students, and in editing or revising their drafting efforts.
• You save valuable time training legal assistants and other support staff. They are better able to understand and process clearer legal documents whether they are proofreading or working through administrative steps on a file. This gives them more confidence in their work and in the law firm. Such confidence produces more stability and less turnover.
• You save time and money in computer conversions. With plain language, you can eliminate the many variables in document packages. You can simplify a document assembly by simplifying the documents themselves. Computerized plain-language precedent systems provide greater uniformity of service, confidence in the product and a greater sense of security in your office.

Advance planning

Preparing plain language documents is advance planning for new legal requirements such as statutes governing consumer finance documents. Having plain language policies and drafting practices in place can save you from a rush or panic later. It is also beneficial because it:

• raises the firm’s profile in the marketplace and attracts blue-chip clients
• gives the firm a feature that distinguishes it from its competitors and provides tangible benefits to its clients
• attracts new clients to the firm
• gives the firm a new cultural focus: meeting client need
• increases the firm’s profits

Some reassurance

Statutes and legal documents written in plain language will not eliminate the need for legal advice. Every statute must be read in the context of other legislation and the common law. No matter how plainly a statute or legal document is written, a person needs a lawyer to explain the effect in their particular circumstances.

Lawyers’ careers are not at risk from plain language, but the quality of their service may be measured by their ability to produce plain legal language.

Writing as a Communication Process

You never merely write. You write to someone.

Henry Weihofen, in Legal Writing Style

Communication is not a one-way activity. You write in order to convey information to others. If your readers do not receive the message you intended to transmit, you have failed to communicate. Learning a few techniques can improve your writing efforts.

In the practice of law, often the most concrete product you deliver is a set of written documents. Whether or not the client achieves victory, the legal writer will be judged primarily by the written product delivered.

Legalese and gobbledygook

The name “gobbledygook” was given to obfuscatory, bureaucratic, impersonal writing by Maury Maverick in the late 1940s. In 1961, Henry Weihofen described gobbledygook’s main attributes:

1. It uses round-about rather than direct ways of expressing the thought.
2. It prefers pompous or pretentious to simple expressions.
3. It makes excessive use of nouns.
4. The nouns it uses tend to be abstract ones rather than concrete.
5. It has a penchant for compound prepositional phrases.
6. It makes much use of the passive instead of the active voice.

(Weihofen, Legal Writing Style, West Publishing Co., St. Paul, 1961)

Plain language legal writing refers to legal writing that is well thought-out, well organized, and understandable to the client without interpretation: the language is clear, the legal concepts are explained and the technical terms are defined. Whether you call such writing the opposite of gobbledygook or legalese, or just sloppy work, you know it when you see it. 

The need to communicate clearly is never an excuse for lack of care in legal research. Even though your clients are paying for your legal expertise, surveys have shown that clients do make their decisions about future retainers based on lawyers’ communication and interpersonal skills. Good lawyers are a common phenomena; good lawyers who are also good communicators are more rare.

In 1992, the Legal Writing Institute, an international association of legal writing teachers and other writing experts, adopted this statement of support for plain language legal writing:

1. The way lawyers write has been a source of complaint about lawyers for more than four centuries.
2. The language used by lawyers should agree with common speech, unless there are reasons for a difference.
3. Legalese is unnecessary and no more precise than plain language.
4. Plain language is an important part of good legal writing.
5. Plain language means language that is clear and readily understandable to the intended readers.

The Writing Process

So using plain language is desirable, but how is it done? These seven steps are all you need to take to write effectively:

1. Think about your reader.This may require research but will lead you to audience awareness.
2. Plan how best to convey your message. This is your organization phase.
3. Prepare your first draft. This is the creation.
4. Review your draft for common communication roadblocks. This is a general edit or revision.
5. Prepare your edited version with care for technical factors. This is the technical edit.
6. Use readers or other resources to evaluate your draft. This is testing
7. Reconsider your purpose, others’ input and revise your product again.

Inevitably, reviews will lead to changes. You will find yourself back at an earlier stage, reformulating and reconsidering your writing product. The writing process is like a spiral: the stages repeat at new levels until the desired result is achieved (or until you run out of time or money).

Revision and Reorganization

Organizing information is the single most important thing you can do to make your writing readable. When editing, always reconsider your original plan of organization. Having an introduction is helpful. It puts the main ideas in context and provides an organizational map for the document. Research has shown that readers jump to conclusions based on previous knowledge and expectations and read to confirm their own opinions. An introduction dispels reader preconceptions and lets the writer’s ideas come through clearly.

Rewriting the introduction after you have finished the document will improve it. Ensure at this stage that it depicts the actual content of your document. It is easier to write the introduction after you have completed the full text, including a summary conclusion.

Plan, Research, and Prepare

Thinking is the first step in communicating. Successful writers devote the major portion of their time to the thinking or incubation stage because it is in this stage that you discover what your real message is and how you want to communicate it.

In this pre-writing stage you work out a plan of action to get the information to the reader in a way that they can make sense of it. You also visualize the final product. How much time you need to do this depends on how much experience you have had with the type of writing project at hand. But remember you will always need to reinvent the product for each client and legal situation since you cannot rely on boilerplate clauses and precedent forms.

In a major communications project, part of the planning stage may be used to consult with the people who will eventually read and use the documents under preparation. For example, if you are designing a new consumer loan agreement for a bank, you may want to interview loan officers and review the results of the bank’s market research about its consumer clients.

Ponder and research

Planning includes analyzing. Ask yourself these questions:

Subject: What am I trying to say? Am I clear on the concept I want to communicate?

Purpose: Why am I trying to communicate this information? What do I expect my readers to do with this information?

Readers: Who are my readers. What are their interests? What do they know about the subject? If there is more than one group of readers, which group is my primary audience?

Setting: How and when is the document to be used? Are there any limits on its size?

Constraints: Am I under time pressure? On a limited budget? Am I serving a committee of different viewpoints? How can I meet these challenges?

The classical approach to writing involves three steps: considering who your readers will be, figuring out what your reason is for writing, and finally refining your message to suit the needs or expectations of your readers while fulfilling your purpose for writing. Today, especially in law offices, writing is a more focused and business-oriented activity subject to many limitations on time, resources, and conflicting interests – to name a few. The last step in analyzing the communication task today changes somewhat accordingly: determine your constraints.

Decisions about form and content can only be made through an analysis which includes an assessment of the needs and abilities of the readers or users of the document. The analysis will lead you to the point where you can start preparing your first draft.

Prepare and Plan

The act of artful writing requires preparation and a plan. Think about these aspects of the project:

Concepts: The conceptual foundation: Who? What? When? Where? Why? How?

Focus: A means for generating ideas and refining your thesis

Research: Obtaining knowledge of the facts and the law

Tasks: The work elements:

• delegation of aspects of the project, and
• anticipating developments in production

Organization: Organizing the task and producing the document:

• writers, editors, production staff
• norms of form and content

Identify the Audiences

It is important to identify readers and be aware of their characteristics, needs, and expectations. But “audience awareness”, which is your aim, becomes complicated when you are writing for more than one audience.

In the law firm, you have to write to other lawyers, government agencies, individual clients, business clients, and lay people who are not your clients. You write letters which may be read only by one person at one time. You may also write business documents which will be used over and over by many different people.

Take the legal contract for an example. It is written, first and foremost, for your client. But when drafting it, you must keep the other party and the opposing solicitors in mind. And you are also concerned with how a court would interpret the contract should the relationship between your client and the other party break down. In commercial law practice, you deal with experienced professionals and with novices.

In a government office, you may write legal forms for experienced lobbyists or for people who feel they are at the mercy of government. Each requires a different approach.  You may not be able to meet the information needs of both in the same document.

Good lawyers learn to assess their client’s needs, abilities, comprehension levels, and psychology. Plain language writing requires you to apply such skills of assessment to determine what approach would work best for each communication project, and what types of documents are required to service all readers or users.

Is the court your most significant audience?

Plain language is intended to produce documents that truly represent a meeting of the minds of two disputing parties, and are so easily understood that disputing them in court never becomes necessary. Too often, lawyers write for the appellate court, when all they really need to do is produce a document that can be used and understood by a couple of clients. Most litigation is settled out of court, so the rare case that gets to court is helped by plain language. If the language is plain and the meaning clear to the general audience, the judge won’t meddle.

Rudolf Flesch said this of the hypothetical perverse judge whom most lawyers expect to face,

Let’s forget about Judge Fiendish. Let’s write so that no reasonable man will misinterpret what we’re trying to say.

(How to Write Plain English, New York: Harper & Row, 1979, at 36)

You might be surprised to know how many different audiences read legal documents or materials. Go beyond the primary audiences and you might discover a range of secondary audiences. To find the secondary audience, you must research how documents are handled and processed by the organizations which use them. It is likely that the court is not your most significant audience, although it could become your harshest reviewer. It is your client who is really your primary audience, or, at least, can identify the primary audience for you.

Select the Most Significant Readers

Who will be the significant readers of these documents? Which readers should you have in mind when making decisions about what to say and how to say it?

The significant reader may be the reader who is least likely to understand your document. Write and design your document for this reader, if doing so will not alienate other audiences. If it might, then consider whether you actually need different documents for different groups of readers.

Could you use one document if you were to include a glossary of terms and concepts?

Can you divide one document into sections addressed to different users? If you must use one document, then you must decide which audience is the most important for the document, so you can plan accordingly.

Get to Know Your Readers

Analyzing reader characteristics is not that different from evaluating people and evaluating people is part of the lawyer’s job. Litigators evaluate how a person will perform as a witness, that is, how well the witness communicates and how they will be perceived. Litigators analyze judges, juries, and opposing counsel. They speak to juries differently than they do to judges. They change their tone and style from direct examination to cross examination.

Solicitors analyze their clients in interviews:

• What does this testator really want?
• What is really important to this business person in this transaction?
• What is not being expressed here?

You have already learned how to tailor your message to your audience when talking face-to-face. You need to apply this type of analysis and responsive style of delivery when you are writing.

To get to know your reader, you may have to do some research; if your document is meant for a specific client, your research will focus on the client’s needs. Some basic characteristics will always apply and then there are the special characteristics of special readers.

While most people do not fit the old definition of illiteracy, many people are challenged by the task of reading. And they are unnecessarily challenged by legalese. It is good practice to write as simply and clearly as possible. And design your page and organize your document well, to make reading it as easy as possible. This will help you communicate effectively with your readers.

Audience Characteristics

You need to know the characteristics of the significant audience for your document. Learn your readers’:

• age range
• gender identification
• marital status 
• first language 
• professional interest 
• familiarity with law
• familiarity with subject matter 
• sensitivities
• desire to participate  
• attitude in the circumstances
• concerns  
• education and reading levels
• physical, mental or emotional problems 
• profession or occupation

What is Your Purpose?

When planning a legal writing project, it is helpful to think first of your own purpose in writing. Ask yourself these questions:

• Is my purpose to persuade, document, inform, or get action?
• Is my purpose to create legal relationships, define legal rights and obligations, or regulate conduct?

You should also ask yourself what is your reader’s purpose in making the effort to understand your document. What does the reader want to know or do? The answer will give you a clearer statement of purpose.

Determine the constraints

Your planning must take into account the constraints you are likely to face. It is wise to identify the problems and face up to them at the beginning: they will not go away.

Common constraints affecting writers in law offices are:

• limited resources
• time limits
• protocols of drafting
• rules of interpretation
• settled or prescribed forms
• negotiations incomplete or underway
• word processing precedent systems
• lack of substantive knowledge of law or facts

It is important to identify problems so that you have potential solutions ready beforehand. These are common constraints:

• inadequate drafting time;
• inadequate instructions often not thought through properly;
• frequent variations instructions;
• insistence on detail; and
• additional material and complex modifications late in the process.

Get Organized

Once you have figured out your topic, thesis, purpose, audience, and potential problems, you can begin to plan your document in terms of its structure, layout, design, format, sequence, rhetorical pattern, and more.

You may alter your plan of organization several times before your writing project is concluded. So why plan it? Because you need to impose order on your thoughts and your document now, not later. Proceeding without this first plan of the final product can take you into time-consuming and wasteful tangents.

Use a Checklist

Develop your own specialized checklist for any writing task that you handle often. The Law Society’s practice checklists may cover writing for particular legal matters and you can adapt these to develop a model of your own. A checklist is important because it acts as a reminder of the best process to follow. It frees your mind up to focus on the issue at hand.

Use a checklist rather than a previous document. A precedent form can become a strait-jacket that limits your efforts to develop a document that suits the needs of the current client and circumstances. Use a precedent as a reminder later to bring forward additional considerations that you may have missed.

Prepare a First Draft with the Plan in Mind

Thinking and conceptualizing is the most important stage in a legal writing project, but you are courting disaster if you prolong it too much. When you first receive a writing assignment note down the deadline in your diary. Next list all the tasks and steps you need to finish. Divide the available days into two portions: three-quarters of the time for the preliminary stage and one-fourth for the writing stage.

Note the date that the writing stage must start in your diary and be ready with notes or an outline so you can start your draft by that date.

Write your first draft quickly. Do not edit while writing – you are basically laying down the foundation of your document. So don’t second-guess yourself, and don’t go looking for all the facts and that extra research. Write notes to yourself where you feel something has to be confirmed or researched, or leave blanks ( _______ ).

Overcome Writer’s Block

Often at this stage the infamous writer’s block makes its appearance. You may be unable to figure out where or how to begin – maybe because you don’t have a proper plan or you haven’t finished thinking through the issue. But if your time for planning is up, you’ve got to move ahead anyway.

Start anywhere in the document where it seems easiest. You can always write your introduction last. But you need to get your ideas or information down on paper.

If your plan is sound, your purpose clear, and you know your audience, you’re just stuck for motivation or inspiration. There are techniques which will help suppress your internal critic and get your ideas flowing:

Clustering: This is free-association of ideas which develop from your topic phrase using diagramming and free-writing.

Branching: Take the seed of your idea and diagram a tree from it. Each related idea becomes a branch. Draw this like a picture. When it is finished, number the branches in order of priority and use this as your outline.

Brainstorming: Express any idea which comes to mind about your topic. Write down your ideas on the topic; don’t stop to reconsider or to edit your notes; keep generating ideas until the well runs dry. This can be done as a group process.

Free-writing: This is like brainstorming but done individually on paper. Start writing about your topic and don’t even lift your pen until you run out of ideas.

The method you use to generate ideas or to focus your topic and thesis may also lead you to the appropriate method of organizing your argument or document.

Outlining

One useful organizing step is creating an outline. Outlines are especially useful when you feel overwhelmed by the extent of your research. Outlining the document before beginning to write up your research clarifies and focuses the writing task.

Outlining, as you learned it in school, doesn’t work for everyone, especially not for those who are intimidated by the process or who let the outline become a strait-jacket for their thinking. An outline works only if it is treated as a working outline, one that can be altered throughout the writing process.

Many writers find it useful to make an outline after they have written the first draft. They find this late outline helps to focus or clarify the relationships between ideas and the logic of their thesis.

Some writers find the technique helpful when they are reviewing someone else’s writing that doesn’t seem to work well. One way to outline is to number the paragraphs, write a succinct summary of each paragraph, then review the outline to see if the logic holds and the thinking flows. The numbered list can be used to reorganize the material.

A Writing Strategy for Tight Deadlines

You often have to write something in a hurry to meet a tight deadline. It is important in that situation that you should devote 50% of your time to formulating the thoughts you want to express and working out your plan or outline before actually starting to write.

Take these steps when you get a rush assignment:

1. Clarify the task.
2. Try to delegate aspects of the task.
3. Brainstorm about it in writing.
4. Break it down into discrete time components.

If you see blank when the words are supposed to flow, try to write down your core sentence: a sentence which states the point you want to make in the letter, or a question which will lead to an answer. This note serves as a reminder of your purpose and keeps your thoughts focused.

Also, you can jot down significant words, facts, or ideas which come to mind about the subject. Use this as a reminder while you are dictating or drafting. It can serve as a free-form outline of what you need to write.

When you set about writing, start wherever your inclination sets you – in the middle or at the end. Later, as your final step, you should go back and write or reconsider your introduction and your closing.

If deadline writing always makes you anxious, follow these steps:

1. Clarify your goal.
2. Don’t start writing until you have your orientation sorted out.
3. Concentrate on your target and not on form and detail.
4. Check form and detail at the end and try to involve another person in the final review.

Legal writing and client literacy

You have a business client. This client trusts others to handle all her legal documents and accounting. She expresses frustration over the paperwork. She asks to take an annual report home to study before she can sign it. Another client is at risk of losing his income because he is refusing job training, a promotion or reassignment.

These behaviors are possible indicators of literacy problems. You can prepare for these situations by:

• identifying clients who may have trouble reading
• adopting techniques that help the client
• referring clients to agencies that deal with adult literacy

To help clients who have reading difficulties you need to be observant and aware. And cautious. Adults with literacy problems can be embarrassed by people who make a big deal of their problem or who talk about it in front of other people. It is likely that such clients didn’t receive much support when they did reveal their low literacy skills. They may have hidden this inability to read and write well because of the stigma attached to illiteracy: shielding their embarrassment behind anger or defensiveness.

Most lawyers wouldn’t want to ask a client point-blank: “Can you read?” But there are clues that a lawyer can pick up when they suspects that a client is not able to read the legal documents you want read and understand.

Consider the example of the client who has completed high school or can speak English fluently. Low literacy is not a problem only for immigrants, or for people whose first language is not English. Most people with low literacy skills were born here or have English as their first language. Low literacy is also a problem for senior citizens, or high school drop outs, or people who suffered in childhood from poverty, discrimination, abuse or development disabilities. Low literacy can be invisible.

Low literacy is a problem that knows no age, education, economic boundaries or national origins. If you give your client a legal document to read, does she read slowly and laboriously? Can he summarize what the document says? Has he filled in a form with the wrong information, or made mistakes in spelling or grammar? The problem may be that the client can’t read well enough to understand the questions, or can’t write well enough to answer.

Clues your clients give you

Some of the following behaviors may indicate a literacy problem:

• Using the excuse, “I forgot my glasses.”
• Saying, “I don’t have time to read this now - can I take it home?”
• Wanting to take forms home to fill out, “when I can think about it.”
• Saying, “I hurt my hand (or arm); I can’t fill these out.”
• Bringing along a friend or relative (who will help with reading or filling in forms).

Don’t be misled by the obfuscatory behaviours that often accompany literacy problems. Sometimes clients will appear to be uninterested in their case or unwilling to participate in finding solutions even though reading is not involved. They are probably scared that it will eventually lead to reading. They may:

• not show up for appointments,
• show nervousness or embarrassment during interview,
• act confused and ask unrelated questions,
• not ask questions for clarification,
• not answer the question asked,
• have difficulty following instructions,
• be compliant, nod agreement, but do not do what is expected.

Sometimes people behave in ways that seem to point to a poor attitude but actually indicates a literacy problem. They may do things like:

• act frustrated and leave in a hurry,
• become angry and storm out,
• get involved in physical confrontation.

How to help with the legal literacy problem.

Talk about the legal problem, repeat yourself. People who can’t read pick up compensatory skills. They have well-developed memories and may use mnemonics – memory tools. They may ask you to repeat something so they can memorize it. You can also help by finding new ways to convey information: Use plain language. People with lower literacy skills can cope only with written information that is simple and clearly laid-out, in language that is familiar and information that is well-organized.

Adapted from "Plain Language Legal Writing" by Cheryl M. Stephens, ASAP Legal Publishing 1999.