Research Paper for
Plain English in Legal
Writing
Plain English in Legal Writing – LAWS6950
Professor Peter Butt
Alice Hume – Student number 306061120
April 2014
Word Count: 3922
Table of Contents
Research Paper for Plain English in Legal Writing ........................................................... 1
Introduction ........................................................................................................................ 2
What is Plain Language? ..................................................................................................... 3
1. What is meant by ‘plain language’ and ‘traditional legal language’ or ‘legalese’? ........................... 3
2. What do the detractors of plain language say? .................................................................................. 6
The History of Plain Language ..................................... Error! Bookmark not defined.
Meeting the needs of the audience............................... Error! Bookmark not defined.
Language ................................................................... Error! Bookmark not defined.
1. Plain Language versus Traditional Legal Language ................. Error! Bookmark not defined.
2. Plain Language is capable of precision ..................................... Error! Bookmark not defined.
3. Plain Language reduces the need to litigate ............................. Error! Bookmark not defined.
Structure ................................................................... Error! Bookmark not defined.
1. Telescoping - the importance of the conclusion and findings up front ... Error! Bookmark not
defined.
2. Connecting paragraphs and ideas – a thematic approach ....... Error! Bookmark not defined.
Design ....................................................................... Error! Bookmark not defined.
Additional elements ..................................................... Error! Bookmark not defined.
1. The power of thorough analysis ................................................ Error! Bookmark not defined.
2. The importance of revision ........................................................ Error! Bookmark not defined.
3. The utility of user testing ........................................................... Error! Bookmark not defined.
Conclusion .................................................................... Error! Bookmark not defined.
The Ten Commandments .................................................................. Error! Bookmark not defined.
Research Paper for Plain English in Legal Writing ii
Alice Hume
Student number: 306061120
Plain English in Legal Writing
Professor Peter Butt
April 2014
Research Paper for Plain English in Legal
Writing
A leading US commentator has defined “plain language” in the following
terms:
“A communication is in plain language if it meets the needs of its audience
– by using language, structure, and design so clearly end effectively that the
audience has the best possible chance of readily finding what they need,
understanding it and using it.”
Discuss this definition. Do you consider that it adequately covers the
essentials of “plain language” in a legal context, or would you add other
elements to it?
Research Paper for Plain English in Legal Writing 1
Introduction
Lawyers are widely and resolutely criticised for their writing and communication skills.
As Theodore Blumberg wrote: “Legal writing, despite centuries of criticism (constructive
and otherwise) remains steadfastly awful.”1 So why do lawyers shirk their responsibility
to communicate clearly and effectively with their clients, who are, after all, paying their
bills? Is it that hard to communicate legal concepts clearly and effectively?
Plain language should be easy. It certainly sounds easy. In this paper, I will examine
the definition of plain language as stated above, describe what it means, what its
detractors say, its history and then discuss the 3 main elements of this definition –
language, structure and design. Finally, I will add a few more elements that are
particularly relevant to legal writing and conclude with my agreement that the definition
above is indeed a succinct and comprehensive one for written communication.
1Theodore L. Blumberg, The Seven Deadly Sins of Legal Writing, Owlworks, 2008,
page 1.
Research Paper for Plain English in Legal Writing 2
What is Plain Language?
1. What is meant by ‘plain language’ and ‘traditional legal language’ or ‘legalese’?
a. Plain language
Plain language is clear and simple language where the writer keeps the use of jargon or
technical terms to a minimum. It encompasses many different elements including
language, style, structure, form, grammar, punctuation and design. As one of the
leading commentators and supporters of the plain language movement, Professor
Joseph Kimble, writes in his famous work, Writing for Dollars, Writing to Please:
Plain language is not just about vocabulary. It involves all the techniques for
clear communication – planning the document, designing it, organising it,
writing clear sentences, using plain words, and testing the document whenever
possible on typical readers.2
Many people think that plain language is about using short, simple words, but as Peter
Butt and Richard Castle explain, plain language is not just about brevity of expression:
Plain English is language that is not artificially complicated, but is clear and
effective for its intended audience… [P]lain language is concerned with matters of
2Joseph Kimble, Writing for Dollars, Writing to Please, 6 Scribes Journal of Legal
Writing 1, 1996-1997, page 2.
Research Paper for Plain English in Legal Writing 3
sentence and paragraph structure, with organization and design, where so many
of the hindrances to clear expression originate.3
Michèle Asprey, another leading commentator, simply defines it thus: “Plain language
writing is just the practice of writing English (or French or German or whatever else) in
a clear and simple style. That’s all.”4
b. Traditional Legal Language or ‘Legalese’
Legalese refers to traditional styles of legal drafting that incorporate old English, Latin
and French terms and is considered “overly complex and arcane”5, filled with
“unnecessary legalisms”6 and associated with “illogical word order complex grammatical
structures and sentences of excruciating length.”7 In other words, legal jargon that is
inaccessible to the legally uneducated person.
So where did the legal fraternity learn to write this way? Edward Good, author and
writing expert answers it this way:
3 Peter Butt & Richard Castle, Modern Legal Drafting: A Guide to Using Clearer
Language, 2nd edition, Cambridge University Press, 2006, pages 85-86 (quoting Law
Reform Commission of Victoria, Legislation, Legal Rights and Plain English 3 (1986)).
4 Michèle Asprey, Plain Language for Lawyers, Federation Press, 2003, page 11.
5 Kathryn O’Brien, Judicial Attitudes to plain language and the law, 32 Australian Bar
Review 204, 2009, page 206.
6 Wayne Scheiss, Legal Writing is not what it should be, 37 Southern University Law
Review 1, 2009-2010, page 8.
7 Peter Butt, What is Plain Language and the Law and why use it? 12 September 2002,
Law and Justice Foundation, at www.lawfoundation
.net.au/lfj/app/&id=/2FD34F71BE2A0155CA25714COO1739DA
Research Paper for Plain English in Legal Writing 4
We learned it from judges and legislators, regulators, headnote writers, treatise
writers, and editors… We learned to spew out poorly written judicial fluff,
endless legislative goo, brow-wrinkling regulatory ooze, and mounds of words
posing as sentences. We learned to build these weighty sentences, stretching on
forever, with stuffy abstractions, piles of pillowy nouns and imprecise compound
prepositions. We learned to prefer the passive voice. We learned to proliferate
clauses. We learned to write like the stuff we read. We learned, in short, to break
every rule of style in the book.”8
Some of the many and much maligned elements of legalese are:
Use of the word ‘shall’;
Overuse of the passive voice;
Use of Latin or French words and phrases;
Use of archaic words and phrases;
Excessive sentence length;
Poorly punctuated sentences and paragraphs;
Use of long, complex and rarely used words and phrases; and
Use of nominalisations, i.e. turning a verb into a noun.9
8 C. Edward Good, Mightier than the Sword: Powerful Writing for the Legal
Profession, Lel Enterprises, 1989, page xx.
9 Wayne Scheiss, above n6 at 17.
Research Paper for Plain English in Legal Writing 5
One can see what a task it is to try to improve legal writing when so many elements are
in play and also ingrained in the trained professional’s psyche. Reliance on precedents,
forms or templates only serves to reinforce poor language, structure and document
design.10 Whilst they are necessary in order to save time and money, “even a good form
followed blindly, without proper regard to the factors of appropriateness of both style
and content, can often lead to stylistic monstrosities that utterly fail to accomplish the
desired purposes.”11
Some of the drawbacks of relying on precedents are:
Complacency and hurried and lazy writing as they are easy to use;
Out of date language and style;
Multiple writers’ input and drafting styles which leads to an inconsistent
document where ideas are not coherently linked; and
Unnecessary and verbose language and clauses or sections that just aren’t
relevant.12
2. What do the detractors of plain language say?
Plain language’s detractors believe that this style of writing is not precise enough and
that it even “debases the language”. (Kimble) Furthermore they believe that its
approach to communication is too narrow and that there is no evidence to support the
10 Peter Butt, Modern Legal Drafting: A guide to using clearer language, 3rd edition,
Cambridge University Press, 2013, pages 9-14.
11 Sidney F. Parham Jr., The Fundamentals of Legal Writing, The Michie Company,
1967, page 16.
12 Wayne Scheiss, above n6 at 11.
Research Paper for Plain English in Legal Writing 6
argument that it improves comprehension. It is considered unsophisticated and over
simplified and, even worse, “babyish” (Kimble). However, plain language’s supporters
make the obvious point that it is much more difficult to simplify then complicate. It
takes skill and time to make something understandable to a person not skilled in the
art.13
Detractors of plain language have also been known to mock the concept by saying that
“…advocates insist that legal writing be entertaining or fun…”14, but this is not the case.
As Ronald Goldfarb and James Raymond pose in Clear Understandings:
We are not so naïve as to suppose that lawyers should write like journalists or
novelists, or that their prose should always be entertaining as well as instructive.
On the other hand, we are persuaded that lawyers who have distinguished
themselves as great writers have in common with other good writers certain
techniques, certain resources, certain sensibilities to the nuances of language that
enrich the law, not encumber it, making its expression both pleasurable and
precise.15
13 Joseph Kimble, Answering the Critics of Plain Language, 5 Scribes Journal of Legal
Writing 51, 1994-95, page 53.
14 Wayne Scheiss, What Plain English Really Is, 9 Scribes Journal of Legal Writing 43,
2003-2004, page 67.
15 Ronald L. Goldfarb & James C. Raymond, Clear Understandings: A Guide to Legal
Writing, Random House, New York, 1982, page xv.
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Research Paper for Plain English in Legal Writing 8
