Why plain English is important in law
In most situations in modern society, responsibility for understanding communication lies with the message giver, not the receiver. If you want the listener to understand your message, you are obliged to make clear what you say. When you write, you must write a clear message.
Why has plain English not always been used in law?
Until recently, courts interpreted legal documents literally, regardless of the purpose or context. Lawyers used 'clever' words with specific meanings to favour their clients - either because the word had such a narrow interpretation that argument was futile regardless of the greater context, or because the word could be interpreted several ways, leaving open the possibility of later argument.
But not all lawyers are skilled draftsmen, able to use words so cleverly, and for many, drafting a high quality document from scratch is difficult and time consuming. Nor is the work particularly profitable, because high competition between draftsmen keeps the (usually fixed) price charged to clients relatively low.
To make drafting work faster and more profitable, many draftsmen use standard paragraphs of text called precedents. These are produced by only a few legal publishers, which means that the content of legal documents drawn by different people, but who use the same precedents, is likely to be very similar. Having been tried and tested in court many times, using a precedent is much less risky for an unskilled draftsman than attempting to write his own. Precedents allow 'deskilling', so that work can be passed to unqualified trainees and simply reviewed by a solicitor.
However, the disadvantages of using precedents also lie in the standardisation. Although, the publishers update their precedents for the latest law, they change the language as little as possible so as not to remove the value in having been tested. So long sentences, jargon, verbs in the passive tense, overly formal language, double negatives and unnecessary words stay. Additionally, standard wording is, by definition, for standard use. Commercial or practical provisions are not standard and are therefore not included in precedents. Less skilled draftsmen are unlikely to add these back in, partly through lack of experience, and partly because any deviation from the standard increases the risk of making a mistake. If additions are made, the words used include legal jargon so as to match the addition to the rest of the document.
What has changed?
In 1999, Lord Woolf re-wrote seven hundred years of jargon-filled court procedures contained in "The White Book", "The Green Book" and thousands of case judgements into one new book called "The Civil Procedure Rules". What was more significant than simplifying the procedures was that he wrote the book in plain English.
The Woolf Report of 26 July 1996, on which the CPR was based, contained a number of fundamental principles, which Lord Woolf believed the civil justice system should meet in order to ensure access to justice. The system should:
- be just in the results it delivers;
- be fair in the way it treats litigants;
- offer appropriate procedures at a reasonable cost;
- deal with cases with reasonable speed;
- be understandable to those who use it;
- be responsive to the needs of those who use it;
- provide as much certainty as the nature of particular cases allows; and
- be effective: adequately resourced and organised.
The rules are written not just for lawyers but are intended to be intelligible for a litigant in person. Underpinning many of Lord Woolf’s proposals lay the fundamental proposition that the Law should shake off the jargon and speak plainly to those it should serve.
Despite a lack of progress in many areas of Lord Woolf's proposals, use of plain English has started to become more widespread.
Today, the legal system tends to use a "purposive" approach, which means that greater consideration is given to the intended context rather than the meanings of individual words. Since courts can often use discretion when interpreting a legal document, there is no longer an advantage to using a word that previously had a narrowly defined meaning unless the word also sits within context of what the document aims to achieve. Judges no longer mark down a case because it was not written in ancient jargon.
There has also been a global drive to adopt plain language in law with the recommendations of law reform commissions being adopted. Now, for example, statute law in the USA, Canada, the UK, Australia, New Zealand, the Republic of Ireland, and South Africa is purposefully written in plain language. Campaigns are afoot in other jurisdictions such as India and Hong Kong. Far better, use of plain English has become a legal requirement in many areas of law, particularly that relating to consumers.
How does this affect Net Lawman?
The changes mean that we can write documents in plain English that will stand up in court based on the content and meaning, not based on how many times words such “thereof” or “hereinbefore” are written.
A Net Lawman document is far more likely to be supported in court than a document based on an old precedent, written is archaic legal language. It is also more likely to be supported across national borders.
One more advantage
Another advantage of plain language in Net Lawman documents goes to the heart of that for which campaigns for plain English have been, well, campaigning. That is: better communication by writing in simple language. This suits our business because we can break down a document into many small “ideas”.
Even someone with no experience of the law, can understand five separated, ten word sub-paragraphs. But if you put the same five sub-paragraphs along the line, without separation, in a single unbroken sentence with no punctuation, the same words become gobbledy-gook. It is impossible to edit and impossible safely to delete part of it. So we use sub-paragraphs, and sub-sub paragraphs too, constantly. That means you can see the separation of ideas and be confident that you can delete what you do not need, or sometimes add your own words.
So how we construct a document; how we string words together, how we punctuate, are among our most prized skills. When you buy a document from Net Lawman, you can read it as easily as you can read a newspaper.
Have we removed jargon completely?
Unfortunately, we haven't. There are still many legal words and phrases we cannot do without. These have specific defined meanings, refined over many years. We cannot replace “trustee”, “lease”, “tenancy in common”, “indemnify” and a thousand others. But we do our best to simplify the wording of our legal documents to as great a degree as possible.