Writing, Clear and Simple

[This article originally appeared in the August 2006 (Vol. 29, No. 8) issue of The Editorial Eye.]

Legalese is ubiquitous. It’s the fine print on the back of credit card statements, the license agreements for software, the warranties (and warnings and disclaimers) for new products. It often requires a magnifying glass and is considered to be convoluted, impenetrable, jargon-laden writing that is reviled by hapless readers.

But it doesn’t have to be that way, says Joseph Kimble, a Thomas Cooley Law School professor and editor-in-chief of The Scribes Journal of Legal Writing, as well as the author of Lifting the Fog of Legalese: Essays on Plain Language (Durham, NC: Carolina Academic Press, 2006). Kimble spoke to the Eye about his advocacy of plain language writing.

Lawyers and judges don’t want to read legalese

Eye: How did you become an advocate for plain language?

Kimble: One of my first jobs was with the Michigan Supreme Court, drafting amendments to court rules, rules of procedure. I didn’t have any training in legal drafting in law school—most law students of my generation didn’t (and most law students today still don’t)—so I went to the library and found what was then the only book on the subject [The Fundamentals of Legal Drafting by Reed Dickerson]. Several pages of legal words and phrases were listed alongside simpler versions. I continued to learn and eventually wound up teaching legal writing. I’ve placed a strong emphasis on plain language in my classes for 20 years now.

When I first started, I taught writing mostly as a matter of good style. It was obvious to me that plainer language was better. As I started getting into it more deeply, my students raised the question, “How do we know that plain language is acceptable in the real world of legal practice?” I thought, “I guess I need some empirical evidence to prove this.”

We devised a simple little survey that took passages from different kinds of legal documents and asked, “Which of these do you think is better?” We had an A version and a B version—one in the traditional style, the other in a plainer style. We sent the survey to a random group of Michigan judges and lawyers and received responses from 425 of them.

This was in 1987. I honestly had no idea what the results would be, so I was apprehensive. But the results came in very strongly in favor of the plain language version: 80 to 85 percent of the professionals who responded preferred the versions written in plain language.

Some of my colleagues were surprised by the results and said, “I’d like to try that in my state.” So the same survey was repeated in Florida, Texas, and Louisiana, and the results were strikingly similar in every state. I’ve since done two or three rounds of testing on other documents—complete rewrites of a statute, a contract, and a court opinion. In every case, the respondents strongly favored plain language.

The conclusion is inescapable: Even legal readers—judges and lawyers—prefer to read plain language. This seemed pretty obvious 20 years ago; but now we also have the empirical evidence. Readers prefer plain writing. There’s no question about it.

Lack of will or lack of skill

Eye: So why don’t judges and lawyers write in plain language?

Kimble: that’s the great mystery; the great disconnect. Everyone wants the other person’s writing to be plain, but people forget that when they sit down to write themselves.

It occurred to me that many of the same deficiencies you find in legal writing show up in other kinds of official or public writing—the letters government agencies send out, the forms you have to fill out, the privacy notices you get from banks and credit card companies.

Legal departments in many of these agencies and businesses won’t let stuff go out to the public unless it’s written in legalese. It doesn’t have to be that way. We’ve conducted so many demonstration projects over the years, with so many different documents, showing that even legal language can be made, if not perfectly plain, at least much plainer to the average reader—if writers will only make an effort to learn how to do it.

If they won’t, it’s a lack of will or lack of skill, or both. It does take some practice, effort, and training to learn how to write in plain English, especially after you’ve been corrupted by law school.

You’ll sometimes get the argument, “Well, people don’t read these anyway.” Of course they don’t read them, because they’ve been conditioned over time to believe that they won’t understand them. They feel defeated without even giving it a try, because the history of this kind of writing is so bad. People say, “Here’s another one of those legal notices that I’m not going to be able to understand.”

Eye: Could part of the problem be inherited boilerplate for forms and notices?

Kimble: Exactly. Nobody ever goes back and says, “Okay, let’s look at this thing from top to bottom, after all these years of adding a little bit here and a little bit there.”

The forms never get shorter; the only get longer. All sorts of inconsistencies and ambiguities creep in. And a lot of the drafting is done by committees that don’t bother to bring in someone with training or experience in plain language to work on the documents. We desperately need more people out there who have editing skills.

An end in sight to confusion and waste?

Eye: You once testified before a congressional subcommittee that the cost of poor communication is a great hidden source of waste in government. Is the waste comparable in the legal and business realms?

Kimble: I’m sure it is. Some of the studies I cite in my article [“Writing for Dollars, Writing to Please,” The Scribe’s Journal of Legal Writing, vol. 6, 1996-97) are studies from business and law.

There’s one legal study where researchers tested a before-and-after version of a statute, and it took lawyers only half to a third of the time to read the revised statute. Another study concluded that if all Navy personnel read memos written in plain language, the cost savings in reduced reading time would be in the hundreds of millions. Time is money.

The reach of this issue is so broad, so deep, and so profound, that it’s almost hard to summarize it. I was just reading about a study from the University of Michigan about informed-consent forms and how poorly people really understand what they’re signing. Again, it’s a before-and-after study, and significant improvement in comprehension was found when the form was written in plain language.

It’s medical, it’s business, it’s legal, it’s government—it’s all of the public information that people need to carry on their lives. You can quantify the costs in some of these studies in so many different ways: the time saved for the reader, the time and money saved for the agency or the business. And how do you quantify somebody’s health, for medical information? How do you even begin to quantify that?

When you think about all the forms and notices and documents that everyone gets and has to read, we’ve got to be talking about untold millions and billions of dollars in wasted time.

Eye: So, will plain language ever be the universal norm?

Kimble: Maybe. I’ve encountered active resistance from organizations that simply don’t want to devote the effort and the resources to complying with plain language requirements. They don’t want to commit those up-front resources. Usually, though, when you explain what plain language means and what the long-term benefits will be, and when you explode the myths—that it’s not dumbed-down, it’s precise, it conveys the message that you want to convey—most people are more receptive.

In law, I see some reason to be optimistic. Most law schools in the past 10 to 15 years have tried to strengthen their legal writing programs. And most legal writing teachers are committed to a better, clearer, more modern style of legal writing.

I think there’s reason to be optimistic in other areas as well, because there’s much more going on than in the past. There’s the Plain Language International group; the new Center for Plain Language that Annetta Cheek and I and a few others founded in Washington, DC; and the international organization Clarity (www.clarity-international.net). There are conferences on plain language.

So, yes, sitting here in my office, I’m optimistic, but if I went down to the local courthouse and randomly selected 15 or 20 legal documents, would many of them be written in plain language? I doubt it. Most lawyers are still not writing in plain language. But more and more are.

There’s not going to be a quick fix or a certain moment when plain language wins out. There won’t be a torchlight parade down the street to the capitol declaring victory. Just gradual change, over time.

Sidebar: Legalese, Before and After Editing

Examples from Kimble’s survey of legal language preferences (conducted in Michigan, Louisiana, and Florida):

Examples from a suggested revision of an opinion from the Michagan Court of Appeals:

Original:
Plaintiff Robert Wills filed a declaratory judgment action against defendant State Farm Insurance Company to determine whether defendant has a duty to pay benefits under the uninsured motorist provisions found in plaintiff’s policy with defendant. Pursuant to the parties’ stipulated statement of facts, the trial court granted summary disposition in plaintiff’s favor upon finding coverage where gunshots fired from an unidentified automobile passing plaintiff’s vehicle caused plaintiff to drive off the road and suffer injuries. Defendant appeals as of right. We reverse and remand. Wills v. State Farm Ins. Co., 564 N.W.2d 488, 489 (Mich. App. 1997)

Revised:

Summary [subhead added] Robert Wills was injured when someone drove by him and fired shots toward his car, causing him to swerve into a tree. He filed a declaratory-judgement action to determine whether State Farm had to pay him uninsured-motorist benefits. The issue is whether there was a “substantial physical nexus” between the unidentified car and Wills’s car. The trial court answered yes and granted a summary disposition for Wills. We disagree and reverse. We do not find a substantial physical nexus between the two cars, because the bullets were not projected by the unidentified car itself.

Examples from a project to restyle the Federal Rules of Civil Procedure:

Exerpted with permission from Lifting the Fog of Legalese: Essays on Plain Language by Joseph Kimble.

This article was originally printed in The Editorial Eye, 66 Canal Center Plaza, Suite 200, Alexandria, VA 22314-5507, (703) 683-0683.