Importance and Relevance of Plain English in Legal Writing
"Until, therefore, the nomenclature and language of law shall be improved,
the great end of good government cannot be fully attained." -- Jeremy Bentham
The Plain Language Movement has gained significant traction in recent decades. Advocating for the use of clear, concise, and straightforward language in various fields- governance, medicine, business, and law, inter alia, this movement aims to make information accessible to the general public, ensuring comprehension of important documents and statutes without requiring specialised knowledge. The importance of this movement cannot be overstated, especially in a diverse and multilingual country like India, where linguistic and educational variations can create significant barriers to efficient governance and inclusivity.
Legal English, which is extremely wordy, archaic, obscure and exclusive, is often described negatively as "Legalese". It employs lengthy, interwoven statements that frequently extend, with the use of conjunctions and punctuations, to make up what would usually constitute a paragraph. Moreover, it uses several antiquated words from various languages, such as Latin, French, and Anglo-Saxon English. Some argue that legal professionals and firms intentionally employ jargon to render concepts unclear, leading to legal disputes and, consequently, their flourishment.
Historically, when professional drafters were employed, they were paid by the number of words written. Therefore, they used multiple words to describe a single meaning to reap greater profits, such as writing "null and void" instead of 'invalid' or "cease and desist" instead of 'stop'. This further promoted the verbosity of Legal English. This communication style is increasingly becoming outdated and counterproductive due to its exclusivity and obscurity, making it difficult for laypersons to comprehend crucial documents, creating a sense of alienation among the masses.
In response to this exclusion, a movement called the "Plain Language Movement" began in England and the United States in the seventies, when, as Cutts (1995: 14) states, "consumer groups used the mass media to publicize and ridicule examples of obscurity in legal documents and government forms, calling for Plain language or Plain English."[1] However, the foundation of the movement was kept in 1362 with the "Statute of Pleading", which decreed that all pleas in His Majesty's Court should be "pleaded, defended, answered, debated, and judged in the English tongue". Subsequently, English became the language of official use in the Eighteenth Century.
The movement advocates the use of "Plain Language", a language that is clear and comprehensible to its intended reader. It communicates directly with the audience for which it is written, allows first-read comprehensibility and avoids circumlocution while omitting surplus words. The focus is more on clarity of communication rather than mere eradication of jargon. Rewriting a document in plain English involves evaluating the entire text- its substance, wording, structure, and layout- while simultaneously focusing on the audience and the aim of the message.
Plain language increases comprehension, retention, reading speed, and persistence (James 2009a:35). Mark Adler suggests the following definition, drawing from Martin Cutts (1996:3)- 'Plain language' means language and design that presents information to its intended readers in a way that allows them, with as little effort as the complexity of the subject permits, to understand the writer's meaning and to use the document.[2]
The key question, however, remains: Why the target domain of the Plain Language Movement is Law? As the world around us becomes more complex, statutes inevitably are becoming lengthier, denser, and more specialised. Consequently, the need for Plain English becomes increasingly valid- from laypersons seeking legal aid to freelancers and small businesses drafting and negotiating contracts. In an age of human rights activism and rapidly evolving legal systems and technologies, the use of Plain English in law becomes crucial to promote accessibility.
Law was not intended for lawyers and judges but for ordinary citizens. While it is the means of earning for the former, it is the norm of survival for the latter. Therefore, the law must be written in a language that is understandable to the masses. Certain aspects of Legalese are of concern regarding the "normalisation" of Legal English. Williams (2004:114) summarised them as- eliminating Latin and archaic expressions, removing verbose phrases, ensuring comprehension of the text, avoiding the use of precedents without being adapted to individual circumstances, reducing the use of passive voice and ensuring the use of gender-neutral terms. One of the formal syntactical aspects of Legalese is the passive voice, which has been criticised for its inclusion in legal documents. The opponents argue that it removes the agent from the sentence, making it difficult for the reader to comprehend the act and its extent. Those advocating its use say it displays the law as infallible and beyond human intervention.
In India, the need for Plain English is significantly pronounced due to the linguistic diversity and varying levels of literacy in the country. Written in Legalese, statutes and bureaucratic documents create several barriers for the citizens, limiting access to quintessential services and information. The Indian Judiciary has been making strides in this regard by adopting practices to make the legal domain more inclusive and gender-neutral. The Chief Justice of India, D.Y. Chandrachud, has urged judges to write judgements in simpler, more concise language. In several speeches, he emphasised the need for clarity, comprehensibility, and accessibility in judicial rulings for the general public. The Vidhi Centre for Legal Policy also published a manual on drafting documents in the legal domain in Plain language.
Furthermore, the Supreme Court of India released a Handbook on combating gender stereotypes, which provided guidelines for judges and lawyers to use gender-neutral terms while practising. The prospective woman Chief Justice of India, Justice B.V. Nagarathna, has been very vocal about the need for gender parity in the legal profession. In addition to the efforts made by those in the legal arena, the government has also taken steps to further the cause of the Plain Language Movement.
The Consumer Protection Act of 2019 was drafted using principles of Plain Language to increase its access by using straightforward language. This change has helped the laypersons understand and exercise their rights as consumers of goods and services. In the corporate world, Tata Consultancy Services (TCS) has adopted Plain English in their internal and external communications, significantly improving efficiency by reducing misinterpretations.
There has been a long battle to make the law understandable to the public, and the use of Plain English is at the heart of that. The use of Plain English has been advocated due to the several proven benefits that it results in. It ensures uniformity and compliance with international law. The norms of legal writing may vary from country to country, leading to misinterpretations when a case is pleaded before an international court or used as a precedent in other countries. Hence, when a counsel uses Plain English to argue his case, he can prevent opaque writing and be clear and precise while representing his client internationally. Plain Language also helps expose errors, inconsistencies and ambiguities, which Legalese tends to hide due to its dense, convoluted prose.
The economic benefit of using Plain English is that lawyers save much time that would have been lost to emails, phone calls and meetings as they had drafted the documents clearly and simply initially.[3] The time taken to understand a text written in Plain language was half the time to understand its traditional version.[4] Client-counsel communication can be improved by breaking long sentences into easily digestible ones, each covering a single idea. This approach can be particularly useful when certain clauses of the document need to be renegotiated. The alterations and deletions can be made without altering important clauses in the process.
In recent times, lawyers do not pore over voluminous case materials to find a case. Nor do clients take trips from one lawyer's chamber to another for a case. All the tasks are performed with the help of the Internet, making Plain Language more important as it is more attractive to search engines. Poor quality writing or one filled with jargon does not go down well with online searches. Therefore, lawyers selling their services online have a higher chance of attracting clients if they use simpler language.
Despite its many benefits, Plain English is not without its critics. Some academics argue that such simplification may lead to a loss of precision and nuance, particularly in the legal field. Others contend that it may oversimplify complex issues, potentially exacerbating misunderstandings rather than preventing them. Opponents of the movement see the Plain language initiatives as a form of linguistic imperialism, imposing a specific standard on diverse linguistic communities. Marie Potel-Saville says that if the very best lawyers are not employed for such a user-centric approach to law, the Plain language may lead to biased messaging, suppressed information and changed legal scope.[5]
Statutes or documents enforceable by law do not exist in a vacuum. Plain language documents are still legal; their creation and interpretation require expert input.[6] Moreover, no individual can ensure the clarity and comprehensibility of a document unless the target audience has rectified it. In addition, Legalese facilitates communication within the legal profession as well. Explaining the law in an understandable form would be time-consuming and counterproductive.
One potential challenge in simplifying the legal language is the complexity of the content. Complicated concepts frequently necessitate complex terminology and cannot always be conveyed in straightforward language. Another possible hurdle is the issue of a legally defined list of the interpretations linked to specific words and phrases.
Rewording these might alter their meaning, necessitating a fresh establishment. Driedger (1976: 23) says that every word in a statute is intended to have a definite purpose, and no unnecessary words are intentionally used. Neumann believes that the form of legal language is a delicate matter, a balance that must not be disturbed. By disguising the actor in a sentence, the passive voice gives legal rulings objectivity by imparting a sense of impartiality and objectivity.[7]
To ensure widespread adaptation, the Plain language version of the documents must capture the nuances of the original. This requires research and expert discussions on the matter. Moreover, as Dr Robert Eagleson contends, some texts will inevitably be beyond the reach of the masses, not because of the complexity of the language but of the subject matter.
The most agreeable solution that the critics and the advocates of the movement may arrive at is that certain categories of legal documents, particularly those affecting the rights and obligations of ordinary people, should be stated plainly.[8] While those meant to be circulated within the legal domain or businesses represented by lawyers may continue to use complex terms that have become a staple to such documents.
In a nutshell, the benefits of Plain Language greatly outweigh any pitfalls that lie in the path of its adoption. Legal English has long been a gatekeeper for lawyers and judges in the legal domain, keeping their monopoly over the profession guarded and ensuring that the general public remains dependent on them. The pressures exerted by the masses upon legal professionals in recent times are too hard to resist. Plain English will inevitably become a norm, with traditional Legal English being a dying deed in several universities.
Adopting Plain English is crucial in India to enhance transparency and inclusivity while empowering citizens and increasing democratisation. We can create a more equitable and informed society by prioritising clarity and simplicity in law. Wittgenstein once wrote, "Everything that can be put into words can be put clearly." And Legalese is no exception.
Bibliography
Books:
Written By: Ishika Tanwar
The Plain Language Movement has gained significant traction in recent decades. Advocating for the use of clear, concise, and straightforward language in various fields- governance, medicine, business, and law, inter alia, this movement aims to make information accessible to the general public, ensuring comprehension of important documents and statutes without requiring specialised knowledge. The importance of this movement cannot be overstated, especially in a diverse and multilingual country like India, where linguistic and educational variations can create significant barriers to efficient governance and inclusivity.
Legal English, which is extremely wordy, archaic, obscure and exclusive, is often described negatively as "Legalese". It employs lengthy, interwoven statements that frequently extend, with the use of conjunctions and punctuations, to make up what would usually constitute a paragraph. Moreover, it uses several antiquated words from various languages, such as Latin, French, and Anglo-Saxon English. Some argue that legal professionals and firms intentionally employ jargon to render concepts unclear, leading to legal disputes and, consequently, their flourishment.
Historically, when professional drafters were employed, they were paid by the number of words written. Therefore, they used multiple words to describe a single meaning to reap greater profits, such as writing "null and void" instead of 'invalid' or "cease and desist" instead of 'stop'. This further promoted the verbosity of Legal English. This communication style is increasingly becoming outdated and counterproductive due to its exclusivity and obscurity, making it difficult for laypersons to comprehend crucial documents, creating a sense of alienation among the masses.
In response to this exclusion, a movement called the "Plain Language Movement" began in England and the United States in the seventies, when, as Cutts (1995: 14) states, "consumer groups used the mass media to publicize and ridicule examples of obscurity in legal documents and government forms, calling for Plain language or Plain English."[1] However, the foundation of the movement was kept in 1362 with the "Statute of Pleading", which decreed that all pleas in His Majesty's Court should be "pleaded, defended, answered, debated, and judged in the English tongue". Subsequently, English became the language of official use in the Eighteenth Century.
The movement advocates the use of "Plain Language", a language that is clear and comprehensible to its intended reader. It communicates directly with the audience for which it is written, allows first-read comprehensibility and avoids circumlocution while omitting surplus words. The focus is more on clarity of communication rather than mere eradication of jargon. Rewriting a document in plain English involves evaluating the entire text- its substance, wording, structure, and layout- while simultaneously focusing on the audience and the aim of the message.
Plain language increases comprehension, retention, reading speed, and persistence (James 2009a:35). Mark Adler suggests the following definition, drawing from Martin Cutts (1996:3)- 'Plain language' means language and design that presents information to its intended readers in a way that allows them, with as little effort as the complexity of the subject permits, to understand the writer's meaning and to use the document.[2]
The key question, however, remains: Why the target domain of the Plain Language Movement is Law? As the world around us becomes more complex, statutes inevitably are becoming lengthier, denser, and more specialised. Consequently, the need for Plain English becomes increasingly valid- from laypersons seeking legal aid to freelancers and small businesses drafting and negotiating contracts. In an age of human rights activism and rapidly evolving legal systems and technologies, the use of Plain English in law becomes crucial to promote accessibility.
Law was not intended for lawyers and judges but for ordinary citizens. While it is the means of earning for the former, it is the norm of survival for the latter. Therefore, the law must be written in a language that is understandable to the masses. Certain aspects of Legalese are of concern regarding the "normalisation" of Legal English. Williams (2004:114) summarised them as- eliminating Latin and archaic expressions, removing verbose phrases, ensuring comprehension of the text, avoiding the use of precedents without being adapted to individual circumstances, reducing the use of passive voice and ensuring the use of gender-neutral terms. One of the formal syntactical aspects of Legalese is the passive voice, which has been criticised for its inclusion in legal documents. The opponents argue that it removes the agent from the sentence, making it difficult for the reader to comprehend the act and its extent. Those advocating its use say it displays the law as infallible and beyond human intervention.
In India, the need for Plain English is significantly pronounced due to the linguistic diversity and varying levels of literacy in the country. Written in Legalese, statutes and bureaucratic documents create several barriers for the citizens, limiting access to quintessential services and information. The Indian Judiciary has been making strides in this regard by adopting practices to make the legal domain more inclusive and gender-neutral. The Chief Justice of India, D.Y. Chandrachud, has urged judges to write judgements in simpler, more concise language. In several speeches, he emphasised the need for clarity, comprehensibility, and accessibility in judicial rulings for the general public. The Vidhi Centre for Legal Policy also published a manual on drafting documents in the legal domain in Plain language.
Furthermore, the Supreme Court of India released a Handbook on combating gender stereotypes, which provided guidelines for judges and lawyers to use gender-neutral terms while practising. The prospective woman Chief Justice of India, Justice B.V. Nagarathna, has been very vocal about the need for gender parity in the legal profession. In addition to the efforts made by those in the legal arena, the government has also taken steps to further the cause of the Plain Language Movement.
The Consumer Protection Act of 2019 was drafted using principles of Plain Language to increase its access by using straightforward language. This change has helped the laypersons understand and exercise their rights as consumers of goods and services. In the corporate world, Tata Consultancy Services (TCS) has adopted Plain English in their internal and external communications, significantly improving efficiency by reducing misinterpretations.
There has been a long battle to make the law understandable to the public, and the use of Plain English is at the heart of that. The use of Plain English has been advocated due to the several proven benefits that it results in. It ensures uniformity and compliance with international law. The norms of legal writing may vary from country to country, leading to misinterpretations when a case is pleaded before an international court or used as a precedent in other countries. Hence, when a counsel uses Plain English to argue his case, he can prevent opaque writing and be clear and precise while representing his client internationally. Plain Language also helps expose errors, inconsistencies and ambiguities, which Legalese tends to hide due to its dense, convoluted prose.
The economic benefit of using Plain English is that lawyers save much time that would have been lost to emails, phone calls and meetings as they had drafted the documents clearly and simply initially.[3] The time taken to understand a text written in Plain language was half the time to understand its traditional version.[4] Client-counsel communication can be improved by breaking long sentences into easily digestible ones, each covering a single idea. This approach can be particularly useful when certain clauses of the document need to be renegotiated. The alterations and deletions can be made without altering important clauses in the process.
In recent times, lawyers do not pore over voluminous case materials to find a case. Nor do clients take trips from one lawyer's chamber to another for a case. All the tasks are performed with the help of the Internet, making Plain Language more important as it is more attractive to search engines. Poor quality writing or one filled with jargon does not go down well with online searches. Therefore, lawyers selling their services online have a higher chance of attracting clients if they use simpler language.
Despite its many benefits, Plain English is not without its critics. Some academics argue that such simplification may lead to a loss of precision and nuance, particularly in the legal field. Others contend that it may oversimplify complex issues, potentially exacerbating misunderstandings rather than preventing them. Opponents of the movement see the Plain language initiatives as a form of linguistic imperialism, imposing a specific standard on diverse linguistic communities. Marie Potel-Saville says that if the very best lawyers are not employed for such a user-centric approach to law, the Plain language may lead to biased messaging, suppressed information and changed legal scope.[5]
Statutes or documents enforceable by law do not exist in a vacuum. Plain language documents are still legal; their creation and interpretation require expert input.[6] Moreover, no individual can ensure the clarity and comprehensibility of a document unless the target audience has rectified it. In addition, Legalese facilitates communication within the legal profession as well. Explaining the law in an understandable form would be time-consuming and counterproductive.
One potential challenge in simplifying the legal language is the complexity of the content. Complicated concepts frequently necessitate complex terminology and cannot always be conveyed in straightforward language. Another possible hurdle is the issue of a legally defined list of the interpretations linked to specific words and phrases.
Rewording these might alter their meaning, necessitating a fresh establishment. Driedger (1976: 23) says that every word in a statute is intended to have a definite purpose, and no unnecessary words are intentionally used. Neumann believes that the form of legal language is a delicate matter, a balance that must not be disturbed. By disguising the actor in a sentence, the passive voice gives legal rulings objectivity by imparting a sense of impartiality and objectivity.[7]
To ensure widespread adaptation, the Plain language version of the documents must capture the nuances of the original. This requires research and expert discussions on the matter. Moreover, as Dr Robert Eagleson contends, some texts will inevitably be beyond the reach of the masses, not because of the complexity of the language but of the subject matter.
The most agreeable solution that the critics and the advocates of the movement may arrive at is that certain categories of legal documents, particularly those affecting the rights and obligations of ordinary people, should be stated plainly.[8] While those meant to be circulated within the legal domain or businesses represented by lawyers may continue to use complex terms that have become a staple to such documents.
In a nutshell, the benefits of Plain Language greatly outweigh any pitfalls that lie in the path of its adoption. Legal English has long been a gatekeeper for lawyers and judges in the legal domain, keeping their monopoly over the profession guarded and ensuring that the general public remains dependent on them. The pressures exerted by the masses upon legal professionals in recent times are too hard to resist. Plain English will inevitably become a norm, with traditional Legal English being a dying deed in several universities.
Adopting Plain English is crucial in India to enhance transparency and inclusivity while empowering citizens and increasing democratisation. We can create a more equitable and informed society by prioritising clarity and simplicity in law. Wittgenstein once wrote, "Everything that can be put into words can be put clearly." And Legalese is no exception.
Bibliography
Books:
- Wydick, R. C. (2005). Plain English for Lawyers (5th ed.). Carolina Academic Press.
- Haigh, R. (2009). Legal English (2nd ed.). Routledge-Cavendish.
- Costello, N., & Kulbicki, L. (2023). Practical English Language Skills for Lawyers (1st ed.). Routledge-Cavendish.
- Tiersma, P. M., & Solan, L. M. (2012). The Oxford Handbook of Language and Law (1st ed.). Oxford University Press.
- https://www.noveltyjournals.com/upload/paper/Plain%20English%20Movement%20and%20Its%20Influence-966.pdf
- http://grammar.ucsd.edu/courses/lign105/student-court-cases/Plain%20English.pdf
- https://www.Plainlanguage.gov/resources/articles/beyond-a-movement/
- https://trace.tennessee.edu/cgi/viewcontent.cgi?article=3392&context=utk_chanhonoproj
- https://www.clavoline-traduction.fr/blog/en/legal-writing-hacks/
- https://www.provincialcourt.bc.ca/enews/enews-18-07-2017
- https://legal-translations.com.au/Plain-language-important-legal-writing/
- https://dottedandcrossed.eu/the-benefits-of-writing-legal-documents-in-Plain-English/
- https://sas-space.sas.ac.uk/3751/1/1332-1452-1-SM.pdf
- https://dottedandcrossed.eu/a-brief-history-of-Legalese-without-the-jargon/
- https://drive.google.com/file/d/1BtnuHrKQBCeL9LbtxZeBEKdHX5wmVbLT/view
- Tiersma, P. M., & Solan, L. M. (2012). The Oxford Handbook of Language and Law (1st ed.). Oxford University Press.
- The Plain Language Movement, Mark Adler.
- (n.d.). The benefits of writing legal documents in Plain English. Dotted and Crossed.
- Eagleson, 'Plain English - A Boon for Lawyers' [1991] The Second Draft, Legal Writing Institute, p. 12.
- Legal Writing Hacks for Lawyers: An Introduction to Plain Language (clavoline-traduction.fr).
- Legal Writing Hacks for Lawyers: An Introduction to Plain Language (clavoline-traduction.fr).
- Plain English Movement and Its Influence-966.pdf (noveltyjournals.com).
- Peter Tiersma, The Plain English Movement.
Written By: Ishika Tanwar
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