September 25, 2009
Make it plain
As a contract lawyer who spends a significant amount of time coaxing colleagues to use plain English, I found humor in this week's struggle in the Senate Finance Committee over the sufficiency of reading plain English summaries versus a complete bill written in legislative "legalese". One recognizes that the conflict was more about employing available tactics to achieve legislative objectives rather than championing a particular drafting style. Nevertheless, the principles of plain English drafting apply at least as much to statutes as to contracts, and there is no reason that all statutes cannot be written in plain English. I mean really, if the language of a statute is so complex that the public cannot parse it, can we really expect that members of congress who voted for it also understood it?
The SEC actually has its own rule requiring the use of plain English in disclosure documents. Those of us who practice in the area are always hopeful that the SEC will apply more of the principles in its plain English rule to its own byzantine regulations. (A risible example: SEC Rule 506 provides an exemption for up to 35 "purchasers" but a separate rule provides that purchasers who meet certain income or wealth criteria are not purchasers.)
Of course, the best use of plain English drafting is this: "Section [insert your choice] of the U.S. Code is hereby repealed."
Posted by Carter Mackley at September 25, 2009
08:29 AM | Email This
1. Fundamentally, I think 'plain english' is an oxymoron. :)
2. Ha! Many of us think it ought to be a redundancy. Alas, it is not.
3. A law should be passed that all legal documents and legislative bills must be written in plain language to be understood by the average Citizen. Of course, the lawyers/politicians would fight such an assault on their livelihoods to Rip-Off and live off the earnings of the public.
The main purpose in writing in Legalese language is to obfuscate the true simplicity of writing and meaning of a legal document. It is used to impress and in many cases provide a smoke screen against the Client or the Electorate for which the document/Bill is written concerning thereof. It is really a Scam Tactic by those of Legal/ political endeavor. Lawyers want activity and need of their services so, they will write in a very Legalized manner creating an illusion of superior service above the common in order to charge a great Fee and also, to leave hidden loopholes within the document for later litigation and the extracting of further Fees.
The Internet is providing some relief from the choking financial grip of the lawyers upon the public. For many years the lawyers would retrieve standard documents via mail from legal librarys and now, accessed via the Internet such as, wills, agreements, contracts, etc. and just fill in the blanks with names, dates and charge a horrendous Fee for the small effort. Now, the public can be provided some of the same documents for a small fee and in some cases a document such as, a will can be obtained for free by simply clicking on the right link.
4. Ha! Daniel, love the satirical example, intended or not.
And, regarding your key comment, "A law should be passed..," such a "law" already exists. I'm not a lawyer, but Carter M could probably cite case(s) in which courts have declared that a law which is incomprehensible to the citizen "is no law."
But, like all law or right, it is a dead letter unless we citizens insist on its application.
P / P
5. Yeah, P / P ...I'm aware that no law shall be written that the average Citizen cannot comprehend is already on the books. However, it doesn't apply to the writing of certain documents, agreements and contracts. And yes, the law that states that any law that governs the actions of the Citizen must be written in the manner that it is understood by the average Citizen can be compromised and on numerous occasions..IS.
6. Carter, this is one of the best posts I've ever seen on Sound Politics. I think more committees should write in plain English. (Only Finance does.) I think laws should be voted on in plain English, re-written in legalese, and then voted on again. (I think the US Code necessarily has to be legalize.) We'd have a better democracy because of it. We'd have better debates. And our Congresspeople would know what they're voting on. And they actually
could read the bill since it'd be 20% of the size and an immeasurably more clear.
This anecdote is hilarious.
7. Well, Well, Jensen...At least in part, I agree with you. That has never happen before. But, what I don't understand is, once the law has been written in plain English, Why should it EVER be rewritten in Legalese? Legalese is a Scam Tactic to obfuscate and limit to the common observer as to what is truly being written. Legalese should be made illegal....PERIOD!
8. Yes Daniel, that is the point. There should be no difference between plain English and legalese.
9. Daniel, I think you've been punked by John Jensen. The Finance Committee wants to vote on a bill in plain English. Republicans are asking for legalese, which does not exist and is not being voted on, just to delay things.
And while it is fun to diss all legalese, "legalese" is an imprecise term. Sometimes "plain English" can be extremely ambiguous and you need to state a law using words and sentence structure that are not part of everyday, conversational, informal English. I'm sure that good conservatives who rail against judges legislating from the bench would like laws to be as unambiguous as possible!
Other times, of course, legalese is the result of incompetent writers. I doubt it's often used to deliberately obfuscate, though I'm sure that's happened on occasion.
10. Nobody has been punked by Jensen...Bruce. I said I agree, "In Part" as to the use of plain English. The rest of his post was as nutty as usual. Speaking of Nutty! After your first sentence, you ramble off into never, never land. But, both you and Jensen are Liberals and little sense is expected.
11. Each section should both the plain English and legal version on the same pages so they are both together and can be compared.
12. Your missing the point, Tim. Using legalese writings in any document is a game-play by the lawyers and politicians to purposely obfuscate clear meaning so only, they can properly interpret the screed. This puts them in the position of control over the average Citizen so, the average Citizen has to rely on their expertise to supply meaning and usually at a cost and sometimes a great cost to the Citizenry. Get it? It is Scam language, no more, no less. A contract, agreement, will, bill or law is a legal document whether, it is written in Plain English or Legalese. Language that is purposely written in less than clear terms to the understanding of the average Citizen on any document that carries the weight of law should be forbidden...PERIOD!
13. Enjoying this thread
The Culture of Lawyers & Politicians is little different from others subcultures. They have their own language.
They use it when they talk to eachother. The unusual english words they use are in the dictionary & have meaning - sometimes very exact meaning. These words are all in the dictionary.
Lawyers are trained to express exact ideas in exact ways. For them using these $50 word is actually the most concise way to evade bullshit.
While it is fun to hate lawyers (it even brings the rest of us together - with this common foe)
we need them.
Some are guilty of trying to confuse the common folks with their language - then overcharge the customer
ive seen the same sort ofthing done by people in the medical profession, building trades.
Lets let Obama cut off their money supply & there won't be so many to hate
14. You make some good points captain fun. I think part of the problem is that "common english" changes/ evolves over time. Who decides what is "common language" ? - why >the people doing the writing of course. Who decides who those people are ?
No matter which way you go on this someone is not going to understand and ACUSE THE MAN of trying to OBFUSCATE
(funny how that word was used so much in this tread- was it an attempt to OBFUSCATE ESL readers ?)
When legal codes are written that will apply mainly to Canjun people in the Louisiana Bayou do we have to write them in the language common to them - or to the people who apply the law ?
Just about everyone who writes in this blog is trying to outdo somebody for some sort of one-up. Me especially
15. Get Real...captainFun. Yes, there is such a thing as Shop Talk where a particular level of language is used between people of the same industry and understanding. But, when a Mechanic, Printer, Doctor, Lawyer exchanges information with a Citizen, it is the Moral Responsibility to do so in the language that is fully understood by the Recipient...PERIOD!
16. Poor drafting isn't limited to legislators and crusty attorneys. For a great example of how accepted writing conventions can be improved by applying basic good drafting concepts, check out Jeffery Kuhn's and Bryan Garner's book, "The Rules of Golf in Plain English". http://www.golfrulesbook.com/preface.html.
17. Hey Daniel
I agree with the sentintiments that it is the "moral responsibility of the seller to write in language that is understood by the customer" - but writers of laws are not writing to WE THE PEOPLE. They are written for other lawyers Prescriptions by doctors are not for you or me. Yep theres lots of OBFUSCATION going on out there.
Try reading the TAX CODE(S)
or BUILDING CODES
are these acts of deliberate OBFUSCATION ?
(yes no & maybe)
welcome to BABEL (or is it BABAL ?)
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