The language of the courts, contracts and the law…

The language of the courts, contracts and the law should be as easy to understand as possible when lay people are reading and listening

‘Clarity for Lawyers’ by Mark Adler and Daphne Perry

Reviewed by Martin Cutts

It’s a pity that university and law-school students don’t routinely have to attend several seminars on how to write well, with their test compositions rigorously marked by sticklers for good and expressive English. As a result, many graduates emerge from the collegiate cocoon with miserably low writing standards, never having had their efforts savaged by an editorial pencil that prizes good punctuation and punchy, unpretentious style.

Instead, abysmal English is tolerated, even rewarded – just look at most company and official websites. Bad habits remain uncorrected, perhaps for fear of upsetting authors’ delicate feelings. This leaves them adrift, unaware there might be some simple keys to clear expression that could be theirs with a little effort. To have a knowledgeable critic say ‘this is a pile of unholy excrement, but this is how you could write it better’ is one of the most valuable lessons of a young person’s life, but how rarely is it given!

For law students the problem is particularly acute because so much of what they are forced to read (and hear) is badly phrased bilge from well-established lawyers, in precedents, textbooks and lectures. It’s highly likely, for example, that a lawyer wrote the ramblings about semiotics in the blog piece below (‘Limits of law, but unlimited drivel’). Certainly, it was emailed to a waiting world by the editor of a legal journal and a research professor of law, who presumably thought it the height of academic excellence.

Which is where my friends Mark Adler and Daphne Perry come in, employing so much more tact and restraint than me, with their book ‘Clarity for Lawyers’ (2017), published by the Law Society in London, and priced at (gulp) £34.95.

A book is dull if it states the obvious in a boring way. This book states the obvious – that clarity in legal writing is a good thing and that it can be achieved by using some reasonably straightforward tactics – but it remains fresh, funny and engaging throughout. At 270 pages it’s a lot to read at one sitting, but studying a chapter a day on the train to work will provide a month of what lawyers are wont to call ‘quiet enjoyment’. There ought to be a health warning, though. Among lawyers rooted in the old ways of self-important verbosity and complacent obscurity, the book could cause life-changing medical conditions. It will be interesting to see how many copies the Law Society can sell to lawyers in India, for example, where Raj-day loquacity and flatulent orotundity are still the crooked backbone of much legal writing and speech.

Both authors are lawyers and veterans of the plain-language scene. Mark Adler wrote the first edition of the book in 1990 and for many years edited the journal of Clarity, the international association for plain legal language. Daphne Perry is Clarity’s international secretary and works as a consultant, ploughing a hard furrow as a trainer in clear legal writing and building an admirable list of clients.

The book is split into 30 commendably short chapters. It starts by explaining what’s wrong with traditional legal writing (pretty much everything). It then describes what good writing is and why lawyers should embrace plain-language principles. Thereabouts, it recommends an ancient description of the art from AJG Mackay, a 19th-century Scottish sheriff: ‘Good drafting says in the plainest language, with the simplest, fewest, and fittest words, precisely what it means.’ (Law Quarterly Review (1887).

After that, it delves into good organization, format and punctuation, with useful chapters on definitions, paragraphing, sentence length and consumer testing. Then it looks at how misunderstandings can arise in legal texts and how to avoid creating them, before examining some rules of legal interpretation. It concludes with several instructive before-and-after examples, and generously offers a detailed plan for a legal-writing workshop.

I like that the book takes its own advice. It’s written in clear, unstuffy English and backs up its assertions with evidence. There are plenty of amusing stories, too. Consumer contracts in the EU must by law be ‘plain and intelligible’, one of the great successes of the plain-language movement. The UK’s now-defunct Office of Fair Trading (OFT) had to get tough with companies that sought to evade this law, say Adler and Perry (p29):

‘One offender carefully aimed at its own foot by inserting into its contracts a declaration, to be signed by the consumer, agreeing that the contract was fair and written in plain intelligible language. Of course, this was itself unfair, since the company would only ever need to rely on the declaration in cases where it was untrue. The OFT extracted from the company an undertaking to remove the clause.’

The internet has intensified the need for legal professionals to write more clearly. Much legislation and many court judgments are readily available online, destroying the old argument that only lawyers read the law so legalese is acceptable. The authors say (p49): ‘In the UK, two million separate users a month visited the free-to-access legislation at www.legislation.gov.ukin 2012-13. Research by the National Archives, which runs the site, shows that 60 per cent of these users are non-lawyers who need to use legislation for work; for example, a police officer, a local council official or a personnel manager. Another substantial category of users was members of the public seeking to enforce their own rights or those of a friend or relative.’

This open access has exposed some hideous rubbish to widespread scrutiny (see, for example, the legislation shown in ‘Lucid Law’, ‘Clarifying Eurolaw’, and ‘Clarifying EC Regulations’ under ‘Publications’ on this site), and parliamentary counsel (the UK government’s law-writers) have reacted by trying harder than ever to make new laws clearer. The old unreformed stuff stands there like a ghastly beckoning portent, warning everyone of the dangers of a road much travelled.

Some lawyers have argued that plainly written law (and other legal documents) will mislead the public into thinking they understand when in fact they are likely to misinterpret the legal effect and may not realise they need legal advice. Adler and Perry (p48) accept this danger exists but point out that (a) legalese is routinely misunderstood by lawyers themselves; and (b) legal advice is often unavailable or impracticable because of cost or inconvenience. In short, the benefits of clarity outweigh the risks.

Adler and Perry set out their favourite advice in punchy terms:

• Use headings.

• Put the main message first.

• Keep sentences short.

• Paragraph for meaning.

• Punctuate.

• Use your imagination, identifying gaps in your instructions.

The book is essential reading for UK-based lawyers (the primary audience) but its principles are relevant in all English-speaking jurisdictions.

[1 June 2018]

 

Limits of law, but unlimited drivel

We’ve just received this request to present a paper at a (possibly) important conference in May 2019, but it may take us until then to decide what exactly the conference is about. In case you can offer any help with the meaning, we’ve reproduced the invitation below. After all, it said at the top ‘PLEASE FEEL FREE TO CIRCULATE’. By the way, if you wish to attend, Coimbra is stunning in summer – say what you like about them, lawyers do know how to pick a good conference venue.

The serious point, though, is that most of the money spent on this event – air fares, academic lawyers’ salaries, hotels, and food and drink by the bucketful – will come out of taxes levied on individuals and businesses. How can this spending be justified on such tripe that nobody from now until the end of time will be able to understand it – not even specialists in linguistics, law or semiotics (the study of signs and symbols)?

Sorry about the length of the paragraph, but this is how it was written.

20th International Roundtable for the Semiotics of Law (IRSL 2019)

23rd–25th May, 2019

Hosted by Instituto Jurídico da Faculdade de Direito da Universidade de Coimbra (UCILeR – University of Coimbra Institute for Legal Research) / Portugal

Theme: The Limits of Law

“In a time of plurality and difference which is also, significantly, a time of aproblematic (if not naif) panjuridism, the discussion of the limits of law is not a frequent or obvious explicit topos. On the one hand, the diagnosis of plurality and difference favours  the conclusion-claim that  «the sense of the expression the “law” is constructed internally, and separately, within the system of semantic values of each [semiotic] group» (B.F. Jackson) – which means arguing that only «the signifier» is common, not the «signified», as well as admitting an implacable diversity of interpretative communities (involving incommensurable cultural-civilizational, political, ethical and professional codes or canons). On the other hand, the celebration of panjuridism, successfully corroborated by the relentless emergence of ultra-specialized dogmatic fields (from health law to biolaw, from robotics law to geo-law), justifies a passive assimilation of hetero-referentially constructed interpretations of social need, reducing law to a mere conventional order (with contingently settled frontiers) or even to an ensemble of institutionally effective coactive  resources — which in any case means depriving juridicity or juridicalness of any practical-cultural specific or intrinsic (non-contingent) sense claim. However, do our present circumstances condemn us to this complacent nominalism, preventing us from attributing any effective relevance to the problem of the limits of law? Even without departing from the “semio-narrative” ground (and its external point of view), it may be said that plurality and difference do not exclude a productive exploration of inter-semiotic aspirations (if not inter-semiocity) — relating differently contextualized claims of juridicity and paving the way for the reconstruction of plausible arguments of continuity. These arguments may, in turn, justify a return to the well-known questions on the concept and/or the nature of law (in the sense in which, in an all or nothing approach,  Hart and Raz have taught us to understand this), and may also, conversely, lead to the reinvention of an archetypal or aspirational perspective (Fuller, Simmonds), in relation to which the reconstituted features of the autonomy and the limits of law do not represent characteristics but rather guiding intentions or constitutive aspirations or promises (if not desiderata), with reference to which past or present expressions and their institutional instances should permanently be judged. Following this path in fact means acknowledging how the problem of limits becomes an indispensable thematic core whenever the reflexive agenda involves rethinking law’s autonomy (or rethinking this autonomy beyond the possibilities of legal formalism), as an autonomy or claim to autonomy which should be seriously considered in terms of its cultural-civilizational specific (non-universal) base, as  a decisive manifestation of European identity and European heritage (Castanheira Neves). It is precisely this critical-reflexive connection between issues of sense and limits (aspirations and borders) which, in terms  of law, as well as considering the challenges of a société post-juridique (F. Ost), our roundtable aims to explore. This means discussing the growing weight of hetero-referential elements (invoking  philosophy and economics, literary criticism and sociology, epistemology and ethics, politics, political morality and social engineering as plausible key arenas), which not only interfere (as contextual conditions) with juridical discursive practices but also wound these practices (and their autonomous intelligibility) by functionalizing them  (diluting their specificity in a new practical holism), or at least condemning them to permanent «boundary disputes» (David Howarth). However, this discussion also leads directly to the consideration of specific (real, hypothetical and even fictionalized) case-exempla, including the so-called «tragic cases» (Atienza), which enable us to experience the limits of law’s responsivity or even the impossibility of obtaining plausible correct legal answers. The roundtable will, as usual, favour a practical-cultural context open to multiple perspectives and involving the productive intertwining of juridical and non-juridical approaches.”

Confirmed plenary speakers: François Ost (Université Saint-Louis – Bruxelles), Manuel Atienza (Universidad de Alicante)
Abstracts of 300 words (max.) should be submitted by January 15th, 2019 to José Manuel Aroso Linhares (Organizer)

(jmarolinh@gmail.com) and Anne Wagner (valwagnerfr@yahoo.com) with participation decisions made by January 30th, 2019. Selected papers will be invited for publication in a special issue of the International Journal for the Semiotics of Law (Springer: https://www.springer.com/lawjournal11196) or for inclusion in an edited volume.

[27 March 2018]

 

‘Polarity of the dichotomy’ baffles jury

Judge Peter Thornton, the chief coroner, has told his colleagues to use plain English after a jury was asked to determine ‘the polarity of the dichotomy’ in the case of Sean Jackson, 26, who died at Elmley prison in Kent (reports The Times, 20 July 2016). At the High Court, Judge Thornton and Lord Justice Beatson said the phrase, used by the assistant coroner for Mid Kent and Medway, was not helpful.

[8 Dec 2016]

 

Making judgments more readable – the Jackson style

A 17-page judgment by Mr Justice Peter Jackson has been widely commended for its plain language (full judgment: Lancashire County Council v M [2016] EWFC 9).

It begins: ‘This judgment is as short as possible so that the mother and the older children [aged 12 and 10] can follow it.’

The judgment makes much use of short paragraphs, contractions, short sentences and the active voice. The tone is humane but brusque. It refers to the activities of Mr A, a white British Muslim convert who wanted to take his children to Syria under the guise of a trip to Disneyland, Paris. It explains why the children should have only limited contact with him. At the time, Mr A was facing trial for trying to buy guns and ammunition. The Times (15 Sept 2016) says it understands Mr A has since been convicted.

Since parts of the judgment are as poignant as they are direct, it’s worth quoting a short passage in full:

For several weeks before Mr A was arrested in November, he was being secretly recorded by the police. I have read a lot of those recordings. They show what Mr A really thinks and how he hides it from the mother and the children.

In the recordings, Mr A says that he would sacrifice his life for his religion. He shows his hatred for this country because we are unbelievers who do not live under sharia law. He says that Islam is against democracy and voting. He pulled down posters encouraging people to vote that had been put up in one of the mosques. He wants Britain to be a Muslim country. He wants Muslims to be above non-Muslims. He wants men to be above women. He hates gay people. He says that Mr B is not fit to be a father because he has used drugs.

Mr A agrees that he said these things but says that he didn’t mean them, and that he was desperate because the children had been taken away for no reason. I do not believe that. His explanations were ridiculous. And I don’t accept that he only started to hold those views after the children were taken away.

After thinking carefully about this and listening to everyone, I do not agree with Mr A at all. People are not out to get him. His problems are his own fault. I do not know why he was trying to buy guns and whether he is dangerous to everyone. The jury will decide about that. What I am clear about is that he is dangerous to the children and their mother because of the way he behaves and because the mother is not able to stop him. There is a good side to Mr A – everyone has a good side – and this makes it hard for H and A and their mother to see what he is really like.

When he gave evidence, Mr A was more interested in making speeches than answering questions. He says that there is a plot by police and social workers to smash up his happy family just because he is a Muslim. He clearly doesn’t feel responsible for anything that has happened. He accused everyone of being sneaky liars who have taken his whole life from him. The truthful people are locked up and the liars are free. He has nothing to lose: “If you want me to be a terrorist, then that’s what I’ll do.”

Mr A is very sorry for himself but I noticed that he never showed he is sorry for the mother or the children. Instead, he wants them to feel sorry for him. They shouldn’t be. For him, they are not the most important things. What is most important to Mr A is Mr A and whatever views he holds at the time.

Seeing a judgment written so tersely raises questions about why judges would write in any other way in any other case in any other court. How much time and money would be saved if the Jackson style were taught in law schools and widely adopted by the judiciary?

[8 Dec 2016]