at Work Newsletter
|5 October 2007Number 34|
"A corrupting and corrosive effect"
The Bad Language of Law
BAGGAGE IS SUBJECT TO APPLICABLE TARIFF INCLUDING LIMITATIONS OF LIABILITY CONTAINED HEREIN, FRAGILE ARTICLES ACCEPTED AT PASSENGER'S OWN RISK.
A real-estate contract, instead of saying, "The buyer has inspected the property and accepts it as is," says this:
This contract is entered into with the purchaser's full knowledge as to the value of the land and the buildings and improvements thereon, and not upon any representations as to the value, character, quality of condition thereof, other than as may be expressly provided herein.
Such language is not only wasteful and reckless, it also has a corrupting and corrosive effect on public discourse and private lives. It is a waste of our time and our money. It daily affronts the dignity of citizens. Obligations and rights are written in a language they cannot read and do not understand.
What went wrong?
Thirty years ago, consumers and businesses in the U.S. were drowning in a flood of government forms and regulations. They fought for and won legislation mandating plain language in legal documents. The 1974 Pension Reform Act said that pension plans must be "written in a manner calculated to be understood by the average plan participant." The 1975 Moss-Magnuson Warranty Act said that warranties of consumer products must be written in "simple and readily understandable language."
Dozens of states passed laws calling for plain language in regulations, insurance policies, leases, and consumer contracts.
In 1978, U.S. President Jimmy Carter signed Executive Order 12044 requiring all regulations be "written in plain English and understandable to those who must comply with it." In 1998, President Clinton formalized that requirement in a new memorandum requiring all federal employees to write in plain language.
California required that all government documents be "written or displayed so that the meaning of regulations will be easily understood by those persons directly affected by them." In many countries and languages around the world, plain language was promoted as a civil right. Many jurists and legal experts worked tirelessly to bring plain language into the law.
The causes of this this failure include:
Lack of Enforcement and Resources
Few of the plain-language laws have any teeth in them. Those that do are rarely enforced. While judges have slapped a few wrists, we have yet to see an attorney arrested and jailed for bad writing.
Many law schools now have good courses in writing, but few graduates are able to transfer that knowledge to their workplace. Their writing quickly descends to the lowest common denominator of their particular office.
In most law firms and government agencies, managers are lacking the resources to monitor and enforce good writing habits. They naturally resent any initiative that is not accompanied by adequate resources.
Lack of Training
As Jacques Barzun wrote, "Simple English is no person's native tongue." It is almost impossible to write for a class of readers not one's own. It requires training, method, and practice.
Rudolf Flesch, after working 30 years working with attorneys, knew how difficult it was for them to learn plain language. In 1981, he put all that experience in a little book, How to Write Plain English: A Book for Lawyers and Consumers.
He explained their difficulty in this way:
President Carter may have thought that federal bureaucrat, once shown the errors of their ways, would simply drop their poor language habits and go back to Plain English. But he was mistaken. Gobbledygook or legalese is worse than smoking cigarettes. To kick the habit is extremely hard.
Lack of Standards
Besides lack of training, attorneys also face a lack of standards. Many statutes contain language such as this: "All consumer contracts executed after the effective date of this act shall be written, organized and designed so that they are easy to read and understand." One might ask, "For whom to understand?" Almost everything is easy to read and understand by somebody.
In order to provide objective standards for plain language, several states in the U.S. imposed a readability requirement for legal documents, a score of 40 or 50 on the Flesch Reading Ease scale.
These scores, equivalent to the 12th and 10th grades of reading difficulty, are much too difficult for the average adult reader. Since the 1930s, we have known that the average adult in the U.S. reads at the middle-school, 7th-to-9th-grade level. Most attorneys are good readers and have little understanding of how difficult their own writing is for others.
One of the principles Rudolf Flesch gave to lawyers was, "Know your reader." He wrote:
If you can't find a suitable victim for this kind of mini field test, use your imagination. You must know somebody without a college degree. An aunt maybe? A cousin? The meat man at the supermarket? A waitress in your favorite restaurant? Pick your reader or listener and write for him or her....
Flesch recommended a Reading Ease score of 80 (6th grade)"the easy, conversational style you should use for consumers. This is the style level you find in consumer ads in mass-circulation magazines. It's just right for such things as consumer notices or warranties."
The Struggle Ahead
It may take still more decades before plain language becomes a part of law. Little will change until more consumers realize that they have the right to legal documents that are easy-to-read and understand. Maybe some time in the future, lawyers will realize that the costs of bad writing and the public scorn it evokes are much greater than the cost of making documents readable.
W. H. Auden defined lawyers as "keepers of arguments." They are much more than that. They are the keepers of the lawthe obligations and rights that define us as a people.
For this reason, legalese is a blight on the land. People cannot comply with language they do not understand.
Plain Language in the News
legislator introduces plain-language law:
and poor English cost UK firms £40 billion a year:
Constitution still unreadable:
Daily on the EU Constitution:
readability requirements for Medicaid materials:
Commissioner attacks financial gobbledygook:
secretary on the drafting of law: