Plain Language
at Work Newsletter

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  5 October 2007—Number 34  
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Smart Language: Readers,  Readability, and the Grading of Text

Unlocking Language: The Classic Readability Studies

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The Legal Writer

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Clarity for Lawyers by Mark Adler

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"A corrupting and corrosive effect"

The Bad Language of Law

CONSUMERS face a storm of legalese, which is everywhere, unavoidable. Its constant irritations remind us why lawyers are held in such low esteem. They are not only seen as aloof and expensive but also as mangling the language.

Take, for example, this notice on a football-game ticket:

This admittance ticket constitutes a license. Violation of a law or university regulation while attending the event for which this license was issued may result in revocation of the same and previously granted thereby.


Legalese: a blight on the land.
Here is another legal notice on the back of a baggage-claim ticket:
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.

So—what happened? There has been significant improvement in some areas. But even a casual review shows that contracts, insurance policies, financial reports, privacy notices, terms of use, and consent forms are still dense and impenetrable. Even the best ones are far too difficult for the average adult to read.

The causes of this this failure include:

  • Lack of enforcement and resources
  • Lack of training
  • Lack of standards

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.

So don't kid yourself. If you want to write Plain English, you'll have to learn how. You'll have to study it as if it were Spanish or French. It'll take much work and lots of practice until you've mastered the skill....

It's difficult but not impossible.

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:

Most people don't read legal papers, labels, warnings on TV or what have you. When they do read or listen to such things, they usually don't understand them. If you're writing for the "general public," you'd better remember this basic fact of life.

Since you can't spend several thousand dollars for a field test each time you write something addressed to consumers, I'd recommend that you step out of your office whenever you've finished one of those writing jobs. Find someone in the building who hasn't gone to college. A typist, maybe. Or a maintenance worker. A cafeteria employee. Anyone who qualifies as an ordinary unsophisticated consumer. Let them read what you wrote and tell you what it means. You'll get some surprises.

Flesch on Plain English: like learning French or Spanish

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....

In writing your Plain English piece, don't aim at the typical, "average" consumer. That would leave out 50% of your readers, those below the average in education, IQ, reading skill or business experience. They need Plain English most. Write for them.

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 law—the 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 and the Law

There are many books on plain language for attorneys, with a few of the best ones displayed on the left margin of this page. Here are a few important Web sites:


Plain Language in the News

I speak lawyer:
http://www.setexasrecord.com/arguments/201125-legally-speaking
-i-speak-lawyer

Iowa legislator introduces plain-language law:
http://www.iowapolitics.com/index.iml?Article=105435

Jargon and poor English cost UK firms £40 billion a year:
http://news.scotsman.com/education.cfm?id=1431152007

New English buzzwords:
http://www.cio.com/article/140600/Buzzwords_Why_Doesn_t_
Anyone_Speak _Plain_ English_Anymore_

EU Constitution still unreadable:
http://www.dailymail.co.uk/pages/live/articles/news/news.html?in_article_id=
484394&in_page_id=1770

Turkish Daily on the EU Constitution:
http://www.turkishdailynews.com.tr/article.php?enewsid=83488

State readability requirements for Medicaid materials:
http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=
/www/story/10-02-2007/0004674427&EDATE=

SEC Commissioner attacks financial gobbledygook:
http://today.reuters.com/news/articleinvesting.aspx?type=etfNews&storyID
=2007-09-14T002257Z_01_N13411508_RTRIDST_0_SEC-ATKINS.XML

Indian secretary on the drafting of law:
http://news.monstersandcritics.com/india/news/article_1353834.php/
People_read_law_in_bad_ faith_to_misunderstand_it_law_secretary

Illiteracy in Ireland:
http://www.independent.ie/opinion/analysis/
illiteracy-shames-us-in-whatever-language-1092418.html

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Impact Information
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© 2007 William H. DuBay

International Plain Language Conference

Plain Language Association International

U.S. Gov. Plain Lnaguage Website

Center for Plain Language

Plain Lnaguage Center

Plain Langauge Commission

Plain English Foundation Australia

L.A. County Plain Language Page

Work and Lifelong Learning Network

Joe Kimble on Plain Language

Garbl's Writing Center