PLAIN ENGLISH: INCREASING
THE POWER OF OUR WRITING
DONALDLAYH
Robertson Stromberg
Barristers and Solicitors
700 - 122 First Avenue South
SASKATOON, Saskatchewan
S7K7ES
PLAIN ENGUSH:
INCREASING THE POWER OF OUR WRITING
Page
Do Lawyers Really Have Their Own Language? ............................................
1
The Development of Legalese: An Historical Perspective ..............................
2
The ugacy of Latin .............
t. ~.................
The Norman Conquest............. ..... .....................................................
YeO Ide English....................... ..... ............................................ .........
2
4
6
Continuing the Use of Legalese: A Modem Perspective .................................
6
Common Law Tradition...................... ...................... ......... .......... ......
Professional Pressure .........................
Legal Fees and Legalese .................................. ............................ ......
6
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8
Should we Discard Legalese For Plain English? .............................................
9
Why Do We Write? ...........................................................................
We Think as We Write ......................................................................
A Client's Perspective.................. ......................... ............ .................
Saving Money ...............
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t ......................... 0 ••••••••••••
t ••
0 ...................... .........................
t .......................................
o. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Okay, How Should We Write? ......................................................................... 15
Know Your Audience ........................................................................ 15
WIlat Exactly is Plain English? .......................................................... 16
Basic Rules of Plain English Writing ...................................... ......................... 17
Use Ordinary Concrete Words...........................................................
Omit Needless Words ........................... ............................... ..............
Avoid Long Sentences ........... ............... ........... .................... ..............
Avoid Nouns - Use Strong Verbs ......................................................
Avoid the Passive Voice ....................................................................
The Paragraph....................................................................................
17
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Conclusion.. ........... .................. ............. ........... ................. ....... ......... .......... ...... 25
PLAIN ENGLISH: INCREASING THE POWER OF OUR WRITING
Do Lawyers Really Have Their Own Language?
Lawyers' language is unique. We use words that no one else knows how to use
-- witnesseth, indenture, chattels. We use words that no one else has ever
heard -- hereditaments, choses in action, certiorari. We use words that no
one else would care to use -- herewith, hereinbefore, aforementioned. We
have created our own English dialect, the comfortable and exclusive domain
of our profession.
This dialect is commonplace in legal writing in Saskatchewan. It finds its
way into correspondence, legislation and private agreements. It flourishes
Recent examples of
in briefs of law, factums and court judgments.
home-grown Saskatchewan legal writing show the distinctiveness of this legal
dialect.
In correspondence sent from one counsel to another we struggle through this
sentence:
From the documentation originally provided to us, it is not clear
that {A] was a shareholder of lB] and if it was not, then having
regard to the same and the fact that it is not recited as a party to
the Postponement, and having further regard to the intent of the
original security documentation to grant a purchase-money security
interest to le] with proviso only for postponement where it was
required with regard to the operations of lB] and then only to a
maximum of $70,000.00, we cannot immediately concur in your
assessment.
We puzzle over this gem from the Regulations to The Cost of Credit
Disclosure Act:
Subject to (4), (5), (6), (7), (8), (9) and (10) where an amount, due
under an extension of credit wherein the cost of borrowing is
precomputed, is paid in advance of the due date, the lender may
retain a proportion of the cost of borrowing calculated, when the
amount of the obligation is fully paid, by dividing the numerator by
the denominator, so long as the period in the numerator is equal to
the period in the denominator, to produce a fraction, which fraction
Page 2
shall be multiplied !Jy the cost of borrowing and the resultant sum is
the amount to be retained by the lender.
From a contract given to tennis players wishing to play noon hour tennis at
Saskatoon's Field House, we ponder a clause which has recently received
comment in the Saskatoon Star Phoenix and on The Morning Edition of CBC
Radio:
The word "Licensee" and the pronouns "he", "she", "his" or "it" relating
thereto and used therewith shall be read and construed as Licensee and
"his", "hers", its", or "their" respectively as the number and gender of
the party or parties referred to each require, and the number of the
verb agreeing therewith will be construed and agree with the said word
or pronoun so substituted and if there be more than one Licensee, all
covenants and provisions herein contained shall be construed as being
several as well as joint.
This
These examples of legal writing are not written in common English.
style of writing is unique to our profession. It has been called Legalese,
Gobbledygook and Bafflegab.
Why, though, has it developed'?
More
importantly, why do we continue to use it? Should we get rid of it? And,
[mally, if we do get rid of it, how should lawyers write?
The Development of Legalese: An Historical Perspective
It may seem presumptuous of lawyers in the 1990's to clamour to rid the
profession of one of its great historical hallmarks, the use of language
that few can understand. To challenge the use of Legalese is to challenge a
centuries-old tradition. Lawyers have a cultural heritage of being out of
sync with the language of the masses.
The Legacy of Latin
It all started with Latin. Centuries ago, in pre-Norman England, Latin was
the language of court writs and the principal language of statutes. Latin
was scholastic and certain.
English was a peasants' language, wildly
accommodating each culture and absorbing each language it contacted. It was
Page 3
considered uncertain and unscholarly.
acquired the Latin habit.
Little surprise, then, that lawyers
We still adeptly wield Latin in our legal practices. Some Latin words are
so thoroughly incorporated into legal language that we use them without
italicizing them, for example, affidavit and quorum.
Others, we first
learned in law school. Remember those fITst year law courses. The personal
property case book introduced us to ferae naturae and bona fide purchasers.
Criminal law was particularly replete with plrrases like actus reus, mens
rea, de minimis non curat lex and corpus delicti. Add to this list other
Latin plrrases we encountered in our early legal careers -- ab initio, res
ipsa loquitur, ejusdem generis. in esse, per stirpes, parens patriae, inter
alia, nunc pro tunc and quid pro quo.
These plrrases form part of our professional culture. We fondly brandish
them in our writing. It is arguable whether they are more precise than
their English equivalents. Ferae naturae is understood by most lawyers;
"wild animals" is understood by everyone. Bona fide conveys no more
precision than "good faith."
Perhaps if we wrote only to other lawyers we could uncritically persist in
our use of Latin. But we risk frustrating even legally trained readers with
Latin plrrases which are familiar but just beyond complete recognition. In
writing for other lawyers and judges, we face readers who guard their time
jealously - i.e. don't expect materials to be read twice and be grateful if
they're read once.
(Excuse the irresistible i.e. - an abbreviation for
Latin id est - that is).
At our peril, then, we use these Latin plrrases in arguments, correspondence
and briefs:
sui juris, sui generis, per curiam, nunc pro tunc, ejusdem
generis, and demurrer. Although we've all encountered these phrases, it's
unlikely that any of us could easily define all of them. Even if the
reader understands Latin it's doubtful that sui generis is more persuasive
or precise than "unique."
Page 4
The N0171llln Conquest
Latin is not the only "foreign" language to have profoundly influenced
modem legal writing. Mter the Normans invaded England in 1066 these
French speaking invaders became the ruling class. Their Romance language
was considered superior to the Teutonic language of the Anglo Saxons.
Eventually, however. the two languages absorbed each other. producing a
single language characterized by an unusually large number of synonyms.
Anglo-Saxon words which have survived in modem English describe basic
functions of everyday life. They are words that the upper class Normans
would have used to provide instructions to the lower class.
Note the
remarkable similarity these words have to modem German: house-Haus,
field-Feld. man-Mann. butter-Butter. milk-Milch. bread-Brot, mother-Mutter,
brother-Bruder, go-geh, come-komm. make-mach. bring-bring.
Norman French. on the other hand, was more sophisticated. Words were often
multisyllabic. Compare these modem English synonyms, the first originating
from Norman French. the second from Anglo-Saxon English: expire and die,
proceed and go, ingest and eat, prepare and make, descend and go down.
The courts showed the same disdain for English that was common among the
ruling class. Along with a curious combination of Latin and English, Norman
French became the basic language of the English courts.
The resulting
linguistic oddity became known as Law-French.
Law-French and Latin were eventually prohibited by statute in 1731. But
even a casual glance at legal terms commonly used today illustrates how
powerfully French has influenced the language of law.
Many Law-French words have become absorbed into modem English. Appeal,
contract, agreement, evidence, damage, court, pardon and conviction are
understood by lawyers and non-lawyers. Other Law-French words have become
legal terms of art with no English equivalents --estoppel, choses in action,
voir dire and laches.
Page 5
A large group of distinctively French phrases remain which offer neither
Little is offered by en
precision nor clarity to the language of law.
ventre sa mere that is not offered by in the womb. Nor does the phrase
cestui que trust lend more precision than the phrase beneficiary of a trust.
Using these phrases to communicate to anyone other than a lawyer is hard to
justify.
When French was prohibited from further use in 1731, lawyers began to use
Legal
English, but were never confident that French was unnecessary.
writers continued to use French words, fearing English would not adequately
describe concepts previously described in French. The English word good was
accompanied by the French word chattel. Repeatedly we see this dualism in
legal writing: cease and desist,
null and void,
free and clear,
name
and appoint,
promise and covenant,
rest and residue, save and except,
good and sufficient, full and complete and will and testament. Notice how
often the Anglo-Saxon word is monosyllablic and the French word
multisyllabic.
This dualism survives in modern legal writing.
Lawyers are compelled to
use two or more words to assure complete certainty.
We believe our
documents are incomplete without numerous synonyms. We draft documents
grasping for every available synonym. We assign, transfer, convey and sell.
We give, devise and bequeath. We release, quit claim and relinquish. And
we render contracts nUll, void and of no force or effect whatsoever. This
style of writing seldom offers clarity or precision. Rather, it shows that
our profession has not yet found a straightforward and functional way of
linguistically dealing with the legacy of the Norman conquest.
Page 6
Ye Olde English
The "foreign" languages of Latin and Law-French have marked modem legal
writing. But English has not failed to leave its own unique legacy to
current legal writing. Our profession has been slow to junk archaic 400
year old English even though it is used by no one else. Lawyers cannot
resist old English phrases: Know all ye men by these presents .... In Witness
Whereof I have hereunto set my hand and caused the seal of ... to be
affixed... and This Indenture doth witnesseth. Equally entrenched are words
like said (used as an adjective), same (used as a noun), herewith, therein.
hereinafter, hitherto. therewith. heretofore. forthwith and aforesaid. These
words, more than any other, characterize legal writing.
Old English words are not precise. They're peculiar oddities used only by
lawyers. They do not communicate legal tenns of art.
They are often
meaningless glue words which should be relegated to an etymological museum.
Continuing the Use oj Legalese: A Modern Perspective
As we have seen, there are historic reasons for the development of Legalese.
But why is it still prevalent in modem legal writing? Lawyers no longer
have a penchant for Latin - few have ever studied it. We provide services
to an increasingly demanding public unfamiliar with Legalese. We no longer
use stationer's fonn or typewriters which left document alteration a
medieval task. Instead. we use word processors, high-tech recall systems,
telecopiers and electronic mail to communicate in a legal language that has
hardly changed in centuries. Why?
Common Law Tradition
Lawyers yearn to follow. We learn early the basic principle of common law
that matters and persons in similar circumstances should be judged similarly
- the principle of stare decisis.
Law is based on precedent, on what
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someone has said before. In law school, we study endless judgments from a
previous era and, in the process, are introduced to a bygone language.
Our attention to precedent has encouraged generations of lawyers to accept
the writing and documents of generations before. We crave to follow for
fear of being wrong. Standard form pleadings provide comfort. Precedents
for Wills, sales agreements, leases and pleadings have become commonplace,
not because they are exemplary, but because they have been used for a long
time without adverse judicial comment.
Ironically the legal profession's fondness of word processors has made
reliance on boilerplate precedents even more tempting. We can call from
computer disks innumerable versions of sophisticated documents. With a
touch of the keyboard we can delete, combine or rearrange, spewing forth
endless clauses and subclauses. There is a precedent for every occasion, for
every contingency. Given pre-fabricated, ready-to-use precedents, who has
the time or inclination to craft a plain language document?
Professional Pressure
If law school begins the indoctrination into Legalese, seeking admission to
the bar completes it. Articling students enter law fmus eager to become
respected members of a close-knit group.
They are ready to forswear
anything which might jeopardize their acceptance into the profession. In
those fIrst critical weeks of articling most students will imprint on the
legal writing styles they see in common use in their office. They follow
the way of their principals and partners, mindful that in so doing there is
promise of both professional acceptance and economic reward.
The
transformation is now complete. From law student to neophyte lawyer they
discard their jeans for natty new suits and their plain speech for the
prolix writing of lawyers.
Desire for peer recognition compells lawyers to use Legalese. Among our
peers we believe we sound more learned if we use the traditional jargon of
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our profession. Lawyers, like modem teenagers, use language as much for
peer acceptance as for communication of a substantive message. "Teenagese"
tells other teenagers what Legalese tells other lawyers - we are part of the
same distinctive group. Here's some Teenagese:
Hey, like man, did you hear about the radical concert? What a right
Like it was some kind of a concert and everything.
on time.
Anyways, when the band came on stage it was like, you know, really
totally awesome. There was a pile of smoke and really loud blasts
and everything. Like, and the band was jumping all over the place.
And well, you, know, it was like they had those awesome dancers with
whips and chains beating all over the place and stuff. Man, it was
like nothing I'd ever seen before - really!
Perhaps lawyers, like teenagers, sacrifice the message for the medium since
the medium provides the greatest message of all - ''I'm a member of the
group".
John Kenneth Galbraith is a proponent of plain English among economists, a
group that has its own linguistic oddities.
His comments show the
resistance professional groups show to individuals who use plain English:
...Complexity and obscurity have professional value - they are the
academic equivalents of apprenticeship rules in the building trades.
They exclude the outsider, keep down the competition, preserve the
image of a privileged or priestly class. The man who makes things
clear is a scab. He is criticized less for his clarity than for his
treachery. 1
Legal Fees and Legalese
Legalese may aid lawyers to justify fees for preparation of documents which
otherwise would appear overly simplistic and lack bulk. Traditionally legal
fees were calculated on the number of folios (sheets) a lawyer produced.
Although lawyers may like bulky documents, the court and clients often have
not. As early as 1556 the Chancellor of the Court became so aggravated with
pleadings that ground on for 120 pages that he fined the plaintiff 10 pounds
Page 9
and a tenn of imprisonment. Additionally, he ordered that the Warden cut a
hole in the middle of the pleadings and "...put the said Richard's head
through the same hole...and lead the same Richard, bare headed and bare
faced, round about Westminster Hall, whilst the courts are sitting, and
shall shew him at the bar of every of the three courts within the Hall". 2
The Chancellor's wrath fell upon the plaintiff, not the lawyer. Even today,
the client bears the cost of bulk.
Senior practitioners in Saskatchewan
recall a time when billing clients was more whimsical than today's
meticulous time sheet calculation. Generally, one inch of file was worth
$1,000.00 of fees.
Lawyers earn fees by providing services. Manifestation of services is most
frequently shown by paper. The more paper, the more fees - a simple bit of
logic that has perpetuated the use of Legalese.
Legalese not only increases bulk, it also can make documents so
unintelligible that clients believe the fees are justified.
A standard
Will, for example, can be extremely straightforward. Fees would be minimal.
Throw in a few phrases like "... And I hereby further authorize my said
Trustees to use their discretion in the realization of my estate with power
to call in, convert into cash and otherwise deal with, or sell that portion
of my estate not consisting of money ..... "
and a larger fee seems
warranted.
Lord Denning wrote: "This case ought to have been simple, but the lawyers
have made it complicated." 3 Lawyers often use Legalese to make simple
concepts complex.
Should We Discard Legalese For Plain English?
Perhaps it is unwise to jettison the longstanding tradition of Legalese. Why
cast aside the comfort and certainty offered by precedent? After all, no
judge has yet said that a contract is enforceable when the parties have
Page 10
clearly agreed that it shall be null, void and of no further force or effect
whatsoever. Should we risk: imprecision by using plain language - the
contract is void?
And is there anything wrong with encouraging the public to believe legal
writing requires a familiarity with Latin and an ability to write like no
one else? Every profession perpetuates its own self serving mystiques,
whether to increase public prestige or pecuniary gain.
Can legal writing be plain when we so often deal with complex issues?
Complex ideas may require complex writing.
A case can be made for the continued use of Legalese. But can a stronger
case be made for its abandonment?
Why Do We Write?
Unless we are writing in a personal journal we write to communicate to
others. Whether we are writing a letter to Aunt Kate or a factum for the
Court of Appeal we want to communicate "something" to someone else.
Writing allows someone else to trace our thoughts. The challenge is to get
our thoughts recorded in such a way that we will trigger in the reader
To fail at this task as a lawyer will leave
thoughts just like our own.
the client confused, the judge unconvinced and the agreement uncertain.
Effective writing compels the reader to develop a snapshot of our own
thoughts. The mucky ooze of Legalese suffocates images. The reader works
too hard sorting through qualifying phrases, struggling with unfamiliar
jargon and battling archaic language to wrestle from the writing the
writer's original thoughts.
Writing must easily and accurately provoke images in the mind of the reader.
Writing must be reader-sensitive, not writer-sensitive. Using plain English
puts the burden of communication on the writer and takes it away from the
reader.
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One of the world's greatest speeches testifies to the ability of plain
English to evoke clear images:
We shall not flag or Jail. We shall go on to the end....we
shall fight on the seas and oceans, ...we shall fight on the
beaches, ... we shall fight on the landing grounds, ...we
shall fight in the fields and in the streets, ...we shall
fight in the hills; we shall never surrender.
Winston Churchill used his speech to create powerful images of a people
Churchill had the
prepared to take every defence to save their nation.
ability to use language like cue cards, eliciting rich and powerful images.
If Churchill thought plain English might help win a war who are we to
question whether plain English might help win a case or convince opposing
counsel?
We Think As We Write
We learned in elementary school that "we are what we eat". It's probably
equally true that "we think as we write".
Clarity of language requires
clarity of thought.
If, as writers, we accept the responsibility for leading our readers from
one mental stepping-stone to another, guarding them from miscues and
collateral irrelevancies, we force ourselves to be more accurate in our own
thoughts.
Plain English expects writers to elicit from readers a precise
sequence of ideas and images. This expectation cannot be met if writers
have not themselves established the sequence of ideas before beginning to
write.
The relationship between plain language and clarity of thoughts has received
a "plain" comment from Judge Nick Friesen of the British Columbia Provincial
Court. 4 Defence counsel brought a motion to quash an information for breach
In British Columbia the strict legal
of an undertaking to a "Judge".
definition of a Judge includes only Superior Court Judges. Defence counsel
argued that the information should have read "Justice or Judge" since the
undertaking was given to a provincial court judge, Judge TJ. Smith. Judge
Page 12
Friesen flrst conunented on the nature of the residents of Anahim Lake, a
conununity in the interior of British Columbia where the case was heard:
The jargon once used by Judges and lawyers is old history in
Anahim Lake. They already use plain language. If the legal
reforms recommended by the Hughes Commission are implemented,
plain language in the judicial system will also find its way
with the urban areas of the Province. Residents of Anahim
Lake know Smith as a Judge. If you breach your undertaking
10 him you are absolutely sure he is a Judge. I have been a
Judge for twenty years. I too know that Judge Smith is a
Judge and a damned good one. In Anahim Lake the residents
use common sense, which they sometimes call horse sense.
Judge Friesen then pointed out that in Anahim Lake horses were still used
and when horses were left tied up outside the conununity hall where court was
held, piles of manure were left behind. Judge Friesen dismissed defence
counsel's motion, saying:
Lawyers from Kamloops have to travel at least six hours to
get to Anahim Lake. Lawyers generally have a very active
mind.
They have lots of time to dream up exotic legal
arguments when they travel that long. However, they should
pause at the front door of our court room and look down and
contemplate those piles of manure and their arguments. Had
that been done in this case the lawyer might have been heard
to say, 'That's horseshitl", and have left his argument
outside the court room too. Now that's plain language and
common sense.
Lawyers must take pain to use conunon sense and plain language. We are not
afforded the lUXury of writing for a sympathetic audience. Opposing counsel
will attempt to discredit all that we have written; judges will cast a
sceptical eye on our writing, mindful that in our desire to advocate our
client's position we may have overstated our case. Our thinking, as well as
our writing, must be tight. Concentrating on plain English forces us to
think more accurately.
Page 13
A CUenfs Perspective
The principle of law fum marketing is simple: a fum must provide services
in a way that distinguishes it from other law firms.
The use of plain
English falls squarely within this principle. An example illustrates the
point. A Saskatchewan farmer asks his lawyer to clarify his right of first
refusal to buy back a quarter section of farmland he has lost to a bank.
The lawyer writes:
We are in receipt of, and thank you for, yours of February I,
1992. With regard to your inquiry respecting the right of
first refusal to purchase your quarter section of farmland we
wish to advise you that, in accordance with the provisions of
s. 27 of The Saskatchewan Farm Security Act S.S. 1988-89 c.
S-17.1 as amended, the mongagee, having received a Final
Order of Foreclosure, is obligated to extend to you, upon
receipt of a bona fide offer to purchase the said farmland
from a third party, notice of the terms of such offer to
purchase and thereafter, for a period of 15 days you may
exercise your right of first refusal by providing written
notice of your intention to do so to the mongagee, after
which, and within an additional 15 days, you must deliver up
to the mongagee the purchase price.
Another lawyer writes:
Saskatchewan law gives you an opportunity to buy your land
back from the bank. As soon as the bank receives a good faith
offer to purchase your land from someone else it must notify
you.
You will then have 15 days to inform the bank in
writing if you want to buy the land on the same terms as the
offer. If you do, then you have an additional 15 days to pay
the purchase price to the bank.
What's your impression of the first lawyer? Which lawyer would the farmer
recommend to his farming neighbors who need legal assistance?
The public has always been critical and suspicious of lawyers' use of
Legalese. Lawyers writing in plain English will help overcome the public's
poor perception of lawyers. As a bonus, the individual lawyer will benefit
with a larger client roster and happier clients.
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Saving Money
Both lawyers and clients can save money using plain language. Secretaries
and paralegals could be trained more inexpensively if they did not have to
use phrases like Wherefore the Plaintiff prays that... or In Witness Whereof
the parties hereto have hereunto set their hands and seal the day and year
first above written.
Job satisfaction among support staff would increase. One might expect that
fewer errors would be made if support staff better understood the documents
they prepared.
Lawyers too could save time if agreements and legislation were written in
plain language.
Legal work could be more readily delegated to junior
lawyers. How much time does the average lawyer need to decipher this
provision from Canada's Goods and Services Tax legislation?
The vendor shall be deemed to have made a supply of the
property or service to the agent, and the agent shall be
deemed to have received that supply from the vendor, for
consideration paid at that time equal to the amount, if any,
by which the consideration for the supply to the recipient
exceeds the consideration for the supply that, but for this
section, would be made by the agent to the vendor of services
in relation to the supply to the recipient.
No one could understand this provision without several brow-furrowed
Legal writing
readings and a few cuss words muttered at the draftsperson.
like this has tremendous costs. At a minimum it requires time consuming and
expensive legal analysis.
Worse, it may require litigation to disentangle
the gobbledygook. The public pays for court staff, judges and judgment
enforcement officials.
Plain English offers a chance to avoid these
unnecessary costs.
Page 15
Okay, How Should We Write?
Know Your Audience
Effective writing is audience-sensitive. How we write, then, depends upon to
whom we write. In writing to a judge we must be persuasive; to a client we
tend to be reportive; to opposing counsel, authorative. Almost always plain
English will best achieve these goals.
Some flexibility, however, does exist. If we are writing to another lawyer,
rather than our client, we will have little hesitation in using adjourned
sine die, Order Nisi for Foreclosure, Respondent, Appellant and taxed costs.
We will not cause undue confusion if we ask another lawyer to execute rather
than sign documents. When writing to clients we must guard against using
this professional jargon.
We might even occasionally choose to use Legalese instead of plain English.
For example, a lawyer representing a secured lender who wishes to send a
bailiff to seize collateral will often prepare a document called a Bailiff's
Warrant. It has little legal significance other than to tell the debtor that
the bailiff is acting as the agent for the secured lender. The Bailiff's
Warrant is intended to be an intimidating document to convince the debtor
Plain English may not
that he must promptly turn over the collateral.
elicit this response. Better, perhaps, is this:
BAILIFF'S WARRANT FOR
SEIZURE OF PROPERTY
TAKE NOTICE that in accordance with the rights and
privileges
accorded and reserved unto the undersigned
pursuant to and by way of a Security Agreement executed the
19th day of January, 1990, and the laws of the Province of
Saskatchewan, the undersigned does hereby name and appoint
the firm of ABC Seizures Ltd. (hereinafter referred to as the
"Bailiff') to act as agent for the undersigned which said
Bailiff shall forthwith take possession of the following
property:
Page 16
AND FURTHER TAKE NOTICE that refusal and/or failure to
immediately deliver up said property shall render you liable
for all further and additional costs of seizure occasioned by
your failure and/or refusal to deliver up as aforesaid.
This Bailiffs Warrant executed in the City of Saskatoon, in
the Province of Saskatchewan, on the 20th day of January,
1991.
ABC Lender Ltd.
This is Legalese at its worst. The writer did not intend to be clear. The
intent was to convince the debtor that the bailiff was sent with virtual
Divine authority to seize the collateral. The writer wanted the debtor to
be confused, perhaps even intimidated by the Warrant. We must guard against
eliciting this response from our clients and from Judges.
How well we write depends upon how well we can role-play our readers. We
must write appreciating what our readers need to know and how they will best
understand what we've written.
What Exacfly is Plain English?
We've given Legalese a critical assessment and have preferred instead a
style of writing called plain English or plain language. But what exactly
is plain English? An Australian commentator has said it, well, plainly:
"Plain language" is the opposite of obscure, convoluted,
entangled language. It's the opposite of language that takes
a lot of effort and energy to understand and unravel. Plain
language should not be equated with "simple" in the sense of
"simple-minded". Nor should it be equated with "simple" in
the sense of "childish" or "broken" language - a kind of
pidgin.
Nor should it be equated with "simple" or
"simplified" in the sense of a reduced document that only
gives part of the message.
Plain language, on the contrary, makes full use of the
resources of the language. It's good, normal language that
adults use every day of the year. 5
Page 17
Whether we use plain English is a matter of attitude; how we use it is a
matter of acquiring skills.
The requisite attitude is to accept that, as
professional writers, we bear the burden of communication. The requisite
On a self-congratulatory
skills come from acquiring new writing habits.
note, lawyers have all the necessary tools to become effective writers good vocabularies, good education and capable minds.
Basic Rules of Plain English Writing
Use Ordinary Concrete Words
Winnie the Pooh said "Long words bother me."
lawyer.
Obviously Winnie wasn't a
We have had long schooling in writing with complicated, multisyllabic words.
In high school and university we wrote essays in our own vernacular and
then, with a Thesaurus at hand, translated plain English into a strained
unnatural language. This must have made for some wickedly tortured
sentences.
Good words evoke images. They are concrete, generally short words. Often
they have Anglo Saxon rather than Latin or French origins. The ability of
an Anglo Saxon word to evoke a powerful image should not be bartered for the
notion that a Romance word will be more impressive and clever. The use of
Latinized English makes our writing fuzzy and abstract. It deadens images
and leaves the reader languishing. Which sentence is more vivid?
The effective utilization of plain English constitutes yet
another method to promote client satisfaction.
Or
Using plain English makes for satisfied clients.
George Orwell lamented our grasping for snobbish Latinized words:
Bad writers and especially scientific, political and
sociological writers, are nearly always haunted by the notion
that Latin or Greek words are grander than Saxon ones, and
Page 18
unnecessary words like
expedite, ameliorate, predict,
extraneous, deracinated, clandestine, sub-aqueous and
hundreds of others constantly gain ground from their
Anglo-Saxon opposite numbers. 6
Winston Churchill's speech shows the power of concrete words. Think: how
abstract language would have destroyed the power of the speech. Compare the
original speech to one which uses abstract words:
We shall not flag or fail. We shall go on to the end....we
shall fight on the seas and oceans, ...we shall fight on the
beaches, ...we shall fight on the landing grounds, ...we
shall fight in the fields and in the streets, ...we shall
fight in the hills; we shall never surrender.
The citizens of Great Britain shall not capitulate or accede.
The citizenry shall proceed in armed resistance until the
termination of hostilities. His Majesty's Navy shall engage
the enemy in marine combat and along the coastline. We shall
also engage the enemy upon the land, whether in our
metropolitan regions or in our agricultural districts. Our
country shall refuse to
entertain proposals respecting
capitulation of any kind.
Regretably, lawyers prefer the second style of writing. We must reacquaint
Instead of attempt, we might use try.
ourselves with ordinary words.
Instead of ameliorate, execute, elucidate, initiate, remunerate, utilize we
might substitute improve, sign, explain, start, pay and use.
Omit Needless Words
Professor Strunk has said it best: "Omit needless words".
offered this comment:
In elaboration he
Vigorous writing is concise. A sentence should contain no
unnecessary words, a paragraph no unnecessary sentences, for
the same reason that a drawing should have no unnecessary
lines and a machine TW unnecessary parts. 7
Lawyers are plagued with the habit of useless words. It's an easy habit.
We pick up our dictaphones and tried and comfortable phrases tumble easily
from our lips. Our ready-made expressions have their own cadence, always at
hand to glue together our writing. Many common phrases used by lawyers are
Page 19
virtually meaningless or can be shortened to single words.
Note this
example:
With regard to your original enquiry respecting the
enforceability of your contract we wish to report, at this
time, that, in our opinion, you are justified in terminating
Mr. Black's employment.
Of the 31 words in this sentence only the last 8 are important to the
client. Why not write:
Your contract allows you to terminate Mr. Black's employment.
Lawyers have dozens of expressions which should be avoided or shortened:
with regard to
please find enclosed herewith
due to the fact that
we wish to inform you
at this point in time
we believe, [thinkJeel, state] that
in our opinion
the question as to whether or not
for the purpose of
in connection with
in the event that
with a view to
in many cases
in the majority of cases
this is a question [topic, issue] that
until such time as
it is submitted that
it is to be understood that
regardless of whether or not
it is our position that
respecting, concerning
enclosed is
because, since
{often unnecessary, delete]
now
{often unnecessary, delete]
[often unnecessary, delete]
whether
to
with, about
if
to
often
usually
this question {topic, issue]
until
[often unnecessary, delete]
[often unnecessary, delete]
whether
[often unnecessary, delete]
Certain words and phrases should trigger our suspicions.
deleted.
Watch there is, here is, which, who, and that.
Often they can be
For example, the
first sentence of this paragraph could have been written:
There are certain words and phrases which
our suspicions.
should trigger
Page 20
Even worse is this version:
It is the writer's view that there are certain words and
phrases which should trigger our suspicions.
Effective writing forces an economy of words. Each word must work; if it
doesn't it should be thrown out. This test gives short shrift to said and
aforementioned, two of the most useless words in Legalese. We believe said
and aforementioned add precision as in:
The said lease respecting the aforementioned land shall
terminate on the 19th day ofJanuary, 1990.
If there is only one lease or parcel of land there can be no confusion which
lease or parcel of land is relevant. If there are two or more leases or
parcels of land then said and aforementioned do not avoid confusion since
we are unsure which of the two leases is being referenced. Said and
aforementioned are not working words. Their use is hard to justify.
Recall the history of French-English synonyms in legal writing. Do we need
more than one word in these phrases: free and clear, good and sufficient;
promise, covenant and agree; will and testament; give, devise and bequeath;
null and void? Many times we do not. Redundant lawyerisms make our writing
verbose and unnatural.
Avoid Long Sentences
It was during his stay at Harrow Secondary School that Winston Churchill
would later say "[I] got into my bones the essential structure of the
ordinary English sentence ... "
Lawyers work sentences too hard. We confuse the task of sentences with the
task of paragraphs. Paragraphs are the basic unit of composition. They
each bear an idea. Sentences need only contribute to the idea. We use
sentences as though we will not have another chance to complete our writing
thought. In a single sentence we may introduce a thought then suspend the
reader while we modify the thought. create exceptions to it and
Page 21
parenthetically add collateral comments. Eventually we will return to the
stranded reader, to graciously complete the thought.
Try this sentence
taken from s. 44(3) of The Queen's Bench Act.
The Court and every judge thereof shall also have power to
grant to a defendant in respect of any equitable estate or
right or other matter of equity, and also in respect of any
legal estate, right or title claimed or asserted by him, all
such relief against a plaintiff or petitioner as such
defendant shall have properly claimed by his pleading, and as
the court or any judge thereof might have granted in a suit
instituted for that purpose by the same defendant against the
same plaintiff or petitioner; and also all such relief,
relating to or connected with the original subject of the
cause or matter and in like manner claimed against any other
person, whether already a party to the same cause or matter
or not, who shall have been duly served with notice in
writing of such claim pursuant to any rule of court or order
of the court, as might properly have been granted against
such person if he had been made a defendant to a cause duly
instituted by the same defendant for the like purpose; and
every person served with any such notice shall thenceforth be
deemed a party to the cause or matter with the same rights in
respect of his defence against such claim as if he had been
duly sued in the ordinary way by the defendant.
This writing requires exceptional short term memory. The reader must set
information aside and retrieve it as may be necessary. This is hard work,
work the reader simply may not wish to do.
Sentences can often be improved by shortening them. Sentences longer than
25 words must be carefully written. Putting more than one idea into a
sentence
must not tax the reader with ideas sprinting off in different
directions. This general rule should not prevent lawyers from occasionally
using long sentences, especially in briefs of law. Try this sentence of 99
words:
In the temptation to use long sentences, where the reader is
at peril of being entangled in a web of phrases clamouring
for attention, where the reader must clutch the original
phrase and bear it safely through a series of qualifications
and exceptions, where the reader may grow weary of the effort
and give up the struggle before being brought to rest, in
Page 22
this temptation to use long sentences, lawyers, as
professional writers, must provide a measure of safety to
their patient reader to ensure that there will not be a loss
of will to continue to the sentence's end.
Note the parallel structure to keep thoughts aligned: where the reader is at
peril, ...where the reader must clutch, ...where the reader may grow weary.
Note, too, the original phrase in this temptation to use long sentences is
repeated near the end of the sentence to reacquaint the reader with the
original thought.
The
Long sentences should be the exception in legal writing.
one-idea-one-sentence rule should be the mainstay of sentence construction,
especially in correspondence and private contracts.
Avoid Nouns· Use Strong Verbs
A sentence needs only a verb. Think. Nouns can't make sentences; nor can
adverbs or adjectives.
The verb gives life to the sentence yet we often
choose verbs which are flat and expressionless.
We prefer, instead, to use
derivative nouns, nouns derived from the verb we ought to be using.
Derivative nouns are marked by their suffixes - ent, ant, ence, ency, ancy,
ment, and most common of all, tion and sion.
Lawyers enjoy using nouns. Or, rather, we have an enjoyment in using
nouns. Better yet, we have an enjoyment in the utilization of nouns. We
write about legal matters as a lot of things, not as a lot of happenings.
In our writing Judges make decisions, they don't decide; clients have a
preference, they don't prefer; lawyers provide conclusions, they don't
conclude. Note the weak verbs - make, have and provide - have replaced the
stronger verbs - decide, prefer and conclude.
Verbs are not, in themselves, always weak or always strong. It depends how
we use the verb. Take is for example. It's poorly used in The Plaintiff
is of the belief that...; it's hard to improve on God is love.
Page 23
We can shorten and enrich our writing by remembering that it is clearer to
pay than to make a payment; to conclude than to draw conclusions; to
donate than
to make a donation; to consider
than
to take into
consideration; and to infer than to draw an inference.
A void The Passive Voice
The passive voice is a pathetic construction.
Unfortunately, it offers
lawyers yet another chance to elevate the noun and emasculate the verb.
The passive voice always uses some tense of to be with a past participle.
What is normally the object of the sentence becomes the noun.
The land was purchased by the non-resident corporation.
The action was filed by the Plaintiff.
The child was struck by the speeding car.
There are two problems with the passive tense. First, it uses more words
than the active tense. If we said The non-resident corporation purchased
the land we would save 3 words. Second, the passive voice makes insipid,
whimpy sentences. The subject is always acted upon; no one does anything.
Occasionally the passive tense is preferable. It is useful when the author
of the act is unknown or unimportant or it is the object which needs
emphasis.
The bank was robbed.
The man was hanged.
Generally the passive tense should be avoided. The active tense will make
legal writing briefer, more interesting and clearer.
The Paragraph
Unlike words and sentences, paragraphs are not glamorous. Words and
sentences are sole performers. Paragraphs impose a sense of co-operation
upon words and sentences. A sentence is important ouly if it can contribute
Page 24
to the paragraph, for it is the paragraph, not the sentence, which is the
basic unit of thought in writing. Words and sentences should be used only
if they help develop the paragraph.
This notion is critical to effective writing. If we understand the purpose
of paragraphs we can make our sentences more natural and shorter. One
sentence does not have to completely develop the thought; that is the task
of the paragraph. Now we have a new freedom in writing. Sentences are
liberated from the great burdens we place on them. Yippee - we can write
like we speak, plainly and naturally.
Recognizing the paragraph as the basic unit of thought in writing will make
other improvements in our writing. Seldom does it take an entire page of
Large blocks of writing frighten
writing to develop one basic thought.
readers.
Yet lawyers will fill an entire page without paragraphs. No
matter how clear the writing may be, the reader is psychologically
unprepared for the formidable task ahead. Paragraphs break writing up into
manageable portions. Shorter paragraphs are more pleasing to the eye and
prepare the reader for a new thought. Paragraphs are pit stops nicely
distanced for the comfort of the reader.
One more point should be made about paragraphs: they should be used especially in briefs of law. Briefs often are cryptically written in point
form, with an assertion of law followed by case authority, another
This staccato style of
assertion, another case authority, and so on.
writing is not persuasive because it ignores the strength of paragraphs.
Paragraphs are steppingstones we provide the Judge. Each paragraph develops
another part of our argument. As persuasive brief writers, we can't afford
to lose the judge so we must use paragraphs and tie them to each other.
Certain techniques ensure that the Judge knows when we are moving from one
thought to another. For example:
To show contrast
The plaintiff was not informed of the risk of
surgery as was the plaintiff in the Jones
case. Instead he was ...
Page 25
To show similarity
Parallel to the plaintiff's situation we cite
the decision in the Smith case.
To provide more specifics
The plaintiff's injury was different from an
ordinary whiplash. It was complicated by...
To show a concession
in our argument
We acknowledge the defendant's defence of
reasonable care. It is the failure to satisfy
the onus of strict liability that grounds the
plaintiff's action.
Without an appreciation of the paragraph as the basic unit of writing. we
will be unable to write plain English.
Conclusion
Plain English in legaI writing has become a growing trend in the United
States, Australia, and Canada. Alberta passed the Financial Consumers Act
It requires that certain consumer contracts like car rentaI
in 1991.
agreements, home renovation contracts, life insurance policies and mutuaI
funds and investment vehicles be in plain English.
In 1990 the Canadian Bar Association and the Canadian Bankers' Association
Joint Committee on Plain Language published a report, The Decline and Fall
of Gobbledygook. It caIled for lawyers, bankers and the government to use
plain English.
Abandoning LegaIese for plain English may not be a matter of choice if more
provinces enact legislation similar to Alberta's.
Understanding the
historicaI development of Legalese and the forces which encourage us to
continue its use will help us accept that plain English will benefit our
clients and our profession.
Page 26
1.
1.K. Galbraith. Writing, Typing & Economics, Atlantic, March 1978, at
105
2.
Mylward v. Welden (1565) Toth 101; 21 E.R. 136
3.
Marsden v. Regan, [1954] 1 All E.R. 475 (C.A.)
4.
These comments of His Honour Judge Nick Friesen were quoted in Plain
Language for Lawyers. Make Your Law More Competitive. an article
available from the Canadian Legal Infonnation Centre, 600 Eglinton
Avenue East, Suite 205, Toronto, Ontario M4P IP3
5.
Robert Eagleson, The Case for Plain Language. The Plain Language
Centre. Canadian Law Infonnation Council, 600 Eglinton Ave. East,
Suite 205, Toronto, Ontario, M4P IP3
6.
George Orwell, "Politics and the English Language"; A Book of Essays
by Caryle King and Robert Chambers, The Bryant Press Limited, 1963
7.
William Strunk and E.B. White, The Elements of Style, MacMillan
Publishing Co. Inc.• 1979
.
TRI OCEAN PLACE
500,222· S8 AVE S W
CALGARY, ALBERTA
T2H 253
,A'", .9''''''''''""1 ~ CC..-l
GORDON J HOFFMAN·
T~lephQn.:
(403) 2S8-08QO
Fax: (4031 253-<)738
YamudY~"
MICHAEL J OORCHIK·
YOUR FILE
OUR FILE
November 28, 1990
5735.7
10,261 GJH
Robertson Stromberg
Barristers & Solicitors
#700 - 122 - 1st Avenue South
Saskatoon, Saskatchewan
S7K 7ES
Attention:
Mr. Reynold A. Robertson
Dear Mr. Robertson:
RE:
Anibal ("Bill") Rodrigues
Motor Vehicle Accident:
September 30, 1990
(Saskatchewan) v. Marcene B. Kirkpatrick
We enclose herewith Accident Report documentation as recently
recei ved
pertaining
hereto,
for
your
reference,
with
additional materials
and statement documentation to be
dispatched in your favor upon our being placed in receipt
thereof. Thank you.
Yours very truly,
HOFFMAN JORCHIK
GORDON
~.'·HOFFMAN
GJH:sam
Enclosure
cc:
Mr. Bill Rodrigues
• DENOTES PROFESSIONAL CORPORATION
•• NOT A MEMBER OF THE PARTNeRSHIP
.,¥'" g.>~
.<a?:,",....
TAl OCEAN PLACE
500,222·58 AVE S W
CA1.GARY ALBERTA
T2H 253
~...-I
Telltphone: (403) :Z5ll~0800
Fall: (403) 253~0738
Ycr.nuud Y~ ..
GORDON J HOFFMAN·
MICHAEL J DORCHIK·
YOUR ~ILE
#5735.7
OUR FILE
nO,26l/GJH
December 3, 1990
JEC 7 1900
ROBERTSON STROMBERG,
.' ._'x
Barristers & Solici tors ;~- ..' .. '
#700, 122 - 1 Avenue South,
Saskatoon, Saskatchewan.
S7K 7E5
Attention:
,i,
._ _ _ _J
Mr. Reynold A. Robertson
Dear Mr. Robertson,
RE:
Aniba1 ("Bill") Rodriques
v. Marcene B. Kirkpatrick
Motor Vehicle Accident - September 30, 1990 (Saskatchewan)
We acknowledge your recent correspondence with thanks, same
being forwarded herewith to our client for reference and review,
with the Accident Report being appended herewith for writ
preparation reliance purposes. Thank you.
Yours very truly,
HOFFMAN #,CHIK
j!\~OFFMAN
GORDON
GJH/ig
Enclosure
cc Mr. Aniba1 ("Bill") Rodriques
Enclosure
.CENOTES PROFESSIONAL CORPORATION
• -NOT A MEMBER OF THE PARTNERSHIP
TOUCHSTONE PLACE
500,222 - 58 AVE. S.W
CALGARY, ALBeRTA
T2H 2S3
GOR~ON
J. HOffMAN'
MICHAEL J, OORCHIK'
,",,0)
T.lepho ...e: (403) 258~0800
FI., (403) 253.0738
I.
SAMUEL SWITZER"
January 1, 1991
YOUR fiLe
57 3 5 • 7
OUR FILE
10,261 GJH
Robertson Stromberg
Barristers & Solicitors
700 - 122 First Avenue South
Saskatoon, Saskatchewan
S7K 7E5
Attention:
Mr. Reynold A. Robertson
Dear Mr. Robertson:
RE:
Anibal ("Bill") Rodrigues
v. Marcene B. Kirkpatrick
Motor Vehicle accident: September 30, 1990 (Saskatchewan)
We acknowledge your recent correspondence and attachment with
thanks, same being forwarded herewith to our client for reference
and review, the writer confirming the acceptability of the Writ
for filing purposes.
Kindly proceed to service thereof therafter,
and confirm when service has been perfected, the writer requesting
that your office hold its file in abeyance thereafter pending
receipt of further communication from our firm in order that
we might then endeavor to initiate settlement proceedings with
the third party insurer, all statutory constraints to be addressed
by your firm.
We appreciate your attention hereto and assistance herein.
you.
Yours very truly,
HOFFMAN
DOOHIK
GORDON J
.f~~~FMAN
GJH:sam
cc:
Mr. Bill Rodrigues
Enclosures
'CENOTES PROFESSIONAL CORPOAATION
•• NON~PRACTIClfllQ ASSOCIATE COUNSEl..
Thank
goods and chattels
rest and residue
cease and desist
save and except
null and void
good and sufficient
free and clear
full and complete
name and appoint
will and testament
promise and covenant