Practice Management

Plain language

Peter Butt considers the application of plain language to property statutes and documents in "Plain Language: Drafting and Property Law". Why property law - because it is an area replete with complex language and arcane terminology? In comparing the appropriateness or otherwise of plain language in law the author contrasts the 'plain' style to the 'traditional' style of legal drafting. He succeeds admirably in showing up the deficiencies in the traditional style with examples of rampant verbosity, archaic language, eccentric word order, complex grammatical structures, and sentences of excruciating length.

Examples include:
"[The tenant shall] when where and so often as occasion requires well and sufficiently ... repair renew rebuild uphold support sustain maintain pave purge scour cleanse glaze empty amend and keep the premises and every part thereof ... and all floors walls columns roofs canopies lifts and escalators ... shafts stairways fences pavements forecourts drains sewers ducts flues conduits wires cables gutters soil and other pipes tanks cisterns pumps and other water and sanitary apparatus thereon with all needful and necessary amendments whatsoever ..." when "The tenant must repair the premises" would have been sufficient.

An Australian standard mortgage contained a sense-defying clause of 763 words. It had two commas, one semi-colon, three sets of brackets, but no other punctuation - surely a case of "seeking safety in verbosity rather than in discrimination of language"? In one case bank's counsel could not even understand some of the clauses which were being contested.

It is not surprising that a move towards the use of "plain language" in law is now evident in many countries where it is manifested in a "plainer" style of legislation, and plainer, simpler forms of agreements and contracts. A number of assumptions are made and tested, to wit:

  • That it is possible effectively to express legal concepts in plain language without loss of certainly and precision, even in complex areas of law.
  • Plain legal language saves money - because it is easier to read and comprehend, it is therefore 'efficient'.
  • Judges prefer plain language - some 80% of judges in the United States of America prefer pleadings to be in plain language rather than in the traditional, convoluted American style. Some English and Australian judges have described offending clauses as "botched", "half-baked", "cobbled-together", "doubtful", "tortuous", "archaic", "incomprehensible", legal gobbledegook", and "singularly inelegant".
  • Clients prefer plain legal language - yes, quite.

In stating the case for plain language the author does not shy away from addressing what he calls "terms of art" and judicially defined terms. Here he cautions against the loss of legal precision and legal nuances of the original word or phrase.

Link to paper from Social Science Research Network

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