An Orwellian approach to legal writing

Orwell tips for writing

Responding to an earlier post, Plain and simple, Nick Fielden, a freelance copywriter from Perth, Australia, observes: “Perhaps when it comes to comprehension, we should be thinking less of simple versus complex, and more about clear versus obscure.” I don’t know that I’d put it in quite those terms, but before I reply further, let’s take a look at all Nick has to say:

 Paul, I regret to say that even the most talented marketing executive has yet to come up with a ‘sure fire way’ to get a customer to walk out with an extended warranty or service plan. Put frankly, plain and simple language alone is not enough to persuade a reader to take action. But I accept that is not the core argument of your blog. You make the case for simplicity against complexity in order for a written message to be understood.

But again, it is not as simple as that, especially in the case of warranties. Show me a warranty relating to a consumer product that does not contain words that require further definition. If plain and simple language by itself were the key to complete customer informed consent, lawyers would be seeking the drafting skills of writers more frequently than they do.

To take the disclaimer attached to your attorney group’s blog, ‘Plain and Simple’, as an example: the expressions ‘merchantability’, ‘fitness for a particular purpose’ and ‘noninfringement’ are all used. The man-in-the-street may well have an opinion as to the meaning of each. What he probably does not know is that (in the English and Australian jurisdictions at least) they have been given statutory status and that the courts have given judicial interpretation to them. They are terms of art. The use of such expressions in a business document for public consumption, therefore, begs the question whether they require additional explanation for the benefit of the layman.

Perhaps when it comes to comprehension, we should be thinking less of simple versus complex, and more about clear versus obscure.

Nick’s comments not only prompted a reply, below, but inspired me to revise the blog’s disclaimer. (What do you think?)

Now, replying to Nick’s comments, I submit in effective writing, clear and simple walk hand-in-hand. Indeed, three of Orwell’s six tips for good writing support this view:

  • Never use a long word where a short one will do.
  • Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.
  • If it is possible to cut a word out, always cut it out.

And while it is surely true that plain and simple language alone is not enough to spur a reader to act, it’s the best place to start. Everyday words – those most easily understood – make the strongest impression. They hit home. Thus, plain simple language guarantees that your message will get through to the reader far more often than not, highly increasing the likelihood of producing the desired outcome.

But plain language, I dare say, makes some (many?) (most?) lawyers uncomfortable. I believe this for many reasons, the most basic being that plain language bucks tradition. My colleagues and I rarely encounter it in the statutes, court decisions, contracts and other documents we wade through on a daily basis.

Plain language also rubs against the training most of us received in law school – although recently, many law schools have started to encourage using plain language in their legal writing programs – and as young attorneys. In law firms, newly minted associates assigned to draft a legal document frequently hear “don’t reinvent the wheel.” So the new lawyer sends an email to the other lawyers in the firm asking for examples of a motion, contract or other legal paper. In return, he receives examples of documents themselves modeled on earlier documents that were modeled on even earlier documents, and so on. Heeding the warning against “reinventing the wheel,” the new associate and does the least work necessary to tailor “the example” (“the form”) (“the template”) to fit present needs. The result:  Sins of the past sail merrily on.

Another obstacle may be a perception among attorneys, especially young ones, that simple language sounds simplistic and not very lawyerly. And then there’s the believe, shared by some lawyers and businesspeople alike, that legalese and legal jargon and terms-of-art offer a greater level of protection compared to plain language. As outlined in the post that started this discussion, I believe the opposite to be true. Clear, plain language is the best defense against having a reader misread or misunderstand your document and the unintended consequences, usually bad, that follow when either of these things happens.

Finally, expressing legal rules, standards and concepts in plain simple language is hard work. Using “boilerplate” is much easier, less stressful and requires far less effort. In fact, the ability to “dumb down” complex or complicated concepts is, in my view, one trait that separates top-notch lawyers from the rest of the pack. The easier one’s argument is to understand, the more likely it is to persuade.

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3 Comments

Filed under Best Practices, Customer Experience, PR & Branding, Service Contract, Warranty

3 responses to “An Orwellian approach to legal writing

  1. Nick, thank for your questions and comments.
    My answer to your first question is that when it comes to plain language, no distinction need be drawn between client communications and legal papers (contracts, warranties).
    As I argue in prior posts, using legalese and legal terms-of-art in a contract or warranty does not offer the client better protection than does clear and simple language. I believe the opposite to be true. So as a rule, vox legis, to use your term, should be avoided whenever and wherever possible. Use it only when a statute, regulation or rule requires that you do so. [For example, the federal Magnuson-Moss Warranty Act requires a warranty to contain several prescribed statements.]
    To illustrate the point, let’s look at Uniform Commercial Code (“UCC”) section 2-316, which governs how parties to a sales contract may exclude or modify warranties. While this section states a general rule, it does not prescribe a specific word or phrase necessary to exclude an implied warranty. Instead, it quite clearly encourages contract drafters to use commonly understood language to make clear the parties’ rights and duties, and gives examples. Subpart (2) says, “[T]o exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous.” Subpart 3(a) says that “all implied warranties are excluded by expressions like ‘as is,’ ‘with all faults’ or other language which in common understanding call the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty…. Language to exclude all implied warranties of fitness [and merchantability is a warranty of fitness] is sufficient if it states, for example, that ‘There are no warranties which extend beyond the description on the face hereof.'”
    The Code does not force the lawyer drafting a sales contract to use the term “merchantability” to express a valid warranty disclaimer. It merely requires that the concept be “mentioned.” Yet I doubt one can find a warranty disclaimer that does not use the term “merchantability.” And as you’ve argued, “merchantability,” although commonly used is not commonly understood. It requires further definition. But I doubt once can find a contract that defines it.
    The Code makes clear that an effective disclaimer can be as simple as: Seller’s only promise to buyer is to deliver the [automobile, RV, etc.] described in section X, above. Seller makes no other promises or warranties.
    Why do lawyers and business people who draft contracts ignore the Code’s call for commonly understood language? I don’t know for sure, but I offer several theories in the main post.
    Nor do I think that a lawyer puts himself at risk by drafting legal documents in plain language. Legalese is not a vaccination against a malpractice claim. And can lead to problems when misused or found subject to more than one interpretation. In the latter case, the ambiguous language will be read and applied in favor of the other party, that is, to the disadvantage of the client.
    Finally, I don’t necessarily agree with your suggestion that the plain English version of my blog disclaimer is untested. The plain English sections simply and clearly– I hope – restate the lawyer-speak in commonly understood language. The message is the same, it’s just that now the reader knows what it is.

  2. Paul, would you agree that a distinction should be made between the preparation of, say, correspondence with a lawyer’s client, explanatory documents or copy for legal firms’ websites, with formal text drafted exclusively for the client and upon which the client relies to protect his interests?

    The former will be improved by the use of ‘simple and clear’ language (to use your words, which I agree with) but the lawyer may risk failing in his duty of client care if he abandons recognised and well-trusted terminology in the latter – your specialisms such as contracts and warranties being cases in point.

    There is a problem here of reconciling vox populi with vox legis where, with the latter, there is no wriggle room in ensuring what you write will be upheld in a dispute.

    You have amended your blog disclaimer by placing a ‘Plain English’ version below each ‘Legalese’ text. The question now is which of the two will prevail in case of dispute? And if it will be the Plain English version, untested as it is, can you be assured a court’s interpretation will coincide with your intended exclusions and requirements?

    Subject for another of your blogs? I would look forward to it.

  3. Pingback: Three cheers for plain language | Driving Value

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