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.