Building Rapport

The Canadian governments at various levels have taken up plain language as part of their efforts to

• Inform the public about law,
• Train people to read or write in English or French,
• Raise the skill-levels of the workforce,
• Deliver health information and services with good effect,
• Better serve the public though government agencies.

Continuing the series on Canada’s history of plain language, I start with the field I know best–law.

1. Access to Justice Issue

In 1972, the Law Reform Commission of Canada raised the importance of having the public involved in law reform for modernizing the law. In 1973, the Law Reform Commission of Canada advocated for the reform of statute law to make it easier for the average citizen to understand. In 1975, their Report on Access to Justice raised concerns about the inaccessible language in the judicial system. Another Access to Justice Report, in British Columbia 1987, devoted a chapter to plain language.

The governments began efforts to deal with these concerns. Canada has a federal system with 11 provinces and 2 territories. It has a federal court system and separate court systems in each province. Canada also has both a bilingual system and 2 systems of law: common law generally and a legal code in the province of Quebec. It takes time for reforms to take effect across the country and in both legal systems.

Canada’s Institute for Administration of Justice’s holds an annual Writing Institute that includes plain language in its courses for judges and tribunalists. The Canadian Judicial Council publishes model plain-language jury instructions. Canadian Judicial Council advocates for plain language rules and plain language forms. The National Judicial Institute advocated plain language to address the systemic discrimination against those who come before the courts: Literacy in the Courtroom: A guide for judges.

The Canadian Legal Information Centre (CLIC) was set up to deal with the issues raised by the Law Reform Commission. The CLIC set up its Plain Language Center and began a library of plain language resources in 1983. With funding from the National Literacy Secretariat, many of these documents are now available online through the National Literacy Database (NALD.ca).

In the 90s, the legal profession and the voluntary association of lawyers, the Canadian Bar Association, began to explore plain language in earnest. In 1995, a respected author, Robert Dick, changed the name of the 3^rd edition of his work to Legal Drafting in Plain Language. Cheryl Stephens’s book Plain Language Legal Writing is available, in part, on the website of the voluntary association of lawyers, the Canadian Bar Association. The Association has adopted the use of plain language and influenced the profession through 2 studies:

One was conducted jointly with the Canadian Bankers Association and concluded plain language was needed in legal and business matters. The Decline and Fall of Gobbledygook: Report on Plain Language Documentation, Canadian Bar and Bankers’ Assocs. 1990.

The other, Reading the Legal World, concerned the needs of clients with low literacy skills and coined the term “legal literacy” to discuss the information needs of members of the public with adequate daily literacy skill still have inadequate knowledge of the law and its procedural context to understand its effects. The Lawyers for Literacy group promoted plain language.

The Council of Canadian Administrative Tribunals published Literacy and Access to Administrative Justice in Canada: A guide for the Promotion of Plain Language in 2005. It also instituted 2 levels of online plain language training for its members. Provincial associations have also developed their own plain language training. The B.C. Human Rights Tribunal became the site of a pilot program for plain language.

The B.C. Law Foundation in 2000 funded the creation of an online dictionary of plain language definitions of legal words and words related to the court procedures. With translation to 8 languages, the Multilingual and Court-Related Dictionary is available at legalglossary.ca

I recently worked with some other Canadians to identify the major events in plain language in Canada for a book. I took their material and my own and wrote about Canada’s plain language experience for another publication. Now I want to show you what I have compiled in this process: a 40-year history plain language in Canada, in brief.

Since I was not aware at that time that I would be reporting, my memory of events may be flawed. I certainly had my own perspective; I noticed that the contributions of others were focused on their own experiences. So I invite anyone to contribute in the comments below that which they remember differently or that they experienced and may not have come to be known widely at the time.

This series will run to 3 or 4 posts.

Canada’s Setting for Plain Language

A few things most people won’t know about Canada:

• From the Atantic Ocean to the Pacific Ocean, the greatest width of Canada is 9,306 km. This covers 6 time zones.
• Canada is 9.9 million square kilometers, the world’s second-largest country by total area, and the largest in the western Hemisphere.
• Canada’s population has grown from 28 million in 1991 to an estimated 35 million in 2012.
• About 4/5s of Canada’s population lives within 150 kilometres of the United States border.

Canada is officially bilingual (French and English) but, as a country of immigrants, many languages are spoken here and referred to as non-official. The First Nations people also strive to preserve their own Aboriginal languages.

This chart gives the most-used non-official languages used in Canada and the number of identified speakers. Yet another 2 million people speak other languages.

Non-official languages        6,147,840 speakers

Chinese                         1,012,065

Cantonese                       361,450

Mandarin                        170,950

Chinese, n.o.s.                456,705

Italian                             455,040

German                          450,570

Polish                              211,175

Spanish                           345,345

Portuguese                     219,275

Punjabi                            367,505

Ukrainian                        134,500

Arabic                              261,640

Dutch                               128,900

Tagalog (Pilipino)           235,615

Greek                              117,285

Vietnamese                    141,630

Cree                                  78,855

Inuktitut (Eskimo)         32,380

Canadian Philosophy of Plain Language

Canada took up plain language to serve democratic values. Canadians believe:

1. People must be able to see and understand the laws that rule their lives.

2. Since we hold people responsible to laws, they have a right to know the law.

3. People do not really have rights unless they know and understand those rights.

4. People need to know basic law to do their daily business.

… more soon

Nominate a publication, form, website, or policy document that uses plain language principles. The ClearMark season is upon us. Don’t even think about the Academy Awards until you’ve sent in your nomination! Nominate your own work–why not? Mention the positive impact of your work: improved response rate? lower costs? better compliance? reduced questions into your call center?

You have until March 3.

ClearMark Awards honor the best clear communication in government, academia, and the private sector. Let your clear communication be a model for other organizations!

Learn how to submit for a ClearMark Award from the Center for Plain Language at http://centerforplainlanguage.org/awards/award-nominations/

After the global success of International Plain Language Day 2011, the plans for an even greater event are officially underway for IPLDay 2012 October 13. If you have plain language ideas, expertise, or stories to tell, here is your chance. IPLDay 2012 has incorporated  SlideShare and YouTube presentation options for an online program for that day.

Local events will also be organized. We will announce those as soon as local organizers let us know what they will be doing.

IPDay has a blog set up to give you all the details in one place. My co-organizer is Kate Harrison Whiteside and we feel sharing our commitment to plain language on new and social media platforms will help spread the word and keep it on the world’s agenda.

Here is how you can support and share information about IPLDay 2012.

LinkedIn – Plain Language Advocates and IPLDay sub group

Facebook – Page

Twitter – #iplday

Spread the word.

If you are homeless in Vancouver and you want to live in public housing, there is a paper wall to keep you out:

• The basic application form is 13 pages long.
• The additional form required of those who have been homeless is 9 pages long.
• And then you must complete a form for each individual housing project that you might live in.
• Supplemental forms like an application for a copy of a birth certificate.

Picture a destitute family about to lose their housing. Someone in the family must be calm and collected and literate enough to fill out 2 of the forms above. The 2nd form must be completed for each of the housing projects they might qualify for.

Picture a destitute person who has been sleeping under a bridge for month or years. She must complete all three sets of forms–while she is anxious, hungry, and weary.

You see the wall there?

Have you heard of situational limited literacy? That’s when the context or the circumstances are so stressful or overwhelming that whatever literacy skills you have had in the past, they are not available to you in the present moment.

Since so few people get over that wall, a local group has formed for the purpose of documenting the homeless in their neighborhood and completing the application forms.

I have not seen these forms so I can’t tell you whether they are in plain language but I would say the odds are against it.

A recent news article referred to my years of work promoting plain legal language and legal literacy: http://www.lawyersweekly.ca/index.php?section=article&volume=31&number=26&article=3

Thinking about this, two things came to mind and I want to address them.

1. Plain Language vs Literacy

Twenty years ago many plain language proponents wanted to draw a bold line between the plain language and literacy issues. I think it was a defensive response to the accusations that we wanted to “dumb-down” legal writing and force lawyers to write to the “illiterate”.

In the Canadian Bar Association activities, we sometimes referred to “legal literacy” in an effort to point out that even the literate client lacked the legal context to understand much of legal writing. That is one way to deal with the barbs, but it still avoids the literacy issue.

2. Audience: a general public?

When the intended audience for a piece of legal information or for a consumer contract is the general public, literacy is an issue. Most plain language proponents would have said then that there is no “general public” since we do not have adequate information about their needs and abilities.

Twenty years ago, the first international literacy surveys were beginning to tell us quite a lot. We now know the literacy abilities of the working population versus the whole adult population. We know the differences in reading abilities between the native English speakers and others for whom English is not their first or preferred language.

Canada is one of the most literate countries, but we learned that about 17% Canadian of the  public could only recognize words or phrases but not decipher sentences.  About 26% could get meaning from sentences, but not well enough to decipher legalese. Another 35% has functional reading skills but cannot cope with legal jargon and does not have the context needed to truly grasp legal warnings, procedures, and instructions.

So, when we are dealing with the general public, especially in a multi-lingual, multi-ethnic society, we need to be clear, straight-forward, and thorough in the information we convey and how we say it.

A plain language writer or editor who does not understand the literacy situation in their country, does not understand their public.

Plain language, then and now
By Cheryl Stephens

In the 17th century Latin and French dominated England’s royal court and law courts, while the working people in the streets were demanding plain old English. Plain language remains a democratic demand and a civil right into the 21st century.
Australian Robert Eagleson was touring Canada, when I first heard of plain language.

In 1989 he shared his experiences as a professor of English and a consultant to law firms and government with the Canadian plain language movement. Clarity, an international association of lawyers favoring plain legal language, was already promoting clear legal writing from it base in England under the leadership of solicitor Mark Adler.

With Kate Harrison Whiteside, I founded what is now the Plain Language Association InterNational (PLAIN) in 1993. It is now one for the groups leading the international movement along with Clarity and the Washington.DC-based Center for Plain Language.

Leading from the heart at the Center is Annetta Cheek, a veteran of 25 years with the U.S. government. Annetta was the key lobbyist in getting the US Plain Writing Act passed in 2010. From the anniversary on October 13, U.S. government staff must write plainly all forms and information concerning public benefits and services.

This major accomplishment has inspired plain language proponents all over the world to renewed efforts. It was this that led me to persuade Kate Harrison Whiteside that we have an opportunity to celebrate the accomplishments of the last 30 years in providing clear understandings to our publics.

So Kate and I declared October 13, 2011 the first annual International Plain Language Day. This late inspiration gave us only weeks to organize but the Internet has brought both a greater demand for plain language and the tools to organize quickly. Many activities will take place in several countries.

Individuals like Mark, Robert, Annetta, Kate, and I, who are passionate about the issue, have kept the movement alive even when changes in political regimes cancelled projects and institutions. I thank them for their pioneering activism and camaraderie in the early days of our movement.

I am proud that the Mayor of Vancouver has proclaimed October 13 International Plain Language Day for my city. I encourage others to start now to get a proclamation from their own city next year.

No event in your area? Here is how to spend your day October 13

• Sleep late.
• Read a newspaper with your cup of coffee. Use a red pen to circle tired, trite phrases, mixed metaphors, bafflegab, and other writing offences. Submit those to the collection on LinkedIn.com/PlainLanguageAdvocates.
• Phone the paper’s editorial offices and advise them to use plain language.
• Send a message to a friend; review it and rewrite those parts that could be misunderstood.
• Send another message, to many friends, and ask them to join the largest, international network of Plain Language Advocates, a LinkedIn group.
• Select an important piece from your morning mail: a consumer contract, a bank statement, a credit card statement, something from an insurance agency or car rental company, or local gym, and actually read every word of it. Call the company and ask them to explain the meaning of each sentence that is not clear and the circumstances under which each sentence would be used.
• Take time for lunch!
• Call your local continuing education program and ask if they have a course in plain language.
• If anybody asks, tell them: Plain language is clear, straightforward expression, using only as many words as are necessary… It is not baby talk, nor is it a simplified version of the language. (Robert Eagleson)
• Post your experiences on Twitter with the hashtag #iplday
• Order a plain language writing guide online.
• Check the procedures online and get the scoop on how to have your mayor proclaim next October 13 as International Plain Language Day. Make a note on your calendar to do it.
• Have a nap–it has been a long day.

This is the 4th is a series of posts questioning the current challenge of applying cognitive fluency to plain language writing.

I introduced earlier a paper written to summarize the current situation and discuss cognitive fluency applied to legal writing. And the Winner Is: How Principles of Cognitive Science Resolve the Plain Language Debate Julie A. Baker Associate Professor of Legal Writing, Suffolk University Law School Social Science Research Network: http://ssrn.com/abstract=1915300

I will summarize now what I quoted last week and add my personal opinions. In my next post, I will begin to tackle the principles of cognitive fluency.

The classical approach to persuasion set the communication pattern as a triad of audience-purpose-message and this paradigm was being taught to us when I started in plain language in 1989. According to Baker’s construction of history this was replaced by the new rhetoric. The new rhetoric saw writing as a conversation between the writer and the reader. She says the new rhetoric focused on brevity and clarity to improve reader comprehension.

Baker also sets out five theses she claims were incorporated from classical rhetoric into the new rhetoric:

(1)   Writing is recursive rather than linear.

(2)   Writing is rhetorically-based.

(3)   Writing is evaluated according to how well it serves the writer’s intent.

(4)   Writing is a creative activity that can be analyzed, described, and taught.

(5)   Teaching writing is well-served by linguistic research and research into the composing process.

Nowhere in her list do we find the reader. Baker says the new rhetoric evolved to become the platform for plain language. And the plain language movement introduced the concern for making writing understandable for the reader.  It seems obvious to plain language writers that a conversation needs 2 participants.

In general, I can accept her vision of an evolution from the earliest communication triad to the current plain language approach. Through discussions with others in plain language, I believe we now need redefine our plain language paradigm to describe how we seek to align the purposes of both writer and reader and to merge their challenges and constraints in order to ensure a clear and mutual understanding of their conversation.

I am, however, concerned that insisting on using evaluation methods to ensure understanding should not be the end of the argument about what plain language is. In the last 30 years, there has been much scientific discovery that can tell us what will make our writing easy to understand. It will enlighten us about reader’s cognitive patterns and needs. It will also help us to modify writing to suit specific purposes: learning, remembering, analyzing, problem-solving, decision-making, and judgment. The application of the current learning is a challenge to us. Taking the research further and applying it to writing is a challenge for neuroscientists and cognitive psychology, but I think we need to bring this to their attention.

When a law is in place penalizing people for not writing to be understood, shouldn’t we learn what science can tell us about how people understand?

This is the third in a series of posts in which I am asking readers to express their views on the application of cognitive psychology to plain language practices. See Part One and Part Two.

As promised, I will introduce you to this article today:

And the Winner Is: How Principles of Cognitive Science Resolve the Plain Language Debate
by Julie A. Baker Associate Professor of Legal Writing, Suffolk University Law School

by means of a summary. But first, I know this article is not easy reading, but rather than criticize Baker’s legal style, let’s search it for the usable ideas.

I will give  3 reasons why I think you should read the full article:

1. Baker summarizes the history of the genre of legal writing through these forms:
   • traditional style,
   • New Rhetoric,
   • Plain Language as a consumer movement, and
   • new efforts to adopt the scientific learning acquired though neuroscience and cognitive psychology.
2. Baker concludes that we can and ought to modulate our writing style within a single document to move between
   • a. pleasing readers and making some information easy for them to process with the simplest method our brains employ
   • b. challenging readers to engage in logical analysis when needed for our purpose.
3. Hers is the first article I have found that applies the concept of fluency in a practical way to a specific writing genre.

Moderating Fluency

The main point I want you to consider is Baker’s conclusion that, examined through the lens of cognitive fluency, the competing approaches to legal writing are not mutually exclusive, but should be viewed more like “endpoints” on the spectrum of language available to the writer. Knowing this, an effective writer is can achieve credibility and persuasive force through deliberate, conscious choice of language from across this spectrum of complexity and clarity.

[Using] fluency principles going forward

Recent cognitive studies have shown that while more fluent words are easier and more familiar, they are also less stimulating, and cause our brains to engage much less when processing them. Less fluent communications, on the other hand, require the brain to engage in more complex processing – which also means processing that is more careful and, often, more interesting.

Less fluent communications have been found to heighten risk perception among readers, too. Thus, skillful legal writers should actually be able to choose the level at which they cause their readers to engage by choosing the level of fluency that they employ – always taking care to make their writing neither too simplistic, nor so complicated that the reader gets frustrated and simply gives up…
“Cognitive Fluency…is a key indicator not only of whether and how people understand information, but also of people’s judgments regarding that information. In other words, the more “fluent” a piece of written information is, the better a reader will understand it, and the better he or she will like, trust and believe it.”

Along the way to reaching this conclusion, Baker describes earlier approaches (as she sees them):

New Rhetoric
“New Rhetoric” attempted to solve these deficiencies by considering not only the finished form, but the process as well. This new rhetoric acknowledged that legal writing was a conversation between the writer and the reader. Most notably, the new rhetoric paradigm focused on brevity and clarity throughout the writing process to improve reader comprehension. The new rhetoric method applied the five basic theses of classical rhetoric to legal writing pedagogy:

(1) that writing is recursive rather than linear;
(2) that writing is rhetorically based;
(3) that the written product is evaluated based on how well it fulfills the writer’s intent;
(4) that writing is a creative activity that can be analyzed, described, and taught; and
(5) that the teaching of writing is well-served by linguistic research and research into the composing process.

The Plain Language Approach
The ideas supporting new rhetoric evolved to become the platform for plain language. Advocates for the new plain language approach theorized that the effective conversation sought by the proponents of new rhetoric could not be achieved until the language it was conducted in was intelligible to the reader. If the objectives of legal writing were to be clear, simple, and persuasive, then writing in plain language was the best way to further those objectives.
Plain language is more than just writing in simple terms and striving for brevity… Writers employing plain language plan, design, and organize their documents in an overall effort to achieve clear communication with the reader. Plain language writers also use straightforward sentences and simple words, so that the writing does not interfere with the goals of communication and comprehension.
This, too, is important for the legal writer to understand — because the possibility exists to consciously elicit varying levels of fluency in order to trigger a particular type of reasoning.

This paper can be downloaded without charge from the Social Science Research Network:
http://ssrn.com/abstract=1915300