Building Rapport

An article I found today says that in 2 weeks the South African Consumer Protection Act comes into effect. It says that:

Companies need to draft documents that:

• An ordinary consumer
• For whom the product is intended,
• With average literacy skills
• And minimal experience of the relevant goods or service
• Will be able to understand
• the first time they read it,
• without undue effort.

I don’t know if this is an accurate expression of the new legal requirement, but I hope not. I draw your attention to the last 2 bulleted items in my list above (that are combined with the the previous item in the article):

• the first time they read it,
• without undue effort.

As a writer, and occasional legal drafter, I think these criteria are unreasonable. It is unreasonable to demand that a business or legal document can be fully understood on a quick reading. Time should be taken for careful consideration. It is also unreasonable to use the phrase “undue effort” because:

1. the person who doesn’t grasp the meaning will presume they have made enough of an effort, and
2. consumers do not appreciate the amount of effort they should make to understand a legal, business document
3. the courts will struggle to decide whether the due effort was made.

I think the requirement should be that the person make a “reasonable effort” which is a term the courts are more likely to interpret the right way.

What do you think?

Too often, we are expected to go faster and faster for political reasons. Too many people think plain language change is quick and easy.

Plain Language in Organizations

To help people cope, Kate Harrison and I wrote Plain Language in Organizations: An Action Plan (ebook) but this plan addresses the plain language change in a single organization. The newest developments apply to an entire industry, a U.S. state, or a national government apparatus.

Delay: Country by country

Recently in South Africa, the plain language trainers, writers aountrynd editors had been rushing to satisfy clients who needed to comply with the approaching deadline set by their new Consumer Protection Act. And businesses spent millions over the 18-month advance period. The original date for effect has now been delayed from October this year to March 2011. Even after 18 months for preparation the government has not filled all the commission posts nor released regulations to guide compliance efforts.

Elizabeth Warren has been given the task of setting up the U.S. Consumer Financial Protection Bureau by July 2011. Because hers is a temporary appointment, the Bureau won’t be able to publish regulations until a permanent director is approved by the U.S. Congress. Not a bad idea to take some time.

One U.S. government employee is quoted elsewhere saying:

Making plain language a requirement, rather than just a best practice, means agency web managers will be able to make a stronger case for allocating dollars towards content producers and writers… It isn’t easy to simplify some government content, so you need that expertise to be truly successful. Plain language would mean better service for citizens, which is what every federal web manager is striving to provide.

Changing the whole government’s style

Soon the U.S. President will sign the Plain Writing Act 2010 (almost certain since Obama was a sponsor of the previous bill). Another change process will begin as all government agencies scramble to comply. This legislation may run into problems with its deadlines also.

My friend and a plain language advocate, William Dubay , has commented elsewhere on this new Act:

Government interest in plain language began in the 1970s in response to consumer complaints. Most states at that time enacted laws that required plain language in agency regulations and insurance policies. Some of these laws have been very effective. Insurance commissioners regularly enforce the insurance requirements but most of the agency requirements are lacking enforcement and standards.

The message may be loud and clear on jargon, but weak and vague on standards, funding, and enforcement. Managers will be loathe to implement new demands for which no resources have been provided. Americans may be losing money because of poor writing practices, but good writing practices take training, method, and practice, which all cost money.

Clear definitions still to come

For all of these programs, one challenge is to decide what sort of efforts or results will satisfy the expectation of plain language. An agreeable definition is hard to come by. The international, non-government Plain Language Working Group of experts is still working on this too. Even agreement amongst plain language advocates is hard to reach.

Managing change

Dominique Joseph, a language analyst in Ottawa, has provided some links for support on managing change:

• Kotter’s 8-step change model: http://www.mindtools.com/pages/article/newPPM_82.htm
• Website based on Kotter’s “Heart of Change” book: http://www.theheartofchange.com/
• Chip and Dan Heath (in their book “Switch”), also talk about the importance of using both “feeling” and “thinking” to create the motivation for change.
• A favorite story — Gloves on the boardoom table: http://www.theheartofchange.com/ It’s wonderful

Still, for a mere $15 Plain Language in Organizations is a good guide for use within a department or division of a larger entity.

picture credit: Cover image of a foundational text of the plain language movement, the 1966 Gobbledygook Has Gotta Go by Bureau of Land Management employee John O’Hara; via the U.S. Fish & Wildlife Service.

The last defence of the nervous lawyer is “the judge won’t like it.” Guess what she will like plain language.

Joe Kimble and others conducted studies in Michigan, Florida, and Louisiana more than twenty years ago. Robert W. Benson and Joan B. Kessler conducted another study in Los Angeles, California. The results indicate that the participants found the Legalese passage to be less persuasive than the Plain English version. The respondents also believed the Plain English author was more believable, well-educated, and worked for a prestigious law firm. All of these studies compared only sentences or paragraphs and included both lawyers and judges.

A new study compared actual pleading documents, surveyed only judges, and asked directly and only about persuasiveness. Of 800 judges mailed the survey, 292 responded. This survey was conducted by Sean Flammer, a trial attorney at a Texas litigation firm. He had previously clerked for a judge of the United States Court of Appeals for the Eleventh Circuit.

The study has been reported in the Journal of the Legal Writing Institute and has become available online:

PERSUADING JUDGES: AN EMPIRICAL ANALYSIS OF WRITING STYLE, PERSUASION, AND THE USE OF PLAIN ENGLISH
Sean Flammer
The Journal of the Legal Writing Institute [Vol. 16] 212
also: http://www.journallegalwritinginstitute.org/archives/2010/183.pdf

Flammer survey shows:

The results are clear: judges prefer Plain English to Legalese. Whether a judge is an appellate or trial judge or a federal or state judge plays no role in whether the judge prefers Plain English. Nor does the judge‘s gender, age, years of judicial experience, or years of experience in the legal profession. Whether a judge‘s district is rural or urban plays no role, either. Judges—by a two-thirds margin—find Plain English more persuasive than Legalese. Thus, it is in the litigator‘s interest to submit pleadings in Plain English.

Flammer worked with 3 samples drawn from an actual court pleading:

1. a 3-page excerpt from the original pleading
2. a plain language revision, following the advise of experts in legal writing
3. an “informal” version taking plain language plainer, using contractions and colloquialisms

Each judge saw either #1 and #2 or #1 and #3. A majority of judges preferred 2 or 3 over the legalese of #1.

Flammer reports:
The judge‘s age, number of years spent in the judiciary, number of years spent in the legal profession, and gender had no correlation with whether the judge preferred Plain English or Legalese. Further, whether the trial judge was from a rural or urban district did not matter.

Some judges elaborated on their preference with these remarks about the the Plain English sample:

• more persuasive because of the succinctness of the argument.
• easier to understand, more clear and straightforward, and therefore, more persuasive.
• simpler, more direct prose. Getting to the point trumps pontificating any day.
• easy reading. It goes directly to the point.

Judges appreciated:

• brevity
• use of lists
• deletion of the opening paragraph‘s gobbledygook language

These judges found the Plain English sample to be ―cleaner, leaner, and more effective and understandable.

The bad news for legalese writers is that they won’t be read carefully:

The convoluted style led me to skimming for its essence. This was not the only judge who stated that the writing style in the Legalese sample inspired him to pay little attention to the document‘s logical intricacies. These comments make clear that an indirect and convoluted writing style is likely to make the document go unread. An unread document cannot be persuasive.

The minority of judges who preferred legalese, liked that it was
―more polished
―formal
―easier to read

What about the “cranky” judges (my soulmates)? They said that the two plain language versions did not go far enough. Those writings were

• too wordy
• poor writing
• too verbose and filled with formal legalese
• not punchy enough
• capable of being made more succinct

The data show that judges—as a group—would much rather have an attorney err on the side of informality than err on the side of being too stilted and formal. One judge made a fair criticism of this Plain English sample in that it was not plain enough and was too wordy. Another said, “Short and direct is almost always more persuasive.”

More evidence is in, judges are sold on plain language, so why not be brave and use it.

Read my books, Plain Language Legal Writing and Plain Language in Plain English, both available with free U.S. shipping this summer at Plain Language Wizardry.

Today we have a guest post from Dominique Joseph.

Is it possible or even useful to legislate ‘plain language’?

This question has been asked, at least, since “The Decline and fall of gobbledygook: Report on plain language document”, produced by the Canadian Bar Association and the Canadian Bankers’ Association joint committee in 1990.

There is more complete and recent info, but it still raises good points. I will start with the committee’s point of view, and then provide the definitions for the subjective and objective approaches (since those two terms appear in the point of view).

THE JOINT COMMITTEE’S POINT OF VIEW:

“The Joint Committee does not believe that plain language documentation is a suitable matter to be dealt with in legislation. The problem with plain language legislation is that it ignores the fact that plain language drafting is a process rather than the application of a fixed set of rules.

Thus, in the case of the “objective approach, one could apply the rules set out in the Connecticut statute and still have a document that is unintelligible. In the case of the “subjective” approach, a problem arises because there is no commonly accepted standard of what is readable. A person compelled to draft a “readable” document by statute is unlikely to strive for the highest standard of readability.

Legislation can be effective when its object is to prohibit persons from engaging in specified types of undesirable conduct. Legislation is not effective when it tries to require individuals to undertake some positive action that requires time, skill, effort, and commitment.”

SUBJECTIVE and OBJECTIVE APPROACHES:

“The legislative approaches to date have taken two forms. The first approach, adopted by New York and the Alberta legislation, has been called the “subjective” approach because of the general requirement that agreements and contracts be written in a “clear manner using words with common everyday meanings.” Beyond this general guideline, the subjective approach does not define plain language nor does this approach establish specific criteria for a plain language document.

[...] The second approach to plain language legislation, adopted by Connecticut, has been called the “objective” approach because of specific requirements defining what constitutes a plain language document. Typically, this approach stipulates the average length of sentences, the size, and style of typeface used, the length of lines and the size of margins. In addition, this approach may require the document to score in a particular range on a readability test, such as the Flesch test.”

A very interesting puzzle, indeed!

Plain Language Pleadings

Carol Ann Wilson, author

Plain Language Pleadings

ISBN 0-13-199639-8

This is a book for lawyers and anyone who drafts documents for lawyers, but particularly legal assistants/paralegals and legal secretaries.

I would describe it as a professional guide; Prentice Hall considers it a textbook. There are tools included: samples, forms, and checklists. There is a review of grammar rules and advice from experts.

This is the only book devoted to lawyers’ assistants who draft documents. It provides arguments that can be used to convince those lawyers to use plain language instead of legalese.

I will be posting information on the books currently available to you. The first set will be books on legal writing.

Christine Mowat, author

Support the U.S. Plain Language Act

A proposed law requiring the US federal government to use plain language on certain forms and documents is stuck in a Senate committee, due to the opposition of the legal staff of Utah Senator Robert Bennett.

The Plain Language in Government Communications Act of 2008 (S-2291) requires some federal government agencies to write some documents in plain language in the future. It calls for using plain language when writing new government documents about:

• Government requirements
• Government programs
• Obtaining government benefits
• Obtaining government services

This is not a pie-in-the-sky idea. It is needed to ensure that government documentation uniformly meets legal expectations. Remember this 1998 case?

Walters v. United States Immigration and Naturalization Service.
Certain government forms were so difficult to read that they violated due process requirements of “notice” of legal consequences. The 9th Circuit Court of Appeals found that those facing INS charges of document fraud did not get due process. The forms used by INS did not “simply and plainly communicate” the possibility of deportation. The court ordered INS to redo the forms and not to deport anyone based on the inadequate forms

There is a FAQ about the proposed law at plainlanguagelaw.com.

Here are three ways Americans can help move this law forward:

1. Send a letter to Senator Bennett supporting the bill. The letter can be brief. Mail the letter to Hon. Bob Bennett, 431 Dirksen Building, Washington, DC 20510-4403. If you can, please also fax it to the attention of Shawn Gunnarson at (202) 228-1168.

2. If you live in California, call Senator Feinstein’s office. She chairs the Rules Committee. As chair of the Rules Committee, she can intervene. If you are not in California, her D.C. office is (202) 224-3841.

3. Contact these Republican cosponsors, if you live in their states. Call the D.C. office and ask them to get Bennett to move on it.
• Susan Collins, Maine (202) 224-2523
• Thad Cochran, Missouri 202-224-5054
• George Voinovich, Ohio (202) 224-3353

General Rules and Regulations
promulgated under the
Securities Exchange Act of 1934

Rule 13a-19 — Plain English Presentation of Specified Information

---

1. Any information included or incorporated by reference in a report filed under section 13(a) of the Act that is required to be disclosed pursuant to Item 402, 403, 404 or 407 of Regulation S-B or Item 402, 403, 404 or 407 of Regulation S-K must be presented in a clear, concise and understandable manner. You must prepare the disclosure using the following standards:
   1. Present information in clear, concise sections, paragraphs and sentences;

   2. Use short sentences;
   3. Use definite, concrete, everyday words;
   4. Use the active voice;
   5. Avoid multiple negatives;
   6. Use descriptive headings and subheadings;
   7. Use a tabular presentation or bullet lists for complex material, wherever possible;
   8. Avoid legal jargon and highly technical business and other terminology;
   9. Avoid frequent reliance on glossaries or defined terms as the primary means of explaining information. Define terms in a glossary or other section of the document only if the meaning is unclear from the context. Use a glossary only if it facilitates understanding of the disclosure; and
   10. In designing the presentation of the information you may include pictures, logos, charts, graphs and other design elements so long as the design is not misleading and the required information is clear. You are encouraged to use tables, schedules, charts and graphic illustrations that present relevant data in an understandable manner, so long as such presentations are consistent with applicable disclosure requirements and consistent with other information in the document. You must draw graphs and charts to scale. Any information you provide must not be misleading.

In drafting the disclosure to comply with this section, you should avoid the following:

1. Legalistic or overly complex presentations that make the substance of the disclosure difficult to understand;

2. Vague “boilerplate” explanations that are imprecise and readily subject to different interpretations;
3. Complex information copied directly from legal documents without any clear and concise explanation of the provision(s); and
4. Disclosure repeated in different sections of the document that increases the size of the document but does not enhance the quality of the information.

71 FR 53158, 53261, Sept. 8, 2006.

Dubuque’s congressman, Rep. Bruce Braley, introduced a bill last week that would require the federal government to communicate in easy-to-understand language.

“Anyone who’s done their own taxes knows the headache of trying to understand pages and pages of confusing forms and instructions,” Braley said. “There is no reason why the federal government can’t write these forms and other public documents in a way we can all understand.”

The Plain Language in Government Communications Act, HR 3584, sets guidelines for documents like tax returns, college aid applications and forms from the Department of Veteran Affairs. The bill’s guidelines instruct document authors to use short, simple words; use “you” and other pronouns when speaking to the reader; use short sentences and paragraphs; and avoid legal, foreign and technical jargon.

The bill, which has two Democratic and two Republican cosponsors, was referred to the Committee on Oversight and Government Reform, one of the committees Braley serves on.

According to a report appearing on www.plainlanguage.gov, “Plain talk” can result in higher revenue for the government instituting it.

An official in Washington state says their Department of Revenue estimates it has collected about $5 million in additional revenue since rewriting one explanatory tax collection letter in 2003.