Building Rapport

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

Remember Molly DiBianca? Her list of the top 30 writing blogs listed several blogs on legal writing. Most are on my Squidoo Lens on Legal Writing Blawgs.

The Squidoo Lens provides the headlines to the most recent postings on each law blog, so you could subscribe to my Legal Writing Blawgs to get a quick overview of them. Use your blog feeder to subscribe.

Here is the only blog DiBianca selected, as she described it, that is not yet on my Squidoo Lens:

Disputed Issues, by Stephen R. Diamond, J.D., Ph.D., tackles common missteps in legal writing, as well as the reasons why lawyers write so badly.

Everybody wants to use shortcuts whenever possible. So boilerplate came to be to allow lawyers (and other professions, I presume) to save time when producing legal documents. In other fields, one might have “standard forms” or “precedents” or form letters, and so on.

The use of boilerplate text and boilerplate code has become a necessity in producing machine-assembled documents and software, respectfully.

But it is negligent to use boilerplate under 2 conditions:
1. you do not know what it means,
2. you have not read it carefully to determine whether it suits the present use you have in mind.

Young lawyers seem to worship boilerplate even though they do not have a clue whether it properly reflects current law or suits the client’s interest. I caution them in my book, Plain Language Legal Writing:

“… remember you will always need to reinvent the product for each client and legal situation since you cannot rely on boilerplate clauses and precedent or standard forms.”

Since we call boilerplate documents precedents here in Canada, I wrote:

A Caution on Precedents

It is a mistake to use wording from a precedent if you do not understand the meaning and effect of the wording. You should never assume that a precedent is adequate for your needs even if that precedent is commonly used in the legal community or in your office.

An effective way to edit a precedent written in out-dated legalese is to follow this two-step process:

First, rewrite the material in your own words to confirm that you understand its meaning and effect.

Second, edit and revise your version for clarity and conformity with the firm’s official style.

In working with precedents, you will often find gaps, omissions, and ambiguities that have been overlooked in previous uses. By revising and updating the material, you are actually making it more accurate and effective.

When you are drafting fresh material, it helps to look at a precedent after your first draft – to check if you have missed any common components.

Often formbooks containing precedents and model agreements also have checklists for contents. Review and use these checklists when appropriate.”

I had planned to blog about writing with clarity under the monthly campaign by Joanna Young at Confident Writing .

But when I started scanning items in my blog reader, I was reminded that today is Blog Action Day to save the environment.

My mind was working on the problem of relating writing with clarity, integrity, and authenticity to the environment, which was raising something about a post I saw which draws a distinction between the market and the audience for public relations writers.

When I got to Confident Writing, Joanna’s post is on the day’s topic. I only scanned her post, but she seems to suggest that business cut back on paper if we writers cut down the number of words we take to say anything, and thus reduce the number of trees cut down.

It is a great idea, but it triggered my main concern with all the other environmental posts I read this morning. They were all aimed at individuals while major corporations and legislators and government get a free ride today.

Now back to the post at All Book Marketing:

In book marketing you cater to a target market (people who will buy your book). In book publicity and author publicity you cater to a target audience (includes your target market, but you can have many target audiences in addition to them, like niche groups, specific members of the media, etc.).

After reading this, I was playing with how to extrapolate the distinction to use it in teaching writing process.

Now my head is in a twirl. We have these issues to pull together to try to get a blog post up today:

1. Save the environment.
2. Write with clarity, integrity, and authenticity.
3. Apply the distinction between market and audience to our problem.
4. What is the message?

So I took a nap.

I, Cheryl Stephens, say this with clarity from a place of integrity and authenticity and, with genuine respect for my brother and sister bloggers, I offer this message:

• The environment is our lives. We must defend our lives and the lives of those who follow us.
• All our personal efforts cannot match those that are needed to meet this challenge. Those who are the greatest polluters must be stopped. They cannot avoid the cost of correction by threatening us with the collapse of the economy.
• The collapse of any economy built on the monopoly capitalist/imperialist model to serve only the aim of maximizing profit,will collapse of its own sins eventually. We do not have to continue to suffer its sins; we must design the solution and plan the future.
• Let us act, whether we write, sing, dance, perform, picket, or march, to reach:
• the market
• to pressure legislators for laws to protect the environment rather than their favorite financiers and business cronies
• to demand that government enforce the laws to protect the environment from rapacious capital
• the audience
• the people whose interest is in saving the environment now for future generations
• the opinion-makers in the media and academia

• The message is that it is already too late to solve this problem by modifying lifestyles and private consumption.

Whew!

There is a movement afoot to make it possible to apologize for your actions without being considered to admit that you have done a wrong with legal consequences:

1

Apology Act of B.C., May 2006

http://www.leg.bc.ca/38th2nd/1st_read/m202-1.htm

first in Canada, several in US states

2

Since mandatory apologies provide little comfort, they are seldom ordered by adjudicators. Yet Ombudsmen receive sacks of mail saying: ‘I just wanted an apology, I’m not so interested
in compensation.‘

3

Doctors Advised: An Apology a Day Keeps the Lawyer Away

The Associated Press

“Say you’re sorry when you hurt someone. The medical world is finding that childhood lesson a surprisingly powerful way to head off malpractice suits, especially if the apology comes with an upfront settlement offer. Since encouraging its doctors to apologize for errors, the University of Michigan Health System’s annual attorney fees have dropped by two-thirds, and malpractice suits and notices of intents to sue have fallen by half, says a former trial attorney who launched the practice there…

While the number of settlements would probably increase, lawsuits and sky-high jury awards would decrease, said Doug Wojcieszak, a public relations consultant whose victims’ rights group proposed “Sorry Works.”

Apologies and upfront financial offers could mean the difference between settlements costing thousands of dollars and drawn-out malpractice lawsuits costing millions in attorney fees and jury awards, Wojcieszak said.

The idea for “Sorry Works” came from an honesty policy the Veterans Affairs hospital in Lexington, Ky., adopted in 1987 after two big malpractice cases cost the hospital over $1.5 million.

Dr. Steve Kraman, then the hospital’s chief of staff, said he helped create the policy as an alternative to the traditional “shut up and fight” strategy. The center’s liability costs subsequently dropped below those of comparable VA hospitals, he said.”

4

In the medical/legal field: movement news at The Sorry Works Coalition

http://www.sorryworks.net

5

Legislating apology in the context of medical mistakes

Apologies fall into two discrete categories: expressions of sympathy or benevolence (eg, I’m sorry you are hurt) and expressions of accountability and remorse (eg, I’m sorry I hurt you)…

6

Medical honesty is the best policy:article describing apology policy

Hurrah for civility and wit!

We seldom encounter a (U.S.) law firm with any common sense. But Darren Barefoot now knows that the lawyers representing Second Life Know where the sunshines from other places.

Instead of threatening him over his parody at the Get a First Life site, Linden Lab sent him a “Permitted and Proceed” letter. Here it is:

“We do not believe that reasonable people would argue as to whether the website located at http://www.getafirstlife.com/ constitutes parody – it clearly is. Linden Lab is well known among its customers and in the general business community as a company with enlightened and well-informed views regarding intellectual property rights, including the fair use doctrine, open source licensing, and other principles that support creativity and self-expression. We know parody when we see it.”

Read the post at Darren’s blog

With so much recent discussion of passive voice verbs, I just have to jump in.

Control the actors and the story by controlling the point of view.

The reader of mystery novels has one question: Who dunnit?

You can control the story, and the reader’s response, by your choice of active or passive verbs, hidden or key actors and clear or ambiguous words.

You can find helpful and amusing advice in The Transitive Vampire: A Handbook of Grammar for the Innocent, the Eager and the Doomed, by Karen Gordon.

Sometimes it will be in your client’s inter­est to obscure the facts and the focus of responsibility. In this situation, you may want to use the style of avoid­ance and be indirect:

To be indirect, convert verbs to passive form, replace verbs with nomin­alizations, and eliminate actors. But remember, this style is not read­er-friendly.

There are also times when you are not aiming for clarity and preci­sion. Sometimes it is a matter of courtesy — it may be rude to state the obvious or identify the guilty party. Legal writer Henry Weihofen says,

Naked clarity can be embarrassing. Pas­sive voice works when you don’t want to name the actor.

Some situations even justify violating the rules of grammar. If you are certain that it is necessary, go ahead. Situations where legal writer Timothy Perrin’s “one unbreak­able rule” demands application:

Occasionally, a good writer breaks rules for an ef­fect. That’s fine provided she knows what she is doing….So that is my only unbreak­able rule. You can break any rule I tell you if

* you know the rule

* you know you are break­ing it and

* you can give a good reason why.

The writing consultants at Clearlines (George Gopen, Joseph Williams, Gregory Colomb and Frank Kinahan) explained the conscious use of direct and indirect writing to control response in Mastering Legal Writing & Editing: How to Write Better & Faster:

If your client is on the side of the angels, make him an actor and express his good actions as verbs. Example: Mr. Doe contributed over $10,000 to the orphans’ fund in 1986.

If your client has behaved in less than perfect fashion, get him offstage and retreat into passives and nominalizations. Example: The embezzlement from the orphans’ fund is said to comprise a sum exceeding $10,000.

Conversely, if your opponent is on the side of the angels, get him offstage and retreat into passives and nominalizations. Example: The contribution to the orphans’ fund is said to comprise a sum exceeding $10,000.

Finally, if your opponent has behaved in less than perfect fashion, make him an actor and express his actions as verbs. Example: Mr. Smith embezzled over $10,000 from the orphans’ fund in 1986.