March 17, 2011

What effort is due from the consumer to understand?

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?

October 5, 2010

Slow and steady wins the race

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

cover page

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.
1960 brochure cover for US Bureau of Land Management
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.

August 3, 2010

Said it before, say it again: Judges prefer plain language

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.

November 15, 2008

Le’go that LEGO

LEGO is in the news, having lost its trademark in a European tribunal.

Makes this a good time to share with you the very plain language product description filed with the Canadian court by LEGO’s lawyers here:

A rectilinear array of uniform, smooth-sided, flat-topped, cylindrical, co-planar protuberances,the proportions of height, diameter and center-to-center spacing of which are approximately 2 : 5 : 8. Where there is more than one row of protuberances, they are arranged in mutually orthogonal rows and columns.

Well, maybe not so plain, eh?

——–
June 2008: Lego brick wall repairs of artist Jan Vormann and friends in Bocchignano, Italy Photograph: Rex Features

January 28, 2008

In Honor of Lego’s 50th Anniversay

The legal description:

A rectilinear array of uniform, smooth-sided, flat-topped, cylindrical, co-planar protuberances, the proportions of height, diameter and center-to-center spacing of which are approximately 2 : 5 : 8. Where there is more than one row of protuberances, they are arranged in mutually orthogonal rows and columns.

Kirkbi AG v. Ritvik Holdings Inc. 2005 SCC 65 at para. 41