1. “Why do legal documents and contracts use too many unnecessary words that are not direct to the point and are hard to understand? Is this a lawyer’s standard procedure so only he can interpret and make money out of them?”Reaction: You quoted two sources who agree on the same thing — lawyers are risk-averse, and the contracts they draft reflect this aversion. Perhaps, Kenneth Adams, considered as the “contracts guru” in English legal writing, said it best:
(a) A Financial Times article titled “Lawyers witnesseth dreadful legalese” at
https://www.ft.com/content/0c9ba298-1893-11de-bec8-0000779fd2ac quotes Adams as saying: “The dirty little secret of the Anglo-American drafting style that dominates global transactions is that nobody drafts contracts from scratch.”
The FT article also quotes Adams as saying that language from previous contracts is simply “uncritically regurgitated” into new contracts.
(b) Adams in his article “Retooling Your Contract Process for the Downturn” at
http://www.adamsdrafting.com/wp/wp-content/uploads/2013/11/nylj-retooling.pdf says:
“Because any given transaction will closely resemble many previous transactions, and because lawyers tend to be risk-averse and wary of change, as things stand contract drafting is essentially an exercise in regurgitation. Add to that the specialized nature of contract language—it’s akin to a cross between regular writing and computer code—and it’s not surprising that business contracts are riddled with redundancies, archaisms, misconceptions, and other drafting glitches.”
Suggestion: Adams is a consultant and speaker on contract drafting, a lecturer at the University of Pennsylvania Law School, and author of “A Manual of Style for Contract Drafting” (4th edition, 2017). MSCD is widely-used by lawyers in the US, UK, Canada, Australia, and New Zealand.
Perhaps, the Philippine government (or The Manila Times) can organize a week-long seminar on contract drafting for all government lawyers, with Adams as the resource speaker.
2. “Of course it’s too harsh to say that lawyers make legalese their SOP so only they can interpret documents or contracts and make money from them. I think the following justification for legalese by lawyer-blogger WiseGeek (a pen name) is more levelheaded: “In law, words have very specific and clearly defined meanings, and lawyers are careful when drafting legal documents to say precisely what they mean, even if the meaning is only apparent to other lawyers. Some of the word use may appear unusual to people who aren’t familiar with the law, as ordinary words can have a different meaning in a legal context.”Reaction: The source you quoted (lawyer-blogger WiseGeek) is referring to “terms of art.” But the problem with unintelligible legal documents does not have anything to do with terms of art.
(a) Prof. Joseph Kimble in “Plain English: A Charter for Clear Writing” (1992) at
https://www.michbar.org/file/generalinfo/plainenglish/pdfs/92_dec.pdf says:
Myth: Plain English is impossible because legal writing includes so many terms of art.
Legal writing and analysis may indeed involve terms of art, such as plaintiff and hearsay. Legitimate terms of art convey in a word or two a settled, circumscribed meaning. But how many terms of art are there? Bryan Garner estimates fewer than fifty.
(b) Bryan A. Garner, the editor-in-chief of Black’s Law Dictionary since 1995, says in “The Myth of Precision” in A Dictionary of Modern Legal Usage:
Plain-language advocates have said repeatedly that technical terms and terms of art are sometimes necessary, and that some legal ideas can be stated only so simply. But technical terms and terms of art are only a small part of any legal document—less than 3% in one study. This hardly puts a damper on plain language.
(c) “No, the law does not (normally) require legalese” at
https://www.ivacheung.com/2015/07/joseph-kimble-no-the-law-does-not-normally-require-legalese-editing-goes-global-2015/In case law, lawyers will be reluctant to change what they consider terms of art. “Nothing shuts down a conversation more quickly than a lawyer proclaiming, ‘term of art!’,” said Kimble.
“Pursuant to, in witness whereof, and prior to are not terms of art.” Nor are the
here-, there-, and where- words (
thereby, heretofore, etc.) so often seen in legalese. “Legal language is not as precise as lawyers think it is,” said Kimble. “Lawyers grossly exaggerate the constraining effect of terms of art.” Words like
thereby have the feel of precision, but they can actually add ambiguity to a sentence.
Suggestion: Prof. Joseph Kimble has been advocating for plain legal language for more than three decades: he is a founding director of the Center for Plain Language, a past president of Clarity International, the editor of the “Plain Language” column in the Michigan Bar Journal, and the author of Lifting the Fog of Legalese: Essays on Plain Language and Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law. He was also the Plain Language consultant in the restyling of the U.S. federal court rules.
Perhaps, the Philippine government (or The Manila Times) can organize a week-long seminar on Plain English style of legal writing for all government lawyers, with Prof. Kimble as the resource speaker.
3. “Among Filipino lawyers, I don’t think it’s now standard practice to deliberately make contracts and documents wordy, roundabout, and confusing. I believe their legalese is largely the outcome of decades of overzealous, overprecise and overbearing formulation, implementation, interpretation, and application of the law.”Reaction: Bryan A. Garner is the editor-in-chief of Black’s Law Dictionary since 1995. In his article “Why lawyers can’t write” (ABA Journal), Garner blames law schools and the pervasive “Dunning-Kruger problem” for the poor writing skills of lawyers:
“While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words. Stop and think about that. The blame goes primarily to the law schools. They inundate students with poorly written, legalese-riddled opinions that read like over-the-top Marx Brothers parodies of stiffness and hyperformality. And they offer law students little if any feedback (on substance, much less style) from professors on exams and writing assignments.”
You can read Garner’s discussion of the “Dunning-Kruger problem” at
http://www.abajournal.com/magazine/article/why_lawyers_cant_writeGarner also blames the poor writing skills of lawyers on the “Langdell’s casebook method” used in most law schools. The casebook method involves reading and analyzing old cases that, unfortunately, are written in convoluted English.
(I stand to be corrected, but I think that, in the Philippines, it’s only the UP College of Law that rigorously uses the Langdell’s casebook method; other law schools use textbooks that contain only excerpts from Supreme Court decisions.)
In “The Lawyer’s Struggle to Write” at
http://legalwritingeditor.com/wp-content/uploads/2016/04/Lawyers-Struggle-to-Write.pdf Matthew R. Salzwedel says:
“If the failure of high schools and colleges to teach fundamental writing skills is partly to blame for poor legal writing, the casebook method of law-school instruction doesn’t help either.”
“... law-school professors should begin qualifying their assignments of the old cases by saying something like this: 'I’m assigning these cases to you because you need to understand legal history and the basic principles of U.S. law. But neither I nor your future employers or clients will want you to emulate their writing style.'”
Salzwedel also cites Prof. Joseph Kimble’s article in the Michigan Bar Journal, 1986: “Law school brings with it a daily diet of appellate court opinions to read. Unless you guard against their corrupting influence, your writing may turn fat and flabby, clogged and lifeless, like the opinions themselves.”
Suggestion: In the US, Garner has trained, for the last 26 years, more than 200,000 lawyers, judges, law clerks, and paralegals in the Plain English style of legal writing. Perhaps, the Philippine government (or The Manila Times) can organize a week-long seminar on Plain English style of legal writing for all government lawyers, with Garner as the resource speaker.
4. “In recent years, in fact, a major movement has been growing in North America and the United Kingdom for using plain and simple English not only in contracts and legal documents but also in court litigation and in legislation, the better for laypeople to understand, appreciate, and follow the law.”Reaction: You are referring to the “Plain English movement” which was launched in the UK in 1979 by Martin Cutts and Chrissie Maher. The term “Plain English” is still used in the UK, Australia, and New Zealand but has been replaced by the term “Plain Language” in the US, with the European Commission (executive arm of the European Union) using the term “Clear Writing.”
The Plain English movement historically traces its origin to 1963 when UCLA law professor David Mellinkoff published his book “The Language of the Law.”
For more information about what Plain English, Plain Language, or Clear Writing is all about, please surf to
https://famli.blogspot.com/2011/04/what-is-plain-english-plain-language-or.html (also discussed are the Plain Language initiatives in the Philippines).
For resources and interactive exercises on Plain English, please surf to “Plain English, Plain Language, or Clear Writing for journalism, law, business, science, academic and general writing” at
https://plain-english-resources-and-exercises.netlify.com/Two Plain Language organizations that Filipinos might be interested in joining:“Clarity” at
http://clarity-international.net/ (worldwide group of lawyers and other professionals who advocate using plain language in place of legalese); Philippines country representative is Prof. Rachelle Ballesteros-Lintao, Ph.D., Chair, UST Department of English at rblintao@ust.edu.ph (surf to
http://clarity-international.net/renew/join-clarity/ for more information)
“Plain Language Association International” (PLAIN) at
https://plainlanguagenetwork.org/ (international association for plain language supporters and practitioners around the world, with members from over 30 countries working in clear communication in at least 15 languages)
5. Other observations:(a) Will Rogers, famous American comedian, on the way lawyers write:The minute you read something and you can’t understand it, you can almost be sure that it was drawn up by a lawyer.
Then if you give it to another lawyer to read and he doesn’t know just what it means, why then you can be sure it was drawn up by a lawyer.
If it’s in a few words and is plain and understandable only one way, it was written by a non-lawyer.
(b) “Plain English: A Charter for Clear Writing” (1992) by Prof. Joseph Kimble at
https://www.michbar.org/file/generalinfo/plainenglish/pdfs/92_dec.pdf(c) Canadian Bar Association and Canadian Bankers Association Joint Committee Report (1990) titled “The Decline and Fall of Gobbledygook: Report on Plain Language Documentation”: Legalese is a style of writing used by lawyers that is incomprehensible to ordinary readers.
(d) Is legal writing different from (or superior) to ordinary writing in English?From “Legal Writing Sense and Nonsense” by Prof. David Mellinkoff: “If it’s bad writing by the standards of ordinary English, it is bad legal writing. If it’s good writing by the standards of ordinary English, it is more likely to be good legal writing.”
From “Plain English for Lawyers” by Prof. Richard Wydick: “Good legal writing should not differ, without good reason, from ordinary well-written English.... In short, good legal writing is plain English.”
(e) US Supreme Court Justice Clarence Thomas on accessibility (from Bryan Garner's Scribes interview): “I’d love one day for someone at a gas station who is not a lawyer to come up to me and say to me, “You know, I read your opinion, and I don’t agree with you.” Wouldn’t that be wonderful? “I’m not a lawyer, I read your opinion, I understood it, I don’t agree with you, but thanks for making it accessible.” So we talk of it in terms of accessibility.”
(f) US Supreme Court Justice Stephen Breyer on clarity of court rulings for ordinary persons (from Bryan Garner's Scribes interview): “If an ordinary person who is not a lawyer can understand it, I think that gives weight to what the Court does, and law is supposed to be intelligible. They should be able to follow it without having to take special vocabulary courses. And the purpose of an opinion is to give your reasons, and you give your reasons both for guidance, but also it should be possible for readers to criticize the writer. Now, people can’t criticize what I say, they can’t explain why they think it’s wrong, unless they can understand.”
(g) From Prof. Richard Wydick: “We lawyers cannot write plain English. We use eight words to say what could be said in two. We use old, arcane phrases to express commonplace ideas. Seeking to be precise, we become redundant. Seeking to be cautious, we become verbose. Our sentences twist on, phrase within clause, within clause, glazing the eyes and numbing the minds of our readers. The result is a writing style that is wordy, unclear, pompous, and dull.”
(h) Examples of some government communications and how they can be rewritten into Plain Language:(1) From BSP Circular No. 702, Series of 2010 on unfair credit collection practices:
Banks/quasi-banks and their subsidiary or affiliate credit card companies shall also provide the following information to their cardholders:
1. A table of the applicable fees, penalties and interest rates on credit card transactions, including the period covered by and the manner of and reason for the imposition of such penalties, fees and interest; fees and applicable conversion reference rates for third currency transactions, in plain sight and language, on materials for marketing credit cards, such as brochures, flyers, primers and advertising materials, on credit card application forms, and on credit card billing statements: Provided, That these disclosures are in addition to the full disclosure of the fees, charges and interest rates in the terms and conditions of the credit card agreement found elsewhere on the application form and billing statement; and
2. A reminder to the card holder in the monthly billing statement, or its equivalent document, that payment of only the minimum amount due or any amount less than the total amount due for the billing cycle/period, would mean the imposition of interest and/or other charges;
Provided, That such table of fees, penalties and interest rates and reminder shall be printed in plain language and in bold black letters against a light or white background, and using the minimum Arial 12 theme font and size, or its equivalent in readability, and on the first page, if the applicable document has more than one page.
Problem with this example: This sentence is an overly long sentence, with 235 words. If you don't think this is just one sentence, notice that there's only one period. What makes this sentence overly long and complicated is the use of two "provisos" (Provided, That).
Objections against the use of "proviso":
David Mellinkoff, Mellinkoff ’s Dictionary of American Legal Usage (1992): ‘‘The proviso is one of the horrors of legal writing.’’
Thomas R. Haggard, Legal Drafting in a Nutshell (2003): ‘‘Provided that . . . defies grammatical analysis. Provisos produce single sentences that are often hundreds of words long. Knowledgeable drafters have railed against them for years.’’
G.C. Thornton, Legislative Drafting (1996): ‘‘On both historical and grammatical grounds the proviso stands condemned. . . . The case against the proviso is established beyond reasonable doubt by the ambiguity and uncertainty of the phrase.’’
(2) From BSP Circular No. 702, Series of 2010 on unfair credit collection practices:
The net take home pay of applicants who are employed, the net monthly receipts of those engaged in trade or business, or the net worth or cash flow inferred from deposits of those who are neither employed nor engaged in trade or business or the credit behavior exhibited by the applicant from his other existing credit cards, or other lifestyle indicators such as, but not limited to, club memberships, ownership and location or residence and motor vehicle ownership shall be determined and used as basis for setting credit limits. The gross monthly income may also be used provided reasonable deductions are estimated for income taxes, premium contributions, loan amortizations and other deductions.
Problems with this example: This example violates Bryan Garner's guideline of placing an enumeration at the end, not the beginning, of a sentence. It violates the Plain Language guideline of keeping the subject and verb close together. It uses "shall" which Plain Language guidelines say is ambiguous. Besides following these guidelines, it can be improved by using a vertical list.
My Plain Language revision:
The following must be used as basis for setting credit limits:
- net take home pay of applicants who are employed;
- net monthly receipts of those engaged in trade or business;
- net worth or cash flow inferred from deposits of those who are neither employed nor engaged in trade or business;
- credit behavior exhibited by the applicants from their other existing credit cards;
- gross monthly income less deductions for income taxes, premium contributions, loan amortizations, and others; or
- other lifestyle indicators such as: club memberships; ownership and location of residence; or, motor vehicle ownership.
(Note: A numbered list above would have been better, and the items "club memberships; ownership and location of residence; or, motor vehicle ownership" should also have been listed and indented. But I don't know this website's HTML codes for a numbered list and for indention.)
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