Pioneering course attempts to put legalese into plain English

Press, 17 May 1989, Page 16

Pioneering course attempts to put legalese into plain English

Penelope Borland assesses a Victoria University programme to wean law students off obfuscation

LAWYERS HAVE a reputation for mystification. Most people agree that legal documents need to be more intelligible. But Victoria University is the only law school in the country to teach a second-year, small-group programme that emphasises a plain-English approach to legal writing. Much of the debate about reforming legalese centres on the need for precision. Unlike literary or conversational English, legal writing must convey ideas precisely and unambiguously. Once a legal document is drafted it takes on a life of its own, speaking for the parties who have agreed to it. If a document is ambiguous and communication breaks down, lawyers in court may have to interpret it. That’s where the debate about plain English lies among lawyers: which audience is more important — those who are affected by the law or lawyers and judges who ultimately have to interpret it? Lawyers have become verbose and very cautious in their efforts to achieve precision. Traditionally attempts were made to cover' all options, often using redundant or repetitive words such as “null and void,” “keep and maintain,” and “last will and testament.” Full stops and other punctuation were shunned. Brevity wasn’t a strong point. Until as recently as 1977 the basis for charging for some conveyancing documents was length. A time-honoured clause in a will was: “Signed and acknowledged by the testator as and for his last will and testament in the sight of us both present at the same time who in his sight and presence of each other have hereunto subscribed our names as attesting witnesses ... ” All this could be replaced by: “Signed by the testator in our presence and attested by us in his/her presence.” The strongest argument for plain English is that those who are affected by legislation and legal documents should be able to understand them. But some lawyers are sceptical that complicated legal concepts can be conveyed in “plain English.” The prefer to talk of the need for "clearer drafting” and emphasise that some statutes and documents will necessarily be more technical than others. While there is a discernible movement towards plain English, change, like the machinery of justice, is taking time. Moving away from legal jargon at Victoria University has only been possible over the last few years

as the law itself has begun to change, says the Dean of the Faculty of Law, Professor Douglas Fisher “While there is definite evidence of change, particularly by Court of Appeal judges, most judgments are still written in legal language, contracts are written in it and so students have to learn to deal with the spectrum of legal language they will encounter,” says Professor Fisher. Emphasis in the small-group programme is on teaching effective legal writing and oraLcommunication skills, and how to use the law library. Up to 20 students per group apply these skills to a second-year law course: tort, contract, criminal or constitutional law. Like the plain-English movement, teaching a communication skills programme to law students was a North American development. It isn’t a feature of the English system. Victoria’s ten-year-old programme, unique in New Zealand, was modelled on a scheme in lowa where the Minister of Justice, Mr Palmer, once taught. The faculty’s emphasis on the small-group programme can be gauged by the fact that about 30 per cent of its full-time teaching resources go into the ten or so small classes taught each year. A law lecturer, Mr Simon France, recognises that the concentration on clear drafting as a component of the small-group programme means students aren’t faced with the difficulties they will encounter in practice. There is still fear- of change, of

being different, and of investing time in changing to plain English.

“The worst failing in legal writing is that it is verbose,” says Mr France. “We teach students that you can usually cut something down enormously yet still insert your own colour. “There’s so much caution in legal writing, especially in New Zealand because it’s such a small country. The passive voice is often used. If it’s not your opinion, whose is it?” Mr France says that the attitude among lawyers in the past has been that it’s more important for them to know something is legally watertight than for the public to understand what is being said. Criminal statutes are a prime example of legal writing the public should be able to understand. Ignorance of the law is no defence if you don’t know your obligations. While there are initial costs in changing to clear drafting, the eventual savings would be considerable. In Australia the rewriting of summonses and court forms in the state of Victoria saves around $600,000 a year in staff time alone. The constant queries caused by unintelligible court forms have been avoided. Despite the inertia inherent in a profession based on precedent, the old order is changing. A plain-English campaign was launched in Britain in 1979 with the public shredding of complicated Government forms in Parliament Square.

Some American states now have plain-English laws requir-

ing documents to be written in a clear, cogent manner. In New Zealand, Public Trust wills, tax forms and some insurance policies are now written in plain English. The latest New Zealand Encyclopaedia of Forms and Precedents gives examples of plain-English documents for lawyers to follow. The Law Commission has called for Parliament to pay more attention to plain-English legislation in a recent discussion paper. The Deputy President of the Law Commission, Professor Sir Kenneth Keith, says plainEnglish drafting would mean the public, lawyers and judges would have a simpler job. Nearly a quarter of the country’s lawyers have taken part in seminars on clear drafting run by the New Zealand Law Society. Presenting those seminars and heading the Law Society’s committee on clear drafting at the time was a Wellington litigation specialist, Mr lan McKay, a senior partner with Kensington Swan. In workshops groups took clauses from common precedents they had used for years. The lawyers found translating them into a clearer style difficult as they had not realised there were ambiguities in some of their most common legal phrases, says Mr McKay. Many redundant legal phrases, used to give an illusion of precision, stem from the use of French as the principal language of the law after the Norman Conquest. While English became the language of the courts, the bilingual habit was established, reinforced by a love of alliteration and the rhythm produced by using two words instead of one. Examples are “aid and abet,” “part and parcel,” and “rest and residue.” The environment law students will enter in practice should move towards simplifying such terms, says Mr McKay. He envisages two main effects of plain English for future lawyers and their clients. “Firstly, the client will be able to understand documents and won’t need to consult lawyers as much to get clarification. Second, if the meaning is clear there will be fewer mistakes and less litigation. “There are current cases that would never have gone to court if documents had been clearly drafted, on the interpretation of

contracts, for instance. It's a lawyer’s job to produce documents which are unlikely to be misinterpreted and to minimise the risk of misunderstanding." If clear drafting means less litigation, will it also mean less work for lawyers? Apparently not. Mr McKay thinks people will always need legal advisers, but unnecessary work will be cut down. But sceptics say that sloppy drafting causes more problems than the lack of plain English. Victoria's commercial and contract law specialist, Professor David McLauchlan, says that the reduction in litigation that will result from plain English can be overstated. “More problems are likely to arise from oversight, or a quite reasonable failure to predict the situation that has occurred," says Professor McLauchlan. “It should also not be forgotten that the majority of contract cases which reach the courts essentially involve factual disputes. To the extent that legal issues are involved, the argument will commonly centre on legal rules rather than on the interpretation of a document. There are even cases where courts will find loopholes in apparently clearly drafted documents to reach a fair result.” While he agrees that documents should not be verbose or cluttered with unnecessary legalese. Professor McLauchlan says even more cases could go to court if parties were to pay attention to drafting their agreement in plain English at the expense of comprehensive coverage of complications that might arise. While the debate over plain English continues, the complaints about legalese from clients and the public grow louder. As with doctors, clients are no longer content to remain mystified and satisfied that their lawyer knows best. The largest number of complaints about lawyers by clients concern lack of communication and delay. Ultimately the effectiveness of the emphasis on communication at Victoria will be judged on the work of students once they become lawyers. Professor Fisher says more could still be done to teach good legal writing at Victoria. Mr France is developing a new writing programme that will extend the current small-group emphasis to third and fourth-year students. It will reinforce the style and technical aspects of the small-group programme and should be implemented by 1990.