Plain English: A Mighty Wind

[Harold Schiffman]

  Sunday, November 4, 2007
Plain English: A Mighty Wind


If you're one of those people who likes to curl up at night with a
copy of the Federal Rules of Civil Procedure, you're in for a shock.
There's a new FRCP coming to town next month (that's right, Decembe)r,
and it's not nearly as sleep-inducing as the current version. At
times, it's downright readable. The new FRCP is the result of a three
and a half year effort to make the rules more reader-friendly. It is
just one example of a growing "Plain English" movement that aims to
sweep away the cobwebs of legalese in official documents.

Over the past year, programs to convert government regulations into
plain English have taken hold on the state and federal level, while
existing plain language standards are being more vigorously enforced.
At the same time, jury instructions are being rewritten in various
jurisdictions to make them more accessible. Bad news for insomniacs.
None of this involves changing the underlying legal rules; rather,
this is a movement to change the language of the law. In the case of
the FRCP, the Judicial Conference of the United States went so far as
to insist that the new version had merely been "restyled," presumably
to allay any fear that the rules had been, as it were, resubstanced.

But as Professor Joseph Kimble, who led the drafting effort, points
out, "good style improves substance" – if nothing else, by clarifying
the substance. In the process of redrafting the rules, "we caught one
inconsistency and ambiguity after another," says Kimble. The restyling
effort brought consistency to the seemingly indiscriminate use of
terms such as for cause, for cause shown, for good cause, and for good
cause shown.

The quest for greater clarity has led to some surprising results. For
one thing, the word shall has now been banished from the Federal
Rules.

The problem with shall is that it leads to confusion. Language experts
agree that in legal documents, shall means "must." But in the current
FRCP, shall is often used to mean "should" or "may." In the restyled
rules, each instance of shall is replaced by a more accurate word.

"All the shalls are gone," says Kimble triumphantly. It's not at all
clear where all the shalls went – one hopes to some sort of linguistic
retirement home where they play shuffleboard with mesne process and
try to avoid squabbles with the arguendo's.

Many other convoluted rules are headed for retirement this December.
Consider FRCP 8(e)(2), which concerns pleading in the alternative:


Current Rule: When two or more statements are made in the alternative and one of
them if made independently would be sufficient, the pleading is not
made insufficient by the insufficiency of one or more of the
alternative statements.

New Rule: If a party makes alternative statements, the pleading is
sufficient if any one of them is sufficient.


See? The meaning is the same, but reading it feels distinctly less
like banging one's head against the wall. Alas, a restylist's work is
never done. The Advisory Committee on Evidence Rules may soon begin
revamping the Federal Rules of Evidence – including its 42 shalls.

In May of this year, Congress passed legislation requiring federal
agencies to produce plain-English compliance guides for small
businesses. A more sweeping measure, which would actually define
"plain language" and require each agency to appoint a plain language
coordinator, enjoyed bipartisan support in the last Congress, only to
get lost in the shuffle following the midterm elections. Supporters
hope to get it re-introduced in this Congress.

The Securities and Exchange Commission has resuscitated plain English
rules it put in place ten years ago. In April of this year, the SEC
cited 40 companies for submitting proxy statements that failed to meet
the Commission's plain language guidelines.

Legalese is under attack at the state level, too. In January, Governor
Charlie Crist announced the Florida Plain Language Initiative, which
requires each state agency to form a team of writers, editors, and
policy experts to improve the agency's public-facing documents. On his
website, Crist declares that "it makes no sense to talk to people in
bureaucratic legalese."
Unfortunately, not everyone on the Governor's own staff has got the
hang of plain English. The Executive Order announcing the Plain
Language Initiative starts out with a full page of superfluous
"whereas" clauses, followed by
NOW, THEREFORE, I, CHARLIE CRIST, as Governor of Florida, by virtue of
the authority vested in me by Article IV, Section (1)(a) of the
Florida Constitution, and all other applicable laws, do hereby
promulgate the following Executive Order, to take immediate effect:

Now there's a sentence that could use a bit of restyling. Still,
Florida deserves credit for trying.

Meanwhile, in California, new plain language criminal jury
instructions took effect last year. Whereas the old instructions were
notorious for their stilted language, the new instructions tend to be
written in everyday English. To take one widely-cited example:
Old: Failure of recollection is common. Innocent misrecollection is
not uncommon.

New: People sometimes honestly forget things or make mistakes about
what they remember.

A number of states, including New York and New Jersey, have approved
new instructions on the all-important definition of "guilt beyond a
reasonable doubt." Old "pattern" jury instructions tend to define the
burden of proof in abstract terms – telling jurors that they must
possess a "moral certainty" or an "abiding conviction" regarding the
defendant's guilt. The new instructions explain to jurors that they
should vote for a conviction only if they are "firmly convinced" of
the defendant's guilt.

The battle against legalese goes way back. The cause has been
championed by all sorts of politicians, from the sixteenth century
monarch Edward VI, who urged Parliament to make statutes "more plain
and short," to President Jimmy Carter, who railed against
"gobbledygook" (a word, incidentally, that was coined in 1944 by Texas
congressman Maury Maverick who was trying to evoke the sound that
turkeys make).

One reason for the recent upsurge in plain English reform is the
mounting evidence of the high price of legalese. "The cost of bad
writing in government and business is staggering," says Kimble, whose
2006 book Lifting the Fog of Legalese is itself a call for plain
language in law.

In the early 1990's, for example, the Department of Veteran's Affairs
took one form letter that was written in legalese and translated it
into plain English. Over the next year, the number of telephone calls
to the VA asking for clarification of that letter dropped by about
eighty percent. The VA concluded that adopting that single letter
nationwide would save it $40,000 a year – an enormous sum when
multiplied by all the letters and forms sent out by all government
agencies.

A Pentagon study estimated that the US Navy could save up to $350
million a year if its internal memoranda were all written in plain
English. But then, the military brass does have a certain penchant for
gobbledygook: its specifications for standard-issue fruitcake run to
eighteen pages.

Even more alarming is the human cost. Law professor Peter Tiersma has
exhaustively studied jury instructions and concluded that "there have
probably been dozens of people who have been condemned to die by
juries who poorly understood the legal principles that were supposed
to guide their decision."

Small wonder that there's been a backlash against traditional legal
language. That's not to suggest that lawyers should expect hordes of
pitchfork-bearing townsfolk camped outside their offices. But still,
when even court rules start showing up in plain English, it might be
time to reconsider one's attachment to witnesseth.

And if you still need something to lull you to sleep at night, there's
always the Tax Code.



This article originally appeared in the September 2007 issue of New
York Law Journal Magazine.

http://thepartyofthefirstpart.blogspot.com/2007/11/plain-english-mighty-wind.html
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