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The Case for Plain English in Law
This article was written by Sharon Givoni, Principal Solicitor of Sharon Givoni Consulting, for a talk presented at Leo Cussen on Plain English and the Law in 2024.
I can’t resist starting with a quote I once read:
“A lawyer is a person who writes a 10,000-word document and calls it a brief.”
But in all seriousness, the power of plain English in law goes beyond mere wording; it brings greater transparency and trust to the legal process.
By translating complex legal terms into language that everyone can understand, lawyers demystify legal concepts, empower clients, and foster better decision-making. As Oliver Wendell Holmes Jr. once said:
“The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race.”
Clear language in law respects this moral responsibility, allowing the law to serve and protect effectively.
It’s a pleasure to discuss a subject that has profoundly shaped my career and that of many in the legal field: the importance of plain English in legal writing. My journey began at Freehills, one of Australia’s leading law firms, where clear, accessible legal language was instilled in us from the start. Freehills’ commitment to plain English set the stage for my ongoing mission to make law understandable for everyone, not just those fluent in legalese.
Since 2000, I’ve run my own practice, dedicated to demystifying complex legal language. My firm’s tagline, “Legal Ease, Not Legalese,” has even been trademarked to reflect this commitment. Alongside my legal practice, I wrote a book, Owning It, aimed at clarifying the legal landscape for artists and creatives. My goal is simple but crucial: make legal language clear, precise, and accessible.
But what exactly does “plain English” mean, and why does it matter in law?
Often called “plain language,” it’s about communicating legal concepts directly and effectively without unnecessary complexity. It’s not about dumbing down information but rather about presenting it clearly without compromising legal precision or accuracy. Plain English, essentially, is the art of saying exactly what you mean in a way that is understandable to someone reading it for the first time.
In legal contexts, plain English serves as a bridge, connecting legal principles with the average person’s understanding, ensuring that statutes, legal advice, contracts, and agreements are accessible to clients—not just to those with a law degree.
Techniques for Plain English in Legal Writing
Drawing from the insights of Michael Kirby, former Justice of the High Court of Australia, and other advocates of the plain English movement, here are strategies for implementing plain English in legal writing:
- Use Short Sentences and Paragraphs: Breaking down ideas into shorter, manageable sentences allows for easier reading and comprehension.
- Start with a Summary: Beginning a document with a concise summary helps readers grasp the primary ideas upfront, offering a “roadmap” before delving into details.
- Avoid Unnecessary Jargon: Plain English doesn’t mean eliminating all technical language, but it does mean avoiding jargon that serves no purpose other than to obscure meaning. Terms like “heretofore,” “aforementioned,” and “whereof” may sound impressive but often add little value.
- Write for the Specific Audience: Tailoring language to the reader’s knowledge level ensures clarity. Advice for a client in a complex corporate matter may require different language than advice for a first-time homebuyer.
- Active Voice and Direct Language: Using active voice makes documents clearer. For instance, instead of writing “It is agreed by the parties that…”, simply write “The parties agree that…”.
- Revise Ruthlessly: Revision is critical. Kirby advocates for removing redundancy, simplifying language, and refining structure to improve clarity.
- Include Explanations for Technical Terms: When legal jargon is essential, brief explanations or examples aid understanding. Adding definitions for technical terms at the start or within the document helps readers navigate unfamiliar language.
- The Real Power of Plain English: Despite its advantages, plain English is not without challenges. Lawyers must balance clarity with legal precision, ensuring that simplified language does not alter a document’s meaning. Certain legal terms, like “indemnity” or “consideration,” have specific meanings that can be difficult to simplify without losing detail. Overcoming resistance to plain language requires ongoing education, training, and openness to feedback.
In my view, the real power of plain English lies in its ability to clarify, inform, and empower. And with that, I’ll end with a quote.
The late U.S. Supreme Court Justice Antonin Scalia once said:
“The main business of a lawyer is to take the romance, the mystery, the irony, the ambiguity out of everything he touches.”
Using plain English makes this objective easier to fulfill by presenting the law as it should be: clear, direct, and purposeful.
Please note the above article is general in nature and does not constitute legal advice.
Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.