Mr. Burton, it would seem, has his work cut out for him.
After all, it was a lawyer who drafted the statute providing that: “the hours of non-hours work worked by a worker in a pay reference period shall be the total of the number of hours spent by him during the pay reference period in carrying out the duties required of him under his contract to do non-hours work.” Got that?
And then there was the lawyer who wrote a contract clause ensuring that his client would “have the right to cancel said Contract and return any monies paid hereunder, whereupon the parties thereafter shall be released of all further liability hereunder” (emphasis added; legalese in original).
It might be a tad ambitious to ask those lawyers to think of legal writing as an art form.
Nonetheless, the Burton Awards appear to be part of a larger trend to encourage “plain English” in legal writing. More and more law firms have their own in-house writing gurus. The SEC now requires prospectuses to be written in plain English. The Clinton administration required all federal agencies to draft notices and regulations in plain English as part of its “reinventing government” initiative. In the wake of the Enron collapse, one of President Bush’s proposals is to require plain English in financial disclosures.
The good news is that plain English proposals – like those just mentioned – are so obviously sensible that they have great potential. The bad news is that they have had great potential for 700 years.
A Long Struggle
Yes, the noble quest for plain English in legal writing has been around since at least the fourteenth century. Actually, the first battle was just to get lawyers to write in English, period. After the Normans conquered England in 1066, French became the language of the elite, including the bench and bar. By 1360, pretty much everyone in Britain had switched back to English – except judges and lawyers, who kept babbling away in French. Parliament tried to set things right by enacting the Statute of Pleading, which required all lawsuits to be pleaded and tried in English. The statute, of course, was in French.
In fact, it was not until 1731 that Parliament finally succeeded in prohibiting the use of French in court proceedings. Two years later, that law was partially repealed, due to all the French phrases that just would not go away (and still won’t): voir dire, estoppel, demurrer, and so on.
That’s the thing about legalese: it’s remarkably resistant to change. Consider the many attempts to reform the language of statutes and regulations. As long ago as the sixteenth century, King Edward VI asked that “the superfluous and tedious statutes [be] made more plain and short so that men might better understand them.” Now, you might think that a direct request like that, from a person with “king” in his name, would bring results. Instead, statutes got longer and more complicated, while generations of legal reformers throughout the English-speaking world slowly chipped away at the wordy edifice of the law.
At times, the reformers have been a little overzealous in their pursuit of plain language. In 1906, Teddy Roosevelt was so taken by the movement for “simplified spelling” (things like giv instead of give) that he impetuously ordered simplified spelling in all federal documents. Apparently, the Rough Rider had visions of a Federal Register liberally sprinkled with tho, nite, and lite. Perhaps it’s just as well that Roosevelt’s order never really went thru.
In 1936, Yale law professor Fred Rodell launched a one-man crusade against legalese with the observation that there “are two things wrong with almost all legal writing. One is style. The other is content. That, I think, about covers the ground.” Rodell’s work culminated in a 1939 book advocating that every law (including all of the common law) be “written so that its meaning is plain for all to read.” Rodell’s proposal did not persuade many lawyers, although that may have something to do with the fact that he also suggested abolishing the legal profession.
Reform began in earnest in the United States in 1978, when President Carter signed Executive Order 12044, which required plain language in federal regulations. Popular resentment against legalese was at high tide, partly due to Ralph Nader’s 1977 article, “Gobbledygook.” Under the new Executive Order, bureaucrats were admonished to make all new regulations “as simple and clear as possible.”
Somehow, Carter’s Order seems to have gotten lost in the interagency mail – nothing much happened for the next twenty years. In 1998, then-Vice President Gore announced a new requirement (part of the “reinventing government” campaign) that federal agencies write in plain English. The government even established a “No Gobbledygook Award” to honor agencies that actually complied with the initiative. Recent entries for the award include a Commerce Department guide for fishers to explain the requirements of the rule requiring “pingers” on fishing nets. Not that pingers aren’t a priority, but I was kind of hoping for something like a simplified tax return.
But if you think plain English is an uphill struggle, compare the campaign for “plain Japanese.” In Japan, there are two native writing systems called katakana and hiragana, but historically most statutes are not written in either. Instead, most Japanese laws are written in Chinese (just like ours!). It was only in recent decades that the Tokyo authorities even began translating some of the more important codes into, well, Japanese.
Why Is It So Hard To Change?
One theory is that legalese is a conspiracy among lawyers to keep the public in the dark. In the sixteenth century, Sir Edward Coke actually defended the continued use of French on the ground that the laws must be kept out of the reach of the general public “lest the unlearned by bare reading . . . might suck out errors, and trusting in their conceit, might endamage themselves . . .” Five hundred years later, one could argue that the public might be willing to risk a little endamage for the sake of comprehensible legal texts.
Others say that the forms are to blame. When lawyers set out to draft a document, they typically start out with some tried-and-tested precedent; often a pre-printed form. These forms speak to us through the mists of time, harking back to a time of powdered wigs and buckled shoes: This policy witnesseth that; Now comes plaintiff; Further affiant sayeth not. After a day of reading stuff like that, one may need to stop at Ye Olde Apothecary for some aspirin. Or perhaps even the nearest Publick Houfe for a glaff of beer. And while lawyers sometimes add material to existing boilerplate in order to guard against new forms of liability, lawyers almost never delete phrases from their forms. The courageous Mr. Burton describes these archaic forms as his “arch enemy.”
Still, others say that legalese is necessary to achieve precision. But that seems a little hard to believe when so many legal documents provide that “the masculine shall include the feminine, the singular shall include the plural, and the present tense shall include the past and future tenses.” How precise can language be when “he is a man” also means “girls will be girls”?
A Plainer Tomorrow?
One hopeful sign is the focus on simplifying legal documents that are intended for the public, as distinct from documents that are just for other lawyers. The SEC reports considerable success in getting securities lawyers to discard the old style of prospectus, which often included sentences of 60 to 100 words (by contrast, scientific prose has an average sentence length of 27.6 words). Hard to believe, but suddenly companies are issuing prospectuses that might actually be read by investors.
In addition, a growing number of states now require consumer contracts to be written in plain language – often by imposing very specific guidelines in terms of sentence and paragraph length. Many of these guidelines are based on readability tests, such as the Flesch Reading Ease test. Florida requires that insurance policies receive a minimum score of 45 on the Flesch test (100 being very clear and 0 being very unclear). To put that in perspective, the Social Security Act received a negative 130 on the Flesh test, while the Ethics in Government Act weighed in at –219. So, a score of 45 is a pretty ambitious goal for insurance companies, which often have a willing spirit, but weak Flesch.
And then there are the intrepid individuals like Mr. Burton, working to improve legal writing from the bottom up. But Burton is no head-in-the-clouds dreamer. “I want plain language,” he explains, “but I’ll settle for sane language.”
(This column originally appeared in the June 2002 issue of New York Law Journal Magazine.)