A Brief History of “Legalese” and the Plain English Movement
 
Mark Cohen, J.D., LL.M.
PO Box 19192
Boulder, CO 80308
Copyright 2009

Mr. Cohen thanks Malore Dusenbery for her assistance in researching and writing this article.
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Contract law is the foundation of business. Unfortunately, most lawyers draft contracts in “Legalese” – they fill their documents with archaic terms, redundancies, awkward phrases, ambiguities, and worthless boilerplate. This increases the likelihood of misunderstandings and decreases the productivity of everyone associated with the transaction.  Moreover, the prevalence of Legalese often compels parties to enter into transactions without a complete understanding of them, instead crossing their fingers and placing trust in their lawyers.

Legalese arose in a time when using phrases from multiple languages made legal documents more clear. Latin was the predominant legal language in England before the Norman Conquest. French subsequently became the language of culture, education, and law. However, English endured among the population and in 1362 the Crown declared that English should be used in oral pleadings and eventually in statutes and written pleadings.[1] The choice between Latin and English and later between French and English led to an uncertainty about which language should be employed in legal documents. Consequently, lawyers started using paired words to express one meaning. For example, “free and clear” comes from freo, the old English, and cler, the old French.[2] Such pairings rapidly became enshrined in the law, but are now clearly out-of-date.[3]

Legalese endures today for several reasons. Many cost-conscious clients are more concerned with results than with quality of legal drafting. And, let’s face it, Legalese serves lawyers well because it befuddles clients and makes them more dependent on lawyers. There are still some lawyers who believe they get paid by the word.  It is a paradox that a lawyer may be able to charge more for a 40-page lease than for a 10-page lease, even though drafting the 10-page lease required more time.

Not all lawyers favor Legalese, though. The belief that Legalese is counterproductive and out-of-date is not a recent development, nor is it held only by fringe members of the legal profession. The movement to use Plain English in law – rather than Legalese – has been around since the 1950’s when Stuart Chase addressed the issue in The Power of Words (1953). President Nixon created momentum for the Plain English movement in 1972 when he decreed that the Federal Register be written in “layman's terms.”[4]  In 1978, President Carter issued Executive Orders intended to make government regulations “cost-effective and easy-to-understand by those who were required to comply with them.” In 1981, President Reagan rescinded President Carter's Executive Orders, and whether to employ Plain English was left to each individual federal agency. 

By 1991, eight states had passed statutes encouraging plain language[5]. For example, Pennsylvania passed the Plain Language Consumer Contract Act in 1993 requiring lenders, retailers and landlords to redraft loan, sale, and lease documents to protect consumers from making contracts they do not understand.[6]   A Presidential Memorandum by President Clinton in 1998 required federal employees to write all new regulations in plain language. Finally, in 2008, the Federal Government passed the Plain Language in Government Communications Act of 2008, which requires agencies to rely on the Federal Plain Language Guidelines or the SEC's Plain English Handbook.[7] Other countries have made similar efforts toward Plain English, including countries such as England and South Africa. 

Many lawyers cling to Legalese. They argue that Plain English is impractical because the law demands precision. It is true that the law requires precision, and it is not possible (or wise) to condense every legal document down to a few pages.  The point is that too many lawyers fail to recognize that the quality of a legal document does not necessarily increase in proportion to its length. Surveys in Michigan, Florida, and Louisiana show that when judges and lawyers are shown two versions of a document, one in a traditional style and one in Plain English, more than 80% of them prefer the Plain English version[8].  Judges and their research attorneys rated the traditional versions as "substantially weaker and less persuasive than the Plain English versions."  They also inferred that the lawyers who wrote in Legalese came from less prestigious firms than those who wrote in Plain English.[9]

Good drafting takes time, and clients may not want to incur expenses when a template or form has met their needs for years.  However, an ambiguity in a contract, or an omission, may go unnoticed for years and then, when the circumstances are right or the law has changed, suddenly lead to a costly legal dispute that could have easily been avoided by hiring qualified counsel. Contract litigation is almost always the result of poor drafting or an incomplete negotiation.  Often the parties could have avoided the dispute had they realized the importance of proper drafting of the contract.  

Good legal drafting is both an art and a science, but there are certain principles that many Plain English advocates believe lead to greater clarity. A well-written legal document should:
  • Define its terms
  • Eliminate ambiguities
  • Minimize "Legalese"
  • Plan for "what if" contingencies
  • Use short sentences
  • Avoid passive voice
  • Address all issues
  • Avoid repetition
  • Be internally consistent in form and substance
  • Use simple sentence structure
We adhere to these principles. Plain English cannot completely eliminate the risk of misunderstandings, but it significantly reduces that risk. Good writing requires clear thinking. By insisting on Plain English lawyers can assist clients in identifying potential disputes and addressing them before they arise.
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