You Think the Law Requires Legalese?

There’s a sign that, in some configuration, appears on every gas pump in Michigan, although most drivers probably don’t even notice it anymore. You can see one in the photo to the right.

Let’s put aside the all-capitals, which are notoriously hard to read. And never mind that the first and second items aren’t exactly parallel. (“Stop engine. Don’t smoke.”) The trouble — linguistically, stylistically, semantically — shows up in the third item.

Look at that little sentence. We get an explicit subject, A person, which really throws off the parallelism. The lawyer’s shall — now corrupted and ambiguous from misuse — does not belong even in statutes or regulations, let alone on a gas pump. Remain in attendance? Oh, please. The first of is unnecessary. And for the big comedic finish, we’re seemingly told that the nozzle must be able to see the person.

The fix isn’t hard: “You must stay outside your vehicle and be able to see the nozzle.” Or for parallelism with the first two items: “Stay outside your vehicle, and make sure you can see the nozzle.”

Now, are people likely to misunderstand the pump version? No. Is this the worst public writing on the planet? Obviously not. But by tracing this mundane example to its source, anyone who cares about clarity in legal and official documents can learn a set of critical lessons.

The limited force of statutes and regulations

Our gas-pump example has its origins in a Michigan regulation, Mich. Admin. Code R. 29.5325, § 9.2.5.4:

Warning signs shall be conspicuously posted in the dispensing area and shall incorporate the following or equivalent wording: “WARNING. It is unlawful and dangerous to dispense gasoline into unapproved containers. No smoking. Stop motor. No filling of portable containers in or on a motor vehicle. The person shall remain in attendance outside of the vehicle and in view of the nozzle.”

The order of the items here is different from our sign, there’s an additional item about not filling portable containers, and a few words have changed — probably because the regulation has been amended over time. But that doesn’t matter. The point is that the sign essentially uses the regulatory language — even though it didn’t have to. Note the language that I bolded above: the gas station could have used something equivalent to “A person shall remain in attendance outside of the vehicle and in view of the nozzle.” The station could have written it simpler and shorter.

Now imagine a scenario, however unlikely, between some inquisitive station owner and an attorney for the Michigan Petroleum Association:

Owner: You know those signs we have to have on our pumps — about not smoking and standing outside when somebody pumps gas?

Attorney: Yup. You mean those standard warning signs that everybody buys from Signs-R-Us?

Owner: Right. The other day, some customer was jagging me about the weird language — nozzles with eyes, or something.

Attorney: Well, it may be weird, but it’s required by law. No choice. I think there’s a state regulation that spells it out.

Owner: Wouldn’t you know? Okay. Just wondering. I certainly wasn’t going to order a new sign. Good thing the grammar police aren’t licensed to give tickets.

This scenario has never happened and never will. But a variation on it happens all the time. I hear about it regularly from colleagues involved in plain language, I read about it, I’ve experienced it myself, and I’ve written about one typical instance — a project “derailed” by the legal team of New York City’s Department of Transportation because “the revision did not use the same legal language as the original.” ¹Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law 34 (Carolina Academic Press 2012). All too often, legal departments either mistake what the law requires or can’t be bothered with matters of “mere style.”

And there’s a third impediment to clarity that falls somewhere in between: lawyers’ reluctance to depart from statutory or regulatory language even when they know they can. That is, even those real estate lawyer who are generally receptive to plain language may balk when they perceive that statutes or regulations are hovering around. For instance, one blemish on the restyled Federal Rules of Criminal Procedure is the repeated use of the attorney for the government instead of the government attorney. Why? Because federal statutes use the former. As if there were the slightest risk in changing . . . At one point during the restyling of the Civil Rules, I changed Acts of Congress to federal statutes (for consistency with other rules, no less), and an influential voice commented: “Although 28 U.S.C. § 2071 says ‘Acts of Congress,’ I will give you this one without protest.” What a concession. If you want one setting where this attitude would be a disaster, look no further than jury instructions. ²See Joseph Kimble, How to Mangle Court Rules and Jury Instructions, in Lifting the Fog of Legalese: Essays on Plain Language 105, 115–16 (Carolina Academic Press 2006) (giving examples of statutes converted to plain jury instructions).

I don’t mean to suggest that the language of statutes and regulations is never mandatory. Michigan’s Landlord–Tenant Relationship Act requires that the parties complete an inventory checklist, which “shall contain the following notice.” ³Mich. Comp. Laws Ann. § 554.608(4) (West 2005). There’s no getting around the language that appears in quotes after notice.

But I’m willing to bet, without having done any kind of survey, that it would turn up at least as many statutes and regulations with language like this:

• shall incorporate the following or equivalent language (our gas-pump regulation)
• shall state . . . a notice in substantially the following form ⁴Id. § 554.634(2).
• The statement shall be in a form similar to the following ⁵21 C.F.R. § 1304.40 (b)(2)(2012).
• a statement substantially similar to Model Form G–4 ⁶12 C.F.R. § 226.9(a)(2) (2012).
• a written notice containing all of the following information ⁷Mich. Comp. Laws Ann. § 339.918(1) (West 2004).
• a statement specifying that ⁸Id. § 339.918(1)(d).
• shall contain language that ⁹Id. § 339.2515(1).

None of these formulations says to “use these words.”

So what are the lessons to be drawn from all this? They number five. First, codified language will often get copied or at least cause second-guessing — so draft in plain language to begin with. Second, lawyers tend to greatly exaggerate the extent to which the law requires specific, unalterable wording in legal and official documents. Third, if you’re told that certain unplain language is legally necessary, you should kindly ask for a citation, a reference. (Nonlawyers, do it!) Fourth, if you don’t get one, the lawyer is either at a loss or indifferent. Finally, if you do get one, check it out. Nonlawyers can usually get any needed help from law-school or university libraries. And when you find the cited law, look for the kind of language in the bullet points above — meaning that legalese is not required.

The minimal and manageable force of terms of art

Another potent myth, or half-truth, or quarter-truth, commonly invades any discussion of legal writing: lawyers must use terms of art. Woe is them. Their hands are tied.

Once again, much exaggerated. I’ll just briefly review points I’ve made elsewhere.

Even if we take the broad view that any term ever litigated is a term of art, they would count for a tiny part of most legal documents. (Obviously, this view is overinclusive: the term herein has been litigated many times, and it’s hardly a term of art.) In one empirical study using a real-estate sales contract, researchers found that less than 3% of the words had significant legal meaning based on precedent. ¹⁰Benson Barr et al., Legalese and the Myth of Case Precedent, 64 Mich. B.J. 1136, 1137 (Oct. 1985) (available at http://www.michbar.org/generalinfo/plainenglish/PDFs/85_oct.pdf).

Now consider the tiny fraction of words that have been litigated. Can we say that they have been honed by precedent and are thus irreplaceable? That question prompts others. How many cases does it take before a term is well honed? Why couldn’t we conclude that the more times a term has been litigated, the more troublesome it is? What do we do about inconsistent interpretations? Do drafters generally operate more from considered, thoughtful choice or from habit and imitation?

At any rate, we again have research that helps inform this discussion. In 1995, the Centre for Plain Legal Language at Sydney University’s Faculty of Law published Law Words: 30 Essays on Legal Words & Phrases. ¹¹http://www.clarity-international.net/downloads/law_words.pdf. As the title suggests, the contributors carefully researched 30 terms that many lawyers would classify as terms of art. And for almost every one, the research showed that the term was unnecessary, troublesome, best used together with a plainer term, or replaceable with a plain equivalent. For example: give, not give, devise, and bequeath; interest, not right, title, and interest; together and individually, not jointly and severally. Surely, research in the U.S. on these terms — and many more that we might pluck from Words & Phrases — would produce the same conclusions about their value and need in this country.

In fact, to take another example, how about the word indemnify? Isn’t that a term of art — if anything is? Well, check out the Plain Language column in the September Michigan Bar Journal. ¹²See Jeffrey S. Ammon, Indemnification: Banish the Word! And Rebuild Your Indemnity Clause from Scratch, 92 Mich. B.J. 52 (Sept. 2013) (available at http://www.michbar.org/journal/pdf/pdf4article2252.pdf). A seasoned commercial lawyer says otherwise.

One point in closing. If you’re uncomfortable with abandoning the traditional term entirely, you can usually still find a way to pair it with plain words or an explanation the first time you use it: “attached items (called ‘fixtures’)”; “I release, or give up, any legal claims”; “a default judgment — which means that the court will give the plaintiff what he is asking for.” Then try to stick with the plain term in any later uses. And don’t be surprised if clients — especially consumers — sing your praises for helping them understand. ¹³See Christopher R. Trudeau, The Public Speaks: An Empirical Study of Legal Communication, 14 Scribes J. Legal Writing 121, 149–50 (2011–2012) (reporting on a survey in which, for one question, the public overwhelmingly preferred that legal terms be accompanied by an explanation).

Terms of art are more rare and more replaceable than lawyers like to think. But even when a drafter can’t bear to part with a legal term, it need not stand alone, unclarified, and may often be dispensed with after a single use. So even a cautious drafter requires only an occasional speck of legalese — explained in plain language.

The law is no serious obstacle to writing clearly and plainly.

Joseph Kimble has taught legal writing for 30 years at Thomas Cooley Law School. He is the author of Lifting the Fog of Legalese: Essays on Plain Language and Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law. He is also senior editor of The Scribes Journal of Legal Writing, the longtime editor of the Plain Language column in the Michigan Bar Journal, a founding director of the Center for Plain Language, and the drafting consultant on all federal court rules. He led the work of redrafting the Federal Rules of Civil Procedure and the Federal Rules of Evidence. You can follow him on Twitter @ProfJoeKimble. His website is kimblewritingseminars.com.

(photo: Joe Kimble)