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Updated April 18, 2003

Plain Language Association International

Plain Language for Business Lawyers

by Cheryl M. Stephens

Excerpted from an address presented before The Business Law Section, Canadian Bar Association, February 20, 1991

When Ed Lewin asked us to speak tonight, we tried to anticipate which aspects of the plain language movement would interest business lawyers in B.C.

• We suggested that we would tell you about the development of the plain language movement in law and, in particular, the recent initiatives by Canadian federal and provincial governments.
• We thought we should bring you up to date on what the Canadian Bar Association has been doing about plain language. We thought we ought to outline for you the conclusions and recommendations of the Joint Committee on Plain Language of the CBA and the Canadian Banker's Association.
• We also offered to tell you about the Continuing Legal Education Society's Plain Language Project and about the Plain Language Institute of B.C. (not included in this excerpt)

Plain Language and the Law

The plain language movement has its recent history in the consumer movement of the 1970s. In the 1990s, major business organizations are interested in plain language for very practical reasons. The experience of the past 20 years has proven that there are benefits to business as well as to consumers from the use of plain language in the marketplace. The benefits to business are increased market-share, cost- savings, and improved customer relations. Driven by these positive factors, and also reeling from losses suffered from the use of legalese in consumer agreements, banks, insurance companies, realtors and other major businesses are seeking lawyers who can write effective legal documents in customer-friendly, plain language.

Most of us date the beginning of the current plain language movement in law from about 1970 when Citibank in New York set out to convert a promissory note to plain language which they adopted in 1973 and set a train of events in motion that resulted in almost 30 states in the U.S. having legislative requirements for consumer documents in the insurance and banking fields to be written in easily understood language. In addition there are nine states which have general legislation requiring consumer documents to be written in plain language.

Whether required by statute or done voluntarily, plain language has been applied to consumer contracts, residential leases and personal insurance policies, to legal and administrative forms prepared for public use, to regulations, to statutes and bylaws and to explanatory materials about the law and government services prepared for the public.

Carl Felsenfeld was in Vancouver recently to speak to a plain language conference. Felsenfeld was a lawyer and a Vice-President at Citibank, or Citicorp, when the marketing department came forward with a request for a plain language promissory note for consumer transactions. He resisted, he didn't think it could be done, and furthermore why bother? Yet today he is a world-renowned plain language activist, and a co-author of the book, Writing Contracts in Plain English, with Alan Siegel.

The request for plain language came from the marketing department. And the adoption of the plain language note brought great prestige to Citibank which was seen as a leader in improving consumer relations. There was another motive, cost-savings. Citibank had spent a lot of time in Small Claims court trying to collect on their promissory notes. It had also spent a lot of time training staff to answer consumer questions about their complicated forms and contracts. After the adoption of the plain language note and other plain language forms, there was a measurable savings in staff training time, in the reduction in small claims lawsuits. And a substantial increase in market-share. And the wording of the new form has not been challenged in court.

Discussing this process recently, Felsenfeld said that a conversion to plain language is really three efforts all together:

The first effort is a substantive law effort

We also have found that when you set about updating an old precedent, you find that it is full of unenforceable, redundant and even contradictory provisions. When the Farm Credit Corporation revised its standard form mortgage terms for filing under the new B.C. Land Titles provisions, they discovered that it contained the same provision in two separate paragraphs of over one hundred words each and in different wording which were thrown in decades apart.

One of the first problems concerns the substantive provisions: what do you leave in and what do you take out. This leads of necessity to making the business decision whether to refine, simplify and leave out unenforceable provisions or those which provide for circumstances which arise in only 1 in 100,000 transactions. Legal documents are known to provide for contingencies which rarely arise and for obsolescent contingencies and to contain extraneous information.

The decision to remove these is a business decision that the benefit of an attractive consumer-friendly loan agreement will outweigh the value of listing 27 ways of committing a default when the only default that really interests your client is when the debtor stops paying. I'd like to point out as well that a plain language revision of a legal document usually reveals errors and ambiguities in the content of the document which might otherwise have only been brought to your attention in more embarrassing circumstances.

The next effort is cleaning up the language, reverting to normal vocabulary and standard grammar and punctuation

You might have to decide to go for some simpler language which won't necessarily cover all contingencies, but will drive up the market- share, and perhaps make it easier for the debtor to understand and comply with his obligations. In this respect, Dr. Helga Kutz- Harder who taught writing at Osgoode Hall has identified the most common problems in legal writing are vagueness and disorganization, and these technical imperfections: wordiness, improper punctuation and usage difficulties with language.

The third effort of a plain language conversion concerns design

This means using an attractive layout and using modern typographical styles and the use of colour to create a readable and attractive document. There is a significant body of research which has been done into how people read and how they process bits of information; how they respond to colour and so on. Forms design takes this into account. A look at the Citibank notes, before and after conversion shows how design efforts can improve on a legal document.

This approach is in keeping with a statement of the Canadian Center for Legal Information and its Plain Language Centre, which says:

Plain language is not a vocabulary exercise. It is not the simple replacement of `bad' words (legalisms, foreign phrases, negative words, triplets, long words) with `good' words (short words, common words, positive words). Vocabulary can be a problem, but vocabulary can be learned. If terms of art are essential to the meaning of the document, then a term of art can be used. It is the style of legal writing more than terms of art that confuses and intimidates.

Research has discovered that the public has more problems with the unfamiliar organization of the text in legal documents, the difficult sentence structure and the lack of shared context than they do with the vocabulary of the law. Unfamiliar patterns of capitalization, punctuation, paragraph structure and indentation combine to create barriers to understanding the legal document.

The Benefits of Plain Language

The benefits of Plain Language include savings in time and costs:

1. The Economist, in its July 14-20 issue, reported that the British Civil Service saved £15 million between 1982 and 1990 by simplifying forms.
2. In Australia, Capita Corporation used to have 200 administrative forms. 14 were applications for individual insurance, investment and annuity products. Plain language experts studied these forms and found 1,560 errors information in the forms themselves. They consolidated, rewrote and redesigned the forms. The whole project cost $100,000 Cdn but will save an estimated $400,000 per year.
3. In the United States, the federal Communications Commission issued its citizen's band radio regulations in traditional legal language. 5 staff members worked full time to answer the public's questions. After the issuance of a new regulation in plain language, the questions stopped and all 5 people could be reassigned to other duties.
4. Here in Canada, the Royal Insurance Company released a simple English homeowner's policy and sales increased 38% in the same year.

What Governments in Canada Are Doing

The Alberta Department of Consumer and Corporate Affairs recently issued a discussion paper on plain language in consumer contracts. The Alberta government has enacted the first plain language regulation in Canada in the recent Financial Consumers Act of Alberta with a requirement of plain language in consumer financing documents.

Financial Consumers Act. The Legislative Assembly of Alberta, Second Session, 22nd Legislature, 39 Elizabeth II

Duty to use plain language: Section 13

(1) The following documents must be in readily understandable language and form:

(a) application forms for consumers who wish to invest in named financial products;

(b) agreements setting out the terms and conditions of named financial products;

(c) any information provided to a consumer under section 10(2) or 11(1);

(d) any other documents described in regulations.

(2) Subsection (1) does not apply to words or forms of documents that are required by law.

(3) Proof that reasonable efforts have been made to comply and maintain compliance with subsection (1) is a complete defence

(a) in a prosecution under subsection (1), or

(b) in a dispute about whether subsection (1) has been complied with.

Terminology: Section 15

The Lieutenant Governor in Council may make regulations

(a) defining words that can be used by suppliers, agents and financial planners in relation to financial planning or named financial products;

(b) placing restrictions on the use of those words when they relate to financial products.

The Ontario Attorney General's Communications Branch has a master plan for public legal education which mandates that plain language be used in dealing with the public. The Ministry established a Task Force on Plain Language. It has agreed to cond conduct the Ministry's external and internal communications in plain language. It has reached a consensus on a statement of principle and on general guidelines for plain language writing. The Task Force is now planning for the detailed implementation of the ir plain language programme.

Saskatchewan's Cabinet has endorsed a clear language programme for all government ministries. Recently a rally and information session for 400 people were held to introduce the programme. The Bafflegab Rap was performed by costumed and disguised civil servants.

A clear language guide book has been written and distributed to all ministries. Clear language policy has been adopted within the government's Public Involvement Strategy and pursuant to its Service Excellence Priority.

The Saskatchewan task force is composed of key people from the Justice Ministry, the Public Service Commission and the staff of the Executive Council, and others. The Saskatchewan programme is currently directed toward changing government communications. Progress is reported weekly to deputy ministers and monthly to Cabinet.

The next focus will be on legislative drafting and later the "private sector interface" will be tackled. The Agriculture Department has volunteered to be the subject of a cost-benefit analysis. The government of Saskatchewan is aiming first at its own c ommunications with the public, and considers regulation of language in the marketplace to come after they have cleaned up their own act.

CBA/CBA Joint Committee endorses plain legal language

A Joint Committee of the Canadian Bar Association and the Canadian Bankers' Association on Plain Language released its final report recently. The Joint Committee endorsed the use of plain language in law and in business; the Joint Committee previously labeled legalese a barrier to the law for ordinary readers. It called for both CBAs to set up a national advocacy body, the Plain Language Coalition.

In its final report, The Decline and Fall of Gobbledygook, the Joint Committee says:

The fact that so many legal, business and government documents are written in gobbledygook is unfortunate, since these documents frequently contain information that can have important consequences for the individuals who read them.

The [CBAs] recognize the importance of an informed public. [They] agree that plain language documents can help improve public access to the law. In particular, plain language documents in the financial services industry will increase consumers' awareness of their rights and duties in financial transactions.

CBA/CBA Recommendations

The Joint Committee recommends:

1. Plain language drafting should be looked upon as a dynamic process and not as a mechanical application of static rules. Appropriate study and training can teach this skill.

2. The Legal Profession

3. Law schools and bar admission courses should include plain lan- guage drafting courses.
4. Law societies should ensure that continuing legal education courses are offered in plain language writing.

5. The Banks

6. Banks and other large organizations should require their lawyers to draft documents in plain language.
7. Large organizations should have a plain language policy for consumer documents.
8. An organization should have an interdisciplinary committee to develop consumer forms. The first draft of any consumer form should be done by someone with plain language training and experience.
9. Banks and other large organizations should ensure their employees have access to plain language writing courses.

10. Governments

11. The Joint Committee urges all governments in Canada to adopt plain language techniques in the drafting of legislation, regulations, and gov- ernment forms, and in so doing, to set an example for commercial prac- tice.

12. The Plain Language Coalition

13. Both CBAs should adopt a Joint Statement of Principles stressing the need for plain language documentation, undertaking to promote plain language documentation within their memberships and throughout the Canadian community, and inviting other segments of business, legal community, and government to adhere to the Joint Statement of Principle.
14. The Canadian Coalition for Plain Legal Language should consist of industry associations, law firms, and government departments that adhere to the Joint Statement of Principles.
15. Assisted by the Canadian Legal Information Centre, the Coalition should advocate the increased use of plain language drafting in Canada and serve as a resource to its member.

Naturally we would like to see the Report of the Joint Committee endorsed by this Section and by the whole CBA at the next annual meeting.

Many bar associations in the U.S. states have led the campaigns for plain language. A former president of the Michigan Bar has said recently that the key thing to be done in spreading plain language is to win over the bar association and respected members of the profession. We take this advice to heart. We know that it will be a big job to persuade the prac- ticing bar that it is not only worthwhile, but increasingly necessary, to take up plain language drafting.

The British Columbia Experience

Access to Justice: The Report of the Justice Reform Committee, 1988

The Definition of the Problem: "Traditional legal drafting has meant that Members of the Legislature need explanatory notes to allow them to debate proposed legislation. Staff require complex policy and procedure manuals and interpretive bulletins to allow them to administer government programs. And the public needs information brochures to allow them to fill out forms and understand what is required of them."

The present initiatives: The Ministry of the Attorney-General, Court Services has an active Methods, Procedures and Productivity Unit with an interest in plain language. They have reduced the number of forms used by court services to 500 from 2,500, saving time and money for the government. The new land titles forms are another plain language initiative of government. Legislative counsel are aiming to use plain language in drafting statutes and regulations.

Short term projects:

• Small claims court forms have been rewritten in plain language, tested, evaluated and are being issued February 25;
• The economical litigation project of county court is to have rules and forms written in plain language;
• Documents and forms used by the elderly are to be given priority, such as powers of attorney, documents relating to committeeship, and form letters from the public trustee's office;
• Establishment of the Plain Language Institute of B.C.

For more information on Canadian plain-language initiatives, go to: ../Government/canada.htm

© 1991 by Cheryl M. Stephens