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Brushing Up on Fundamentals

Presentation by Peter Butt
Faculty of Law
University of Sydney

Introduction

Let me begin this paper with two apologies. The first is this: I'm an Australian. Given the Australian tendency to fracture the English language - remember Crocodile Dundee? - it must seem somewhat presumptuous for an Australian to lecture on the fundamentals of plain language.

The second apology (offered even more abjectly) is this: I'm a lawyer. Of all writers, lawyers are the least plain. They are the supreme obfuscators. Their writing is dense, inflated, sesquipedalian, self-important and impenetrable, reflecting Professor Rodell's aphorism: "There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground."1

However, if I may be allowed to speak in my own defence, I do have some experience in trying to apply the principles of plain language. I helped establish a Centre for Plain Legal Language at the University of Sydney, where for some years we looked into ways of reforming traditional legal language, to make it more accessible to lay readers. Also, I teach plain language drafting techniques to final-year law students. (The late great Professor Reed Dickerson once said that teaching clear writing to final year law students was pointless. It was too late. You have to get them early. "Poison the wells at the source", he said.)

With those profuse apologies behind me, let us brush up on some "fundamentals" of clear writing. I've put "fundamentals" in quotation marks, because different people have different views on just what is "fundamental". In what follows, I'll concentrate on my pet fundamentals - the principles I consider basic to clear, effective writing. I'll cite examples as we go. Because of my legal background, many of the examples will come from legal documents; no doubt many of you will have equally effective examples from other fields of writing.

The Global and the Particular

In considering the fundamentals of plain language, I distinguish between the global and the particular - between the macro and the micro, the overview and the nitty-gritty. There is a natural temptation to concentrate on the nitty-gritty - short sentences instead of long, active instead of passive, verbs instead of nouns, and the like. While there is a very real place for these matters (all of which we will consider later), I think that the global (macro) matters are more important. The big picture is usually more important than the small picture. So let's start with some of the important global matters.

Global 1: Write for your audience

This is the most important global matter. Effective writing concentrates on the needs of the audience. Who is the "audience"? The answer will vary with the circumstances. To use an example from legal writing: when a judge decides a case, the primary "audience" is the parties to the case. But, of course, the audience includes others as well: the lawyers in the case; appellate judges to whom the case may go; and later readers, who may come to the decision for a number of reasons.

As that example shows, there may be more than one audience for any particular writing. Some audiences will have better comprehension abilities than others. In that case (in my view), it's a matter of discerning the dominant audience and writing for them. But this does not justify writing in a way that others in the audience find incomprehensible.

Almost always, we can accommodate the abilities of different audiences by applying the principles of clear writing. And so (to return to the example), a thoughtful judge can write the decision in a way that is accessible to the parties, their lawyers, appellate judges, and later readers.

Global 2: Organise your material logically

This is the second of the global matters. It is closely allied to the first, since it concentrates on the needs of the audience. It requires writing to be organised in a way that flows logically for the audience. Too often, writers organise material from their own point of view. Perhaps that is only to be expected, as the writer may have lived and breathed the project for months. But familiarity with the material can obscure its inherent difficulty for readers coming to it for the first time. We should write for the audience, not for the writer.
The need to organise material logically from the reader's point of view can be broken down into a number of sub-points:

Put the main points up front

By "main", I mean the points that will most interest the reader. Put these points up front. Don't keep the reader in suspense. Nothing deters readers more than having to trawl through incidental material to find what (to them) is crucial.

Let me illustrate from the area of law. Judicial decisions are usually organised along these lines:

• Discussion of the facts
• Discussion of the relevant law
• Conclusion and orders.

For most readers, this organisation is less than helpful. Beginning with a discussion of the facts is not much use without a context in which to put those facts. In legal judgments, these facts often run for page after page, without any help from the writer (the judge) about their relative significance. How much better to state the issues first, giving the facts some context.

When arguing an issue, state the conclusions early

Where is the most logical place for a conclusion? For writers who do not consider the audience, it is at the end of the document. This location probably reflects the writer's own thought processes: the writer has worked through the facts and the issues to reach the conclusion. However, this order is not the most helpful for readers. For them, it is more logical to place the conclusion up front, for that gives the facts and issues more relevance.

The conclusion may be all that the reader wants to know. To return to the example of a judge's decision: most readers, familiar with the traditional judgment-writing style, will jump to the end to find the conclusion, and then go back to read the reasoning. Less experienced readers may not be so adept, and will be forced to follow the writer through the whole text.

Here is an example of the issues just discussed, drawn from a recent decision of the Australian Federal Court. It shows the common judicial disposition towards ignoring the interests of readers (and in this case, hearers).

Global 3: Be human

We should strive to be human in our writing style. Too often a formal, bureaucratic tone is adopted, as if gravity and distance were necessary qualities for "good" writing. This tone is particularly evident in legal writing. Mark Adler (the Chair of Clarity and author of a book on legal drafting) says: "Lawyers with pens or dictating machines forget they are people: however amiable and unpretentious they may be at other times, when they compose the written word a strange personality emerges."

Allied to need to treat readers as human beings is the need to write "inclusively." This includes (but is not limited to) being alert to language that is gender-specific. Most writers are aware of this need (although chauvinistic traits still exist, particularly in legal writing). However (in my view), in aiming for this goal we should avoid using techniques that strain the language. We should keep our writing idiomatic. A sentence that is "forced" to achieve a particular end - even an end as important as gender-neutrality - draws attention to itself, diverting attention from the message and thus undermining its effectiveness.

A number of techniques exist for producing gender-neutral writing that is both precise and idiomatic. One that enjoys growing popularity is the use of "they" as a singular pronoun. For those who may be sceptical about the grammatical "correctness" of this usage, I draw your attention to a discussion paper written by Dr Robert Eagleson (an Australian linguist) and issued by the Australian Attorney-General's department as part of its Corporations Law Improvement Project.

Global 4: Layout and design

We should carefully consider the layout and appearance of our writing. A well-designed document can help entice readers; a poorly-designed document will almost certainly deter them.

I don't profess to be an expert in document design. However, it is universally acknowledged that good "design" requires attention to at least the following:

• font size
• serif vs san serif typefaces
• contrasting headings (san serif) and text (serif)
• headings: centred vs flush-left
• use of white space
• number of characters per line
• justified vs unjustified text
• capitals vs lower case

Global 5: Test your writing

Finally on global matters: the effectiveness of good writing should be tested against the audience. Proponents of effective writing have long known this, although cost constraints often make it difficult to carry out. A later paper at this conference deals with issues of testing.

Particular matters

From the global we turn to the particular. There are many matters of this kind. Many of those here today will have their "pet" particulars. I will deal with a limited number only - those I consider most important. With any luck, we will have time afterwards to discuss others as well.

Particular 1: Sentence length

Keep sentences short. All linguists agree on this (though they vary on the "ideal" length). Over-long sentences are particularly evident in legal documents such as leases and mortgages, where sentences running to hundreds of words are common. We may marvel at the grammatical ingenuity of lawyers who can construct such leviathans; but we rarely thank them for the agony we must endure in reading the product.

Sometimes, reducing sentence length can be difficult, requiring careful re-organisation of the text. But usually it is a simple matter; and after a while it becomes second nature.

Particular 2: Prefer the active to the passive

We should prefer the active voice to the passive. All writing texts say this. The active is more direct and effective; it helps drive home the message. The passive is less effective; it may obscure the message. Yet the passive is endemic. Its overuse probably reflects a misconception that the passive voice produces a better "tone". This is not to deny that "tone" can be important; but so is effective communication.

Some texts suggest that we should never use the passive. But that is going too far. Sometimes the passive is convenient - for example, where the doer of an act is intentionally left unstated; or where it is useful to invert the sentence for emphasis. The problem lies in the instinctive use of the passive. We should avoid the passive except where we make a conscious decision to use it.

Particular 3: Use verbs, not nouns

The practice of turning verbs into noun phrases - "nominalisation" - is endemic in bureaucratic and legal writing. For example, we rarely "decide"; instead, we "make a decision". We don't "resolve", we "pass a resolution". We don't "sever" an interest in property, but "effect a severance". Here too, the practice probably results from an overzealous desire to achieve a formal tone. So a police report will say: "The accused was observed endeavouring to effect an escape", where it could have said: "We saw him running away". Circumlocution of this kind (and indeed of any kind) impedes effective communication. Verbs, especially strong verbs, communicate much more effectively than noun phrases.

Particular 4: Prefer the simple to the complex, the concrete to the abstract

We should write as simply as the subject matter will allow. This principle can be broken down into a number of overlapping subsidiary points:

• prefer short words to long ones
• prefer simple words and phrases to complex ones (or, in the words of the Plain English Campaign, "Prefer words learned early in life")
• prefer English words to foreign words (perhaps an over-generalisation)
• prefer concrete terms to abstract ones

No-one will think any less of our writing if we adopt these techniques. Far from "dumbing down" the language, we are using it to communicate as effectively as possible. The best writing is writing that communicates effectively with its audience, and that is best done by writing in a style that is simple, direct and clear. I've yet to hear anyone complain that writing is too easy to read.

Some writing teachers hand out lists of "good" and "bad" words and phrases. Personally, I think lists of this kind can be too prescriptive—or is it proscriptive?—since rarely is a word so bad as to deserve perpetual banishment. But lists at least cause us to reflect on the vocabulary we use.

Particular 5: Avoid synonym-strings

A common failing of much formal writing is the use of synonym-strings - lists of words with similar meanings. We can all recite examples, although the best (worst?) come from legal writing: "give devise and bequeath", "right title and interest", "null and void" (or even, "absolutely null and void and of no further force or effect whatsoever"), and so on. There are interesting historical explanations for this practice, but nowadays the practice is almost always unnecessary. Almost always, a single generic noun can be used in place of a noun-string.

Particular 6: Informative headings

We should use informative headings to guide the reader through the text. Headings are always useful signposts, but for some reason bureaucratic writing often omits them. This omission is particularly noticeable in statutes and legal documents. Perhaps it is due to a fear that, through oversight, a heading may not accurately mirror the substance of the clause it announces, giving rise to possible ambiguity. But self-protection against careless drafting hardly justifies denying readers the signposts that headings provide.

We might also consider the benefits of headings in the form of questions: for example, What is the next step? or What are the relevant facts? This is a particularly useful technique if the headings mirror questions in the reader's mind - as any well-crafted heading should do.

Particular 7: Avoid archaic words

In trying to achieve a certain "formality" of tone, some writers invoke archaic words. We should omit them. By "archaic", I mean words that once were common, but have long since fallen into general disuse. Lawyers love them, perhaps thinking they add legal feel; but in fact they add no legal substance. Examples are: hereinbefore, hereafter, whereas, aforementioned, abovementioned, and so on. Almost always they can be struck out without loss of precision.

Particular 8: Beware of unintended ambiguity

A frequent problem in many forms of writing, particularly in legal documents, is unintended ambiguity. Something is ambiguous when it is open to two contrasting meanings - leaving the reader uncertain about which meaning the writer intended. It goes without saying that ambiguity is always to be avoided.

Less serious than ambiguity is lack of verbal awareness (as Bryan Garner describes it). This occurs where the writer juxtaposes words or phrases in a way that provides unintended humour. It causes the reader no real uncertainty, as the context usually clarifies the meaning. It may even raise a welcome chuckle (as in the apocryphal news report: "The police restrained a man with an axe"). But it also causes the careful reader to question the writer's skills and attention to detail, downgrading the writer in the reader's mind.

Particular 9: Tables, graphs, diagrams and flow charts

We shouldn't be afraid to use tables or graphs to clarify or explain. Being wordsmiths, we tend to prefer words to diagrams. Sometimes, however, a diagram can save the reader - and the writer - a lot of effort. To cite examples from the law, legal documents and court judgments traditionally describe land boundaries in words alone ("metes and bounds"). This forces the reader to plough through complex verbal descriptions, all the while cursing the writer for not providing the simple expedient of a diagram.

Flow charts can be useful in explaining the operation of complex systems or transactions. In Australia, flow charts are now beginning to appear in legislation. There is no reason why they cannot be included in other forms of writing, as an aid to understanding.

Particular 10: Some general "tips"

We all have our favourite "tips" - tricks of the trade whose efficacy may be based more on instinct than research. Some of these tips we guard jealously, others we are prepared to share. Here are some I'm prepared to share (I can hardly claim them as my own, having systematically plagiarised most of them from others):

Avoid overusing "of"

To be or not to be?

Another way to improve the directness of writing is to excise the verb "to be" and its variants. To my knowledge, the best short discussion of this device appears in Ed Good's book, Mightier than the Sword (Blue Jeans Press, 1989). Here are three examples, taken from p 68 of his book:

• It was the belief of the court that the plaintiff's contributory negligence would be a bar to recovery.
• There are several factors that the court must take into consideration when it decides on the violation of the statute.
• This is one important factor that all courts place great emphasis upon.

Take advantage of the natural stress point in a sentence

Where is the natural stress point in a sentence? When I ask my students this question, most answer: "At the beginning of the sentence." However, many writing teachers argue that the natural stress point lies at the end of the sentence. Judge for yourself, from the following examples:

• I was wet when I came down from the mountain.
• When I came down from the mountain, I was wet.

• When making a contract, a meeting of minds is the most important element.
• When making a contract, the most important element is a meeting of minds.

If the natural stress point is at the end, we should consider inverting our sentences to take advantage of this - even if it involves violating one or more of the other "fundamentals" (particularly the no-passives principle). Consider the following:

• The cat sat on the mat.
• The mat was sat on by the cat.

Link sentences by putting "old" information first, new information later

To help lead the reader from one sentence to the next, consider starting the sentence with concepts the reader has already met in the previous sentence - and then move on to introduce the new material. This way, you ease the transition from one idea to the next, making the sentences flow more naturally. Consider the following example:

"When you buy a house, you must pay stamp duty in person or by mail. If you go to 112 Phillip Street (near Hunter Street), third floor, room 12, you can pay the stamp duty in person."

Avoid throat-clearing phrases

This is a problem commonly encountered in legal documents, but bureaucratic writing exhibits it as well:

• "It is hereby agreed and declared ..."
• "If I were to be completely frank ..."

Watch your tone!

This is not really a tip, but a note of caution. Earlier in this paper I disparaged the way that some writers strive for a certain formality of "tone". However, "tone" can be important. In some contexts, a certain degree of formality may be required.

Conclusion

At the end of the day, there really are no plain language "rules", in the sense of inviolable principles. There are only guidelines. But there are some fundamental concepts. And the most important is the one with which we began: write for the audience. If we write consciously with the audience in mind, our writing should be clearer and easier to read. From this guiding concept, the other guidelines flow naturally. Further reading:

1. Rodell, "Goodbye to Law Reviews" (1936) 23 Virginia Law Rev 38; reprinted, (1999) 73 Australian Law Journal 593.
2. Adler, Clarity for Lawyers (The Law Society, 1990), p 1.
3. The full text of Dr Eagleson's paper is at: http://www.editors.dynamite.com.au/Eagleson.htm
4. Garner, Dictionary of Modern Legal Usage (2nd ed, 1995), p 911.
5. A prime example is the English Court of Appeal decision, Todrick v Western National Omnibus Co [1934] Chancery 190, 561. This was an easement case, where the court's description of the property was so complex as to be practically unintelligible.