Jargon and Pomposity
Last summer I was asked by a friend who is a single parent to read the draft of her will. The section in question was meant to define legal guardianship and financial oversight for her three-year-old daughter if she died or was disabled.
The document her lawyer prepared was incomprehensible. My friend has a Master’s Degree in education and is a high school counselor. I have fairly extensive experience reading contracts and legal documents. I was grievance chair, president, and board member of the AFL-CIO affiliated union for faculty and professional staff at the State University of New York (SUNY). I was extensively involved in writing the first policies for SUNY Empire State college when it was established in the early 1970s. I enjoy sorting out language and studying word origins to understand meaning. Thus, I consider myself reasonably adept at reading legal documents.
I could not understand any of the sentences related to custody. What my friend wanted specified was:
- Who was to take immediate custody
- Who would have long-term custody
- Who would have financial responsibility
None of this was clear to her or to me. Specific people were identified by name but what they were supposed to do and when was a mystery.
Without a will, a neighbor would have cared for the child while the mother’s family and friends were contacted. They would have worked out the logical arrangement. With this will, no one knew what to do, and worse, they would be afraid to do anything because they might be doing something illegal.
Language and Power
Plain language, often called Plain English, eliminates jargon, pomposity, and arrogance. It emphasizes clarity, brevity, and technical language. It states intentions and requirements clearly using everyday vocabulary. It forces understanding instead of repetition. It eliminates boiler-plate paragraphs in circuitous and pompous eighteen-century language that often even the lawyers who use it cannot explain.
As the renowned physicist Albert Einstein said:
“If you can’t explain it simply, you don’t understand it well enough.”
Inaccurate and obtuse language intimidates. It guarantees that ordinary people cannot exercise or even understand their rights. It subverts democracy and creates autocratic relationships. It protects professional elitism, and thus power over others. It assumes and ensures that we are not all created equal.
Plain Language and Democracy
Though many people, mostly writers, have advocated the use of plain language for decades, a noted event was an essay published in 1946 by author and critic George Orwell “Politics and the English Language.” He criticized what he saw as the dangers of “ugly and inaccurate” written English that enabled political manipulation. Another was UCLA School of Law professor David Mellinkoff’s The Language of the Law published in 1963. Mellinkoff is credited with beginning the plain English movement in the legal profession.
The driving force for the use of plain language, however, was the civil rights movements of the 1960s and 1970s. Feminism, in particular, demanded democratization of medical, legal, and government communications in all forms. Medical records were not even available to patients because “they would not understand them.”
The civil rights movements demanded that people have access to documents that affected them. Access included being understandable by a literate and reasonably well-educated person. This has led to legislation that requires plain language in all federal government documents and to plain language training programs for professionals. And medical records are now available to patients.
Like Democracy, A Long Way to Go
In 2014, as my friend’s will demonstrated, plain language is still not accepted or trusted by many. When I gave her a sample custody agreement written in plain language, she was told by her lawyer that unless “legal language” was used, her will would not be enforceable.
My advice was to change lawyers, but she had already invested hundreds of dollars in this one. When she started asking questions, her lawyer said, “Trust me.” So she did. I hope for more reasons than one that nothing happens to her before her daughter is of age. (I live next door.)
When I discuss democracy in the places we live—neighborhoods, homeowner associations, institutions—and in our schools which are unspeakably undemocratic, I receive the same responses as my friend. We can’t do this because there are laws—or there are no laws. If we do it, we might be breaking the law. We will lose in court. We’ve done everything we can. “Trust me.”
Plain language and democracy are mutually sustaining. When people write in plain language it is much clearer whether they understand what they are saying. And when everyone understands what everyone else is saying, there is more opportunity to act as equals and to have equal understanding of our agreements.
One of my mantras, that you are probably tired of hearing, is “The first step is changing expectations.” What if my friend had asked for a refund because the will should be understandable to her first, and then to her friends and family who would be executing it. That is a perfectly reasonable standard for a document that will determine the future of your child. But who sets standards?
What if we wrote standards for our public officials? Ones that included methods of measurement. What if we actually evaluated them annually? Not setting up commissions or institutions or national standards but just doing it. Each neighborhood would say we have six issues on which we want progress or resolution. Each neighbor could rate each issue from 1-5. Simple and direct. Numbers speak volumes and they spark discussion.
We could also use a happiness index, such as the Legatum Prosperity Index, to measure our satisfaction with a variety of social, political, and economic conditions? Use it to measure our everyday lives, to measure our satisfaction with our children’s educations, with crime in our neighborhoods, or friendliness in our communities.
Doing any of these would define our expectations of democracy in plain language with no institutional overlays of obscure mathematically derived measurements, jargon, that removes them from our personal experience.
For Extra Credit: Resources on Plain Language
The Plain English Foundation, “Getting to the Point,” was established in 2000 in Sydney Australia, to raise public awareness of the social and political benefits of Plain English. It offers clear writing workshops, sample documents and writing tools, and editing and document evaluation services.
Plain English at a Glance by Nancy M. Smith, former Director, SEC’s Office of Investor Education and Assistance, and Ann D. Wallace, former Senior Counsel to the Director, Division of Corporation Finance. Tips include visual layout. How words look on the page greatly improves readability as well as understanding. On the PlainEnglish.gov website which has many other resources including guides to the federal government requirements for using plain language.
Plain English for Lawyers by Richard Wydick is in its 5th edition and has been used for over 25 years in law schools.
“Best Books on Legal Writing“ by Scott Wood, Loyola Law School, Los Angeles on the Los Angeles County Bar Association website. The website includes other articles on plain language—search “plain language.”
An example of a Simple Basic Will in Plain English on the FindLaw website. Each provision is explained clearly at greater length than the original provision.