You are on page 1of 68

Clarity

In this issue (continued)


Maria Otilia Bocchini, Cristina Yamazaki, and
Livio Lima de Oliveira
François Richaudeau’s inspiring concepts on
readability 21
Olivier Beaujean and Anne Vervier
Number 70 December 2013 Plain-language writing-training course: A challenge,
an ambition, and a method in five steps 24

Journal of the Academia

international association Karine Nicolay


IC Clear course almost ready for pilot 28
promoting plain legal language
Donna Bain Butler, Ph.D.
Strategies for clarity in legal writing 31
Eunice Park
In this issue “Plain language”: Practical tips for how to make
it not so plain 38
Creative
Jill Barton
Charles E. “Chuck” MacLean A “Show, don’t Tell” lesson on plain language 41
Helping legal writers embrace their inner Salieri:
Ann Nowak
Re-vision is just “seeing again” 5
Writing clearly: What I teach may be hazardous
Tammy R. Pettinato to your wallet 43
Two letters, one message: teaching plain language
Legislative Drafting
through letter writing 8
David Marcello
Consulting and Training
Teaching plain language drafting in a legislative
Sara Rösare and administrative advocacy clinic 46
Teaching plain language through editing 11
Contract Drafting
Joanna M. Richardson
Natasha Costello
Case study
Teaching non-native English speakers to draft
Comparison of plain language teaching for
contracts with clarity 50
two non-native English-speaking professional
groups: lawyers & engineers 14 Karin Mika
Visual clarity in contract drafting 52
Colleen Trolove
Teaching grammar without scaring people 17 Healthcare
Judy Knighton and Rosemary Knight Sue Stableford, MPH, MSB
We follow Aristotle 19 Audrey Riffenburgh, MA
Lessons from the workshop trenches: Challenges
in teaching plain-language writing to health
professionals 56
Democracy
Javier Martínez Villarroya
Clearer words, clearer justice 60
Editor in chief:
Julie Clement Clarity and general news
This issue 3
Guest editors: Remembering Robert Eagleson 4
Cynthia M. Adams & Kara Zech Thelen Contributing to the journal 7
How to join Clarity 40
Guest editor for Clarity 71: Book reviews 64
Deborah Bosley Message from the presidents 66
Patrons The Rt Hon Sir Christopher Staughton; The Honorable Michael Kirby AC CMG; and
Sir Kenneth Keith, ONZ, KBE, and QC
Founder John Walton
Committee
President: Joh Kirby (claritypresident@gmail.com)
Members: Country Representatives plus Simon Adamyk, Michèle Asprey, Peter Butt, Sir Edward
Caldwell, Richard Castle, Annetta Cheek, Julie Clement, Gérald Delabre, Robert Lowe,
John Pare, John Walton, Richard Woof.

Country representatives
Australia Italy Portugal
Christopher Balmford Christopher Williams Miguel Martinho
Christopher@balmford.com cjwilliams72@hotmail.com miguel.martinho@gmail.com
Belgium Japan Slovak Republic
Olivier Beaujean Kyal Hill Ing. Ján Rendek
o.beaujean@droitsquotidiens.be kyal.hill@hplt.jp jan.rendek@gmail.com
Canada Malaysia South Africa
Nicole Fernbach Juprin Wong-Adamal Candice Burt
juricom@juricom.com jadamal@gmail.com candice@simplified.co.za
Chile Mexico Spain
Claudia Poblete Olmedo Rosa Margarita Galán Vélez Raquel Taranilla
claudia.poblete@ucv.cl mgalan@itam.mx raqueltaranilla@gmail.com
Finland The Netherlands Sweden
Heikki Mattila Tialda Sikkema Helena Englund Hjalmarsson
heikki.mattila@ulapland.fi tialda.sikkema@hu.nl helena.englund@
France New Zealand sprakkonsulterna.se
Jenny Gracie Lynda Harris UK
jenny@partnersforlaw.eu lynda@write.co.nz Daphne Perry
Germany Nigeria daphne.perry@clarifynow.co.uk
Siegfried Breiter Dr. Tunde Opeibi USA
s.breiter@t-online.de drtundeopeibi@gmail.com Prof Joseph Kimble
Hong Kong Pakistan kimblej@cooley.edu
Elizabeta Grindey Mazhar Ilahi Zimbabwe
elizabethgrindey@doj.gov.hk mazharilahi@hotmail.com Walter Zure
Israel Philippines wzure@cbz.co.zw
Myla Kaplan Victor Eleazar All other countries:
mylak@law.haifa.ac.il attyvye@msn.com Please contact the USA
representative

Honor roll of donors to Clarity


Clarity is managed entirely by volunteers and is funded through membership fees and donations.
We gratefully acknowledge those financial supporters who have contributed to Clarity’s success:
$2,500+ Plain English Foundation, one anonymous donor, Christopher Balmford
$1,000+ Joseph Kimble, Julie Clement
$500+ Nicole Fernbach
$100+ None

2 Clarity 70 December 2013


An international association
promoting plain legal language
www.clarity-international.net

Clarity … the journal This issue


Published twice each year Presumably, as readers of Clarity, we are in-
terested in communicating more clearly and
concisely. And, undoubtedly, most of us are
devout adherents to plain-language prin-
ciples in our own writing. We understand
that becoming an accomplished writer takes
time and effort, and we are perpetually
working to improve our writing skills.
Perhaps the only challenge more daunting
than improving our own writing is success-
fully teaching our students and clients to
become better writers. Unfortunately, we are
President all too familiar with the glazed, bored, or im-
Joh Kirby patient looks of our audience when we
claritypresident@gmail.com explain word choice, sentence structure,
brevity, and precision. No wonder that we
Editor in chief are constantly on the lookout for better ways
Julie Clement to motivate our audience to embrace the
PO Box 13038 “whys” and to understand the “hows” of
Lansing, Michigan 48901 good writing.
Fax: 1 517 334 5781 For those of us grappling with these teaching
clementj@cooley.edu challenges, Clarity 70 is bursting with novel
and creative ideas. Here is just a sampling of
what you will find in this issue:
Advertising rates In a particularly imaginative article,
Full page: £150 “Helping Legal Writers Embrace their
Smaller area: pro rata Inner Salieri: Re-vision is Just ‘Seeing
Minimum charge: £20 Again,’” the author juxtaposes the
Contact Joe Kimble, kimblej@cooley.edu creative approaches of composers Salieri
and Mozart with creative methods for
Copyright policy writing clearly and comprehensibly for an
Authors retain copyright in their articles. intended audience.
Anyone wanting to reproduce an article in
For consultants who provide editing and
whole or in part should first obtain the
writing services to business clients,
author’s permission and should acknowledge
“Teaching Plain Language Through
Clarity as the source.
Editing” explains a successful step-by-step
Submissions approach used by a Swedish language
We encourage you to submit articles to be consultant agency; by the way, plain-
considered for publication in Clarity. Send language professors will likely find the
submissions directly to editor in chief Julie author’s tips extremely helpful for giving
Clement. Please limit submissions to approxi- thoughtful feedback to students.
mately 1,500 or 3,000 words.
Clarity 70 December 2013 3
To those teaching legislative drafting, be Cynthia M. Adams is a
sure to read “Teaching Plain Language in Clinical Professor of Law at
a Legislative and Administrative Indiana University Robert H.
Advocacy Clinic,” which describes a McKinney School of Law where
she teaches transactional
comprehensive approach to teaching
drafting, negotiations, and legal
legislative drafting. analysis. She is the coauthor of
And for striking examples of plain two books for non-US lawyers
language’s power to improve healthcare and law students: Drafting
Contracts in Legal English:
and cultivate democracy, don’t miss
Cross-border Agreements
“Lessons from the Workshop Trenches: Governed by U.S. Law (Aspen 2013); and The
Challenges in Teaching Plain Language International Lawyer’s Guide to Legal Analysis and
Writing to Health Professionals” and Communication in the United States (Aspen 2008, 2d
“Clearer Words, Clearer Justice: Teaching ed. forthcoming). Professor Adams serves as a clinical
Plain Language to Future Mexican consultant to non-U.S. universities and governments,
Lawyers.” and presents internationally on issues related to plain-
language drafting in the law. Contact her at
We hope that each of you finds in this edition cadams@iupui.edu.
at least a few golden nuggets that will rein-
Kara Zech Thelen is an
vigorate your plain-language teaching or
assistant professor at Thomas
practice. Cooley Law School, where she
Wishing you all the best in 2014! teaches legal research and
writing. Before teaching, she
clerked for a federal magistrate
judge and practiced employment
and higher-education law at an
international law firm. As a
plain-language advocate, she has
served as a judge for New
Zealand’s Writemark competition and the Center for
Plain Language’s ClearMark and WonderMark
competition, which recognize the best and worst in plain
language in the private and public sectors. Contact her at
zechthek@cooley.edu.

Remembering Robert Eagleson


As many of our Clarity members will have heard, Professor Robert
Eagleson died late last year. Robert was a pioneer of plain language.
He was a professor of English at the University of Sydney, Austra-
lia, initially specialising in linguistics and Shakespeare, and later
moving to the language of the law. His initial work was on plain
language insurance policies in Australia—probably the first in the
English-speaking world. He came to international prominence
with his ground-breaking report for the Victorian Law Reform
Commission, Plain English in the Law. Later, he co-founded the Centre for Plain Legal
Language at the University of Sydney, and then spent a generation training lawyers,
linguists, public servants and parliamentary drafters in the techniques of plain language.
Those who knew him marvelled at his knowledge, his wit, his teaching ability, and his
genuinely humble and self-effacing nature. A fuller acknowledgment of his life and
work will appear in a forthcoming issue of Clarity.
— Peter Butt
I have been very touched by the many condolences I have received from Clarity members.
They all spoke of Robert with great fondness and admiration. I trust you will understand if I
do not reply personally to every one, but I have been quite overwhelmed by the number and
warmth of the messages.
— Muriel Eagleson, Robert’s widow

4 Clarity 70 December 2013


Creative

that took place in his mind rather than on


Helping legal writers paper. As noted by Salieri, “[Mozart’s scores]
showed no corrections of any kind. Not one.
embrace their inner Salieri: He had simply written down music already
Re-vision is just “seeing finished in his head . . . as if he were just taking
again” dictation. And music, finished as no music is
ever finished. Displace one note and there
would be diminishment. Displace one phrase
and the structure would fall.” And, in the film,
Charles E. “Chuck” MacLean1 Mozart demonstrated that all drafts can be im-
proved. If you have seen the movie recall the
Assistant Professor of Law, Indiana Tech Law School scene where Emperor Joseph II had just re-
Indiana, USA
ceived Mozart by playing on the harpsichord
As dramatized in a welcoming march clumsily penned by Salieri.
the 1984 film, Mozart memorized the march upon that single
Amadeus,2 Antonio hearing and rhetorically blurted, “That really
Salieri, on Mozart’s doesn’t work, does it?” Then, on the spot,
Salieri saw himself music: It seemed to
as a musical rival to me that I was hearing Mozart re-wrote Salieri’s draft into a sublime
Wolfgang Amadeus the very voice of God! phrase. Simple re-vision!
Mozart, of whose Too many legal
music Salieri re- writers and far too
marked, “It seemed many law students Salieri, on Mozart’s
to me that I was hearing the very voice of God!” deem their work— music: God was sing-
For his part, Mozart noted Salieri’s work as even their first ing through this little
well but with obvious disdain: “I never knew drafts—to be per- man!
that music like that was possible . . . One hears fect. Many among
such sounds, and what can one say but, ‘Salieri’.” us have remarked
But Mozart’s genius was not exclusively di- after reading our
vinely inspired, and Salieri’s mediocrity was own writing, “Ahh, now that’s outstanding.”
not immutable. Genius for both required revi- Of course it feels right; we wrote it! It sounds
sion with a keen ear—Mozart had the ear and great to our ear. But that is scarcely the point.
applied it, but Salieri did not. For legal writers, It is not enough to be satisfied with Salieri’s
the same applies: The solution to mediocrity perspective, that his music was good enough,
requires revision, that is, “seeing again,” this because, “I liked myself.” A legal writer’s quest
time with the read- is to avoid furrowing the readers’ brows, not to
ers’ eye. avoid furrowing the writer’s own brow. That
Mozart’s compos- requires re-visioning—seeing again, with the
Salieri, on Mozart’s
ing genius appeared readers’ eyes. Too many of us see ourselves as
music: Displace one Mozarts and our writing as angel’s singing
miraculous; on his note and there would
handwritten origi- rather than seeing the truth: We are Salieris.
be diminishment.
nal sheet music Legal writers can ill afford seeing Mozart in
Displace one phrase
there was not a the mirror—perfect on the first draft—and can
and the structure
single erasure. But ill afford seeing their work only through their
Mozart’s genius would fall. own eyes. For legal writers, the legal reader is
rested in revision the target. Legal writers need to prepare plead-

Clarity 70 December 2013 5


ings that are clear to contract for a client, the writer must draft pro-
the judge and op- visions that are clear and enforceable to all who
ponents, not just Mozart on his own will rely on it—including the client and the other
clear to the writers. music: They say I contracting party—and to the judge who might
Legal writers need have to rewrite the ultimately be called upon to interpret it. It is
to draft contracts opera. But it’s perfect all re-vision.
that are clear to the as it is! I can’t rewrite
parties and inter- what’s perfect! Seeing with the judge’s eyes
preting courts, not Judges are busy and
just clear to the thus prone to resent
writers. Legal writ- verbosity. Judges Emperor Joseph II,
ers need to create briefs that persuade the want to know the
judge, not just persuade the writers. So legal to Mozart: It’s qual-
best arguments and ity work. And there
writers should always select each word, phrase, facts for and against are simply too many
sentence, paragraph, and point heading to reach each side without ad
the intended reader. They must ask: Will my notes, that’s all. Just
hominem attacks and
client understand that clause? Do I need to lay cut a few and it will
gratuitous emotional
more groundwork so the judge can follow my appeals. Judges need be perfect.
argument? Have I crafted headings that allow a to know the con-
busy legal reader to efficiently find the “good trolling authority.
stuff” in my brief? Legal writers are not Mozarts, So a legal writer re-visioning with the judge’s
so they must see themselves as Salieris—always eyes will be succinct and direct, will be persua-
in need of additional re-vision to ensure their sive without unnecessary emotion or vitriol, and
readers’ needs have been met. How, then, can a will illuminate the current state of the law
legal writer see with the readers’ eyes? Con- clearly, comprehensively, and honestly. The
sider the text from the readers’ perspective. judge must let the law control and must not
Seeing with the client’s eyes: The writer need let emotion hold sway. After all, it is axiomatic
only ask what the client already knows, needs that hard cases make bad law. But the legal
to know, and wants writer who courteously remembers that judges
to know. For ex- are typically busy people would do well to
ample, an experi- Salieri, on clients: I present concise and direct writing for judges
enced client already think you overestimate to review.
knows the basics
our dear Viennese, my Seeing with the opponent’s eyes
and will not have a
furrowed brow if the
friend. You know you
When writing for the opponent’s eyes, the legal
writer inserts a legal didn’t even give them writer must consider what the opponent
term of art or two, a good “bang” at the
knows, needs to know, and wants to know.
but a less-educated end of songs, to let
But, in addition, the writer must consider
client may be con- them know when to
what he or she wants the opponent to know.
fused by even a clap.. In any event, the opponent should “see” be-
rudimentary legal tween the lines of the writing the writer’s
term of art. Every professionalism, preparation, courtesy, and
client needs to know what the lawyer has done stridency.
and will do next on the case, and when the law-
yer will do it. Every client needs to know what Seeing with the partner’s eyes
the client needs to do next and when the client
needs to do it. Every client wants to know what When writing for a law-firm partner or super-
will happen next and what it will cost. Armed vising attorney, the writer must answer the
with the client’s background, wants, and needs, specific questions asked, make the answers
the writer can then select each word and phrase concise and clear, and present the best argu-
so that it will be understood by the reader. The ments and facts for and against both sides. But
writer can use subject lines and headings to the supervising attorney is especially attuned to
make the writing clear and easy to follow. The two additional key factors: likelihood of success
writer can highlight and clarify deadlines for and cost to achieve that success. Thus, when
the reader. More specifically, when drafting a writing to a partner or supervising attorney, the
writer must respond to all questions raised.
6 Clarity 70 December 2013
Principles that apply regardless of the reader’s But no matter the type of reader, plain language
role or characteristics: The sublime perfection will better achieve the goal that the writer seeks.
of Mozart’s compositions arose from his ability Plain legal language informs and advises with-
to present complex material clearly, cleanly, and out risk of inadvertent confusion. It persuades
without pretense or excess. Mozart’s compo- without furrowing the reader’s brow. Remember,
sitions are accessible to all listeners. They do we are Salieris, not Mozarts who can “simply
not require the listener to have had special [write] down music already finished in his head!”
training or experience. They do not presuppose We must spend the time to
that the listener has been exposed to some re-vision and rewrite in
musical jargon or genre. The music “speaks” plain legal language.
to everyone. And that is the goal for all legal
© 2013 C MacLean
writers—to speak to all legal readers. The
CEMacLean@indianatech.edu
writing must be accessible and clear regard-
less of each reader’s background or expertise. Endnotes
The writing must be pure essence without 1
pretense. It must not force the reader to struggle J.D. cum laude, M.B.A., B.A.,
Assistant Professor of Law,
to comprehend. It must not furrow the reader’s Indiana Tech Law School,
brow. That can all be condensed into one con- Fort Wayne, Indiana USA.
cept: Great legal writers make economic use of 2
Amadeus, directed by MilošForman (The Saul
plain language. Now, reflect on that concept Zaentz Co. 1984) (all quotes herein are from the
when considering the groups of legal readers screenplay).
identified above, and the legal writer will find Chuck MacLean, who has taught legal research and
that the concept applies to every group. Al- writing since 1997, serves as an Assistant Professor of
though each group has its own needs and wants Law at the Indiana Tech Law School in Fort Wayne,
and its own level of expertise or experience, Indiana USA, and currently coordinates its Lawyering
legal writing that is presented economically in Skills program. He has presented widely on criminal law
plain language will ensure that clients are and lawyering skills, and his research has been published
or is forthcoming in the Dicta Bar Journal, the Federal
served and informed; judges are more likely Courts Law Review, the Hamline Law Review, the
to be persuaded; and partners and supervising Washburn Law Journal, the Law Teacher journal, and the
attorneys are educated and advised. Supreme Court (Canada) Law Review. He also authored
All of this only requires that the legal writer four chapters in the forthcoming Encyclopedia of
Criminal Justice Ethics.
re-vision, to see again with each reader’s eyes.

Contributing to the journal


Clarity often focuses on a specific theme (like conferences or drafting or standards), but
we also publish articles on a variety of other plain language topics. Please submit your
articles to the editor in chief for consideration.
Would you like to be a guest editor? Our guest editors gather articles, work with the
authors, make layout decisions, and edit and proofread a single issue. If you would
like to guest edit an issue of the Clarity journal, send an email to the editor in chief.
Finally, if you have ideas about improving the journal, the editor would like to hear
from you, as well. Our editor in chief is Professor Julie Clement, with the Thomas M.
Cooley Law School. Email her at clementj@cooley.edu.

Clarity 70 December 2013 7


The task of legal-writing professors is to help
students understand that complicated is not
Two letters, one message: always better. In fact, overly complicated prose
teaching plain language at best obscures their argument or analysis, and,
at worst, convolutes it to the point of misun-
through letter writing derstanding. Students must learn that judges
and fellow attorneys want and need the same
things from what they read as almost any other
audience: for the writer to “get to the point.”
This is true not in spite of, but because of, the
Tammy R. Pettinato often complex ideas that legal writing requires
Assistant Professor, University of North Dakota lawyers to convey.
School of Law The exercise described in this article teaches
North Dakota, USA
students the importance of both plain language
Have you ever noticed that you tell the same and audience. The exercise uses a form of writing
story different ways depending on your audi- with which most students are familiar—letter
ence? The traffic jam that made you late might writing—to push students to reflect on how
be a humorous anecdote full of inside jokes and why they change their writing styles for
when the appointment is for coffee with your given audiences. By letter writing, I don’t mean
best friend, but it becomes decidedly serious the client letter, although this exercise could
when the appointment was with your boss. certainly inform that type of instruction. Instead,
this exercise uses ordinary letter writing and
We all wear different hats, and one task of legal gives students the opportunity to tell a story
writing professors is to teach students how to without the added pressure of legal analysis.
“wear the hat” of the legal profession. Just as For those who worry that today’s students may
students must learn to “think like lawyers,” they not actually be familiar with writing “real”
must also learn to write like lawyers. In many letters, emails may be easily substituted with-
ways, writing like a lawyer is no different than out losing the essence of the lesson. The
any other type of writing. In all cases, tone, or- important point is the function, not the form.
ganization, effective word choice, and proper In this case, the function that matters is writ-
grammar and punctuation are essential to ing a story with a specific reader in mind.
good writing.
The twist in this exercise is that students write
But perhaps most important of all to good writing two letters addressed to two separate people.
is to know one’s audience. One of the funda- Both letters must tell essentially the same story,
mental lessons legal writing students must although students should have some choice
learn is to think about the needs and wants of in how much detail they choose to include. Addi-
their reader. Students must understand the im- tionally, to make assessing the letters
portance of adjusting their language or tone manageable, there should be a 500-word
based on whether they are writing to a judge, maximum. However, there should be no
a fellow attorney, a client, or someone else. minimum length and no requirement that the
While some students understand this instinctu- letters be of the same length. Allowing some
ally, their instincts are often flawed. The more variation in detail and length provides the
prestigious the audience, they think, the more students with the opportunity to think about
complicated and obscure the language they how they adjust their storytelling depending
must use. Thus, the beginning legal-writing on audience.
student often starts out using stilted or inflated The first letter should be written to someone
language, mistaking the use of large or un- whom the student considers “above” him or
common words, complicated sentence structure, herself in some way. Encourage the students
and other forms of legalese for more “profes- to think of someone they respect but perhaps
sional-sounding” writing. Most of us have find a little intimidating. A former boss or
probably had those students who pepper their professor is a good candidate as is a judge or
work with latin phrases or anachronistic word potential employer. The goal is for the students
choices that seem pulled directly from a book to think of the audience for this letter as some-
on how to write like a lawyer in 17th century one whom they want to impress.
England.
8 Clarity 70 December 2013
The second letter should be written to some- “prestigious” letter when, in an effort to sound
one with whom the student has a more informal intelligent and important, students choose
relationship. The audience for this letter could words for their “weight” rather than for their
be a best friend, a sibling, or someone who is meaning or clarity.
much younger than the student.
Furthermore, asking the students to write about
The insight from this exercise comes when what they’ve learned in legal writing so far has
students are asked to compare the two letters benefits for the professor. If the professor chooses
that they wrote and explain the differences. to collect the letters, her or she may obtain
Although the professor might ask the students valuable feedback about what students are
to jot down some thoughts on this ahead of taking away from the course as its being taught.
class, this exercise works best when the letters The professor learns what impression the stu-
are composed outside of class but the discus- dents are getting about what’s most important,
sion takes place as a group in class. Students and may even notice that central concepts are
will be challenged to think about how and why being overlooked. He or she may also be able to
they chose to present the same information to “take the temperature” of the class and uncover
different people and to defend those choices. problem areas before they become disasters.
Some possible questions for discussion include Finally, a particular benefit of having the stu-
asking the students: What information did you dents write about what they’ve learned in legal
choose to present? Did you include anything in writing so far is that it provides yet another
one letter that you left out of the other? What opportunity to talk about audience, in this
language did you choose to use? What tone were case, secondary audiences. As students com-
you trying to convey? Why did you make these pose their letters, they will no doubt be aware
decisions, and how did you achieve your goals? not only of their purported audiences but of
you as the professor of the class about which
Most importantly, students should be asked
they are writing.
which of their letters they think is most clear.
When students compare the letters side-by-side, This last factor provides an excellent jumping
some interesting insights arise. For example, in off point for discussing how to adjust one’s
writing the more “prestigious” letter, students writing to multiple audiences. With interof-
often resort to a thesaurus, digging for ways in fice memoranda, lawyers often are not just
which to make themselves sound sophisticated writing to the particular partner or associate
and intellectual. This is precisely what some who assigned the memo but to future associ-
students do when writing legal arguments for ates who may need the same information
the first time. later. With briefs, they are writing not just to
the judge but also to the judge’s clerks and to
Yet, in nearly all cases, when asked which letter
researchers and perhaps even members of the
is more clear and straightforward, students will
media who might read the documents as
choose the more informal letter. In this letter,
well.
students typically strive to sound “normal”—
in other words, to write in plain English. While A major lesson that students learn from this
this letter might suffer its own defects in being exercise is that language matters. They learn
too casual or including unnecessary asides, that using the biggest words is not always
the ultimate message is clear: Simple is best. best and may even detract from their mes-
sage. Similarly, overusing complicated
One possibility for this exercise would be for
sentence structure or other artificialities to
students to write on a topic of their choosing.
make their work sound more “important,” or
But to give this exercise a little extra punch,
otherwise elevate their own status actually
students could be asked to write on the same
obscures their meaning and makes conveying
topic: “What I’ve learned in legal writing so far.”
their arguments more difficult than it need
Using the same topic allows students to com- be.
pare notes on the information that each of them
The ultimate goal of this exercise is to facili-
chose to emphasize in different scenarios. Ad-
tate discussion about plain language and
ditionally, when they write on the same topic,
audience. Students must learn the impor-
they can more easily identify inaccuracies in
tance of thinking about the language they
language and storytelling in each other’s work.
choose and what it conveys about both their
Such inaccuracies most often occur in the

Clarity 70 December 2013 9


own authority and the strength of their cases. Tammy R. Pettinato is an
Asking them to tell the same story to multiple Assistant Professor at the
audiences gets them thinking about how to University of North Dakota
School of Law where she teaches
adjust what they have to say and how they
lawyering skills, employment
say it based on who needs to hear their mes- discrimination, and disability
sage and why. law. Before joining the
University of North Dakota, she
© 2013 T Pettinato was a Visiting Assistant
tammy.pettinato@gmail.com
Professor at the University of
Louisville School of Law, an
Adjunct Professor and Assistant Director of Career
Services at the University of La Verne College of Law,
and a Reference Librarian and Lecturer at UCLA School
of Law.

Available from
Carolina Academic Press
(www.cap-press.com)
at a 10% discount;
from amazon.com; or from
bookdepository.com
(with free worldwide shipping).

10 Clarity 70 December 2013


Consulting and training

As language consultants we have the compe-


tence to analyze a communication (mostly a
text); to suggest improvements to make it
Teaching plain language more suitable to its purpose and audience; to
through editing implement our suggestions; and to explain to
writers the reason for our edits. In our plain-
language editing, this is exactly what we do.
The client always receives a text that is edited
to better reach the intended audience. But we
Sara Rösare also deliver a set of recommendations to the
Consultant, Språkkonsulterna writer as well as explanations so the writer is
Stockholm, Sweden made aware of what we have done as well as
of his or her writing strengths and weak-
This article deals with how the Swedish language nesses.
consultant agency Språkkonsulterna teaches
plain language through reviewing and editing We attend to the contact with the writer
other writers’ texts. The keys are keeping a good We always try to involve the writer from the
report to the writer, explaining the proposed very start of the editing process. Before begin-
changes in a pedagogical way, and offering tools ning the actual editing, we discuss with the
through complementary comments to the writer. writer the text’s intended audience and pur-
The agency’s method is an efficient way of pose. This makes the writer aware that these
achieving the motto of the company: to make the two concerns need to be considered. Of
world a more comprehensible place for everyone. course, we also ask writers if there is some-
Språkkonsulterna is comprised of nine gradu- thing specific to which we should pay
ates from the Swedish Bachelor program for attention, e.g., the use of technical terms or if
language consultancy. We offer a broad range there is an internal style guide we must fol-
of communication services, mostly related to low.
plain language: advising, training, coaching, During the editing work, we often communi-
and text services, including writing and edit- cate with the writer again in order to make
ing. The aim of our text services is to ensure mutually agreeable decisions about such
the text achieves its purpose and reaches the things as choice of words, abbreviations, or
intended audience; often this means applying explanations. By doing this, we make the
the principles of plain language. In this ar- writer aware that we can’t just “fix the text”.
ticle, I describe our agency’s process for We need to work together since we have the
editing, which has worked successfully and is linguistic and plain-language knowledge,
greatly appreciated by our clients. while the writer has the professional knowl-
edge on the subject matter.
Improve the writer, not only the text
Sometimes working together is especially
For us, a principal question in plain-language critical because of the circumstances giving
editing is whether the aim is merely to im- rise to the editing assignment. Often the writ-
prove the text or whether the aim is to ers work in organizations where
improve the text as well as improving and management has decided that all texts
empowering the writer. We promote the lat- should be in plain language. Thus, the writ-
ter aim. ers are more or less forced to send their texts

Clarity 70 December 2013 11


to us, and this can create a resistance to being We supply tools to the writer
edited. And a writer unwilling to be edited is
When we deliver the edited text, we always
more defensive; he or she might not under-
provide a report to the writer summarizing
stand the aim of plain language or learn to
our edits. In this way, we make the writer
implement it. And, in the worst case scenario,
aware of his or her common mistakes and
the writer will not accept the changes we
give advice on areas where he or she can de-
propose and our work is undone. Therefore,
velop as a plain-language writer. Of course,
central to our editing method is attending to
we also mention the writer’s strengths.
our relationship with the writer.
In this report and in comments in the edited
We explain the changes that we propose text, we often reference dictionaries, para-
graphs in official language guide lines, or
Mostly, we edit in MS Word, using the Track
other useful sources. This offers the writer
Changes and Comments functions. This
tools that can also be used in later writings.
means that the writers must review the ed-
That is, we strive to improve the writer’s
ited text sentence by sentence or, as we
skills beyond the current text. Based on the
recommend, paragraph by paragraph, ac-
feedback we have received in our ongoing
cepting or ignoring each of the changes.
contact with writers, we know that they ap-
Based on our experience (including feedback preciate our recommendations.
from writers), we know that the work of the
To deepen our understanding of the writers
writer is easier if we add comments to some
being edited, our agency organized a discus-
of the changes. Of course, if there is a spelling
sion earlier this year with some of our clients
mistake, we don’t need to explain why we
that are public officials. In this discussion, we
changed it. But if we make changes in the
learnt that writers use our recommendations.
syntax, we know that we can help the writer
We also discovered that writers who had
decide to accept the proposed change if we
their texts edited several times have devel-
explain the reason behind it. For example, as
oped an awareness that the quality of the
language consultants, we know why certain
draft they initially send to us for editing af-
syntactic constructions are less readable, and
fects the quality of the end product. One of
in a short comment, we explain this to the
the officials had estimated—probably cor-
writer.
rectly—that we improve the quality of the
We also make comments about different final draft by 10-20 percent. He also realized
ways ambiguous sentences or words might that our suggestions and recommendations
be interpreted and ask the writer to clarify were on a higher level if he had worked
the meaning. In these cases, we use the Com- harder on his initial draft. For us, this evi-
ments function to offer alternate wordings in denced that our communications with
addition to the one we propose in the text. writers can also heighten their overall aware-
In our editing work, we often encounter sub- ness when working on their texts.
ject matter that is unfamiliar to us or
passages that we do not understand. Inexpe- Why all this work, why don’t we just re-
rienced editors may feel uncomfortable in write and be done with it?
these situations. Our solution, though, is to Our editing method is perhaps not the most
rewrite in plain Swedish our interpretation of time efficient. But to edit a text without giv-
the text. In these instances, we use the Com- ing explanations, without offering
ments function to ask the writer if the alternatives, or without taking time for the
interpretation is correct, adding that if we in- writer means not caring about the excellence
terpret the passage in this way and it is not of the result. Using our pedagogical method
correct, then other readers might also misun- of editing accomplishes several goals, all of
derstand. Sometimes the result is that the which strengthen plain language:
writer rewrites it again using wording differ-
ent from the original or our suggestion. 1. Increased quality of the end product,
Without our comment, the writer might sim- since writers are often more willing to
ply reject our suggestion because it is not accept changes that they understand.
correct and leave the ambiguous text as it is. 2. Cost and time savings for the client,
since employees skilled in writing and

12 Clarity 70 December 2013


editing in plain language will be more Conclusion
cost effective and efficient for the
Why does Språkkonsulterna put so much ef-
organization than hiring external
fort into this pedagogical editing process?
consultants to do the work.
The answer is simply because it is worth it.
3. Increased satisfaction for the writer For us, this approach is a satisfactory and ef-
who has the opportunity to strengthen ficient way to achieve our overall goal of
his or her language skills. making the world a more comprehensible
place for everyone. In addition, using this ed-
The pedagogical method enhances our iting process better serves our clients, who
business receive not only quality texts but also the op-
Since our method is good for the end product portunity for its writers to improve their
as well as for the client and the writer, it also skills. And by improving an organization’s
enhances our business: We frequently wind individual writers, the text culture of the en-
up receiving more assignments from the same tire organization is improved. Lastly, our
client. For example, we have a contract with editing process satisfies the writers. After all,
a public authority that initially requested 20 most people are eager to learn when they see
monthly hours of plain-language editing. the point in learning.
However, we sometimes spend as much as 20
hours a day for this client. Furthermore, dur-
“Epilogue”
ing the first eight months of the contract, we I assume that many Swedish language con-
received from the client 70 assignments of sultants work in a similar way, but how
plain-language editing. Of course, we cannot about the rest of the plain-language world? I
be sure that this is a direct result of our giving look forward to hearing from you.
feedback to the writers. But we are sure that
© 2013 S Rösare
the increase of assignments (compared to the
sara.rosare@sprakkonsulterna.se,
expected amount) is a result of our high qual- www.sprakkonsulterna.se
ity work, of which our pedagogical method
of editing is an integral part. In addition to Sara Rösare has a Bachelor
receiving more texts to edit, we are some- degree in Swedish Language
times asked to produce writing guidelines for Consultancy and a Bachelor
degree in Political Science. She is
the organization and to train its employees. one of the employees at
But our pedagogical method of editing also Språkkonsulterna, the biggest
serves our agency’s personal and professional bureau of plain language
philosophy to spread the plain-language consultants in Sweden. As a
consultant, she applies plain
practice. We strongly believe that we can language principles when
change the world through ensuring people editing and writing texts, and
their right to language—not only the right to when training and coaching other writers and plain
understand important texts but also the right language editors. Her handbook on editing, Uppdrag
to express oneself in a way that most people textgranskning (Mission text editing), will be published
will understand. by Prodicta förlag in 2014. Sara is also a member of the
reference group for curriculum development and
enhancement of the Language Consultancy Program at
Stockholm University.

Clarity 70 December 2013 13


Method: Classes are held over lunch, the only
Case study break in a busy day for most of the lawyers.
Comparison of plain language They are held in a workshop environment
teaching for two non-native where everyone is encouraged to contribute
and discuss. I clarify when a point is gram-
English-speaking professional matically or stylistically incorrect, or outside
groups: lawyers & engineers normal current use. I constantly emphasize
that writing is subjective and each of them
must find their own style. Although of course
I do encourage them to write in a plain-En-
Joanna M. Richardson glish style!
Plain English instructor at Marval, O’Farrell & Mairal As an instructor, I encourage them to partici-
Argentina pate and give their opinions. Because lawyers
tend to be very self-confident and loquacious,
This case study draws on over ten years’ expe-
this is not normally a problem. But sometimes
rience of teaching plain-language writing skills
I have to encourage the younger, less confi-
in English to Spanish-speaking professionals.
dent ones to share their suggestions. I am
It outlines the teaching method and highlights
in-house, which means the lawyers know
the different approaches required for these two
and trust me. Although they may be argu-
groups: lawyers and engineers. Each group is
mentative, which goes with the profession,
well educated, competitive, highly motivated to
they generally respect my opinion.
learn, and includes a wide range of compe-
tence in written-language skills, varying from Over a two-year period, I give the lawyers a
intermediate levels to people who have taken series of courses:
postgraduate studies in English. All, of course,
Plain-English Writing Course I
make a number of errors which I will not ad-
dress here, as I wrote about them in the article This course covers 10 basic principles of plain
published in Clarity #61 Plain English for Spanish- English:
speaking lawyers: specific language-based issues. 1. Focus on the reader
While each group is disciplined, and willing
to learn, my experience has shown me that law- 2. Use active voice
yers work better in teams and in pairs, whereas 3. Write in short sentences
engineers generally prefer to work alone. 4. Avoid legalisms
5. Use personal pronouns
Group 1: Lawyers
6. Avoid hidden verbs
Since 2002, I have worked in-house at 7. Avoid the negative
Argentina’s leading law firm, Marval, O’Farrell
8. Avoid “shall” language of obligation
& Mairal. The firm employs over 300 lawyers
and operates a two-year trainee program 9. Avoid sexist language
with around 50 new trainees per year who 10. Use clear layout and design
are each given work experience in four differ-
This course presents the theory of plain lan-
ent departments. Although the plain-English
guage, introducing each aspect with an
writing course is not mandatory, it is available
example from legal writing, and uses real-life
to all trainees. This means that those who come
examples from the lawyers’ actual work to
to the course are more open to the learning
illustrate each issue. Using the theory they
process as they are not obliged to attend.
have just learnt, the lawyers then have to
As well as teaching plain-English writing change examples of real-life work. The course
courses, my other task is to edit most of the is divided into eight parts, each 1.5 hours
work the lawyers publish in English, so I have long, which are held over an eight-week pe-
constant access to real-life material with its riod. Each class usually deals with two or
examples of grammatical and stylistic practice. three topics in the context of different activi-
This means that I can use this material, once ties, the participants working as teams, pairs,
cleaned of sensitive content, in my courses, or individuals.
making them much more relevant to the law-
Most of the work they do in class is highly
yers.
structured, correcting or rewriting real-life
14 Clarity 70 December 2013
examples. There is only one free-writing op- supplier, Tenaris. I wrote several courses for
portunity in the whole course when they their communications department as well as
have to write a short piece of about 300 for their corporate training centre, Tenaris
words to show that they can plan and de- University. This course was first written in
velop a piece of well-written plain English. 2011 for engineers from the research &devel-
opment department, and it addresses
Individual Class
technical writing. There are around 200 engi-
Once the lawyers have taken the plain-En- neers in the department, including chemists,
glish writing course, I invite them to send me physicists and geologists. The Technical Writ-
approximately 15 pages of their written ing course is mandatory for them, and I
work, preferably a mixture of memos and e- found this meant they were initially sceptical
mails. I then comment on this and usually a as to its value.
pattern of similar errors or stylistic tendencies
To prepare the course, I was given access to a
emerges. In an individual class I give them
wide variety of engineers’ reports so that I
feedback with explanations on how to
was able to include real-life examples in the
change their writing style. Often it is only the
course, thus establishing relevance.
more senior lawyers who take these classes,
as they may not have time to take the whole Method: A full-day, eight-hour workshop that
plain-English writing course. presented the theory of plain language with
real examples from their work, which they
Plain-English Writing Course II had to update in class. With approximately
A year after they have taken the first plain- 15 engineers in each workshop, I presented
English writing course, I invite the lawyers to the topic and the theory with an example
take a second course. This course is shorter and then practiced a few examples orally be-
and held over a period of six consecutive fore asking them to change some real-life
weeks but is much more demanding as there examples in class and to share those.
is a lot of writing in class. Only the really As a consultant, I was external to the Com-
dedicated take this course! The aim is to ap- pany, so the engineers did not initially know
ply plain-writing techniques to the following or trust me. They each work in highly spe-
genres in class: cialized areas and for them content has a
1. Letter much higher priority than writing style, so it
2. Memo was difficult to get them to see the point of
improving their writing. Some aspects, such
3. Contract
as focusing on the reader, were met with re-
4. CV sistance. This course underwent many
5. Translation changes, and I gave several pilots before it be-
6. Article gan to work to the satisfaction of both
teacher and students. For example, in the
When we look at the memo, we only work on first pilot, I talked about “plain” language
the executive summary, and this is the most but found it created such a negative response
important part of the course. When it comes that subsequently I only referred to “clear”
to writing an article, we exercise the five dif- language, which got better reception. I still
ferent roles as outlined by Dr. Betty S. taught them all the techniques of plain lan-
Flowers and quoted by Bryan A. Garner in guage, but without calling it that. Another
Legal Writing in Plain English. I use a small, exercise that did not work with this group
soft ball to throw around the class to illus- was the free-writing exercise following Dr.
trate brainstorming, which they always find Betty Flowers’s model, which had to be taken
great fun! I always try to make my classes dy- out.
namic and entertaining with plenty of
anecdotes so that they may remember by as- Because each engineer works in such a nar-
sociation what they have learned. row field, it was very difficult to find a
sample report and executive summary that
Group 2: Engineers would interest a majority.
Since 2004, I have worked as a consultant for The Technical Writing Course covers these as-
Argentina’s largest oil &gas pipes and service pects:

Clarity 70 December 2013 15


1. Focus on the reader Conclusions
2. Define when to use active and passive Partly as a consequence of my being external,
voice the engineers were less receptive than the
3. Improve layout and tabulation lawyers to many of my suggestions. How-
ever, this did change when working
4. Use logical structure to describe individually, when the engineers were hap-
procedures pier to receive feedback.
5. Punctuate long strings of nouns typical For both groups, content takes a higher prior-
of technical writing to improve meaning ity than language, and they have often been
6. Avoid gerund at the start of sentences working on a document for several weeks, or
even for months. This means that they actu-
7. Do not fear repetition for clarity’s sake ally know too much about their topic and
8. Use natural emphasis to create have a lot of difficulty in explaining it to their
meaningful paragraphs readers, i.e. standing back and being objec-
tive. When they do apply plain-language
9. Report writing: write up an executive
techniques, logical structure, and good lay-
summary
out, they learn how to bring the reader
10. Assignment: Rewrite a report of your alongside the protagonist, and produce docu-
own for individual feedback ments that achieve their purpose: clarity and
They worked throughout the day on a precision.
sample report with many errors and problem © 2013 J Richardson
areas that they had to identify. Lastly, they JMR@marval.com.ar
had to write up the executive summary of the
Joanna M. Richardson is a
same sample report in pairs. The final task
British national who resides
was an individual assignment to improve one permanently in Argentina. With
of their own reports in their own time, apply- a degree in languages from
ing the techniques learnt on the course. King’s College London, she
worked for many years as a
Follow-up: Individual Feedback on Report translator. Since 2001 she has
One week after the course, the engineers sent taught plain-English writing
me a report of their own to which they had skills to lawyers at Marval,
O’Farrell & Mairal. She also works as a consultant on
already applied what they had learnt on the
plain language for non-native speakers for multinational
Technical Writing course. I updated it with companies such as Tenaris, teaching engineers and
visible track changes and comments. Then, I communications professionals face-to-face as well as
gave them a 20-minute individual class ex- writing e-courses for their in-house training program. An
plaining problem areas and how they might enthusiastic promoter of plain language in Latin
improve their writing style, both grammati- America, Joanna has been on the board of PLAIN since
cally and to make it clearer. In these November 2012.
individual sessions the engineers were much
more forthcoming and receptive to my sug-
gestions. They clearly did not enjoy working
in a group and were much more comfortable
working one-to-one.

16 Clarity 70 December 2013


As a plain-English trainer, I use grammatical
concepts as the backbone of a lot of my
teaching. Yet, if I say, ‘Keep the subject and
Teaching grammar without verb close together,’ I get blank looks. The
scaring people language of grammar is foreign to many of
the people I train. I may as well be speaking
another language, or, heaven forbid, using
jargon! The walls of fear come up and no
learning goes in.

Colleen Trolove Introductory workshops don’t need to


Plain English Specialist, Write Limited blast people with grammar
Wellington, New Zealand
In our introductory workshops at Write Lim-
ited, I don’t aim to daunt people who come
Introduction in eager to find out how to write more effec-
tively. Yet, in the 20 minutes I allot to
Do our participants need to understand gram-
teaching participants to favour the active
mar to become great writers? If so, then here in
voice, I tend to achieve confusion rather than
New Zealand we need to be creative about how
understanding. Phrases are buzzing round in
we teach grammar—it was taken off the school
their heads like the subject must be the actor
curriculum in the 70s. Colleen confronts this
and performing the action of the verb. At the
question, and offers some practical tips for teach-
end of the 20 minutes, though, most people
ing grammar to participants who shudder at the
can’t change passive sentences to active ones.
words ‘noun’ and ‘verb’.
Many people still can’t tell whether or not a
Correct grammar is a core part of plain En- sentence is active or passive.
glish. It prevents misunderstandings and This conundrum started me wondering
helps readers to understand a message the whether people needed to understand gram-
first time they read it. But the language of mar to be able to improve their writing. I
grammar can be such a huge barrier to New would say definitely, yes, at an advanced
Zealanders that teaching grammar hinders level. If people want to be great writers, they
rather than aids learning. need to know how their sentences work from
In New Zealand, many people never learnt the inside out. For example, they need to be
grammar at school. From the 1970s until able to spot an independent clause so they
about 2010, the English curriculum in state can use commas consistently, and so they can
schools didn’t include grammar. The govern- tell whether or not they’re starting their sen-
ment expected students to absorb it by tences with a main or subordinate point.
osmosis—read a lot and grammar will grow But I teach people who fear grammar. And
on you. Now, generations of New Zealanders they have only one day out of their busy
have no idea what an adjective is and turn work lives to improve their writing. So to
white when you say ‘subject and verb’. practise what I preach and avoid technical
terms for audiences who don’t understand them,
Grammar: from help to hindrance I’m experimenting with teaching grammar
Before I worked as a plain-English specialist, while reducing the alienating language that
I taught English to speakers of other lan- accompanies it.
guages. In that world, the language of
grammar was a lifeline—a common language Active and passive voice
the students and I used for communication. To deal with active and passive voice, a col-
When teaching a new word, I’d show how it league taught me to follow Joseph Williams’s
could be used as a verb, adverb, and adjec- suggestion in Style: The Basics of Clarity and
tive. I’d show how it could be nominalised. Grace.1 Williams says to identify the charac-
What a big step it was going from that world ters within a sentence, for example, ‘The
to helping native speakers understand at a implementation of the project will be con-
conscious level what they only knew intu- ducted by the Steering Group’. Then pick a
itively. character to start the sentence with. ‘The

Clarity 70 December 2013 17


Steering Group will implement the project.’ Some nominalisations have endings different
Note that this sentence changed from passive from -ion, -ment, and -nce: analysis and use, for
to active without any need to talk about example. You must be able to identify the
voice. part of speech of each word in a sentence if
you want to catch all the abstract nouns.
When no character is present in the sentence,
I ask people to invent a character. The project So, again, I conclude that this technique has
plan is expected to take 3 days to complete. Or value at an introductory level. You’ll need to
We expect the project plan will take 3 days to get stuck into grammar once you’ve gone
complete. past the first few steps of your journey into
good writing.
Of course, people sometimes end up writing
passive sentences when using this technique.
Meet people where they are
But such sentences tend to be appropriately
passive. It was expected that the CEO would ar- At times I need to say verb, clause, or subject. I
rive at 3pm could become The CEO was try to give an everyday explanation of a term
expected to arrive at 3pm. It’s passive, but it’s before I introduce it. I won’t get rid of all
an appropriate use of passive voice. grammatical terms in my training, but I want
to meet my clients where they are and use
Independent and dependent clauses language they’re comfortable with. After all,
the idea of meeting someone where they are
Rather than talking about independent and
is the most important plain-English principle
dependent clauses, I now talk about clauses
I want my participants to take away from a
that can stand on their own (Anne Burgess is
day with me.
our new administrator) and those that don’t
feel complete standing alone (Because Anne © 2013 C Trolove
Burgess is our new administrator). colleen@write.co.nz
Endnote
Nominalisations
1
Williams, J M. Style: The Basics of Clarity and Grace.
I try not to say nominalisation in workshops 2nd ed. New York: Person Education, 2006. (By
now. Instead, I ask people to find the action the way, the man is brilliant. If you haven’t read
his book, get a copy and devour it!)
hiding inside words ending in -ion, -ment, and
-nce. So reduction becomes the action reduce, Colleen Trolove trains people
development becomes develop, and governance to write plain English documents
becomes govern. and webpages. She also writes,
edits, and proofreads for Write’s
Limitations of the technique clients. She is on the steering
group for this year’s WriteMark
This technique of talking about grammar New Zealand Plain English
without using its technical language has limi- Awards. Colleen has a degree in
tations. For example, a lot of independent English and History and a
clauses don’t sound complete on their own: I Certificate in English Language
Teaching to Adults. She taught
missed it on the way home, or The only thing
English as a second language before diving into the
that could possibly be boring about it is how world of business communication.
writers treat it in documents. Participants can
get confused when they don’t know that pro- Write is a professional services company that helps
nouns are valid subjects. They’ll object that It government and business organisations create clear,
doesn’t sound complete, but grammatically it is. reader-friendly communications. We have been leaders in
plain English for 20 years—plain English is our
business and our passion.

18 Clarity 70 December 2013


First, have a clear, practical goal
Having a clear, practical goal matters because
We follow Aristotle the client is paying for our time and we need
to use it well. And it matters because we need
a purpose for the coaching just as a document
needs a purpose and a journey needs a desti-
nation. A clear purpose gives focus to each
coaching session.
The goal will be what the client wants to
Judy Knighton achieve. Discuss their goal in the conversation
Plain English Specialist, Write Limited you always have at the start of a coaching re-
New Zealand lationship, and remind them at the beginning
of each coaching session. Write a clear state-
Rosemary Knight ment about the goal and discuss how they will
Plain English Specialist, Write Limited know when they’ve achieved their goal. Say
New Zealand that it might not be obvious until they practise
the skills you are working on.
Introduction
Case study: Ben knew where he wanted
Coaching is one of the oldest methods of teaching to be, but he didn’t know how to get
and learning. The Greek philosopher, Aristotle, there
was a coach. He coached Alexander the Great in
Our client ‘Ben’ was a great communica-
clear thinking and other language skills that made
tor—in conversation. When he sat in
the young Emperor an ace communicator and front of a computer screen to start writ-
military leader. ing the newsletter for his small legal firm,
At Write, we value the coaching relationship he forgot everything he knew about get-
as a means of supporting writers to achieve ting his message across. His newsletter
their specific writing goals—to write confi- was hard to read, confusing, and—worst
dently, to write effective reports, or to get the of all—boring. Ben asked our writer to
structure right so that their reader gets what write newsletters that his clients looked
forward to reading. But he also wanted
they need.
to learn how to do it himself.
Aristotle’s advice still works for coaching. He
said: Second, have the necessary means
All men seek one goal: success or happiness. For coaching, the necessary means include
… First, have a definite clear, practical the people, the plan, the materials, and the
ideal—a goal, an objective. Second, have the method.
necessary means to achieve your ends—
wisdom, money, materials and methods. • The people: effective coaching depends on
Third, adjust all your means to that end.1 a relationship of trust between a motivated
client and a knowledgeable coach.
In this article, we use a case study to look at
the elements of coaching and we discuss our • The plan: the coach and the client agree on
first, second, and third steps to coach writers a plan that documents the goal and sets out
to achieve their goal; that is, to take them from the steps between where the client is and
where they are to where they want to be. Our where the client wants to be. The plan acts as
steps for a successful coaching relationship the map for the journey to the destination.
follow Aristotle: • The materials: plain-English coaching uses
• first, have a clear, practical goal written texts as the material for coaching.
The coach and client discuss the client’s own
• second, have the necessary means workplace writing, and explore ways to
• third, adjust all your means to that goal. improve it.
• The method: coaches use a variety of
methods, depending on the needs and the
relationship. Pausing at each small step for
Clarity 70 December 2013 19
reflection and practice embeds learning.
‘Chunk and check’ is a recognised teaching Case study: Ben writes his own newslet-
ter—and sets a new goal
technique that gives the brain time to take
in information, then process and use new By the sixth coaching session, Ben was
learning. Coaching is a conversation; an making his own writing decisions and the
opportunity for clients to discover things coach was simply asking questions and
for themselves. offering ideas for Ben to consider. Now
Ben was ready to set a new goal. He
Many of our clients face the challenge of un- wanted to set up his own blog—and
learning. We see clients who: write at least three posts a week. And he
• are trained to be experts in complexity wanted his coach to walk this new jour-
ney with him.
• believe that documents need to be
complex—that their readers expect their
writing to use complex language and Go forth and coach
structures; that their status depends on We’re enthusiasts for coaching, because
writing in a complex, convoluted style. we’ve seen it work well for our clients. As
Coaching makes the lives of such writers Aristotle, that great coach of ancient times,
easier. It gives them a place to start, a path to said: “For the things we have to learn before
follow, and a companion to encourage them we can do them, we learn by doing them.”
on the journey. It frees them from the rules Coaching allows people to learn by doing.
that have bound them to academic writing.
© 2013 J Knighton
Coaching gives them permission to undo judy@write.co.nz
some of their beliefs; to not be a slave to the
rules of writing. © 2013 R Knight
rosemary@write.co.nz
Case study: Ben used the coaching ses-
sions to reflect on what he was learning, Endnote
then applied that knowledge in his 1
http://thoughts.forbes.com/thoughts/success-
workplace aristotle-all-men-seek accessed 8 July 2013
The coach created the first newsletter Judy Knighton has been a
from Ben’s notes, then sat with Ben and writer, editor, and publications
went through all the decisions she’d made. developer of government and
Ben wrote the articles for each newsletter corporate documents for more
after that, and sat with the coach to work than thirty years. As well as
through each paragraph, discussing pos- writing, editing, and managing a
sible changes. At every coaching session, variety of print and online publi-
cations, Judy enjoys acting as a
Ben reported on how he’d used his new
plain English coach and trainer.
skills in the workplace. Judy holds a Masters of Commu-
nication (with distinction) from
Third, adjust all your means to that goal Victoria University of Wellington (2003), and is
Accredited in Public Relations (2008).
Each coaching session brings new challenges
and new rewards. The coach needs to work Rosemary Knight has worked
with whatever materials the client produces, in the health sector as a registered
and adjust the plan and the methods to help nurse. Through her work in pro-
the client take the next step towards the goal. ducing health information for a
wide range of readers, she devel-
Coaching is an ongoing relationship. Coaching oped an interest in the value of
isn’t taking over; it isn’t leading. The coach’s plain English. Rosemary holds a
job is to walk alongside the client, offering current Practising Certificate in
just as much support as the client needs. her new scope of practice in
health literacy and writing
Coaches work to become redundant, reduc- information in plain language.
ing support gradually as the client does more She also holds a Bachelor of Arts and a post-graduate
and more on their own. As one skill is mas- diploma in the Teaching of English as a Second
tered, one goal is achieved; the coach supports Language.
the client to set new goals.

20 Clarity 70 December 2013


linguistic readability
The capacity of a text—independently of its
François Richaudeau’s typographic transcription—(i) to be read
inspiring concepts on without extraordinary effort, and (ii) to be
readability entirely understood and memorized in a
satisfactory manner by the reader. The
linguistic readability of a text should natu-
rally correspond to the level of education
and cultural and ethnic characteristics of
the reader. Readability is a function of the
Maria Otilia Bocchini
choice of words used, sentence length, and,
Professor, University of São Paulo more precisely, the length and syntax of
São Paulo, Brazil the sub-phrases employed.
Cristina Yamazaki typographic readability
Partner and Editor, Todotipo Editorial
The capacity of a printed text—independ-
São Paulo, Brazil
ently of its linguistic content—(i) to be read
Livio Lima de Oliveira without extraordinary effort, and (ii) to be
Partner and Editor, Todotipo Editorial entirely understood and memorized in a
São Paulo, Brazil satisfactory manner by the reader. As in the
case of linguistic readability, typographic
“Readability” is a concept that effectively readability must be suited to the reader’s age
guides writers in preparing texts for their in- and cultural and ethnic characteristics.
tended audience.
The breadth of Richaudeau’s concept of read-
For years, the authors have studied and suc- ability is evident in his research. He takes into
cessfully applied the concept of readability as account the cognitive processes involved in
proposed by the French researcher François the production and reception of a discourse
Richaudeau (1920–2012).1 An organizational as well as in the comprehension and memori-
engineering graduate specializing in the zation of the reader. His notion of readability
printing industry, Richaudeau worked at a goes beyond measuring the text itself. This is a
major printing company in northern France. primary reason the authors adopted Richaudeau’s
Later, as the director of a book club, he began approach for writing and editing texts.
to reflect on his company’s publications and
Focusing on readability during the writing or
sought to produce works that were as acces-
editing process emphasizes the importance of
sible as possible to their readers. In the 1960s,
considering the reader (e.g., literacy and social
he helped found the Centre d’Étude et de
conditions). Thus, the text is not isolated in its
Promotion de la Lecture (Centre for the Study
production or in its intended reception, in the
and Promotion of Reading) with the objective
same way that readability does not exist in-
of investigating the nature of reading and
dependently of the reader, as stressed by
readability. His initial experiments focused on
Richaudeau.
reader behavior relating to the typographic
characteristics of printed works. He later con- Yet, how does one assess the readability of a
ducted several studies on readers’ memory text before it is written or before editing has
capacities and the relationship between memory begun? By applying Richaudeau’s concept of
and reading comprehension.2 Richaudeau also readability together with psycholinguistic
combined psycholinguistics with cognitive principles, the authors believe that profes-
theories undertaking in-depth studies analyz- sionals can forego a simply intuitive process
ing readability. in favor of a more structured process for
guiding their decisions.
In Conception et production des manuels scolaires:
guide pratique, written as part of an initiative Even among many professional writers and
by United Nations Educational, Scientific and editors assessing a text’s readability is mainly
Cultural Organization (UNESCO) at the end intuitive. But there are more technical and
of the 1970s, Richaudeau defined and distin- precise ways to determine whether a text is
guished two types of readability—linguistic readable: through the application of prin-
and typographic: ciples developed and studied since the
Clarity 70 December 2013 21
beginning of the twentieth century, and The purpose of readability formulae is not to
through the verification of elements that fa- present a recipe for writing clear and acces-
cilitate reading as studied in cognitive sible text; rather, these formulae offer indices
psychology. These formulae critically assess that allow writers and editors to question
aspects of a writing to create a more readable whether the text is suited to and will be un-
text. derstood by its intended audience. Thus, the
formulae raise possible readability issues
Innumerable critical reviews of various read-
rather than providing rules for drafting. As
ability formulae developed in the US, France
Labasse asserts,9 analyzing readability can
or other countries state that it is possible to
only offer information on how easy it is to ac-
produce a “caricature of efficient text”3 and
quire content from a text—nothing more.
emulate a good result in the readability indi-
ces without the text really being readable and Since the 1990s, Richaudeau’s work has in-
effective in its communication. Although spired writers interested in clearly
these criticisms have some justification, read- communicating to Latina America’s less pro-
ability formulae should not be ignored. At the ficient readers.10 Richaudeau’s work has also
very least, according to the Brazilian Neide inspired academic study, particularly among
Mendonça,4 “it is true that the low intelligi- professionals participating in the
bility [or, as the concept is referred to this Descomplica Brasil group. His recommenda-
paper, the readability] coefficient serves to tions are consistently applied alongside
demonstrate that the reader encountered concepts developed in the fields of
problems in processing the text,” even if the psycholinguistics (Kato) and cognitive psy-
result does not indicate “what the problems chology (Kleiman).11 Among publications
are, or how to solve them.”5 Even with these written by Descomplica Brasil’s profession-
limitations, readability formulae are impor- als,12 the following plain language works are
tant tools, especially for those who routinely worthy of special mention:
deal with written communication, such as
• 1990, São Paulo City Council: juridic
professors, editors, writers, and journalists.
concepts presented in plain language to São
The French professor and researcher Paulo city’s financially disadvantaged
Bertrand Labasse6 warned in the 1990s that a population. The publication explains the
positive result when applying readability for- city council’s concession of land use for
mulae may not mean much; however, a inhabitants of “precarious urban nuclei”
negative result—little readability—is almost (shantytowns).
always an indication of some kind of problem
• 1993–2003, Mulher e Saúde bulletin (print
in the writing.7 Richaudeau, who developed
run of 10,000): health concepts for women,
a readability formula based on his own stud-
for women-centered NGOs throughout
ies, also stressed the value of using a formula
Brazil.
for measuring readability:
• 1993, Fala Preta magazine: health and AIDs
Knowledge of my formula forces writing
prevention concepts for the young, black,
professionals into useful reflection
low income population.
regarding their texts (or those they are
editing)—do they know their target • 2002, Campinas City Council, SP (1 million
audience well enough? Have abstract inhabitants): political participation and
subjects been sufficiently elucidated citizenship concepts in publications aimed
through examples or analogies? Has the at financially disadvantaged citizens.
average sentence length been adapted to • 2009, Várzea Paulista, SP (60,000
the cultural level of the intended readers? inhabitants): political participation, public
Are the fastidious enumerations rare? Do budget and citizenship concepts in
the sentence structures facilitate pre- publications aimed at financially
reading, etc.? And, for research purposes, disadvantaged citizens.
does calculating the efficiency index of
some passages eventual lead to new • 2012, 2013, Brazilian Ministry of Culture
critical reflections, through the (MinC): explanation of the Goals of the
confirmation or invalidation of these National Culture Plan and how to create a
qualifications?8 Culture Plan.13

22 Clarity 70 December 2013


In a future article, the Descomplica Brasil Angela. Texto e leitor: aspectos cognitivos da leitura.
9th ed. Campinas: Pontes, 2004.
group plans to elaborate on its strategies for
12
understanding the reading and literary skills The other members of the group, in addition to the
authors of this paper, are:
of Brazil’s common public audiences. This
knowledge is essential for appropriate writ- Maria Elena Assumpção is a specialist in
accessible communication with more than 15
ing and editing of any text targeted toward years of professional experience. She was a
these audiences. professor at São Paulo University’s School of
Communication and Arts (ECA-USP) from 1979 to
© 2013 M Bocchini 1992.
otiliabocchini@uol.com.br Moema Kuyumjian is a graphic designer
specialized in creating and developing graphic
© 2013 C Yamazaki design projects for publications and a variety of
cristina@todotipoeditorial.com.br communication materials for a broad range of
target audiences.
© 2013 L Oliveira
livio@todotipoeditorial.com.br Yuri Brancoli graduated in Publishing from São
Paulo University and worked for 15 years in
Brazil’s public administration at the municipal
Endnotes and federal level. He has 20 years of experience of
1
ASSUMPÇÃO, Maria Elena; BOCCHINI, Maria Otilia. study groups in plain language and the right to
Para escrever bem. São Paulo: Manole, 2002; BOCCHINI, information.
Maria Otilia. Formação de redatores para a produção 13
PDF available at <http://pnc.culturadigital.br/
de textos acessíveis a leitores pouco proficientes. wp-content/uploads/2013/07/2%C2%AA-
Doctoral thesis in Communication Sciences at São edição-As-Metas-do-Plano-Nacional-de-Cultura-
Paulo University’s School of Communication and versão-final-espelhado-para-o-site-19MB.pdf>.
Arts (ECA-USP), 1994 (Tutor: Alice Mitika Online version: <http://issuu.com/isabelea/
Koshiyama); YAMAZAKI, Cristina. Editor de texto: docs/as_metas_do_plano_nacional_de_cultura
quem é e o que faz. In: Intercom — Sociedade _2__edi__o>.
Brasileira de Estudos Interdisciplinares da
Comunicação. Brazilian Congress of Maria Otilia Bocchini
Communication Sciences, 30, 2007, Santos. specializes in writing accessible
2
RICHAUDEAU, François. La lisibilité. Paris: Centre texts and teaching writing. She
d’Étude et de Promotion de la Lecture, 1969; Le has taught and undertaken
langage efficace: Comuniquer, persuader, réussir. research at São Paulo
Paris: Marabout, 1973; Linguistique pragmatique. University’s School of
Paris: Éditions Retz, 1981; Sur la lecture. Paris: Communication and Arts (ECA-
Albin Michel, 1992; Manuel de typographie et de
mise en page: du papier à l’écran. Paris: Retz, 2005. USP), since 1985 and
3
co-authored Para escrever bem
Linguistique pragmatique, p. 188. (2006) with Maria Elena Ortega
4
Neide Rodrigues de Souza Mendonça researches Ortiz Assumpção.
and teaches plain Brazilian Portuguese since the
1980s. Her work is based on psycholinguistics and Cristina Yamazaki is an editor
sociolinguistics, on the guidelines of the Document with 15 years of professional
Design Center of the American Institutes for experience. A graduate in
Research and on the work of Richaudeau. Publishing from São Paulo
5
Desburocratização linguística: como simplificar textos University, she also holds a
administrativos. São Paulo: Pioneira, 1987, p. 27. Masters from the same
6
Former professor at University of Lyon and institution where she researched
nowadays professor at University of Ottawa, he text editing and readability. She
has been studying readability since the 1990s. is a partner at Todotipo
7
La lisibilité rédactionnelle: fondement et Editorial.
perspectives. Communication et Langages, n. 121, 3rd
quarter of 1999: 102.
Livio Lima de Oliveira
8
Linguistique pragmatique, p. 188. graduated in Publishing from
9
La lisibilité rédactionnelle: fondement et São Paulo University’s School of
perspectives, p. 103. Communication and Arts (ECA-
10 USP), in 1997, where he also
See, e.g., Berthoud, Olivier. Imágenes y textos para
la educación popular. Tegucigalpa/La Paz, obtained a Masters (2002) and
Comunica/Cimca, 1992. PDF available at: <http:/ doctorate (2008) in
/www.edinter.net/docs>. Berthoud’s work Communication Sciences. He is
includes guidelines for developing print material an editor and partner at Todotipo
for those who have recently learned to read. Editorial.
11
KATO, Mary. O aprendizado da leitura. 5th ed. 2
reprint. São Paulo: Martins Fontes, 2002; KLEIMAN,

Clarity 70 December 2013 23


she shares her expertise in the methodology
of professional writing.
Plain-language writing-
• Olivier Beaujean is a lawyer, a journalism
training course: A challenge, graduate, and a specialist in the simplification
an ambition, and a method of the law. In the course, he ensures the
in five steps participant’s proposed clarifications of texts
are in legal compliance.

The course’s target audience: writers of le-


Olivier Beaujean gal texts
Lawyer and head of the Plan Legal Language The course is intended for every writer of legal
unit at Droits Quotidieras documents, whether a lawyer or otherwise, if
Brussels, Belgium he writes:
Anne Vervier • Documents with a regulatory impact (laws,
Professional Writing trainer and consultant
orders, decrees, regulations, etc.) and
Brussels, Belgium administrative letters.
• Judicial documents (judgments, summonses,
No doubt Clarity readers are aware of the value pleadings, etc.)
of clear legal language. Clarity in the law is a
right and a necessity for citizens, people going • Contractual documents (contracts, general
to court, consumers, and even the lawyers conditions, notarial deeds, etc.)
themselves.
The course’s primary objective: to learn a
As part of a lawyer’s education, he learns to method for writing in plain legal language
master the law and its techniques. But, during
his career, the lawyer must communicate his The principles for drafting clear legal text are
knowledge of the law to others. He may be asked, well known. Teaching course participants to
for example, to draw up contracts, pronounce apply these principles methodically when
judgments, and issue regulations. His writings drafting legal text is the essence of the course.
will be read and likely understood by his peers. The course lessons give course participants
But will these writings be understood by the pri- the tools to write clearly and instruct them on
mary people concerned: the consumer, the how to use these tools in their drafting.
person going to court, or the citizen? Not always, The course has three goals for course partici-
as a lawyer has not been trained to commu- pants:
nicate the law to non-lawyers. Yet, learning to
clearly communicate so that the general public • To master the techniques of plain legal
can understand is a social and economic neces- language.
sity. • To successfully apply the techniques by
following a writing process that guarantees
The course’s instructors: a winning duo a clear text.
The article’s authors recognize the challenge • To be able to evaluate and improve legal
that many legal writers face in clearly com- texts so that they will be clear to the
municating legal concepts to non-lawyers. intended audience.
Therefore, the article’s authors, a linguist and
a lawyer—both French-speaking Belgians— The course’s activities: variety in the ser-
have joined forces to teach legal writers how vice of learning
to achieve clarity in their writing. In their dy-
namic and innovative course, Plain Legal The training course is aimed at groups of no
Writing, the authors teach course participants more than 20 participants.
how to clarify the law for their intended au- The course consists of two one-day sessions,
dience. The course has proven extremely each session separated by one or two weeks.
effective. The intervening period between the two ses-
• Anne Vervier is a linguist, a trainer, and a sions enables the participants to experiment
consultant in plain writing. In the course, with the techniques they learned at the first

24 Clarity 70 December 2013


session and to discuss their results with the are given a confusing legal document, such as
trainers at the second session. a judgment or an administrative form. They
are asked to assess the impact of it and to point
The training activities alternate with presen-
out the elements that hinder its readability.
tations and discussions in large groups, and
with exercises performed in small groups, in Then, in a role-playing exercise, some of the
pairs, or individually. participants are asked to write a plea for clarity,
while others are asked to develop an indict-
The learning method is a deductive process:
ment against making legal texts understandable
• The participants evaluate the clarity of to non-lawyers. Through this role-playing, the
excerpts from authentic legal documents. participants themselves highlight the historical
• From these documents, the participants reluctance and difficulties that legal writers
deduce the principles of plain legal writing. experience in writing clearly.

• Then, the participants draft legal texts or Next, the participants analyse the character-
excerpts of legal texts. istics of the following types of legal documents,
taking into consideration the writing con-
• Lastly, the participants evaluate and straints of these types of documents and their
improve the drafted texts. intended audiences:
• Documents with a regulatory impact and
administrative letters.
• Judicial documents.
• Contractual documents.

The course’s common thread: five steps to


clarity
The course is divided into five steps, which the
authors call “the five steps for 15 good writing
practices.” At the end of each step, the par-
ticipants apply the good practices they have
learned in that step by drafting a legal text
The training is interactive, fun, and collabo- similar to the type of text they draft in their
rative. More importantly, the participants profession.
learn good writing skills. Step 1: define the parameters of the com-
The training aids include: munication situation.

• A manual that presents an overview of all • The participants devise a scenario giving
writing techniques, application exercises, rise to the drafting of a legal text.
and, for assessment or rewriting, examples • They determine:
of legal texts.
– The issuer of the message.
• Flash cards of the course’s five steps and15
– Its intended audience.
good writing practices.
– The objective to be achieved.
• An evaluation grid for evaluating the clarity
of the legal text for its intended audience, – The channel, i.e. the type of legal text
and a solutions grid for the legal writer. used (documents with a regulatory
impact and administrative letters; judicial
The course’s beginning: what is at issue documents; or contractual documents).
with clear legal texts?
Step 2: analyse and summarise the informa-
“Why produce clear legal texts?” That is the tion
first question put to the course participants.
• The participants use a technique taught in
Beginning with an example situation is most the course, such as “mind-mapping” or
effective means to answering this question. “the seven questions to gather the
Standing in the reader’s shoes, the participants information to be conveyed.”

Clarity 70 December 2013 25


• Then they identify the relevant information In conclusion: application to the legal
according to the document’s objective and texts brought in by the participants
the document’s intended audience.
As an overview of the training received in Plain
Step 3: structure the information Legal Writing, the participants, working in
• The instructors review different types of smaller groups, browse through examples of
structures that could be used for the legal legal texts brought in by other members of the
document. group. Using the evaluation grid they assess each
text’s readability for its intended audience.
• For the text to be written, the participants Using the solutions grid they rewrite particu-
choose a structure suitable for the docu- lar passages so that they can be readily
ment’s objective and the document’s understood by their intended audience.
intended audience.
Step 4: write the text in plain legal language
• The participants choose the vocabulary to
be used by keeping three aspects in mind:
– The different registers of legal vocabulary
(legislative, judicial, contractual).
– A vocabulary that is comprehensible for
the readers of the document: the citizen,
the person going to court, or the
contracting party.
– The possible connotations of legal terms.
• The participants construct short and clear The course in practice
phrases (i.e. clear syntactic structure,
limited use of subordinate clauses, coherent The first training course took place in Sep-
bullet point lists). tember 2013. The participants were about a
dozen lawyers from the non-profit sector.
• The participants make the text concise by They appreciated learning a method for rig-
eliminating all superfluous words and orous and practical writing that they can
information. apply to all their legal documents.
• The participants use current turns of phrase Anne Vervier and Olivier Beaujean are cur-
and a factual tone with minimum formalism. rently developing educational tools in
• The participants make the text reader- relation to blended-learning techniques. Their
orientated by favouring example situations, aim is to further strengthen the effectiveness
questions, specific examples, etc. of this training course by providing an intro-
duction to the course’s theoretical concepts
• The participants use a clear page layout in
through an e-learning module, webinars (vir-
order to aid readability, understanding and
tual classes), and coaching from a distance.
memorisation.
Other French-speaking lawyers will undoubt-
Step 5: read and reread from the reader’s edly want to take this training course in the
point of view. next few months. All further information is
• Working in pairs, the participants assess available on www.langagejuridiqueclair.be.
their text using the evaluation grid. This
© 2013 O Beaujean
measures the effectiveness of a legal text for o.beaujean@droitsquotidiens.be
its target audience. http://www.droitsquotidiens.be
• Then, for evaluation, the participants give © 2013 A Vervier
the text to other participants who put avervier@redaction-claire.com
themselves in the shoes of the reader. www.redaction-claire.com
• Finally, the participants correct and
improve their text by using the solutions
grid for the legal writer.

26 Clarity 70 December 2013


Olivier Beaujean Anne Vervier
• Lawyer • Romanist (linguist in
• Head of the Plain Legal Romance philology)
Language unit at Droits • Trainer and consultant in
Quotidiens professional writing
• Belgian representative of • Author of Rédaction claire,
Clarity International 40 bonnes pratiques pour
• Tel: + 32 8139 0620 rendre vos textes
professionnels clairs et
conviviaux, EdiPro, 2011
(Plain writing, 40 good practices to make your
professional texts clear and accessible)
• Tel: + 32 494 33 3865

Clarity 70 December 2013 27


Academia

The course is expected to especially appeal to


people with a part- or full-time job who feel
IC Clear course the need for more clear communication in
their work place but are hesitant to take up
almost ready for pilot another study or training course due to time-
or other practical constraints.
The consortium awards participants with an
IC Clear certificate recognized in all partner
institutes and intends to open the path to an
internationally acknowledged professional
Karine Nicolay
certification in the future.
Project Coordinator, IC Clear Project
Belgium Partners and extended network
The one skill employers most often say is The IC Clear consortium is based on a very
lacking in the workplace is the ability to com- strong partnership. It is built on the expertise
municate effectively. At the same time big of each of the institutions and the people
disruptive societal shifts reshape the future working in it.
landscape and influence the critical skills
Project coordinator:
needed for success in the future workforce.
That’s why, in October 2011, four European Thomas More University College – Belgium
partners and one Canadian partner, with the plays an important strategic and interna-
support of the lifelong learning program of tional role in Flanders – more than 13.000
the European Commission, united in the IC students study at seven campuses in the
Clear consortiumto develop, pilot and offer a province of Antwerp. Thomas More brings in
postgraduate course in clear communication. expertise in project management, plain lan-
With the course the consortium responds to guage and clear communication.
the anticipated increase in demand for clear,
Project partners:
easy-to understand information and the lack
of well-trained clear communication profes- • Sigmund Freud University Vienna Paris –
sionals. SFU - Austria
Sigmund Freud University is an Austrian
The course objectives and learning outcomes
private university with key activities in
are built on the findings of renowned re-
psychology, psychotherapy, security
search institutes, the results of a needs
research and comparative wealth science.
analysis and an international survey of clear
communicators, the partner’s own experi- • Institute forthe Estonian Language – EKI -
ence and expertise and the critical eye of a Estonia
panel of experts. The course fits the European EKI provides training for translators in EU
Quality Framework for the European Higher institutions. EKI took the lead in the
Education area (EQF). research on innovative lifelong and online
learning, and actively contributes to the
The consortium wants to offer the course in a
dissemination of clear communication in
practical and user-friendly multilingual net-
Estonia.
worked learning environment which can
easily be adapted to local societal needs and
context.

28 Clarity 70 December 2013


• Instituto Superior Educaçào e Cièncias – ability, project management and lifelong and
ISEC - Portugal online learning.
ISEC is a private, non-profit higher
Project management
education institution in Lisbon. It
contributes to the curriculum development The objective of the work package on project
and dissemination of the project. It has management (work package 1) is to achieve
expertise in adult education, linguistics, effective project communication, administra-
communication design, information design tion and reporting. Under the leadership of
and web design. the project coordinator (Thomas More - Bel-
gium) the partners in the first project half
• Simon Fraser University – SFU - Canada
reached the following results:
SFU Canada brings in expertise in the fields
of plain language and lifelong blended • set up a project management team
learning. SFU is known as one of Canada’s • appoint an experienced external evaluator
top 3 comprehensive universities. and financial expert
• European Association of Distant Teaching • reach an agreement with the European
Universities– EADTU – The Netherlands Commission and the partners
EADTU has a strong position in course
development in higher education, more • write, execute and monitor a detailed
specifically in open and online education, project plan and financial management
(virtual) mobility and networked curricula. plan

Associated partners: • set up a virtual workspace for the partners


and advisory group
• PLAIN - Plain Language Association
International • reach a first agreement with the partners
on intellectual property rights (IPR).
• IIID - International Institute for
Information Design Defining course outcomes and modules
• Université Paris Diderot Work package 2is about the definition of the
learning outcomes and modules of the
• ESS – Association of Swedish Language course. With Sigmund Freud University (Aus-
Consultants tria) as leader of this work package the
• IPLWG - International Plain Language partners achieved to
Working Group • appoint an EQF and curriculum
• Stockholm University – with it Swedish development specialist for advice in this
Language Consultants Program work package
• Tallinn University – with expertise in online • acquire a good understanding of the
learning European Qualification Framework (EQF)
Advisory group: • appoint a learning outcomes team
made up of experts to the consortium who • start with researching stakeholders’ needs
provide feedback and guidance on the direc- • conduct a web-based survey of
tion of the course: Christopher Balmford, practitioners in the field
Deborah Bosley, Frances Gordon, Joe Kimble,
Robert Linsky, Karen Schriver, Ginny Redish, • publish a wiki on the state-of-the-art of
Karel Van der Waarde, Dominique Joseph, plain language, information design and
Josiah Fisk. usability
• set up an intensive (online) feedback
Project objectives, approach and results process with the project’s advisory group
To successfully carry out all the tasks needed • work with subject matter experts to define
to meet the project objectives, the partners di- the learning outcomes
vided the work load into 9 work packages.
The project partners are all active in the field • draft a first version of the course profile
of plain language, information design or us- and the course objectives

Clarity 70 December 2013 29


• design a first draft of the IC Clear • write and design project poster and flyer
Curriculum Plan
• set up and maintain the project website
In the second project half the partners will (www.icclear.net)
transfer this input into the final IC Clear Cur- • launch the website to the public.
riculum Plan to be ready for piloting.
A major dissemination activity in May 2012
Develop and pilot modules was the participation of the project coordina-
The aims of work package 3 are to develop tor at the Clarity2012 conference in
and pilot the modules, to adapt them to Washington. Another great dissemination op-
stakeholders’ evaluation outcomes. portunity was the TEDx talk of Sandra
Fisher-Martins (Portugal)on the ‘right to un-
Evaluation and adaptation derstand’. The video reached 320.000 viewers
The execution of work package 4 - evaluation since. Also the appearance of Katre Kasemets
and adaptation of the learning outcomes and (Estonia) on Estonia’s major television chan-
modules is closely entangled with work pack- nel on the importance of clear
ages 2 and 3. In the first project half there communication was a success. Also worth
was a close cooperation between the partners mentioning is the intensive collaboration with
and the advisory group on evaluation. In the important and relevant international organi-
next project half other stakeholders and espe- zations in the field (Clarity, PLAIN, IPLWG,
cially end users will get more closely involved IIID, Clear Writing Campaign). In the next
in the process. project half the consultation of end users will
be intensified.
Innovative learning environment
Exploitation and sustainability
Work package 5 is on the research and select-
ing an innovative learning environment. Work package 7 is about exploitation and
Under the leadership of EKI (Estonia) and sustainability of the project after it finishes in
with the support of SFU Canada and the in- December 2014.Decisions have to be made on
put of an external expert, the partners creating a sustainable partnership and the
delivery mode of the course in the next
• did desk research and studied literature on
project half. Also accreditation options must
the subject
be further explored.
• interviewed experts in the field
Quality management
• described the state-of-the-art of lifelong and
online learning in the partner countries The aim of work package 8 on quality man-
agement is to ensure that the project runs on
• gathered good practices time and that all tasks and deliverables are
• wrote a research report on the findings completed as promised and to evaluate the
thus far. project both internally and externally. The
consortium has recruited an external expert
Dissemination to take forward the external evaluation. In-
The main aims of work package 6 on dissemi- ternal evaluation is coordinated by the
nation are to raise awareness on the project coordinator with the partners and
importance of clear communication, to make will be mainly concentrated on product
the project and its results known, to ensure evaluation. Both product and process evalua-
that the results will be optimally used by the tion will be tackled by the external evaluator.
different target groups and decision makers. Partner meetings
ISEC (Portugal) took the lead in this work
package and the partners succeeded to In the first project half the partners had 4 live
partner meetings (work package 9). They
• choose a catchy name ‘IC Clear’ took place in Stockholm (December 2011),
• design a logo Lisbon (April 2012), extra meeting in Lisbon
(April 2012), Tallinn (April 2013).
• announce the project to stakeholders
(newsletters, articles, blogs, mailing, Twitter
etc.),

30 Clarity 70 December 2013


Plans for the future
At the last partner meeting in Tallinn, Esto-
nia, the partners and the external evaluator Strategies for clarity in
took some time to explore the strengths, legal writing1
weaknesses, threats and opportunities for the
project. Based on this SWOT-analysis the
partners and the external evaluator came to
the conclusion that the IC Clear project has
very ambitious goals and the exchange of ex-
periences between partners through Donna Bain Butler, Ph.D.2
collaboration in this project can definitely
contribute to improve the work of all commu- Adjunct Professor, Washington College of Law,
International Legal Studies Program
nication professionals active in the domain of Washington, D.C., USA
plain language and clear communication.
The work during the first project half was Introduction
mainly concentrated on getting things orga-
nized, surveying the needs of the users and This article draws from empirical research
target group of communication professionals, into how international lawyers develop plain
starting up the development work by discuss- legal style for clear communication in legal
ing and elaborating the course structure, writing. An interdisciplinary field, legal writ-
drafting the learning outcomes and initializ- ing requires both legal and linguistic skills
ing the design and development of course and knowledge. There are different kinds
modules. In this respect the project succeeded (genres) of legal writing: for example, (a) aca-
in its objectives so far through strict project demic legal writing as in law journals, (b)
management and planning. Some corrections juridical legal writing as in court judgments,
will be considered in implementing the work and (c) legislative legal writing as in laws,
plan and the financial resources. regulations, contracts, and treaties.3 Another
variety is the language used by lawyers to
Now that the presence of the project in the communicate with clients requiring a more
field is a fact, the project must take advan- “reader-friendly” style of written communi-
tage of this position to increase its impact. cation than that used with law
Special attention has to be dedicated to the professionals.4 For lawyers operating interna-
drafting of the course content and creating tionally, communicating with clients across
an effective online learning environment. cultures implies a need for transnational legal
© 2013 K Nicolay and linguistic awareness.5 Whatever the form
karine.nicolay@thomasmore.be of legal writing, both legal skills and lan-
guage skills acquisition forms a vital part of
Karine Nicolay is project professional education and training in
coordinator of the IC Clear
today’s global age.
project. In this EU-funded
project, the consortium of Goddard (2010) identifies some factors that
partners will design an global legal skills instructors need to consider
international postgraduate given Mellinkoff’s (1963) observation that
course in clear communication.
“the law is a profession of words.”6 First, le-
Karine is a member of the
International plain language gal systems tend to be specific to nation
working group (IPLWG) and is states. Second, the use of language outside its
a lecturer on communication natural context can be problematic (for ex-
skills and plain language with Katholieke Hogeschool ample, legal English). Third, there are several
Kempen, a Belgian university college. She’s been in the genres of legal language, each of which has
plain language field since the early nineties, starting as its own audience and purpose.7 Fourth, the
editor-in-chief of a Flemish easy-to-read newspaper. rise of the Plain Language movement chal-
Karine participated and coordinated several European-
funded projects. In her actual job she established the
lenges traditional forms of legal language use.
school’s plain language training and rewriting services. Fifth, cross-cultural aspects of legal commu-
She gets training and rewriting assignments from both nication may need to be considered.8
private companies and public authorities.

Clarity 70 December 2013 31


What is Legal Language? Research Participants
Legal language has been referred to as a Two levels of legal writers contributed vari-
“sublanguage.”9 This term suggests that legal ability to the study (N=6). The first level
language differs from ordinary language “not consisted of 3 lawyers entering a U.S. Master
just in vocabulary, but also in morphology of Laws program (from Cameroon, Palestine,
(structures of words), syntax (structure of and Ukraine). The second level consisted of 3
sentences and parts of sentences), semantics lawyers exiting the program (from Italy, Re-
(meaning of words, phrases, and sentences), public of Moldavia, and the United States).
and other linguistic features.”10 Specialized Participants differed in terms of spoken and
use of certain terms and linguistic patterns written language proficiency, which includes
govern the teaching of legal language: “we use and understanding of academic language
study legal language as a kind of second lan- in legal context. All had been developing ana-
guage [L2], a specialized use of vocabulary, lytical writing ability and knowledge of
phrases, and syntax that helps us to commu- English as a legal lingua franca (global lan-
nicate more easily with each other.”11 guage). Languages used by the six research
participants before studying in the U.S. were
Legalese, on the other hand, is a pejorative
the following:
term associated with a traditional style of le-
gal writing that is part of this specialized • native Mbo; foreign English, French: Anyo
discourse of lawyers: communication that from Cameroon
“lay readers cannot readily comprehend.”12
• native Italian; foreign English: Ferra from
It describes poor legal writing that is clut-
Italy
tered, wordy, indirect, and uses unnecessary
technical words or phrases. “Historically, ‘le- • native Arabic; foreign English, French: Sam
galese’ is language a lawyer might use in from Palestine
drafting a contract or a pleading but would • native Romanian; foreign English, French,
not use in ordinary conversation.”13 For this Russian: Tory from Republic of Moldavia
reason, the traditional style of legal writing
has been labeled reader- unfriendly. Propo- • native Ukrainian; foreign Russian, Polish,
nents of plain language argue that legal English: Liv from Ukraine
“writing style should not vary from task to • native Urdu, English; foreign Spanish,
task or audience to audience…; whatever Arabic: Gee from the United States.
lawyers write must be Clear, Correct (in law,
fact, and language), Concise, and Com- Pseudonyms are used here, and the identity
plete.”14 The 4 C’s describe “characteristics of of each participant was masked by code
good legal writing style.”15 numbers in all the data.
Theoretical Background
Empirical Research
The research views legal writing as develop-
This article fills the need for investigating mental learning in two domains—language
how legal writers develop good legal writing and law—and as socialized cultural practice.
style across academic legal cultures. The re- Learning denotes gaining knowledge, under-
search was conducted in English in a U.S. standing, or skill by study, instruction, or
law school setting in 2008.16 English was not experience.18 “All knowledge, especially but
the native language of the foreign-trained not exclusively linguistic knowledge, is the
lawyers participating in this study; all had a result of learners’ interaction with their social
need for developing professional writing abil- context, and acquisition is both social and
ity and knowledge of language in legal cognitive.”19 Foreign-trained international
context for work as international lawyers. students and legal professionals opting to
Further, some needed to publish their legal study in the U.S., for example, may seek as-
research in international publications to ef- sistance writing research papers and law
fect change as human rights lawyers and as journal articles, finding that surface-level ed-
legal scholars. All wanted a professional iting by native English speakers is
voice and needed “high communicative pre- insufficient. Those studying in a second legal
cision” to participate successfully in the culture may also need understanding in how
specialized communication in their field.17 academic texts are shaped by topic, audience,

32 Clarity 70 December 2013


purpose, and cultural norms.20 Knowledge versus reader responsibility; (b) the roles of
itself is constructed in varying discourse pat- revising and editing; (c) logic and patterns of
terns21 that vary from language to language development; and (d) the relationship among
and from culture to culture.22 The process of reading, writing, and critical thinking (versus
knowledge construction and presentation in translation from the L1).
academic legal discourse (communication) Two kinds of competence interact with each
may need to be taught or made explicit, espe-
other in a law journal article, for example: le-
cially when law students come from
gal knowledge and linguistic proficiency.
contrasting academic legal cultures. Both are developmental from a theoretical,
Knowledge, understanding, and skills acqui- pedagogical, and research perspective. There
sition in legal writing translates into social, is strong evidence that content (legal) knowl-
cultural, and economic “capital”23 for law- edge is developed through problem solving
yers through academic legal writing and that academic (legal) writing is a prob-
instruction, opening the possibility for publi- lem-solving activity through which
cation in internationally refereed law knowledge is a by-product.28 Such knowledge
journals. “Explicit strategies instruction”24 in needs to be communicated and compre-
writing intervention context puts emphasis hended by the highly educated reader. This
on the following: means that the legal writer’s message must
be “clear (easy to understand, and not am-
• learning contrastive approaches to legal
biguous or vague).”29
writing;
Surface-level editors may focus on usage and
• filling gaps in knowledge and experience;
remedial issues related to native-speaker
• building on background knowledge; grammar; however, the legal writer must be
• developing formal academic language and responsible for language use that is clear,
legal discourse; and concise, correct (in content and in language),
and complete (covering everything that needs
• providing cognitive tools necessary for to be covered)the 4 C’s of good legal writing
“bilingual literacy”25 and self-regulation style.30 A basic premise of this article is that
(control) in legal writing. grammar needs to be taught and used in rela-
Bilingualism for lawyers, at the very least, tion to stylistic choices.31 Developing
means “proficiency in their native tongue proficiency as a legal writer may mean
and in its legal usage.”26 Strategies “support changing “present writing habits . . . [and]
students’ ability to leverage their first [aca- avoid following the example of much of the
demic, legal] language to develop legal writing [lawyers] are required to
understandings of their second [academic, read.” 32
legal] language” in writing, efficiently and
effectively.27 Research Instruments: Key Findings
Developing Proficiency as a Legal Writer The researcher used a survey with follow-up
interviews to explore how legal writers de-
Strategies are defined as conscious, goal di- velop professional proficiency and plain legal
rected actions legal writers may take more style for clear communication in scholarly
than once during the writing process. They (academic) legal writing. Collecting both
help build legal writers’ competence by bridg- quantitative (numeric) and qualitative (writ-
ing declarative knowledge of “what” with ten and spoken text) data brought together
procedural knowledge of “how to” in all the strengths of both forms of research to
genres of legal writing. Plain-language writ- cross-validate or triangulate the results.
ing strategies help the writer express legal
ideas clearly and correctly in all genres of le- Research instruments revealed that language
gal writing. Clear expression is important for was both a cognitive tool for learning law
managing differing expectations between and a sociocultural tool for communicating
reader and writer; beliefs about writing may ideas about law for the 2 groups of culturally
differ, cognitively and socioculturally. For ex- and linguistically diverse lawyers participat-
ample, the following issues in writing may be ing in the study. As previously mentioned,
unknown, invisible, or unstated: (a) writer one group was acculturated and the other
un-acculturated to the U.S. law school envi-

Clarity 70 December 2013 33


ronment: academic legal context for the proofreading for sentence structure (syntax);
study. Both groups of legal writers shifted (c) proofreading for proper word choice (dic-
from drafting for their own eyes to the tion); (d) proofreading for punctuation; (e)
reader-centered activity of iteratively revising proofreading for spelling (Microsoft “Tools”);
and thus constructing knowledge in their and (f) proofreading for citation to authority.
scholarly legal writing. In other words,
Deeper-Level Writing Strategies
knowledge and use of strategies for revising
and for editing helped all the legal writers For clear and accurate expression of ideas,
move from writer-centered thinking to research participants reported the following
reader-centered communication. Developing plain-language grammar strategies most
professional proficiency in writing further helpful: (a) making one point per sentence
impacted: using simple and complex sentences; (b)
avoiding long, multi-clause sentences; (c)
(a) acculturated participants’ confidence,
avoiding nominalizations (the practice of
motivation, and self-regulation at each
changing short verbs to longer nouns); and
stage of writing (pre-writing, drafting,
(d) keeping subjects and verbs, and verbs and
and revising); and
objects, undivided—without interrupting
(b) non-acculturated participants’ linguistic phrases. Other most helpful plain-language
knowledge and skills development grammar strategies reported by participants
across stages of writing (pre-writing, were: (a) using familiar words instead of
drafting, and revising). flowery or ornate words; (b) using consistent
wording and phrasing without changing
Defining Terms: Editing
words for variety; (c) using consistent parallel
Editing has been seen as “a distinct step in word signals such as “first” and “second”;
revising a written work, focusing on clarity, and (d) using accurate and adequate punc-
tone, and correctness.”33 Research results tuation as “road signs” to communicate
found that editing, on the one hand, involves effectively to the law school educated reader.
polishing and checking for conventions re- Together, these act as guidelines for style in
lated to syntax, diction, punctuation, legal writing.
capitalization, spelling, citation, and docu-
ment appearance (such as spacing and Contrast
indentation). On the other hand, research re- In sum, research participants found these
sults disclosed that editing also involves good plain-language grammar strategies (32 men-
legal style techniques to enhance clarity and tions) more helpful than the previously
readability. These were plain-language strate- mentioned editing strategies for correctness
gies with grammar seen as an element of (15 mentions) in the final stages of writing.
good legal writing style for clear and accu- The plain-language strategies helped the L2
rate expression of ideas. Tone, the writer’s writers express complex legal ideas in aca-
attitude toward the content material and the demic legal writing, clearly and accurately.
legal reader, was objective and formal. In Further, not only did the plain-language
short, editing can be seen as a strategic tool strategies contrast with the editing strategies
for self-regulating legal writing that operates for correct grammar, they also contrasted sty-
on two levels: (a) correctness, and (b) clarity. listically with L2 writers’ first language
preferences for more sophistication in syntax,
Discussion of Research Results or more length and sophistication in vocabu-
Surface-Level Editing Strategies lary (such as nominalization). Because the
deeper-level writing strategies, rather than
Editing, described by one research partici- the surface-level editing strategies, were
pant as proofreading “with a purpose in found most helpful for legal writers regard-
mind,” was reported to be a most helpful less of language proficiency or acculturation,
strategy in the final stage of legal writing for they are offered for use in Appendix A.
all research participants. For polishing and
checking for writing conventions, partici- Principles for All Legal Writing
pants found the following editing strategies
Although different styles and types of legal
most helpful: (a) asking oneself whether the
writing present unique challenges, they all
paper is an example of good legal writing; (b)

34 Clarity 70 December 2013


have some things in common.34 From an aca- Benefit to Legal Writers, Legal Skills In-
demic and disciplinary literacy perspective, structors, and Law Professors
they all require strong analytical legal read-
Legal writers can benefit from this study by
ing and legal writing skills. Besides planning
editing for reader-centered professional com-
and ordering a legal document logically into
munication. Lawyers who teach legal writers
sections and subsections, phrasing sentences
can benefit by being learner-centered and
clearly and choosing words carefully are
“culturally responsive” to students’ needs
principles that contribute to the reader-
and backgrounds.40 The point is to teach the
friendly style in legal writing. Whatever the
legal writer versus the legal writing (genre)
document, a lawyer will be doing these
from any one cognitively ingrained perspec-
things.35 Stylistically, this means:
tive or cultural view. Furthermore, legal skills
(a) “promoting plain legal language, instructors and law professors who use writ-
concise sentences, stated positively, ing for law student assessment can consider
focusing on one idea with subject + using more sophisticated, research-based
(active) verb + object where the main strategies with checklists that help (a) guide
idea comes first”; and legal writers’ processes, and (b) develop legal
writers’ existing competencies in legal lan-
(b) “avoiding obsolete words and phrases,
guage use and communication.
redundancies, long sentences,
subordinate and embedded clauses, This article offers an informed, research-
nominalizations, passive verb based approach beyond (a) exclusive focus
constructions, double negatives, on legal writers’ product, or (b) surface-level
exceptions to exceptions, legal pairs, editing of law students’ writing in-text.
and/or, shall,etc.”36 Deeper-level, plain language, writing strate-
gies can be taught explicitly and used as tools
In addition to punctuating carefully,37 these
that develop legal writers’ product and legal
are basic principles of all legal writing. Ad-
writers’ processes: in this case, processes of
vanced principles may include using cohesive
editing with grammar strategies seen as an
devices, using headings with verbs, using
element of good legal writing style.
technical terms consistently, making the text
context independent, citing sources within © 2013 D Butler
the text, minimizing the use of footnotes, and dbbutler@wcl.american.edu
using graphics where appropriate.38
Acknowledgment
“Using language precisely, communicating
easily with clients, and conveying technical I would like to thank my colleague, Yelena
information accurately are career-long activi- Sapozhnikova-Trosclair, Head of English
ties for lawyers everywhere. Each culture has Language Section, Sub-department of Rus-
developed specific definitions of terms and sian, Foreign Languages and the Culture of
patterns of usage and continues to develop Speech, Ural State Law Academy,
these…. [Bilingualism in legal language] may Yekaterinburg, Russia, for making this article
persuade a decision maker, promote a trans- possible.
action, or permit a client to escape harm. The
secret to fluency begins with research, contin- Endnotes
ues through analytical design, and 1
This article was originally published in the
culminates in appropriate documents.”39 Journal of the Russian Academy of Legal Sciences
RUSSIAN LAW: THEORY AND PRACTICE, Issue
No.1, 2012 and is republished with permission.
Conclusion
2
Donna Bain Butler is a Fulbright Specialist in
Self-editing with a strategies checklist, such Applied Linguistics. She holds a Ph.D. in Second
as that in Appendix A, helps the legal writer Language Education and Culture from the
University of Maryland College Park and teaches
communicate clearly in a legal document or EFL/ESL legal writers at American University’s
law journal article. Further, clear writing Washington College of Law (13 years)
style demonstrates competence in legal com- 3
Bhatia, V. K. (1993). Analyzing genre: Language in
munication. The end result is a product free professional settings. London: Longman.
of errors that may interfere with writer’s 4
Goddard, C. (2010). Didactic aspects of legal
meaning or reader’s comprehension. English: Dynamics of course preparation. In M.

Clarity 70 December 2013 35


26
Gotti and C. Williams (Eds.), ESP across cultures Ramsfield, 2005, p. 147
[Special issue]: Legal English across cultures: Vol. 7, 27
45–62. Pray, L. & Jiménez, R. T. (2009b). A response to
“Literacy and English-language learners: A
5
Goddard, 2010 shifting landscape for students, teachers,
6 researchers, and policy makers” by Jim Cummins.
As cited in Wydick, R. (2005b). Plain English for Educational Researcher, 38(5), 384–385.
lawyers: Teacher’s Manual (5th Ed.). Durham, NC:
28
Carolina Academic Press, p. 3. Krashen, S. (2011). Academic proficiency
7 (language and content) and the role of strategies.
Ramsfield, J. (2005). Culture to culture: A guide to TESOL Journal, 24, 381-393.
U.S. legal writing. Durham, NC: Carolina
29
Academic Press. Wydick, 2005b, p. 2
8 30
Goddard, 2010, p. 46 Wydick, 2005b, p. 2
9 31
Peter Tiersma (1999), Legal Language (as cited in Bakhtin, M. (2004). Dialogic origin and dialogic
Wydick, 2005b) pedagogy of grammar: Stylistics in teaching
10 Russian language in secondary school. Journal of
Wydick, 2005b, p. 10 Russian and East European Psychology, 42(6), 12–49.
11
Ramsfield, 2005, p. 145 32
Gallacher, I. (2005). A form and style manual for
12
Oates, L. & Enquist, A. (2009). Just writing: lawyers. Durham, NC: Carolina Academic Press,
Grammar, punctuation, and style for the legal writer p. 22.
(Rev. ed.). New York, NY: Aspen Publishers, p. 33
Fowler, H. R. & Aaron, J. E. (2001). The Little,
127. Brown handbook (8th ed.). New York, NY: Addison-
13
Oates & Enquist, 2009, p. 128 Wesley Educational Publishers Inc., p. 951.
34
14
Wydick, 2005b, p. 3 Garner, B. A. (2001). Legal writing in plain English.
15
London/Chicago: University of Chicago Press.
Wydick 2005b, p. 3
35
16
Garner, 2001, p. 2
Bain Butler, D. (2010). How L2 legal writers use
36
strategies for scholarly writing: A mixed methods Goddard, 2010, p. 50;
study. Unpublished dissertation, University of 37
Wydick, R. (2005a). Plain English for lawyers (5th
Maryland College Park. Ed.). Durham, NC: Carolina Academic Press.
17
Engberg, J. (2009). Individual conceptual structure 38
Ramsfield, 2005, pp. 172–183
and legal experts’ efficient communication.
39
International Journal for the Semiotics of Law, 22, Ramsfield, 2005, p. 185
223–243. 40
Gay, G. (2000). Culturally responsive teaching:
18
Merriam Webster Online Dictionary http:// Theory, research, and practice. New York: Teachers
www.merriam-webster.com/dictionary/learning College Press.
19
Sanz, C. (2005). Adult SLA: The interaction Donna Bain Butler, Ph.D. is a
between external and internal factors. In C. Sanz,
(Ed.), Mind and context in adult second language Fulbright Specialist in Applied
acquisition: Methods, theory, and practice (pp. 3–20). Linguistics at American
Washington, DC: Georgetown University Press, p. University’s Washington
4. College of Law (13 years). She
20
Hyland, K. (2002). Genre: language, context and designs and teaches specialized
literacy. In M. McGroaty (Ed.), Annual Review of courses for international
Applied Linguistics, 22, 113-35. Hyland, K. (2003). graduate students and legal
Second language writing. New York, NY: scholars aiming for professional
Cambridge University Press. proficiency (and higher) in
21
Byrnes, H. (2005). Content-based foreign language speaking and writing. Her work
instruction. In C. Sanz, (Ed.), Mind and context in with international lawyers is interdisciplinary and based
adult second language acquisition: Methods, theory, on empirical research. She has published part of this
and practice (pp. 282-302). Washington, DC: research for the U.S. legal writing community and has
Georgetown University Press. written articles pertaining to second/foreign language
22
Oates & Enquist, 2009 legal education. Donna can be contacted at
23
The Forms of Capital (Bourdieu, 2001) dbbutler@wcl.american.edu.
24
Oxford, R. L. (2011). Teaching and researching:
Language learning strategies. Essex: Pearson
Longman.
25
Pray, L. & Jiménez, R. T. (2009a). Developing
literacy in second-language learners. [Review of
the recently published compilation of research
titled Developing literacy in second-language
learners: Report of the national literacy panel on
language-minority children and youth (August &
Shanahan, 2006)]. Educational Researcher, 38(5),
380–381.

36 Clarity 70 December 2013


Appendix A

STRATEGIES CHECKLIST: SELF-EDITING FOR CLARITY

The following checklist will help legal writers communicate effectively in writing be-
fore submitting a legal document or law journal article to an editor (check one).

1. Yes, true of me
2. No, not true of me
3. Don’t know

____ I checked to see whether I used short and medium-length sentences.


____ I checked whether my sentences contained concrete subjects and active verbs.
____ I tried to avoid nominalizations (the practice of changing base verbs to nouns)
____ I made one point per sentence, preferring simple and complex sentence struc-
tures to compound sentence structures.
____ I made sentences affirmative, not negative.
____ I preferred active voice to passive voice with some exceptions.
____ I used parallel structures in sentences containing multiple elements.
____ I used clear and logical lists with grammatically parallel elements.
____ I used familiar words instead of flowery language or ornate words.
____ I used consistent wording/phrasing without changing words for variety (e.g.,
“The defendant proposes...This proposal is...”).
____ I preferred nouns to pronouns as in the example above.
____ I kept subjects + verbs/verbs + objects undivided, without interrupting phrases.
____ I used accurate and adequate punctuation as “road signs” in my legal writing.
____ I used precise transitions to convey exact connections.
____ I used consistent parallel word signals such as first and second.
____ I provided structural clues and repeated key structure words to improve read-
ability (e.g., that).
____ I used quotations only when necessary.
____ I avoided long, multi-clause sentences (legalese style that obscures meaning).

Clarity 70 December 2013 37


without some grasp of good writing prin-
ciples or a methodology for recognizing and
correcting errors, students will not be able to
“Plain language”: Practical write plainly, and skillfully.
tips forhow to make it not
Rather than simply telling the students what
so plain the end product should look like or what
they should avoid, we can equip them with
simple methodologies for applying important
writing principles. These methods can help
those students who struggle with writing.
Eunice Park
While there is no one-size-fits-all formula, the
Assistant Professor of Lawyering Skills following suggestions can help students iden-
Assistant Director, Legal Writing and Research, tify and correct some of their most basic
Western State College of Law
California, USA writing issues in a way that is easy to remem-
ber and to apply.
“Plain language” does not literally mean
plain. If it did, then our expectations of our Hunt for “plane-cloud” words.
students’ writing would be quite low. Rather, The goal is to avoid unnecessary preposi-
what we mean by plain language is simple tional phrases, passive voice, and
and direct language that is interesting, read- nominalizations. These technical grammar
able, and even—dare we hope—a little terms often give rise to apprehension in stu-
eloquent. dents uncomfortable with this terminology.
Adding to the challenge of teaching plain However, since many of us tell our students
language is the fact that we are asking stu- that a preposition can be recognized as a
dents to resist verbosity and legalese while word that reflects what a plane can do to a
we are also asking them to resist using the cloud, you may simply tell your students to
minimalistic sound bytes of language that avoid plane-cloud words and, in fact, to hunt
have become the norm with texting, e-mails, for them in the final stages of their work
tweets, and instant messaging. By using these product. Once the student catches such a
technology-driven forms of communication, word, he should consciously ask himself if it
students easily become accustomed to sen- would be better to rephrase. For example,
tence fragments, abbreviations and rather than writing, “Modifications by the
acronyms, no punctuation or capitalization, defendant from the original contract terms
and merely passable proofreading and spell- took place,” the student may recognize that a
ing. Moreover, writers of these types of plane can fly “by” and “from” a cloud, and
communication frequently rely on emoticons then rewrite the sentence more concisely
to dispel the possibility that the communica- thus: “The defendant modified the original
tion will be viewed as harsh, sarcastic, or in contract terms.” The unnecessary plane-
some other negative way. cloud words have been obliterated, and the
nominalization and prepositional phrases
How do we teach students to write in plain along with them. On the other hand, the stu-
language while using appropriate grammar, dent, noting the plane-cloud words, may
syntax, paragraph development, and style? knowingly opt to keep the sentence in the
Some students arrive at law school lacking original if he wants to minimize the
confidence in their writing and may need ex- defendant’s wrongdoing.
plicit prompting to be able to apply good
writing principles. Dim recollections of what Check the first words of sentences and
they learned in their pre-college years are of- paragraphs.
ten subsumed by everyday technology-driven
means of instant communication. And if we The goal is to incorporate transitions between
were to tell our students that we will be words and sentences, and vary sentence
teaching them grammar, syntax, paragraph structure. Although we remind students that
development, and style, they would likely the default desirable sentence structure is to
groan. Nor do we have the time to incorpo- place the subject before the direct object, this
rate these lessons into our curriculum. Yet, grammatical lesson, if always applied, can

38 Clarity 70 December 2013


result in stilted writing. Ask students to check Match the two halves of a sentence.
the first word of each sentence and para-
The goal is to achieve parallel grammatical
graph. Is the wording too repetitive? For
structure in a sentence that makes a compari-
example, do a series of sentences all begin
son. In this instance, ask students to insert
with the word “the,” as in, “The defendant
the subject in the same place in each com-
claimed the contract was signed on Decem-
parison and use the same verb tense. Do the
ber 9. The court found that the contract was
comparisons match? For example, one could
signed on December 10. The defendant ap-
say, “Just like the grandparent in Leong who
pealed.” Repetitive wording can be boring.
lived with the child, serving as his caretaker,
Similarly, three “howevers” in a row do not a
our client is a grandparent who lives with the
“however” make. Students should consider
child, serving as his caretaker.” If there is an
varying beginning words and phrases, if it
extra clause in one comparison, does it make
makes sense to do so.
sense to add an equivalent clause to the other
Between paragraphs, are logical transitions half or should the clause be omitted in all
being made? Do two paragraphs appearing comparisons? An awkward construction fea-
before or after each other logically connect tures a clause only in one half of the
when reading the first sentence of each? comparison, as in, “Just like the grandparent
What is the theme of each paragraph? Will in Leong who lived with the child, serving as
the reader understand the theme before read- his caretaker, our client is a grandparent who
ing the details? For example, if one lives with the child.”
paragraph begins with, “The wife continued
This same test could be applied in a more so-
to cook his meals. She also did his laundry,”
phisticated sentence that includes a series of
and the next paragraph begins with, “Sec-
ideas separated by semicolons.
ond, the continued intertwining of financial
resources also determines the spouses’ date of
Replace commas with periods whenever
separation,” the reader will not necessarily
possible.
understand that the unspoken topic sentence
of the first paragraph should be, “Providing The goal is to avoid comma splices or run-on
domestic support is the first factor in deter- sentences. Does the sentence make sense if a
mining the spouses’ date of legal separation.” period is substituted for the comma? If so,
Urge students to identify the theme of each then it probably should be two sentences.
paragraph and use that concept to form a topic Thus, “The student felt humiliated, the next
sentence. If the student is unable to articulate day she withdrew from school and sued for
a theme, it probably means there isn’t one sexual harassment,” should be, “The student
and the paragraph needs to be re-thought. felt humiliated. The next day she withdrew
from school and sued for sexual harassment.”
Omit underlining and italics for emphasis.
Place describing words as close to the
The goal is to create emphasis through the
natural progression of words. Explain to stu- subject as possible.
dents that using italics or underlining words The goal is to avoid misplaced modifiers.
to make a point would be like using a emoticon What is the subject that is supposed to be
in their legal writing: It is an unacceptable modified? Put the clause right next to it. Now
and lazy technique if it is used in the hope where is the verb? Is the sentence becoming
that the reader will better understand the cumbersome? If so, consider rewriting the
meaning of the text. (Of course, an exception modifier into a separate sentence. If “Sue
to this rule is when the writer is quoting lan- talked to Jill, hoping for a better grade and
guage that is underlined or italicized in the after their conversation, in which she clari-
original source.) Instead, students should find fied the meaning of a fee simple absolute, she
a better way to create emphasis. Remind stu- felt better,” who is hoping for the better
dents that one easy way to accomplish this is grade—Sue or Jill? Who clarified the meaning
by introducing the thought with a transition of a fee simple absolute? Who felt better? In-
word. Indeed, even a term as seemingly stead, rewrite as, “Sue, hoping for a better
simple as “indeed” may create impact when grade, talked to Jill. After their conversation
placed strategically. in which Jill clarified the meaning of a fee
simple absolute, Sue felt better.”

Clarity 70 December 2013 39


Peer edit. Conclusion
The goal is to proofread and revise on paper. Plain writing is skillful writing that includes
Students frequently find themselves confused the application of basic writing principles.
by other students’ writing. A peer review ex- While we may not have time in our legal
ercise is not only an opportunity for the writing classes to provide detailed lessons in
writer to receive useful critiques from an ob- grammar, paragraph structure, and syntax,
jective third party, but the exercise also we can do more than merely remind our stu-
allows the editor to self-reflect on his or her dents that these are important concepts. We
own writing. Receiving a critique from a peer can provide students with simple methods to
can be an effective way for a student to real- implement them. Even for more skilled writ-
ize that issues in his or her writing are not ers, these simple tools are effective self-editing
just the opinion of the professor. checks. Using these methods, students of all
levels can improve their writing and gain un-
Keep pen in hand. derstanding that plain language is not so
With this tech-savvy generation, students plain after all.
may write and revise entirely on the com- © 2013 E Park
puter screen. Remind students of the epark@wsulaw.edu
importance of simply putting pen in hand
and pen to paper before the first draft and Eunice Park is the Assistant
Director of Legal Writing and
between subsequent drafts, because it is not Research and Assistant Professor
possible to flip between pages to assess the of Lawyering Skills at Western
development of themes, or refine or reorga- State College of Law in
nize thoughts in a holistic and detailed Fullerton, California. She
manner, without all the physical pieces of pa- received her J.D. from the
per of the document simultaneously before University of Michigan Law
them. Students may think they are saving School and her A.B. from Smith
College, where she majored in
time by heading straight to the keyboard, but
English Language & Literature.
by working screen-by-screen rather than You may contact her at epark@wsulaw.edu.
comprehensively, the work product will be
ineffective, and time wasted. Instead, encour-
age students to invest the time to mark up
each draft with a pen, re-type the edited ver-
sion, print it out, review, and repeat this
process, until completely satisfied.

How to join Clarity


The easiest way to join Clarity is to visit http://
sites.google.com/site/legalclarity/, complete an
application, and submit it with your payment.
You may use PayPal or a credit card to pay.
Prospective members in Canada, Italy, and the
United States may also pay by bank draft. If you
prefer to submit a hard copy of the application,
you may contact your country representative for
submission instructions. Country reps are listed
on page 2.

40 Clarity 70 December 2013


As a first step, I introduce students to my
guiding principles of plain language on the
first day of class:
A “Show, don’t Tell”
lesson on plain language (1) Make every word count.
• Cut out the unhelpful, the redundant,
and the unhelpful.
(2) Use vigorous English.
• Use forceful, direct, and concise
Jill Barton language, avoiding weak and negative
wording.
Professor of Legal Writing, University of Miami
School of Law (3) Use short words, short sentences, and
Florida, USA short paragraphs.
Before showing them how to incorporate
Introduction these principles into their own work, I use a
To create enthusiasm about plain language on legalese-ridden case to show them that plain
day one, appeal to your law students’ competi- language is the best way to convey meaning.
tive spirit. This article describes an in-class The following examples show students how
contest that encourages students to translate le- to simplify two intimidating sentences from
galese into English. The article also describes a Bostock-Ferari Amusement Co. v. Brocksmith,
“show, don’t tell” approach to teaching plain 73 N.E. 281, 281 (Ind. Ct. App. 1905).
language. The teaching method shows students • It is sought to maintain an action for
how to revise their own epic sentences into plain damages resulting from the fright of a horse
language. at the sight of a bear, which its keeper and
When I teach plain language to law students, owner was leading along a public street for
I remind myself of the “show, don’t tell” rule the purpose of transporting it from a
for good writing. This rule applies to good railroad train by which it had been carried
teaching as well. For instance, telling stu- to Vincennes to the point in Vincennes at
dents how to write plainly is a first step. But which the bear was to be an exhibit, as a
showing students how to write plainly nets part of appellant’s show.
more rewards. – Translation: The bear’s owner was leading
I use this “show, don’t tell” approach when the bear from a railroad car, which
teaching first-semester law students. I start brought the bear to Vincennes, down a
by explaining the basic tenets of plain lan- public street to the show where the bear
guage and showing students how to translate would be on display. The bear frightened
parts of a dense, century-old opinion into the plaintiff’s horse, and the plaintiff
plain English. Next, drawing on their com- seeks damages.
petitive spirit, I encourage students to work 72 words to 42 words
with—and against—each other to revise
• It is not claimed, either by allegation or
other sentences in the opinion. Finally, I show
proof, that the show was in itself unlawful;
students how to make their writing more
and there is no pretense that the
concise by revising an excerpt of their early
transporting of the bear from one place to
writing assignments.
another for the purpose of exhibition was
This “show, don’t tell” approach identifies unlawful, or in itself negligence.
that while many new legal writers struggle to
– Translation: The plaintiff does not claim
write plainly, their weaknesses vary. Some
that the show or transporting the bear to
students write epic sentences; others favor
the show was unlawful or negligent.
epic words. Some incorporate legalese; others
use poor grammar or weak sentence struc- 44 words to 19 words
tures to add unnecessary words. A Examples like these immediately show stu-
one-size-fits-all approach is not the most ef- dents the value of plain language. Because
fective way to guide students to achieve the dense Bostock-Ferari case is among the
clarity.
Clarity 70 December 2013 41
Sample Plain English Revision Lesson
The physical characteristics of the instrument in question Comment 1: Plain English Revision Lesson:
A weapon’s physical characteristics, including
are taken into consideration including size, shape, sharp- size, shape, and sharpness, are considered.

ness, and other potentially harmful attributes. Curry v. This revision reduces the sentence length to 10
words from 21, and it adds specificity by
State, 674 S.W.2d 495, 497 (Tex. Ct. App. 1984). In ex- changing “instrument” to “weapon.” The
revision maintains the passive voice construc-
tion, which is correct grammatically but not
trapolation of the aforementioned, the Curry court preferred for its lack of directness.

considers factors external to the instrument such as sig-


Comment 2: Plain English Revision Lesson:
nificant disparity in physical stature between the
To determine whether the perpetrator could
perpetrator and the victim; these circumstances serve to carry out his threat the Curry court consid-
ered the relative size of the perpetrator to the
increase the dangerous nature of the instrument – in this victim and the proximity of the perpetrator—
and his knife—to the victim.
case Curry’s increased ability to thrust a knife in a deadly This revision reduces the sentence to 35
words from 66 by using more direct, concise
manner in proportion to the consequences of an attack on language.

a perceptibly weaker victim. Id.

first that students read in my course, they are To show students how to address their indi-
often relieved to see the legalese translated vidual weaknesses, I select at least one dense
into plain English. In addition, the sample re- excerpt from their early writing assignments
visions provide an opportunity to reinforce and rewrite it in plain language. These revi-
my plain language principles, including mak- sion lessons include a word count for the
ing every word count, using the active voice, original and the revision. (My record is re-
and keeping sentences short. This initial les- ducing a whopping 183-word sentence into
son causes students to buy in to the idea that two sentences totaling 62 words). In addition
plain language is best. to the revision, I include an explanation of
the change and point out that the revision re-
As a second step, I create an in-class contest.
duced wordiness, not meaning.
I urge students to examine my revisions and
try to make them more concise. I also high- The following screenshot shows an excerpt
light a few other examples of particularly from a student’s first legal memorandum and
egregious sentences from the same opinion two Plain English Revision Lessons in the
and encourage students to cut out as many comments field.
words as possible—without cutting out
As this example shows, rewriting students’
meaning. The student who revises away the
sentences when they are ambiguous and
most words wins. This informal competition wordy is challenging. In some cases, the lack
provokes enthusiasm and motivates students
of clarity in the students’ work means that
to focus on plain language.
that any revision might misinterpret the writ-
Additionally, the contest forces students to ers’ intent. But if the revision fails to correctly
practice the plain language revisions they assess the students’ meaning, the exercise al-
have seen me do. And it often results in one lows for an additional lesson: If you want
student taking another student’s revision and your professor, judge, colleague, or supervis-
making it better—which shows students that ing attorney to understand your meaning,
revision is a long and layered process. then write plainly so interpretation is unnec-
essary.
But I have found that revising other writers’
poor sentences does not always help students The Plain English Revision Lessons and ex-
revise their own. Even with early lessons on planations take time, but they produce many
plain language, students regularly use jargon “light bulb” moments. Students who
and legalese in their first writing assign- struggled with a limited word count see how
ments. So within a comprehensive critique of many words they wasted—and how much
each student’s paper, I include at least one more analysis and explanation they could
“Plain English Revision Lesson.” have added to their memorandum if they

42 Clarity 70 December 2013


made “every word count.” And students
who have always been praised as strong
writers see that they can still improve, thus Writing clearly: What I
allowing them to embark with enthusiasm on
a path to even stronger writing.
teach may be hazardous
to your wallet
© 2013 J Barton
jbarton@law.miami.edu
Jill Barton is a former appellate
judicial clerk and award-
winning journalist. She earned Ann Nowak
her bachelor of journalism
magna cum laude from the Writing center director, Touro Law Center
University of Missouri. After a New York, USA
ten-year journalism career, she
received her M.S. in journalism I am a hypocrite. I passionately believe in
from the University of Kansas teaching law students to write in plain lan-
and her J.D. summa cum laude guage. That is how I earn my living. But
from the University of Missouri- sometimes I consider ignoring my own advice
Kansas City. She is a founding faculty member of the because writing in plain language generally
Legal Communication and Research Skills program at produces documents that are more concise
the University of Miami School of Law. She and
than those that contain overly elaborate lan-
colleague Rachel H. Smith are the authors of the
forthcoming Handbook for the New Legal Writer. guage and legalese. And shorter documents
do not always further my economic best in-
terest—either in law practice or in academia.
The question is: Do I have a duty to warn my
students that this could happen to them?
For the first two years of my law-school
teaching career, I didn’t discuss this dilemma
with students. At first, I decided that they
would discover the disturbing reality for
themselves when they began to practice.
Then I began to rethink the situation and re-
alized that this discovery would force them
to make ethical decisions for which they
would be unprepared. I did a lot of soul-
searching about whether I had a moral duty
to warn them. And I decided that I did.
To deliver this message, I developed a two-
part program. The first part teaches students
how to write in plain language by engaging
them in exercises from screenwriting classes
and theater workshops. The second part
guides students through a discussion of the
ethics and morality involved in making a
temporary decision not to write in plain lan-
guage for reasons of economics.
This article contains a description of the pro-
gram, which I have been teaching in Touro
Law Center’s writing center for the past
three years. This article also contains a brief
discussion of why I am thinking about aban-
doning plain language temporarily. (This
involves a large bounty that a dean is willing
to pay if we write long articles.)

Clarity 70 December 2013 43


Background help them hone their plain language skills
and then help them deal with the dilemma of
By nature, I am a clear writer. As a young
whether to make more money by abandoning
journalist, I was trained to write in plain lan-
the plain in favor of the rococo.
guage. Later, in law school, my professors
lauded lucid prose and said that it would
The two parts of the plan are as follows:
serve us well in the practice of law. I believed
them. Then I became a lawyer and discov- A. Learning to write in plain language
ered that they were wrong. To be fair, they through techniques from screenwriting
were not wrong all the time. There are many and acting workshops:
successful lawyers who write with clarity 1. “Talk It to Me”—In this exercise,
and grace. But there are a lot more lawyers— each student is required to meet
even very successful ones—whose prose with me and explain the contents of
resembles a jungle where you need a machete the legal memo that the student just
to hack your way through. Nonetheless, wrote for Legal Writing class. I play
many clients are impressed by the jungle’s the role of a law firm partner, and
density and size. In comparison, those clients the student plays the role of an
regard a manicured garden of lucid prose as associate. I tell the associate that I
lacking in power and presence. And they of- am preparing for court and that I do
ten are more than willing to pay for the not have time to read the memo.
additional hours that it will take to produce Then I give the associate ten minutes
the much-longer brief, even if it is filled with to explain its contents. I record the
language that could politely be characterized session and give the recording to the
as rococo. student for future listening. By
My journey to hypocrisy began in my second requiring the student to speak the
year of law practice when a client asked me information, rather than write it, the
why my court brief was only twenty pages student is freed from worrying
when the adversary’s was thirty-five. I was about punctuation and syntax and
surprised by the question because I had can focus on clarity of expression
worked hard to make my submission concise, and plain language.
and I had written it in plain language that 2. “Teen or Dean”—In this exercise,
the judge would not have to work hard to students work in pairs. One plays
understand. I did not want the power of my the role of a teenager, while the
persuasive argument to be hidden by a jungle other plays the role of a law student.
of language. The client, however, thought The law student spends five minutes
that “more” was better—that a larger brief explaining to the teenager why a
would be more persuasive. I explained that professor acted in a grossly unfair
the adversary’s bigger brief was repetitive and unreasonable way. The law
and that it contained a lot of extraneous, student is required to speak with the
unpersuasive information, but my client teenager as if they were pals. Then,
looked unconvinced. the teenager is required to play the
This situation cropped up repeatedly during role of a law school dean. The law
the nineteen years in which I ran my law of- student spends five minutes
fice. I never “sold out” and succumbed to the explaining the same scenario to the
allure of making more money by spending dean, but using language
additional hours padding my briefs with appropriate to speaking with a
compound, complex sentences and the mys- dean. After that, the students switch
terious incantations of lawyers-gone-wild. sides so that the teenager/dean can
But I considered it. play the role of the law student. This
exercise teaches students how to
The Technique explain concepts in plain language
and how to choose language that is
I was concerned that my students also would
appropriate to particular audiences.
encounter this conundrum, and I did not
want them to be surprised. To assist them, I 3. “The Elevator Pitch”—This is a take-
designed a two-part plan that would first off of an exercise in which

44 Clarity 70 December 2013


screenwriting students must seriously considering the option of inflating
describe their screenplay to movie the language in my recently written article to
moguls in twenty seconds and make expand it from 12,000 words to 20,000 words
it sound exciting enough for the so that it will be long enough to qualify for
moguls to option the script. In this the big bonus. Or, to put this another way: I
law school version, which can be am thinking about retrofitting my bare-bones
done either in pairs or groups, buggy of an article to add unnecessary
students are given twenty seconds chrome trim, some blinged-out rims, and
to explain the contents of the legal maybe even a double spoiler to transform it
memo that they wrote for their into a chariot of desire for young law-review
Legal Writing class. The explanation editors who will gleefully drive it over the fin-
does not have to be exciting, but it ish line to publication as I stand on the
has to be concise and clear—and no sidelines smiling, my brain swirling with vi-
more than twenty seconds long. sions of gold coins flying into a cash register
Each student takes a turn. This that softly but steadily ching-chings a heady
exercise teaches students to use bossa nova beat as I sway in time to the mu-
plain language, to be concise, and to sic of economic prosperity and bask in blissful
focus their thoughts. delight at having gamed the system simply
because I understand the enormous value of
B. Ethics and morality discussion:
plain language—including when to display it
“Simplicity Versus Cash”—In this
and when to leave it at home in the garage.
exercise, I tell students true stories about
clients who believed that lawyers are © 2013 A Nowak
more powerful advocates when they anowak@tourolaw.edu
write in compound-complex language,
Ann Nowak is an attorney and
use a lot of fancy words when simple
the Director of the Writing
ones will work just as well, and Center at Touro Law Center on
produce unnecessarily long legal Long Island, New York. Before
documents. I engage students in a joining Touro, she founded and
discussion of what they would do if spent 19 years running a
they had to decide between writing in general-practice law firm in a
plain language or getting paid more for Long Island area known as The
using a large number of words when a Hamptons. Before practicing law,
she worked for many years as a
modest amount would be equally or newspaper reporter and feature
more effective. I ask them what they writer at The Southampton Press and Newsday. She also
would do if they could bill more hours enjoyed a stint as a copy editor and staff writer at
by producing a big, heavy brief with a Moneysworth. She has taught legal writing at CUNY
lot of puffed-up prose. School of Law, persuasive writing at Axia College of the
University of Phoenix (online division), and creative
The Bounty writing at the Usdan Center for the Creative and
Performing Arts.
Throughout my legal career, I managed to
avoid the allure of making more money by
writing unnecessarily convoluted and long
legal documents. But now I am seriously
thinking of departing from plain language—
just temporarily—because of the lure of a
bounty.
The brief version of the story is that one of
our associate deans offered faculty members
large financial bonuses for publishing articles
of at least 20,000 words in first-tier general
law reviews. If we publish shorter articles
there, we still will receive bonuses, but the
bonuses will be substantially smaller. Given
that my driveway could use repaving, I am

Clarity 70 December 2013 45


Legislative drafting

rulemaking proceedings.

Teaching plain language Tying plain language drafting to the repre-


sentation of clients imparts a “higher
drafting in a legislative and purpose” to the development of writing skills
administrative advocacy and facilitates learning by students, who
clinic want to do a good job for their clients. Leg/
Ad students learn from the earliest classes2
that plain-language drafting is essential in
David Marcello competently crafting their clients’ legislation
or agency regulations. This marriage of style
Executive Director, The Public Law Center to substance produces a powerful learning
Louisiana, USA
model, motivating students to develop their
To those who are not members of the plain- plain language drafting skills in the service of
language academy, the subject of clients’ interests. Marrying style and sub-
drafting—much less the teaching of it—can stance also expresses a meta-message that is a
seem deadly dull. That’s why, when teaching truth known to most readers of Clarity: Plain-
drafting to law students and international language drafting is more than a stylistic aid
trainees,1 my assistant director and I like to to reader understanding; it’s also an analyti-
share this anecdote drawn from a training cal aid for drafters in developing the
event in Tbilisi, Georgia. One of our partici- substantive content of an instrument.
pants said she didn’t feel well served by her
Leg/Ad Drafting Projects
legal education because she had been taught
to draft in flowery language—and, she felt, In teaching the Leg/Ad course, we believe in
that may have been deliberate: “A system “learning by doing.” Each student produces
governed by ‘rule of edict’ rather than ‘rule of multiple drafts, taking a research and draft-
law’ doesn’t want substance in its legislation. ing topic from the initial “idea” stage
It’s easier to conceal a vacuum at the heart of through to completion as an instrument. Ri-
legislation if you surround it with a lot of chard Wydick’s superb book, Plain English for
meaningless verbiage.” Her story illuminates Lawyers,3 is our drafting guide and is as-
the connection between an apparently “aca- signed reading for each student in the class.
demic” pursuit—plain-language drafting— We help students integrate their hands-on
and its “political” use in imposing meaning- drafting experience with the wisdom in
ful constraints on the arbitrary use of official Wydick’s text by giving them written and
power. oral feedback on each of the following drafts:
The Public Law Center (TPLC) brings a simi- (1) During the first week of the semester,
lar message about the political implications of students write a research plan
plain-language drafting to second- and third- identifying preliminary research
year law students enrolled in its Legislative questions; any legislation or agency
and Administrative Advocacy course at regulations from other states that might
Tulane Law School. Since 1988, students in serve as a model; a “resource person”
the Leg/Ad clinical course have drafted bills with relevant subject-matter expertise;
and agency rules (“subordinate legislation”) and other useful tasks (e.g., researching
to advance the political interests of clients the legislative history of earlier efforts to
who are traditionally underrepresented be- pass the measure). Leg/Ad instructors
fore legislative bodies and in agency
46 Clarity 70 December 2013
return the research plans in individual pedagogy, probably beyond the
student conferences during the second ambitions and capacity of most
week, giving handwritten revisions and instructors, but undeniably an
oral feedback to reinforce lessons additional learning opportunity for
learned from the readings, lectures, and students.
exercises on plain language drafting. Students in the fall semester course on Legis-
(2) Over the next 6-8 weeks, students lative and Administrative Advocacy
submit the proposed legislation or experience how a single topic comes to frui-
agency rule as a preliminary draft, a tion—from its conceptual origins to
revised draft, and ultimately a embodiment in a bill or rule. A spring semes-
distribution draft that goes to every ter course in Advanced Legislative and
member of the class before students Administrative Advocacy offers a different
begin their mock hearings. Leg/Ad experience, approximating the challenges
instructors again give the students faced in a “real world” drafting office by as-
written markups and oral feedback in signing students to work simultaneously on
individual conferences on each draft— multiple drafts of different instruments at
except for the distribution draft, which various stages of completion (e.g., a poorly-
endures “trial by fire” in a mock drafted bill or rule that needs improvement,
hearing without the benefit of an amendments to existing law, or a completely
instructor’s corrective feedback. new bill or rule drafted against tight time
Drafting without the safety net of an constraints).
instructor’s feedback may motivate
some students to work harder on Steps in the Legislative Drafting Process
improving their drafts before subjecting We use Reed Dickerson’s “steps in drafting”4
them to the scrutiny of other students to give students a sense of the sequence
and the Louisiana legislators who often through which each draft moves: (1) gather-
sit in on these hearings. ing factual information and objectives from
(3) Students may choose to produce yet the client; (2) analysis; (3) legal research; (4)
another, final draft informed by insights synthesis or outline; (5) drafting; (6) revising;
gleaned from the mock hearing. They (7) horizontal cross-checking; (8) dialogue
might draft various “collateral” with others; and (9) polishing the final ver-
documents, such as a one-page sion of a bill or rule. The first four steps
information sheet; a press release; a Dickerson describes as the “think” part of the
fiscal and economic impact statement; process; steps 5-9 comprise the “write” or
potential amendments; testimony for a compositional stage. Actual drafting is not so
client or advocate to deliver before a discretely structured in practice, but
legislative committee or in an agency Dickerson’s framework imparts a useful or-
hearing; or a regulatory instrument to ganizational overview.
implement the proposed legislation. We pay particular attention to the heart of
They also write research papers of this process—creating a good outline—be-
approximately 20–30 pages in length, cause “attention to the architecture of the
preserving for use by others the instrument will do much to improve the sub-
substantive knowledge and political stantive policies that it is intended to serve.”5
insights they’ve accumulated in In The Plain English Guide, Martin Cutts sug-
researching and drafting their topics. gests multiple organizational strategies,
Leg/Ad instructors review and grade including the top-heavy triangle; problem-
these end-of-semester documents, but cause-solution; chronological order; or
students rarely receive any instructional question-and-answer.6 A discussion of struc-
feedback from the grading process— tural issues helps students understand that
except when a student with a plain-language drafting goes beyond words-
disappointing grade requests a post- text-grammar-style; it also demands a
semester conference. Instructors who well-conceived organizational scheme. Clear
want to provide this final feedback expression depends upon appropriate struc-
could require all students to come in for ture and organization—the good “bones”
a post-semester conference—admirable over which plain-language style is draped.
Clarity 70 December 2013 47
Students view the drafting process through Drafting Is Thinking on Paper10
another useful lens developed by Dr. Betty S.
Like Dickerson, Robert Martineau describes
Flowers, a University of Texas English profes-
the drafting process as a vehicle for develop-
sor.7 The “Flowers Paradigm” attributes four
ing—not merely expressing—content:
distinct “personalities” to the drafter: Mad-
man, Architect, Carpenter, and Judge. The The drafting of legislation or a rule does
Madman engages in “brainstorming”—a cha- not merely express the previously formed
otic, creative, and (crucially) nonjudgmental intent of those for whom the drafter is
process that captures all ideas, good and bad. working. Only in the drafting is the
The Architect discards some ideas and orga- proponent’s intent developed. . . .
nizes others into a “blueprint”—an outline Drafting thus becomes not merely the
for drafting. The Carpenter builds on these process by which words are chosen to
structured ideas, creating a text to which the reflect policy choices previously made, but
Judge brings critical faculties, editing and im- . . . the process by which the range of
proving the document’s word choice, choices are identified and one of the
grammar, organization, and overall readabil- alternatives selected.11
ity. This relationship between text and policy for-
We point out to students how these four per- mation has political and ethical implications
sonalities correspond to the sequence for student-drafters: “[L]egislative drafters do
described by Dickerson. The Madman ini- not operate in a political vacuum. The legisla-
tiates what Dickerson described as the tive process and its essential derivative, the
“think” part of the drafting process. The Ar- drafting process, are inherently political in
chitect completes the “think” part by nature. The choices made within such a con-
producing an outline, which lays the predi- text are inescapably political, advocacy
cate for transition into the “write” part, choices.”12
when the Carpenter takes over and begins to We highlight how drafters might occasionally
draft. Finally, the Judge’s editorial revisions exert inappropriate influence on legislative
affirm Justice Brandeis’s wisdom about draft- policymaking. We do so not to foster an atti-
ing: “There is no great writing, only great tude of cynical manipulation among law
rewriting.”8 students or to suggest that the legislative pro-
We emphasize that the drafting process is not cess is populated with subversive drafters.
relentlessly linear. Dickerson’s “steps” explic- Instead, we seek to heighten students’ aware-
itly acknowledge the importance of ness of the drafter’s ethical obligation to
“feedback loops” that return drafters repeat- consult early and often with clients through-
edly to earlier stages for more fact-gathering, out the drafting process. As Martineau
analysis, and legal research. We encourage observes, “At this stage of the legislative or
students to move freely between the later rule making process, almost every word cho-
compositional and the earlier conceptual sen by the drafter reflects a policy choice.”13
stages of drafting. Dickerson elaborates on Drafters must maintain a continual dialogue
this concept by encouraging drafters to listen with policymakers in order to avoid usurping
to “talk back” from the draft and to engage the legislator’s policymaking prerogatives.
in a “two-way conversation” with what Writing legislation is no mere scribe’s task;
they’ve written.9 We recommend Dickerson’s drafting creates policy, which should be
“write early” approach to students, liberating driven to the maximum possible extent by the
them to start writing before completing their needs and choices of clients—not drafters.
research and encouraging them to establish
an early, ongoing dialogue with the develop- Conclusion
ing text. But we also caution them to honor
Dickerson’s wisdom about the feedback loop, Plain-language drafting is not simply about
letting later research inform and reform their “style.” It’s also a tool for developing and ex-
earliest products in the drafting process. pressing the “substance” of legislation. Also
intertwined with the drafter’s stylistic and
substantive role at the heart of this process
are “political” and policy choices that de-
mand our ethical attention. As instructors in

48 Clarity 70 December 2013


10
Legislative and Administrative Advocacy, we William Zinsser, On Writing Well 147
(HarperCollins: New York, N.Y. 2006): “Writing is
understand these truths; we hope our stu- thinking on paper.”©
dents share a similar understanding after 11
Robert Martineau, Drafting Legislation and Rules in
completing their coursework. Plain English 65-66 (West Publishing Co., 1991).
12
David A. Marcello, “The Ethics and Politics of
Endnotes Legislative Drafting,” 70 Tulane L. Rev. 2437,
1
See International Legislative Drafting Institute: 2446 (1996).
http://www.law.tulane.edu/ildi/. 13
Martineau at 65.
2
See Leg/Ad syllabus under “Clinic Course and
Curriculum” at The Public Law Center’s website: © 2013 D Marcello
http://www.law.tulane.edu/tlscenters/ dmarcello@tulane.edu
PublicLawCenter/index.aspx.
3
David Marcello has served as
Richard C. Wydick, Plain English for Lawyers (5th
ed., Carolina Academic Press: Durham, No.
Executive Director of The Public
Carolina 2005). Law Center since its inception in
4
1988. He teaches “Legislative
F. Reed Dickerson, The Fundamentals of Legal and Administrative Advocacy”
Drafting 51–78 (2d ed., Little, Brown & Co. 1986).
to second and third-year students
5
Id. at 16. at Tulane Law School. Beginning
6
See Cutts on “Using reader-centred structure” at in 1995, he and his colleagues
108–117 in The Plain English Guide (Oxford have organized annually the
University Press, 1995). International Legislative
7
See Bryan A. Garner, Garner on Language and Drafting Institute, which will
Writing 4–7 (American Bar Association, 2009). celebrate its 20th Anniversary during June 9–20, 2014
8
in New Orleans. The Public Law Center has also
See http://www.brandeis.edu/acserv/
conducted tailored training events in the United States
fellowships/essays.html.
and distant training events on legislative drafting in
9
Dickerson at 74. Africa, Asia, Europe, and the Caribbean.

Clarity 70 December 2013 49


Contract drafting

Five key drafting points


Teaching non-native 1. Purpose: what is the purpose or objec-
tive behind the drafting?
English speakers to draft
contracts with clarity Non-native speakers have a tendency to
translate contract provisions too literally from
their own language into English. As a result,
the syntax is often incorrect and it can be dif-
ficult to understand the lawyer’s objectives.
The first thing I always do is encourage my
Natasha Costello clients to think about their aims in drafting
Freelance legal-English coach particular contract provisions. By under-
France standing what they are trying to achieve, I
can then help them find the language to
I remember the first time that I was asked to achieve it.
draft a contract (as a trainee solicitor); I was sim-
For a comprehensive course in contract draft-
ply given a precedent document and asked to
ing, I recommend Tina Stark’s excellent book
adapt it to the transaction. Does this sound fa-
“Drafting Contracts: How and Why Lawyers
miliar? Of course, in more complex transactions,
Do What They Do”.1 The basis of her method
it was sometimes necessary to draft additional
is “Translating the Business Deal into Con-
clauses, but the instinct was always to look for a
tract Concepts”. 2 Whilst her book is not
template first. In my experience, nobody dared to
aimed at non-native speakers, it provides an
stray from the “tried and tested” approach, and
excellent structure for teaching, insisting that
in this way, traditional contract language was
the lawyer considers the business deal and
perpetuated.
drafts the most appropriate type of contract
I have spent the last three years in Paris, work- provisions to reflect it.
ing with French lawyers to improve their legal For example, in my experience it can some-
English skills, particularly in contract drafting. times be unclear, from the language used,
This has provided an ideal opportunity to chal- whether a covenant is imposed on a party to
lenge traditional contract language and to the contract or a discretion is given. I need to
promote the use of plain and clear English. discuss with my client what is intended: Is
the objective to impose an obligation, for
Drawing on this experience, the aim of this ar-
which remedies will be available for breach
ticle is to illustrate how non-native English
(a covenant), or is the intention simply to give
speakers can be encouraged to draft contracts
a party permission to do something (a discre-
with clarity. Other legal training tends to con-
tion)? I can then assist with the appropriate
centrate on the content of contracts rather than
English language to achieve my client’s aims.
the way in which they are written. The approach
As a starting point, I suggest that they use
that I use, whatever the length of the course or
the word “shall” to indicate a covenant and
lawyer’s level of English, is to focus on the fol-
“may” for a discretion. I appreciate that
lowing five key drafting points: Purpose,
plain-language purists might prefer other
Consistency, Avoiding Legalese, Sentence Struc-
language, but my clients find these words
ture, and Active Voice. These key points can be
clear and easy to remember and it helps them
used to introduce a course on drafting, to rein-
focus on identifying which type of provision
force learning during the course, and to reflect
is most suitable for their purpose.
and consolidate at the end of the course.
50 Clarity 70 December 2013
2. Consistency single word it immediately allows the lawyer
to focus on the words which are to follow.
Consistency in drafting will promote clarity.
If the same idea is expressed in different 4. Sentence structure
ways, then it may be open to different inter-
As mentioned earlier, literal translations by
pretations.
non-native speakers can often affect sentence
For example, in one of my client’s contracts, structure. It is important to be able to identify
the words “commits to”, “agrees to” and the “essential message” 5 of a sentence and a
“will” were used in three consecutive clauses good way to achieve this is to keep the sub-
to introduce an obligation. After checking ject, verb, and object together. I often start
that a covenant was intended in each case with a simple example to illustrate this:
(see key point 1 above regarding purpose), I
Correct: I am drafting a contract for the sale
suggested that consistent language was used
of a property.
throughout the contract to express an obliga-
tion, for example, by using the word “shall” I (subject) am drafting (verb) a contract (ob-
for each covenant. This made the contract ject).
easier to read and the covenants easier to Incorrect: I am drafting for the sale of a prop-
identify (and also allowed the lawyer to con- erty a contract.
sider whether a covenant was the
appropriate type of provision to use in each Once the subject, verb, and object become
case). separated, the sentence can be difficult to fol-
low and the essential message becomes
Definitions can also aid consistency. If there is harder to identify. This can be a particular
a lengthy description of a formula, process, problem with complex conditional contract
or property, then the use of a definition clauses.
would make the contract easier to read and
ensure that the relevant expression was inter- Many techniques used to teach general En-
preted in the same manner each time. glish writing to non-native speakers are also
relevant to contract drafting, such as keeping
3. Avoiding legalese sentences short. If sentences are longer than
Unlike lay people, non-native English speak- three or four lines, consider breaking them
ing lawyers are quite used to legalese, as they down into two or more sentences or tabulat-
also have legal terms of art in their own lan- ing.
guage. In addition, European lawyers often 5. Active voice
find it easy to understand some of the archaic
legal English terms due to the historical de- I always advise my clients to use the active
velopment of the English language, with voice (wherever possible) when drafting con-
many legal words derived from French and tracts. This is particularly relevant when
Latin. It can sometimes be a battle to con- drafting covenants in order to make it clear
vince them to write in clearer, plainer English who is to perform the action. One client told
(especially when you consider that in French me recently that this was one of the most use-
at least ten words are used to express “Yours ful things she had ever learned!
sincerely”!) It is helpful to use an example from the field
Ken Adams, in the introduction to his book in which the client works. So, for real estate
“A Manual of Style for Contract Drafting” 3 lawyers, compare “the Tenant shall pay the
talks about the “fog of legalese”. 4 I try to rent...” (active voice) with “the rent is to be
help my clients see through this fog, by paid...” (passive voice). The active voice is
avoiding archaic and Latin terms, eliminating more direct and clearly shows that the Ten-
redundant language and promoting the use ant is under an obligation to pay the rent.
of single words over couplets and triplets. There may be times when the passive voice is
Unencumbered by verbose language, the more appropriate: when the action is more
lawyer is able to see more clearly and concen- important than the actor or when the actor is
trate on drafting to reflect the business deal. unknown. However, as can be seen in the
The first example I give my clients is that in- above examples, when using the active voice,
stead of “in the event that” they can use the the language is clearer and the clause will
word “if”. It seems so simple, yet by using a usually be shorter.

Clarity 70 December 2013 51


Conclusion
Non-native speakers can find the prospect of
drafting contracts in English daunting. They Visual clarity in contract
sometimes lack legal English vocabulary and drafting
make syntactical errors. I use five key draft-
ing points: Purpose, Consistency, Avoiding
Legalese, Sentence Structure and Active
Voice. These key points are not meant to be
used in isolation; by using them to introduce,
reinforce, and consolidate courses on draft- Karin Mika
ing, we can help lawyers develop the skills to
draft more clearly and gain confidence to Professor of Legal Writing, Cleveland-Marshall
College of Law
challenge contract language which is not Ohio, USA
clear. Clients tell me that using these key
points has also helped them to draft more One of the underlying concepts of teaching
clearly in their native languages. clarity in contract drafting is teaching visual
clarity as well as verbal clarity. Visual clarity
Endnotes is not too far afield from verbal clarity because
1
Tina L. Stark Drafting Contracts: How and Why visual clarity necessitates the same underlying
Lawyers Do What They Do (Aspen Publishing, themes of verbal clarity: avoiding verbose
2007)
sentences containing legalese, and making a
2
Ibid., Chapters 3 and 4. Tina Stark identifies seven document accessible to the reader so that the
different “Contract Concepts”: representations,
warranties, covenants, rights, conditions, reader can easily find and understand perti-
discretionary authority and declarations. nent clauses.
3
Kenneth A. Adams A Manual of Style for Contract Visual clarity takes verbal clarity a step further
Drafting (American Bar Association, 3rd ed. 2013)
by making a document not only more visually
4
Ibid. easy to navigate, but also uses typeface and
5
I take this expression from my grandfather in his organizational concepts in order to set out an
book: Bernard Benjamin Benjamin’s Elementary organization that contains content that is easier
Primer of English Grammar (Futura, 1989) p.130
to read and thus easier to absorb.
© 2013 N Costello Recent research in how information is pro-
4costellos@orange.fr
cessed indicates that there is no doubt that, as
Natasha Costello is English, a a society, we read faster, and that our attention
Solicitor (non-practising) and span is less than it is has ever been.1 Most
former senior lecturer in law at people are continually on information overload,
Manchester Metropolitan and the day-to-day existence of everyone’s
University, England. She has
life requires that more and more information
over 10 years’ teaching
experience and currently lives is being continually processed.
near Paris, France, coaching This shift in the “speed” of life has changed the
French lawyers to improve their way in which information is organized and
legal English. She teaches various courses, including
absorbed by our brains. Most people no longer
contract drafting, negotiating and preparation for the
Cambridge International Legal English Certificate. She have the luxury of reading for depth, and our
has also recently lectured on contract law at EPF Ecole brain has accommodated by honing its skim-
d’ingénieurs. ming technique, and this, in and of itself, has
enabled a study of how people read and pro-
cess information. Studies examining how we
read online material suggest that we skim at
the onset with a focus on the parallel struc-
ture on left side of screen while examining
center content.2 Changes in font or visuals
catch our eye, and the longer a segment, the
less focus the reader has. Decisions about the
relevancy of content are made within three
seconds.3
52 Clarity 70 December 2013
Mapping recent shifts in the “speed” of life and how information is organized and absorbed by our
brains.
Because how we read has changed, the visual Compare these two clauses and their visual
organization we teach our students in contract accessibility. (The clauses deal with a Tenant’s
drafting should also change to reflect a visual Maintenance obligations and a Landlord’s
ease in organization. We should endeavor to obligation to make emergency repairs within
teach our students that information contained 72 hours.):
in contracts must be visually accessible and eas-
In Example 1, the font modifications (e.g.,
ily understandable within just a few seconds of
boldface, and underlining), points of
looking at a document.

MAINTENANCE 1.3 Maintenance:


(a) TENANT’S OBLIGATION: Tenant shall make no Tenant shall make no alterations or improvements to
alterations or improvements to the premises or the premises or construct any building on the
construct any building on the premises without the
PRIOR WRITTEN CONSENT of Landlord. If the
premises without the prior written consent of
Tenant believes a repair or improvement is necessary, Landlord. If Tenant believes a repair or improvement
Tenant should contact Landlord through the 24-hour is necessary, Tenant should contact Landlord through
central voice mail service at 440.555.1222. the 24-hour central voice mail service at 440.555.1222.
(b) COVENANT TO REPAIR WITHIN 72 HOURS: Landlord agrees to arrange for all necessary major
Landlord agrees to arrange for all necessary major repairs to be made within 72 hours of Tenant’s notice
repairs to be made within 72 hours of Tenant’s notice at Landlord’s expense. Major repairs are determined
at Landlord’s expense. Major repairs are determined on a
case-by-case basis at the a landlord’s discretion and shall
on a case-by-case basis at the Landlord’s discretion
include: and shall include: Heating issues, Air Conditioning
* Heating issues issues, Sanitation issues, Hot water issues, Issues
* Air conditioning issues that Landlord finds affecting the major use of the
* Sanitation issues
* Hot water issues
Leased Premises. If the repair is not made within 72
* Issues that Landlord finds affecting the major hours, Tenant will receive a $10 deduction of rent per
use of the Leased Premises day beginning at the expiration of the 72 hour
(c) FAILURE TO REPAIR WITHIN 72 HOURS: If the
timeframe until the repair is made. Such deduction
repair is not made within 72 hours, Tenant will receive a shall be prorated for any partial days, including the
$10 deduction of rent per day beginning at the day the repair is made. The deduction shall not occur
expiration of the 72 hour timeframe until the repair is if the failure to repair is beyond the Landlord’s control,
made. Such deduction shall be prorated for any partial
days including the day the repair is made. The deduction
Landlord notified Tenant within 24 hours of the
shall not occur if the failure to repair is (i) beyond the original repair time and Landlord provided a new repair
Landlord’s control, (ii) Landlord notified Tenant within time that does not exceed one week of the original
24 hours of the original repair time and (iii) Landlord repair time. If the repair cannot be arranged within
provided a new repair time that does not exceed one
week of the original repair time. If the repair cannot be
the 72 hours at the fault of the Tenant, there shall be
arranged within the 72 hours at the fault of the Tenant, no deduction in rental amount.
there shall be no deduction in rental amount.

Example 1 Example 2
Clarity 70 December 2013 53
organizational emphasis, division of and prioritizing content. Thus, Example 2
topics through paragraph headings, presents a multiple step process for the
symmetric columns, and white space, reader in which information cannot be
draw the reader’s visual attention to the obtained by mere skimming.
most important components of the clause
Creating large blocks of text is not the only
without the reader doing much more
obstacle to creating visual clarity. Although
than taking a few second glances at the
varied organization may enhance absorption
document.
of content through visual clarity, too much
In Example 2 (which contains the exact varied organization in addition to asymmetri-
same wording as Example 1, but does not cal organization detracts from clarity. Consider
include the purposeful visual separations), Example 3:
the reader is first drawn to the visual of a
Similar to the clause created in all block
large block of text without consideration
text, Example 3 presents its own challenges
of content. The reader, rather than
to quickly determining and prioritizing
instantaneously gathering content, must
content. First, the boldfaced text draws the
momentarily consider the physical task of
reader’s eyes, however, the lack of uniformity
reading the block of text while attempting
in terms being bolded, underlined, or itali-
to orient his or her brain to organizing
cized forces the reader to try to disengage
from the visual to
1. MAINTENANCE: focus on the content
Tenant agrees to maintain the Premises throughout the Term of the Agreement to determine the
in as good condition and repair as the time of commencement of this significance of the
Agreement, normal wear and tear excepted. Tenant must notify Landlord of content that is
any major repairs that need to occur. Major repairs include the heating issues, created with other
air conditioning issues, sanitation issues, hot water issues, and any other fonts. Second, the
issues that affect the major use of the apartment. Tenant must report issues to asymmetric and
a central voice mail service at any time. Major repairs will completed with 72
lengthy list at the
hours of reporting, Tenant shall receive a ten dollar ($10) deduction from rent
per day for every day the repair is not completed after the 72 hour grace
bottom of the page
period. Tenant will be prorated for the part of the day the repair is not further forces the
completed. If repair cannot be made within 72 hours, with no fault of Landlord, reader to engage in
Landlord may avoid the ten dollar ($10) penalty if the delay is reported to another type of
Tenant within 24 hours, and a time set to repair as soon as possible. It is visual shift as well
Tenant’s responsibility to arrange a mutually convenient time for entity as a mental repri-
repairing problem to fix problem. If this mutually convenient time is not within oritizing of content.
the 72 hour grace period, there will be no ten dollar ($10) penalty per day. Finally, the overall
The Landlord promises to keep all Provisions in working order. Provisions include: lack of symmetry in
(a) Stove, structure and mis-
(b) Refrigerator sing white space
(c) Microwave
between segments
(d) Dishwasher, Kitchen Sink and Faucets
(e) Kitchen Cabinets
causes the reader
(f) Bathroom sink, Bathtub, Toilet to first assess the
(g) any and all Doors disconcerting
(h) any and all Attachments to said Doors ele-ments of the
(i) any and all Fixtures visual picture being
(j) any and all Electrical Connections presented as op-
(k) any and all Water Piping and or Connections posed to being able
(l) Mailbox; Two Fire Extinguishers to quickly absorb
(m) Washer and dryer for clothes important content.
(n) Storage cubicle Thus, the overall
Said storage cubical is located in the basement, tenant shall provide result of the visual
their own combination lock and provide management with the
organization is to
combinations
(o) communal access to the Dumpster
force the reader out
trash is collected once a week of the skim mode
and into a mode
Example 3

54 Clarity 70 December 2013


where understanding content quickly is of the document. This is particularly impor-
impossible. tant in contract drafting because contracts
are living documents to be used by the parties
Here is a checklist of elements to consider
in ascertaining their rights and obligations.
when drafting for visual clarity:
The easier the document is to access and use,
• Make sure content is in smaller and more the more beneficial the document will be for
manageable segments. parties to the agreement.
• Use bullets and left-justification for lists
rather than incorporating lists into Endnotes
paragraphs. 1
Jakob Nielsen’s Alertbox, F-Shaped Pattern for
Reading Web Content, (Discussion on) How
• Use left-justification to highlight major People Read the Web: The Eyetracking Evidence,
components of segments. Nielsen Norman Grp. (April 17, 2006), http://
www.nngroup.com/articles/f-shaped-pattern-
• Make sure major points of emphasis are set reading-web-content/.
off by font change, such as boldface. 2
Id.
3
• Include white space for better content Id.
absorption by the reader. © 2013 K Mika
• Avoid using too many different visual k.mika@csuohio.edu
devices on a page. Professor of Legal Writing
• Use parallel grammatical structure as well Mika has been associated with
as a symmetric visual representation that is the Cleveland-Marshall Legal
Writing Program since 1988.
easy to follow and not disconcerting to the
Professor of Legal Writing Mika
reader. teaches first year Legal Writing
Plain language is an essential component of as well as upper level writing
writing any document that is to be used as a courses, including Document
Drafting. Professor of Legal
living document in which the parties must be
Writing Mika has presented
able to quickly find and absorb a clause perti- nationally on various topics,
nent to a contractual relationship. However, including those related to using technology in the
because of the way in which we have come classroom and improved methodology for teaching legal
to process information, clarity of a document analysis to first year students. She has published various
is no longer tied only to direct and clear articles on teaching writing, as well as on substantive
wording, but to a visual presentation that en- topics including Labor Law and privacy issues.
hances the clarity of the underlying language

Clarity 70 December 2013 55


Healthcare

cess, necessarily focus on precise, efficient in-


Lessons from the workshop formation sharing, including the use of
trenches: Challenges in discipline-specific vocabularies. Clinicians
learn the case-presentation format whose
teaching plain-language structure requires starting with patient data,
writing to health such as problems, symptoms, and diagnosis,
professionals and builds to a conclusion an action recom-
mendation. Similarly, public-health
professionals learn to argue an issue by pre-
Sue Stableford, MPH, MSB senting the epidemiologic and statistical facts,
leading up to an action recommendation.
Director, Health Literacy Institute,
University of New England Publishing in professional journals typically
Maine, USA requires a similar approach: presenting data
and evidence that pave the way for a discus-
Audrey Riffenburgh, MA sion—which often concludes with an action
Health Literacy Specialist, recommendation.
University of New Mexico Hospital
New Mexico, USA Professional, and especially publication suc-
cess, is enhanced by using technical terms,
What’s the point? What do you want your citing research, using statistics, and commu-
patients, clients, or audience members to do? nicating in a dispassionate manner, often in
And who are they? What do they think, feel, passive voice. Health-profession students are
believe, and do now related to the action you repeatedly exposed to this type of communi-
propose? How can you communicate your cation during their training years as they
point in a clear, concise way that makes sense read assigned journal articles and venture
to them? into clinical and community practice settings.
This is sometimes labeled the “medical
These are the core questions we ask health
model” of communication. Having been
professionals, our participants at our plain-
trained to think, write, and speak to each
language workshops. While common, per-
other using this model, health professionals
haps even mundane questions, to readers of
easily slip into the same style with public au-
this journal, they are much harder for our
diences—their patients, clients, or community
health-professional pupils than we ever ex-
members.
pect. As plain-language writers and trainers
with more than 20 years’ experience, we are Need for a style change in communicating
still surprised by how challenging it is for
with patients and communities
many to communicate simply and clearly.
Unfortunately, this style of communication
Communication style learned in health does not serve well in meeting public-audi-
professions training ence needs. In fact, it’s the opposite of how
professionals need to write and teach to en-
Our usual workshop participants—clinical-
gage most adults, who are not graduates of
care providers, public-health professionals,
health-profession programs and likely have
health-professions faculty, and others—bring
not even attended college. Most people need
strong science backgrounds and learned pat-
and want brief, clear, action-focused infor-
terns of collegial communication. These skills
mation.
and patterns, required for professional suc-

56 Clarity 70 December 2013


Many adults know little to nothing about Communicating more effectively: starting
how their bodies work, and even less about with the purpose in mind
how to care for them. In addition, millions
have limited literacy skills, lacking both con- Participants are startled when, after laying
text and skills to master complex health and out the health-literacy framework, we don’t
medical information. Just 12% of American plunge them immediately into writing prac-
adults have Proficient Health Literacy Skills, tice. Instead we begin with 2 key questions:
according to the 2003 National Assessment of (1)What’s the purpose, the needed action or
Adult Literacy.1 That same Assessment also behaviors? and (2) who, precisely, is the audi-
pointed up the very limited numeracy skills ence? Our participants struggle mightily with
of the general adult public, with 55% demon- these questions.
strating basic or below basic Quantitative Most topics about which they write involve
Literacy Skills. Even well-educated adults can action steps, but they have a hard time focus-
be flummoxed in managing health, due to ing on purpose and drilling down to a limited
limited time, understanding, illness, or stress. number of “doable” essentials. And they
And most adults want information fast, have a hard time reversing the order of pre-
without struggling to find, read, understand, sentation learned in their training, putting
and use it. the action messages up front, early on. This
Yet, this is typically not how health profes- newspaper style writing, with key points
sionals provide it. They write (and teach) first, is a schematic switch from the one
using the patterns and vocabularies learned learned in their training. We find ourselves
in their training. Hundreds of research ar- having to return to this same point many
ticles have shown the yawning gap between times—to laser in on key behaviors fast, and
the levels of written health information limit other information to why and how to
(printed and web-based) and the abilities of carry them out.
American adults to read, understand, and This first step—planning—is crucial, and of-
use it.2 Dozens more studies have shown the ten resisted. When skipped, materials tend to
limited abilities of many adults to manage wander off in many directions and into irrel-
common health tasks, such as reading food evant detail. Clarity about purpose is
labels, using medicines according to instruc- especially important if different personnel or
tions on the bottle, getting a flu shot, units in an organization must approve or will
managing a chronic condition such as diabe- use the material.
tes, etc.3,4,5,6
Given the fast pace of organizational life and
Surprisingly (at least, surprising to us), health quick turnaround time for many written
professionals in our workshops are often un- pieces, our participants tell us that they usu-
aware of and unfamiliar with basic ally just sit down at the computer and start
health-literacy statistics and research results. writing. When we advise them to spend at
This, in spite of over 2 decades of research least 50% of allotted project time to plan—
and numerous national policy reports. In whether it’s an hour, a day, or a week or
workshops, Step 1 is often “framing up” the more—we see them react with consternation.
issue, presenting the backdrop and rationale We assure them this will save time due to
for transitioning to a new way of presenting fewer revisions and will result in more
information for public audiences. Usually at reader-focused and, therefore, effective mate-
least one participant resists, harping on the rials.
deficits of the American educational system
and the low levels of adult literacy skills. We Communicating more effectively: starting
gently remind the group of our obligation to with the audience in mind
meet the people we serve where they are
The 2nd big question—about the audience—
now. We are responsible for doing what we
is equally challenging for our workshop
can to reach out and help our patients and
participants to grasp and address in depth.
communities understand. This means learn-
They can usually cite basic demographics
ing to communicate in new ways, using
about the populations they serve, but have
plain-language techniques.
often not considered health issues and con-
cerns from different perspectives,

Clarity 70 December 2013 57


perspectives that likely differ widely from we remind them that their efforts to commu-
their own. It’s hard work for professionals to nicate simply and clearly are critical for an
let go of their frames of reference, their per- increasingly diverse population to protect
sonal cultural backgrounds and professional and promote personal, family, and commu-
cognitive ‘maps.’ We encourage them to think nity health.
like an anthropologist (or detective) to help
Hopefully, over the years we have guided our
ask better questions before writing—ques-
workshop participants into new ways to de-
tions about how others think, feel, and
velop, structure, and write information that
behave, and perhaps why. We stress the
they can bring with them into their verbal
many ways health professionals can learn
communication and teaching as well. Hope-
more about the audiences they serve, from
fully, we have helped them learn to write
using the Internet to interviewing key infor-
(and speak) more clearly and simply, to better
mants or audience members.
share their expertise and improve the health
We try to impress upon our participants the of their patients and communities. Effective
need for clarity in not only what we want the communication will not solve all the complex
audience to do to improve health, but how to health issues facing the nation, and perhaps
present the action, or “frame” the message, not even some of the simpler ones. But with-
so it fits with audience views and lifestyles out it, other solutions will fail.
and addresses concerns and barriers to ac-
tion. Knowing the audience well is even more Endnotes
critical when the recommended actions are 1.
Kutner M, Greenberg E. Jin Y, Boyle B, Hsu Y,
difficult to carry out, which is true more of- Dunleavy E. Literacy in Everyday Life: Results from
ten than we realize. We likely can’t or don’t the 2003 National Assessment of Adult Literacy.
Washington DC: U.S. Department of Education,
have the time to figure out how to write the National Center for Education Statistics, 2007.
“perfect” piece. But, by better knowing our 2.
Rudd, RE, Anderson JE, Oppenheimer S, Nath C.
audiences, we can at least write in a way [2007]. Health Literacy: An Update of Public
that acknowledges them, that blends our Health and Medical Literature, chapter 6 in
agendas with theirs, invites partnership, and Comings JP, Garner B., Smith C. (eds), Review of
Adult Learning and Literacy, volume 7. Mahway NJ:
supports new possibilities. This isn’t easy. It’s Lawrence Erlbaum Associates, pp 175-204.
new for many of our workshop participants 3.
Rothman R et al. Patient Understanding of Food
to consider their audiences at this depth. And Labels. The Role of Literacy and Numeracy. Am J
even newer to consider inviting audience Prev Med, 2006. 31(5):391-398.
members to help develop or review draft ma- 4.
Wolf M et al. To err is human: Patient
terials, to help “get it right.” misinterpretation of prescription drug label
instructions. Patient Education & Counseling, 2007.
We do, of course, get around to teaching ac- 67:293-300.
tual plain-language writing skills, 5.
Lagasse LP et al. How Accessible Was
concentrating on those included in most Information about H1N1 Flu? Literacy
guidelines, such as using familiar words (con- Assessments of CDC Guidance Documents for
versational language), shorter sentences and Different Audiences. PLOS ONE, 2011. 6(10):
e23583 (open access).
paragraphs, personal pronouns, active voice,
6.
etc.7,8,9 All of these are more complex skills for Sarkar U, Karter AJ, Liu JY, Moffet HH, Adler NE,
Schillinger D. Hypoglycemia is more common
our training participants than they first seem, among type 2 diabetes patients with limited
especially since they contradict a more famil- health literacy: the Diabetes Study of Northern
iar professional journal and presentation California (DISTANCE). J Gen Intern Med. 2010
Sep; 25(9):962-8.
style. Information structure, tone, and design
7.
are addressed as well. Proficiency with this Centers for Disease Control and Prevention.
Simply Put: Tips for creating easy-to-read print
new approach comes only with practice. materials your audience will want to read and use.
And, as with any skill, abilities vary. Access: http://www.cdc.gov/healthliteracy/
pdf/Simply_Put/pdf
We continue to emphasize that the actual 8.
National Institutes of Health, National Cancer
writing or rewriting of information is a later Institute. Clear and Simple: Developing Effective
step, not the starting point. We keep refocus- Print Materials for Low-Literate Readers. Access:
ing participants on the core (action) messages http://www.cancer.gov/cancertopics/
and how to present them using context and cancerlibrary/clear-and-simple/allpages
language the audience will understand. And

58 Clarity 70 December 2013


9.
Centers for Medicare and Medicaid Services.
CMSTOOLKIT for Making Written Material Clear
and Effective. Access: http://www.cms.gov/
Outreach-and-education/Outreach/
WrittenMaterialsToolkit/

© 2013 S Stableford
sstableford@une.edu
© 2013 A Riffenburgh
ariffenburgh@salud.unm.edu
Sue Stableford, MPH, MSB, is
the Director of the Health
Literacy Institute at the
University of New England in
Portland, Maine. For 25 years,
she has provided health literacy/
plain language consulting,
training, and materials
development services. She works
with hospitals, public health
agencies, health plans,
pharmaceutical firms, quality assurance organizations,
and others across the country. She also participates in
research projects, publishes in professional journals, and
teaches in health professions programs. Sue is a founding
member of the Clear Language Group, a national
consortium of specialists in health literacy, plain
language, and cross cultural communication.

Audrey Riffenburgh is the Health


Literacy Specialist at the University
of New Mexico Hospitals in
Albuquerque, New Mexico, U.S. She
leads the health literacy/plain
language initiative and trains
hospital employees in creating
patient-friendly materials. For the
previous 18 years, Audrey was
President of Plain Language Works.
Her firm produced plain language
and low-literacy materials for the medical community,
government agencies, and others. Hundreds of people
have attended Audrey’s workshops on creating plain
language materials. She is a founding member of the
Clear Language Group, a national consortium of plain
language specialists. She is pursuing a PhD in health
communication.

Clarity 70 December 2013 59


Democracy

The subject called Investigación y Redacción


Jurídica (Juridical Investigation and Writing)
has two modules. The first of them is dedicated
Clearer words, clearer justice to plain language and rhetoric (and it is the one
taught by professors from the Language Aca-
demic Department). The elaboration of this part
of the program was not easy. For instance, in
order to adapt our speech to the audience (the
Law Academic Department), we should avoid
Javier Martínez Villarroya plain language on many occasions. Lawyers in
Departamento Académico de Lenguas, Instituto Mexico commonly use impersonal sentences
Tecnológico Autónomo de México (ITAM) and subordinates. In the same way, the teachers
México of law don’t usually have a clear notion of plain
language: they usually think that plain language
Teaching plain language to future Mexi- is only about writing clearly (without errors,
can lawyers but, of course, using impersonal and subordi-
nated sentences). Paradoxically, in order to
1. Overview implement a program of plain language, we
A big tree has strong roots. To expand plain must avoid plain language in many occasions.
language, there are no formulas. It is necessary 3. How do the students create a norm? The
to know the context of the country you are shock
writing in. In Mexico, a few teachers of lan-
guage are trying to change the juridical After the teacher introduces a little bit of the
language: if we make clear rules, there will be history, goals, and features of plain language,
no misunderstandings; and if there is no chance the students have their first activity: they must
of misunderstandings, the corruption will de- create a norm in plain language. The topic is
crease. So the point is to focus our work on the free: how to use the parking of the university,
future lawyers to prepare them to change a how to form a line, how to behave with your
system that now is not working fairly. What partner, requirements to teach in the ITAM, pets
are we doing in Mexico? What are we looking in the university, how to dress in class, for ex-
for? Which are our main problems? Which are ample. The students feel good. They want to be
our main goals? In this essay, we will answer lawyers. They want to change their country.
to these questions. But they forget completely what the teacher has
said about plain language during the previous
2. Who are we? What are we doing? The actors lessons. Almost all the assignments start with a
In November 2008, Clarity, the Mexican Min- date, the number of the article, a generic name
istry of Public Administration, and the Instituto for the rule, the abstract name of the law, the
Tecnológico Autónomo de México (ITAM) co- punishment to those who break the norm, and
hosted the 4th Clarity Conference. Since then, so on. No one starts with the order that must
there have been few punctual actions to pro- be given: the order in which what we want is
mote plain language in Mexico (Galán & accomplished. Moreover, the future time is a
Canizales, 2012). Fighting against this neglect, lot more common than the present time, there
the ITAM’s Language Academic Department are no bullets, bold letters highlight secondary
has a small but important presence in the information (and not primary), it is not clear the
ITAM’s law degree: we teach plain language subject of the sentence, and so on. What hap-
for approximately one month to all the students. pened? Why isn’t the theory applied?

60 Clarity 70 December 2013


4. The first reaction: The fear So how can language’s teachers require the
student of law to do what law’s teachers don’t
The students don’t apply plain language be-
require? Like many countries in America,
cause the models they are trying to imitate don’t
Mexico is a classist country. The richest man
use it. The most of them argue against plain
in the world is Mexican, but some of the poorest
language when the language teacher makes
men and women of the world are also Mexican.
objections to their texts: “My other teachers
The statistics of The National Council for the
never allow me to write like that”; or “In my
Evaluation of Social Development Policy
job, my boss will never accept a rule written so
(CONEVAL, 2012) indicate that almost five
simple”. The juridical and administrative texts
from each ten Mexicans are poor. Mexican
in Mexico are full of subordinates, passive
wealth is dramatically concentrated in a few
sentences, anacoluthon and technical words.
hands, education is
very unequal, and
GRÁFICA 1.1 justice is commonly
DISTRIBUCIÓN DE LA POBLACIÓN, SEGÚN SITUACIÓN DE POBREZA MÉXICO, 2010
not applied. In other
100
Pobloción en situación
words: poverty brings
90
de pobreza extrema, 11.4% Pobloción bad education and bad
en education brings a defen-
situación
80 de celess plight against
Pobloción en situación
de pobreza moderada pobreza power. There is an in-
70 46.3%
34.9% visible but powerful
60 chain that connects
50 Pobloción vulnerable por ingresos, 5.7% all those factors.

40 Pobloción vulnerable
5. Can literates
Pobloción por carencios sociales read in Mexico? The
30 no pobre 28.8%
53.7% context
20 In Mexico, there are
Pobloción no pobre y no states where almost
10 vulnerable
19.3% two persons from
0 each ten are illiterate
(INEGI, 2011). Al-
Figure 1: Distribution of the Mexican population according to their economic level (in average) though Mexico has
(CONEVAL, 2012: 23). literacy statistics
similar to countries
GRÁFICA 1.2 like Italy, Argentina
NÚMERO DE PERSONAS, SEGÚN SITUACIÓN DE POBREZA MÉXICO, 2010 or Spain (more than
100 90% of the popula-
Pobloción en situación de pobreza
extrema, 12.8 milliones Pobloción
tion is literate)
90
en (UNESCO, 2012), the
situación reality is very differ-
80
Pobloción en situación de pobreza de
moderada, 39.3 milliones pobreza ent. In 80 years, the
70 52.1 average of the illiter-
milliones
60 ate population
decreased from 61.2%
50 Pobloción vulnerable por
ingresos, 6.4 milliones (1930) to 6.9% (2010)
40 (INEGI, 2011).
Pobloción
Pobloción vulnerable por
30 no pobre
carencios sociales 32.4 milliones
What does it mean?
60.5
milliones
Firstly, that there is
20
an enormous literate
Pobloción no pobre y no
10 vulnerable 27.1 milliones population whose
parents or grandpar-
0
ents were or are
illiterate. Secondly,
Figure 2: Distribution of the Mexican population according to their economic level (in absolute much of the literate
numbers) (CONEVAL, 2012: 24).

Clarity 70 December 2013 61


population is, in fact, merely functional illiterate. The orthography, punctuation, and accentua-
We consider someone a functional illiterate if he tion are so bad that we could define the
hasn’t studied at least three years at the school situation as “institutional illiteracy”. As we
(INEGI, 2011). In a similar way, we consider know, plain language must be adequate to
someone illiterate if he is incapable of writing the worst readers of the community. So if it is
and reading a simple message (Hernández, very important to implement plain language
2011). In Mexico there are 152 municipalities in the administrations all over the world, in
where the functional illiteracy is more than Mexico it is fundamental.
38%, and some of them markedly exceed this The paradox is robust: Mexico needs plain
average. For instance, in Cochoapa el Grande,
language more than anyone (because a lot of
Guerrero, more than 6 from each 10 persons
people hardly speak good Spanish); but
are functional illiterate. In that sense, the worst Mexico is living with an administration con-
states are Chiapas, Guerrero, and Oaxaca. Why?
quered by baroque and contradictory
Some reasons seem to be clear: they are also
language. The diglossia is double: on the one
the poorest and the richest (the poorest in economy, hand, the indigenous cannot express them-
the richest in cultural diversity). In Mexico,
selves in their mother tongue at trial; on the
almost 8 indigenous from each 10 are poor or
other hand, the Mexicans cannot understand
extremely poor. Oaxaca is the state with more clearly the equivoque Spanish of the adminis-
ethnic and linguistic wealth of all the country:
tration (because of the administration and, in
Mixtecos, Zapotecos, Triquis, Mixes, Chatinos,
a lot of cases, because of themselves).
Chinantecos, Huaves, Mazatecos, Amuzgos, Nahuas,
Zoques, Chontales, and so on. The approximately Who benefits in that situation? When the laws
3.8 inhabitants of Oaxaca belong to 18 differ- are not clear, the criminals are free and the
ent ethnic groups. What happens in a land innocents are in jail. When nobody under-
where the people who can read cannot read stands what the rules say, anybody with money
very much? In a land where the people learn can make the words say what they want them
to read in a language that they don’t hear at to say. In the rankings of how Mexicans per-
home? In a land where the people are really ceive the transparency of its country, Mexico is
poor, and they quickly abandon school? the number 105 of the world, below countries
like Mali or Burkina Faso (Transparency Inter-
6. Who takes advantage from obscure lan- national, 2012). And until a few years ago, we
guage? The problem would read in the newspapers that Mexico is
By a process of osmosis, all the Mexicans are (after Iraq and Afghanistan) the most danger-
influenced by the oral thinking of the poorest. ous country to journalists throughout the world.
What does it mean?
Tasa de analfabetismo funcional de la población de 15 años y más por municipio 2010 In Mexico you can-
not talk clearly. If we
are looking for jus-
tice, plain language
is a modest but an
important field of
combat.
7. Transforming a
text to plain lan-
guage? The work
After the shock, we en-
courage the students
to transform a text to
1.5 a 13.6 plain language. This
13.7 a 19.7 is their second task.
19.8 a 25.8
Now they are aware
25.9 a 38.0
that there are historic,
38.1 a 62.4
social, and political
Fuente: INEGI. Censo General de Poblacióny Vivienda, 2010. Cuestionario básico. Consulta interactiva de datos. factors that have hurt
Figure 3. the expansion of

62 Clarity 70 December 2013


plain language in Mexico and that these 9. How to test? Evaluation and publishing
same factors seem to be the cause of injustice
The last two activities of the course are the
and inequality. Besides, they have some con- exam and text’s publication. In the test, the
science of the difficulty of writing with “the
students must transform a real administrative
art” of plain language. To help them, we
text using the knowledge they should have
elaborate panels like the next one. learnt. All the chosen texts are official and
taken from authorized websites: the instruc-
Is it plain language? Yes No tions to get the license to drive cars, the
Has it design? guidelines to renew the immigration docu-
Is it univocal? ment, the directions to make the tax
declaration, for example. Finally, we publish
Has it shortsentences?
the best plain-language documents of the
Does it avoid subordinates?
class in our website (Martínez Villarroya,
Is the intention clear? 2013): this is the way we have found to moti-
Is it adequate to the audience? vate the students, to publicize in Mexico
Does it hierarchize the information? what plain language is, and to denounce the
Has it order? obscurity of the majority of Mexican official
Has it precise lexicon? documents.
Does it avoid repetitions?
10. What do we conclude? The future
Is it affirmative?
Does it avoid negations? Despite the difficulties we have explained,
Does it avoid gerunds?
we also have successes: the law’s department
of our university is renewing its confidence in
Figure 4: Example of panel to assess if a text is plain or not. us, and some ex-students proudly assure us
that they are trying to use plain language in
8. How to adapt a historical document? The their jobs. Will the students use plain lan-
understanding guage when they become lawyers, judges,
politicians, or public servants? Future will
Having done these two activities, the stu-
bring us the answer, but at least we know
dents rewrite a historical text. In that task,
that our students know plain language a little
the students become aware of another use of bit. As our university is one of the most im-
plain language: it works to adapt an almost
portant in Mexico, it’s likely that some of
indecipherable text to an understandable
them will be executive manager and directors
one. In that case, we use plain language to in the private or public sector in a near fu-
divulgate information that is not strictly ad-
ture. Will they apply and require their
ministrative. The students transform capital
subordinates to use it? We are working, but
texts of the history of Mexico: the texts of Diego our work is modest and limited: we can only
de Landa about the Mayan, the Columbus
throw more and more seeds into space with
Letter on the first voyage, the Independence
the hope that, one day, they germinate.
Act, the Treaty of Guadalupe-Hidalgo, the Maybe then, with clearly written words, Jus-
Treaty of Mesilla, for example. To do it, the
tice will be less blind.
students use all we have seen in the class-
room and, moreover, they include maps,
figures, statistics and images of codices or Justicia y Lengua Denuncia
CIUDADANA
Lenguaje
CLARO RETÓRICA INICIO
sculptures or whatever they want. In con-
clusion, they understand that there are
rules to make a text comprehensible to other
students, to children and, in general, to
people with a different educational level.
They appreciate their own work because,
above all, they can understand documents
that they hardly could understand before
they transformed them.

Figure 5:Justicia y Lengua (Justice and Language): “our website” (Martínez Villarroya, 2013):

Clarity 70 December 2013 63


References
Consejo Nacional de Evaluación de la Política de
Desarrollo Social (2012). Informe de Pobreza en México
2010: el país, los estados y sus municipios. México D.F.: Book reviews
CONEVAL.
Hernández, S. (2011). El analfabetismo pega a 640
municipios: El Universal. Recovered fromhttp://
www.eluniversal.com.mx/primera/37448.html,
June 1, 2013, 12:00h.
Galán, R. M. & Canizales, A. (2012). The risks and
challenges of fostering plain language in Mexico:
Clarity. Journal of the international association Comparative Legal Linguistics, by Heikki
promoting plain legal language. Clarity, number 68, E S Mattila, translated by Christopher
November, pp. 38-39
Goddard, 2nd edition, Ashgate Publish-
Instituto Nacional de Estadística y Geografía de
México (2011). Estadísticas a propósito del día ing Limited, 2013, ISBN 978-1-4094-3932-5,
internacional de la alfabetización. Recovered from 485 pages, £75 GBP (publisher’s website
http://www.inegi.org.mx/inegi/contenidos/ price £67.50)
espanol/prensa/contenidos/estadisticas/2011/
alfabetizaci%C3%B3n11.asp?s=inegi&c=2808&ep=69,
May 20, 2013, 14:00h https://www.ashgate.com/default.aspx?
Martínez Villarroya, J. (Dir.) (2013). Justicia y Lengua. page=637&calcTitle=1&title_id=11450&
México D.F.: ITAM. Recovered from http:// edition_id=11805
carle.itam.mx/moodle/Justicia/ , June 6, 2013,
11:11h
Heikki E S Mattila is Professor of Legal Lin-
The UNESCO Institute for Statistics (2012). Adult guistics at the University of Lapland, Finland.
and youth literacy. Recovered fromhttp://www.
uis.unesco.org/Library/Documents/fs20-adult- With research interests in comparative law
youth-literacy-2012-en.pdf, June 6, 2013, 11:11h and legal linguistics, Mattila has published
Transparency International. The 2012 corruption several studies on legal languages, especially
perceptions index (2012). Recovered from, http://cpi. legal Latin. He is also Docent of Comparative
transparency.org/cpi2012/ , June 6, 2013, 11:11h Law at the University of Helsinki. Mattila has
© 2013 J Martínez Villarroya a long-held interest in legal languages, which
javier.martinez@itam.mx started in his undergraduate days. Having
worked as a government official in the 1980s,
Javier Martínez Villarroya and as a translator and lexicographer in the
has the degrees of Philosophy
1990s, he has a sound applied – as well as
and History, and a Ph. D. on
Ancient Philosophy and academic – background in legal language.
Hermeneutics (Universitat de Several other linguistic specialists have con-
Barcelona). Moreover, he has tributed to the book, including the head of
done studies on Anthropology at the Finnish Division at the Translation Ser-
the Universidad Nacional vice of the Court of Justice of the European
Autónoma de México. He has Union; a professor of law from the University
worked as cultural manager from of Oslo; and a professional Latinist.
the Catalan Government in
Mexico and Hong Kong. He founded, and he is the So what is comparative linguistics? The Ency-
director of Ex Novo, Revista d’Història i Humanitats. clopedia Britannica’s website describes the
His research is focused on literary creation, plain discipline as the ‘study of the relationships or
language, rhetoric and comparative religion. Nowadays, correspondences between two or more lan-
he is a Full-Time Professor of the Instituto Tecnológico
guages and the techniques used to discover
Autónomo de México, where he trains students of Law
in plain language. whether the languages have a common an-
cestor’. It explains the history of the field as
follows: ‘Comparative grammar was the
most important branch of linguistics in the
19th century in Europe. Also called compara-
tive philology, the study was originally
stimulated by the discovery by Sir William
Jones in 1786 that Sanskrit was related to
Latin, Greek, and German.’

64 Clarity 70 December 2013


Legal linguistics is an important subject with efforts to improve this; plain-language wills;
much to contribute to the field of law in gen- and the structure of judgements. Both Clarity
eral – and to that of legal language in International itself and Plain Language Asso-
particular – but appears to be covered by ciation International get several mentions.
very few other publications. Originally pub-
The target readers for the book are students,
lished in Finnish in 1998, Mattila’s researchers and practitioners in legal history
groundbreaking book was first translated
and theory, comparative law, semiotics and
into English in 2006. It is dense (in the nicest-
linguistics – as well as legal translators and
possible sense) and comprehensive: both the terminologists. And Mattila’s masterpiece
writing and the translation of such a de-
doubtless does deserve the attention of any-
tailed, precise and thorough work cannot fail
one concerned with the role of language in
to impress. practising law, interested in comparing inter-
Structured in four parts (containing a total of national and national legal systems, or
ten chapters), the book opens with a general motivated to explore linguistics in a range of
introduction looking at legal language and contexts, from law to politics.
legal linguistics. It then examines legal lan-
Sarah Carr has a first degree in
guage as a language for special purposes,
French and Scandinavian
evaluating its functions and characteristics, language and linguistics with
and the terminology of law, before analysing teaching English as a foreign
in detail (in the largest part of the book) the language, and a master’s in
major legal languages of Latin, German, business administration (MBA).
French, Spanish and English. Other lan- Having worked as a healthcare
guages are also discussed, including Arabic, manager for seven years, she
Catalan, Danish, Dutch, Esperanto, Finnish, became a freelance writer, editor
and proofreader in 1997. Sarah
Flemish, Greek, Malaysian, Mandarin, Ruma-
has written a book, ‘Tackling
nian, Russian, Sami, Sanskrit, Swedish and NHS Jargon: getting the message across’ (Radcliffe
Urdu. Medical Press, 2002). Living in the UK with her
The book concludes with a chapter on lexical husband and four children, Sarah enjoys volunteering as
a holistic therapist at a local cancer support centre.
comprehension and research needs, which
would be of particular value to those wishing
to pursue their own original work in this So goes A Verb’s Lament, one of 15 pieces
field. A useful appendix comprises a compre- in Sketches on Legal Style, by Mark
hensive table of the various foreign language Cooney (Carolina Academic Press 2013).
terms and other expressions appearing in the
main text – in not only Roman but also A verb and an author walk into a bar. In a
Cyrillic and Greek script. Laws and institu- twist on the usual bar joke, this morose verb
tions in foreign languages are included, by laments his “nominalization” by lawyers
name. who try to change a nice, simple verb into
New to this second edition are the chapter on “some sort of highfalutin, abstract noun with
legal Spanish (in light of the increasing im- a bunch of extra words.” So goes A Verb’s La-
portance of the language) and a section ment, one of 15 pieces in Sketches on Legal
exploring the use in legal circles of the two Style, by Mark Cooney (Carolina Academic
variants of the Norwegian language, Bokmål Press 2013). Extra words also form the
and Nynorsk. A key area of change since the “chains made from the boilerplate, archaic
first English edition has been in language use language that built a wall of intimidation and
within the European Union, and these parts confusion,” shackling the ghost of Jacob
of the book have been thoroughly updated. Morely, the long-dead law partner of
All other chapters have also been revised, Ebenezer Scribe, in A Legal-Writing Carol, the
and include more detailed footnote referenc- lead sketch in this delightful collection.
ing. Full disclosure: author Mark Cooney is my
The book includes discussion of clarity and colleague in the writing department at the
plain language in law, with a focus on the Thomas M. Cooley Law School, and my
clarity of legal French, German and Latin; the friend. I read many of these pieces before
precision and quality of legal language, and their original publication in the Michigan Bar

Clarity 70 December 2013 65


Journal’s Plain Language Column, or in other
journals. Mark’s writing always makes me
Messages from the
laugh, and it always makes me post his ar- Presidents
ticles to my course web page, so my students
can see that mastering all this clear- writing
Candice Burt’s term as president ended at the
stuff that I keep harping on can be fun and
October 2013 members’ meeting in Vancouver.
entertaining.
The members’ meeting recommended and Clarity
But these short, funny pieces aren’t just for Committee approved the appointment of Joh
academics—they are for all lovers of good Kirby as president.
writing who just wanna have fun. The 15
sketches include vignettes like the Verb’s La- This message from the presidents is in two parts
ment; a Poe parody, in The Pleading (“Quoth — first a backward glance and farewell from
the pleading, ‘Heretofore.’”); a letter to a Candice, and then a greeting from Joh.
teacher, in A Letter to Mrs. Finklebean, won-
dering why she forbade beginning sentences From immediate past president
with “And” or “But”; and a coming-of-age Candice Burt
story in I Was a Teenage Semicolon. They also My warmest congratula-
include essays like The Extra-Stuff Rule, to tions to Joh Kirby on her
help simplify comma rules for those who appointment as the next
aren’t sure about the difference between a re- president. Clarity is in good
strictive and non-restrictive element or a hands and I have no doubt
participial or prepositional phrase. So call it it will go from strength to
extra stuff and set it off with a comma. strength.
In just 100 pages, Mark Cooney brings to life The past three years were
the world of words and clear sentences. He interesting times for Clarity.
uses real-world examples (with footnotes!), I took the helm of an
coupled with witty stories and essays. organisation that had recently started a new
Sketches on Legal Style makes the case for course under the stewardship of Christopher
plain language, and if the medicine goes Balmford. It was both an exciting and a chal-
down with a laugh, so much the better. lenging task. I am proud to have been part of
Eileen Kavanagh is a professor this new direction and I am especially thrilled
at Thomas M. Cooley Law that the Clarity Constitution is to be adopted
School, having taught Legal shortly.
Research & Writing for 18 years.
The process of drafting the Constitution was
Before that, she was an appellate
and civil litigation lawyer in a rigorous one, starting in 2010 with a survey
Lansing, Michigan, and of what members wanted from Clarity and
Chicago, Illinois, following her its Constitution. Francesca Quint prepared
graduation from DePaul the first draft based on the survey results.
University College of Law. (Francesca Quint is a barrister practising
from Radcliffe Chambers, Lincoln’s Inn (Lon-
don).)
The subcommittee worked through several
drafts drawing on feedback from the main
committee until we were able to present a
draft for members in April 2013. By Septem-
ber 2013, the subcommittee produced a ‘close
to final’ version (having incorporated the
members’ feedback). At the October mem-
bers’ meeting in Vancouver, a timetable for
finalising the Constitution was put in place.
The Washington Conference in 2012 was an-
other excellent Clarity conference . The
quality of talks and the enthusiastic — and at

66 Clarity 70 December 2013


times hotly debated — discussions prove that • guest editors of Clarity over the past three
there is strong support and commitment to years;
plain language. • the Clarity committee, including the
Clarity depends on the generosity of volun- country representatives (there are 26
teers. Much of the work is done quietly, countries represented on the committee);
behind the scenes and we seldom get the op-
Thank you, finally, to the members. I feel so
portunity to say thank you. So I am going use humbled by the many wonderful messages I
this platform to thank the following volun-
received after the letter announcing the end
teers (in no particular order) for all their
of my term. I look forward to being part of
effort: Clarity for many years to come.
• Julie Clement, Editor-in Chief of Clarity, Candice Burt, immediate past President of
project coordinator of new journal design
Clarity
and constant source of advice and support;
• Joe Kimble, Membership secretary, ardent From president Joh Kirby
promoter of Clarity, and sage; This is my first message
• Eamonn Moran, Chair of Constitutional as President, and it is
subcommittee and Clarity liaison for the with a great deal of ex-
International Plain Language Working citement, but also some
Group; trepidation, that I take
on the role. Clarity is an
• Christopher Balmford, immediate past
organisation that has
President, adviser and friend;
played an important part
• Peter Butt, Committee member and source in my professional life
of much advice and encouragement; and I want to repay it
• Helena Englund Hjalmarsson, website during my term.
manager for many years; One of my first formal responsibilities as
• Cindy Hurst, coordinator of the President must be to warmly thank our out-
administrative office; going President, Candice Burt, for her hard
work. One of Candice’s most significant
• Francesca Quint, writer of first draft of achievements has been nurturing the
Constitution; organisation’s first constitution through to its
• Amy Bunk, fellow member of the final draft. By the time this journal goes to
Constitutional subcommittee; print, hopefully the constitution will be fully
signed off and stand as a legacy of her term.
• Ben Piper, fellow member of the Without Candice’s contribution the constitu-
Constitutional subcommittee and project tion would not have happened. So thank
coordinator of the Laws project ; you, Candice, and I look forward to working
• Tialda Sikkema, project coordinator of the with you in your continued role as a country
Laws project ; representative.
• Daphne Perry, organiser of Clarity While I have met many members at confer-
breakfasts in London and initiator of ences over the years, it is inevitable that some
Clarity LinkedIn; of you won’t know me. So here’s a little
about myself. I am a lawyer with a focus on
• Nicole Fernbach, Clarity conference 2014
helping members of the public understand
organiser;
the law and their legal system. I am the Ex-
• Josiah Fisk, designer of new Clarity look; ecutive Director of the Victoria Law
• James Fisher-Martins, fellow compiler of Foundation located in Melbourne, Australia.
the survey and developer of online survey; In 2011 I completed a research paper as part
of my Churchill Fellowship on best practice
• Joh Kirby, social media coordinator in community legal information and pro-
• Frances Gordon, developer of web strategy duced a report that has been used widely in
for Clarity; Australia to improve this information. You
can find more information about my work at

Clarity 70 December 2013 67


www.victorialawfoundation.org.au. Apart Many Clarity members attended the
from plain language, I have a strong interest PLAIN2013 meeting in Vancouver. It was
in corporate governance and management great to catch up with so many members and
that I hope will assist me in my new role. find out what is happening in their country.
Clarity held a meeting at the conference in
As President I plan to pick up the work that
which members had an opportunity to re-
Candice has already commenced on gover-
view the final draft of the constitution. I am
nance. This will look beyond our new
pleased to say that it received in-principle
constitution to the future and how we can
support from the membership that has al-
work more effectively as an international
lowed the final approval to move forward. I
body. Part of this will be about capturing ex-
was also elected at this meeting.
isting knowledge in Clarity and setting up
systems that will survive beyond the terms of A meeting of the International Plain Lan-
individuals. guage Working Group also took place at this
time and reinvigorated its work going for-
Another area that I plan to focus on is com-
ward. A full report can be found on our
munication. Julie Clement does a fantastic job
website.
publishing our journal each year and ensur-
ing that it is one of the organisation’s key Work is still continuing on the Law Project,
strengths. We need to build on this work and with Ben Piper and Tialda Sikkema as joint
broaden our range of communication chan- project coordinators. This project, which
nels. This will include the addition of an looks at what laws exist across the world to
e-newsletter starting in 2014 and a review of promote plain language, needs your help. If
our website. The website review has already you know of laws of this type in your coun-
commenced. There has already been consid- try, can you please send them through to
erable work done on updating the content on Tialda at tialda.sikkema@hu.nl.
the current website. As many of you have al-
And looking forward, Clarity’s next confer-
ready recognised, there is a need to redesign ence will take place in conjunction with IC
the website to make it speak more accurately
Clear on 12-14 November 2014 in Belgium.
to the work of the organisation. This work
Put the date in your diary and watch this
will commence in 2014. Please be patient space for more information.
while this activity moves forward.
Finally, an organisation such as ours is only
In the meantime, keep up-to-date with the
as good as our membership. If you have ideas
progress of both of these activities through
or would like to be more involved in the work
Twitter (#clarityInterna). Following us is a of Clarity, please do not hesitate to contact us.
great way of finding out about new informa-
tion added to the website and as well as Best wishes for 2014.
about what’s on. We are also trying to build Joh Kirby
the profile of our country representatives
through Twitter, so look out for new mem- December 2013
bers in this area. If you are a country
representative and have a Twitter account,
please let the
claritywebsitemanager@gmail.com know so
that it can be included on the website and
Tweeted to our followers. And if you are a
country representative and don’t have a
Twitter account, but would still like to get
your message out there, send any comments
or ideas to the same address.
So what has been happening since the last
journal? A lot. Some of this has been covered
in Candice’s message. To other things,
though.

68 Clarity 70 December 2013

You might also like