It strikes everyone as an extreme case of the evils of jargon when a man is tried by a law he can't read, in a court which uses a language he can't understand.
--A.P. Rossiter, Our Living Language p. 86 (1953) (quoted in J. Kimble, Lifting the Fog of Legalese: Essays on Plain Language p. 178 (Carolina Academic Press 2006)
Professor Joseph Kimble cites Rossiter's quote in his new book, Lifting the Fog of Legalese: Essays on Plain Language. The quote is emblematic of a pervasive problem with legal writing, which Kimble's book sets out to remedy. What is plain language? It is writing clearly and concisely, favoring simpler, shorter sentences and words over the impenetrable "fog" of legalese.
Everybody Hates Legalese, But Few Mend Their Ways
Kimble calls on lawyers to face some "terrible truths" about legal writing:
[1] Although lawyers write for a living, most legal writing is bad and has been for centuries; most lawyers recognize this failing from what they read, but still fancy themselves to be rather good writers, thank you;
[2] Most lawyers strongly prefer other writers' prose to be plainer, simpler, shorter, clearer, but they also strongly resist changing their own style...;
[3] Every possible rationalization for the traditional legal style has been discredited; and
[4] The cost of our bad writing and funny talk--the time and money wasted and the public disrespect--are incalculable.
J. Kimble, Lifting the Fog of Legalese: Essays on Plain Language, p. xi (Carolina Academic Press 2006).
Kimble has surveyed judges and practitioners and has found overwhelmingly that they prefer plain language. Yet, he also finds that poor legal writing persists. In a telephone interview, Kimble described a "great disconnect" between "what people want to read [plain language] and how those same people want to write." Kimble sees a great need for lawyers to improve their writing--to make it easier on the reader and to eliminate the "ridicule this [legalese] brings on the profession."
Checklists Are Beautiful
Kimble seeks to address these terrible truths by advocating plain language in all forms of legal writing. His book is a collection of essays that he has published on the topic over the years. One essay, "The Elements of Plain Language," should be required reading in any writing course--in law school, undergraduate classes, or even high school English. Kimble boils down good writing tips into four easy-to-read pages in a helpful checklist format. Kimble addresses five categories of writing, starting with the big-picture General and Design tips and moving to the more specific Organization, Sentences and Words. The first tip under General guidelines should always be foremost in a writer's mind: "As the starting point and at every point, design and write the document in a way that best serves the reader. Your main goal is to convey your ideas with the greatest possible clarity."
At the other end of the big-picture-to-detail spectrum, Kimble instructs writers to "prefer familiar words--usually the shorter ones--that are simple and direct and human." In his essay "Plain Words," Kimble provides two columns of words. In the left-hand "Instead of" column he lists "subsequently," for example, paired with words in the right-hand "Consider" column. On the right are the words "later, afterward, then." In addition to the nearly 200 words on this list, Kimble includes lists of multiword prepositions and lawyerisms to avoid. For instance, instead of "in the absence of," Kimble suggests the shorter, simpler "without." These concrete examples should be helpful to both writers and those they supervise. Lifting the Fog is a useful reference, particularly for junior attorneys tempted to "sound like a lawyer."
Not Just for Briefs--Plain Language for Contracts and Codes
Kimble cites Bryan Garner, plain language scholar, in finding that "in general, while litigators are very interested in trying to improve their writing, transactional lawyers are not." Kimble is not content to let that situation go unchallenged.
In our telephone interview, he clarified that he wants to improve writing with plain language for "the whole legal profession," including lawyers, judges, and legal assistants. He doesn't stop there. Kimble believes plain language has "a broad appeal" and that "anyone involved in public communication" can benefit from dumping legalese in favor of plain language. This is what sets Kimble's book apart from other legal writing texts--Kimble includes chapters on writing clear legislation, regulations, and transactional documents. Lawmakers, as well as lawyers of all stripes, should write clearly and concisely.
Parts of the book examine contract drafting. Kimble gives examples of how one can convey the same meaning with plain language. Teaching transactional drafting is on the cutting edge of law school curriculum development, a change Kimble supports. Until enough new lawyers receive this education, however, books such as Kimble's should help.
One essay analyzes a statute, starting with impenetrable legalese and ending with Kimble's clearer plain language construction. In another chapter, Kimble sends an open letter to the Securities and Exchange Commission, applauding them for requiring plain English in certain parts of prospectuses. Finally, Kimble has his own ideas of how Congress could have drafted a plain language impeachment order for Bill Clinton. Writing better with plain language can add clarity to countless areas. Kimble states, "I think no reform would more fundamentally improve our profession and the work we do than learning to express ourselves in plain language."