Winning the plain language debate

With the debate about plain language won, competition takes care of the rest...

The commercial success of plain language in Australia flows directly from plain-language advocates proving that documents - even legal documents - that are accurate, certain, precise can also be clear and reader-friendly. As the legal profession fell silent in it opposition to plain language, clients of major law firms began to demand plain language. In response, some leading law firms decided to meet supply.

Today, commercial clients of Australian law firms are prepared to pay for legal services that are plain. One day, clients everywhere will refuse to pay for legal services unless they are plain.

Law firms lead with plain language

Several major law firms in Australia are leading with plain language. They have rewritten their precedents in plain language and have trained their lawyers in plain-language skills. Some of them are even providing plain-language document rewriting services.

This seems to be something that has happened only in Australia. The progress these firms are making, and the causes of this development are worth reviewing.

Christopher Balmford used to work for as Head of the Plain English Department, Phillips Fox, conducted a brand audit in 2000 to find out what clients and potential clients thought of the firm. The survey showed that the clients highly recognized and valued the clarity of the firm's advice and documents, and its plain-language rewriting services. Many of the survey participants who were not clients of the firm knew of Phillips Fox's plain-language expertise.

Mallesons Stephen Jaques recently prepared consulting and support services agreements for Microsoft in plain language. Those documents are now being used as a model for Microsoft's service agreements in many countries. Christopher Balmford provided plain-language training to Mallesons Stephen Jaques and through it to some of its clients. Since the early 1990s Mallesons Stephen Jaques and Phillips Fox have been working hard on the plain-language front.  In those days, they were breaking new ground. Now, many other Australian law firms are active in plain language all of them would at least claim to write in plain language. This development seems to be a sign of things to come. Today, commercial clients of Australian law firms are prepared to pay for legal services that are plain. One day, clients everywhere will refuse to pay for legal services unless they are plain.

What triggered this plain language activity in Australian law firms?

Australian law firms have chosen to see plain language as a benefit. In the other countries in which law firms are developing plain-language expertise, the relevant firms seem to be doing so in response to regulatory demand. For example, some major commercial law firms in the US are equipping themselves to write documents that meet the plain-language requirements of the SEC regulations. However, some of them seem to prefer the old style of writing. In Australia, clients started demanding plain-language documents as soon as the legal profession fell silent in its debate with the plain-language movement about the incompatibility of clarity on the one hand with accuracy, certainty, and precision on the other hand. That debate was lead, on the plain-language side, by the Law Reform Commission of Victoria under the direction of its Chairman, David St Kelly. 1

The Commission's work generated considerable positive publicity in the general media and even more debate in the legal press. Much of the publicity in the general media focused on various demonstration rewrites that the Commission included in its reportsthe classic:
  • "before" draft in traditional legal language; and

  • "after" draft in clear language that makes sense.

Those sorts of rewrites make good radio.

As the debate flowed on (it never really raged), clients started asking the Law Reform Commission to rewrite legal documents in plain language. At that stage, Christopher Balmford was working for the Commission. He was reassigned within the Commission to run a small—very small—business for the Commission that provided document-rewriting services for clients: mainly financial services organisations. (Self-funding law reform the Commission's staff liked to call it.)

At about the same time, some of the legislative drafting offices in Australia began moving forward on the plain-language front. Some of them have done wonderful thingsfor example, see the Australian Commonwealth government's legislative drafting office's web site page about plain language.

The success of plain language in business and government throughout Australia can largely be attributed to the success of the Law Reform Commission of Victoria in winning the debate with the legal profession about the requisite accuracy, certainty, and precision of plain language. For copies of the Commission's publications on plain language, contact Christopher Balmford (1300 85 86 20).

Some lawyers prefer an older style of drafting ... believe it, or not ...

In 1998, soon after the United States Securities Exchange Commission implemented regulations that required certain parts of prospectuses aimed at retail investors to be in plain language, the following peculiar events occurred... 2

A few months after the US SEC regulations took effect, Christopher Balmford worked on an international prospectus for one of Australia's 10 largest companies. A team of US lawyers from one of the most prominent New York law firms worked on the documents. They told Christopher about a US prospectus they had worked on a few months earlier in which shares were to be offered to retail investors. Accordingly, they had prepared the relevant parts of the prospectus in plain languageto comply with the new SEC requirements.

Then, after the prospectus was more or less complete, their client company changed its mind and decided that the shares would be offered only to institutional investors. So the SEC plain language requirements no longer applied to the prospectus. Guess what? The US lawyers then rewrote the plain-language document back into legalese. They were almost proud of this... The mind boggles.

 


1 LEGISLATION LEGAL RIGHTS AND PLAIN ENGLISH, Discussion Paper No. 1 (August 1986); PLAIN ENGLISH AND THE LAW, Report No. 9 (repr. 1990). ACCESS TO THE LAW: THE STRUCTURE AND FORMAT OF LEGISLATION, Report No. 33 (May 1990).

 


2 SEC release 33-7497 (also 34-39593 and IC-23011) January 28, 1998.