Thursday, April 28, 2005

Accepting plainness

When I spoke at the Legal Rhetoric Symposium, I talked about simplifying legal texts that are meant to be read and understood by the public. One thing I said was that in my drafting classes I gave my students assignments and told them to rewrite drafted language for the general public. I talked about the resistance I sometimes get. But I gathered from the comments of some at the symposium that the resistance out there is greater than I realized.

I had thought plain language was making real inroads in many areas. The SEC requires prospectuses to be in plain language. The Federal Rules of Appellate Procedure and of Civil Procedure have both been revised into a much plainer style. California revised its pattern jury instructions into plain language. And so on.

But do lawyers still get a lot of resistance to plain language?

If you begin a motion in this way:
  • Iron Industries moves to dismiss Andrew Hampton's complaint for failure to state a claim, and Iron presents these three arguments to supports its motion: . . .
Are you told to change it to this?
  • COMES NOW Defendant Iron Industries, Inc. (hereinafter "III"), by and through its counsel of record, and in support of this its Motion to Dismiss, would respectfully show unto this Honorable Court as follows: . . .
If you take out
Are you told to put it back in?

If you write this
  • Under section 343, we cannot remove the item without a court's permission.
Are you told to write it like this?
  • Pursuant to section 343, permission of the court must be obtained prior to removal of the item.
And if you write this:
  • "Property" means 2802 Lemon Court, Austin, Texas.
Are you told to write this instead?
  • "Property" shall be deemed to have the following meaning: 2802 Lemon Court, Austin, Texas

And on and on. Is plain writing still rejected?

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