Plain English Using Plain Language In Law Firms
Plain EnglishUsing Plain Language inLaw FirmsBy Edward KerrMallesons Stephen Jaques hashad a plain language policysince 1986. This paper describes what we have done.First let me tell you a littleabout the firm. We are a large law firm evenby world standards. We have ten offices inAustralia and overseas. We have large offices in Sydney, Melbourne, and Perth andquite sizeable operations in Canberra andQueensland. Worldwide, we have about180 partners and 420 other qualified lawyers, for a total of about 600 lawyers. Thetotal number of staff is about 1,500.I have divided this article into threemain parts:e The first part, "Putting Our House inOrder," describes how we have gone aboutgetting our lawyers to use plain language.* The second part, "Selling Plain Language," describes what we have done to sellplain language to our clients.* The third part, "Reflections," summarizes what we have and have not achieved,what lessons we have learned, and thethings that remain our biggest challenges.PUTTING OUR HOUSE IN ORDERI have found that three things are essential for a plain language policy to be successfully implemented:" Constant planning and goal setting." A strong organizational structure.AR0 People who are committed to the effort.An organization, particularly a group of600 opinionated lawyers, will not start writing in plain language simply because youtell them to. People need to work with itdaily, and having precedents (or forms, asAmericans call them) in plain language isthe obvious and ideal way to give themthis opportunity.So how do you produce a high-qualityprecedent system in plain language which isconsistent throughout ten offices and readily available to 600 lawyers? There are fiveaspects which should be mentioned-howit all began, the organizational structure wedeveloped, the lawyer resources needed, theuse of technology, and the training programwe put in place.The Early DaysOur long-term commitment to a fullyintegrated precedents system incorporatingplain language principles began in late 1986.Until then, attempts at precedent development had been sporadic and died after aninitial burst of enthusiasm.In late 1986 we employed a senior lawyer, Michele Asprey, to take charge of ourprecedents section. Michele had great enthusiasm and vision and soon convincedus of the need to use the latest computertechnology and to think nationally. At thattime we set the following goals:9 We were determined to have a highquality precedent system.e It had to be in plain language.r AnIJII1lVlI-nlLWIN DKK JUU)KINALJ.AIrIIrn* Documents had to be consistent. Thisis most important. If you have a series ofdocuments in a transaction (for example,a loan agreement, a guarantee, and a mortgage) it is unacceptable if the standardclauses in the documents are not consistent.We started with banking and financedocuments, and after about a year wethought we had developed a good set ofplain language standard clauses. Then inlate 1987, a turning point came when oneof our senior partners attended a weekendseminar put on by Dr. Robert Eagleson. Hewas very taken with what he heard.An organization,particularly a group of600 opinionated lawyers,will not start writing inplain language simplybecause you tell them to.We invited Dr. Eagleson to run a seriesof sessions where we worked through thedocuments that we thought were in plainEnglish. As you can imagine, he pulledthem to pieces-in the nicest possible way!Probably the single most important thingthat Robert taught us--you could say it wasa case of light dawning on us-was to thinkof our audience. This might sound obvious,but I can assure you that lawyers are notJAURY19JANUARY 1994
PLAIN ENGLISHWe then established a committee madeup of representatives from all our offices.One of the first things the committee didwas to establish a firmwide standard format for documents and drafting guidelines.Plain language considerations were paramount in this process. We spent a lot ofeffort establishing guidelines to improvethe readability of our documents.Probably the single mostimportant thing that Roberttaught us-you couldsay it was a case of lightdawning on us-was tothink of our audience.For example, we got rid of some unnecessary archaic features. I am sure that youhave all seen legal documents which endwith something like:"In witness whereof the parties hereto haveexecuted this deed on the datefirst hereinbefore written."It now reads:"Executed as a deed."trained that way. They are trained to writea legally binding agreement. It is irrelevantthat no one can understand it. This lessonresulted in a fundamental change in howwe approached our drafting.fter working on our documents withDr. Eagleson for several months, weby early 1988, a very good set ofbasic clauses and documents in a plain language style. However, problems were beginning to develop. They were:Ihad,* The lack of an organizational structure that would facilitate the developmentof our program.1994JANUARY 1994* Resources-principally in practicinglawyers who were both willing and available to work on documents. I say both, because often the spirit is willing, but clientdemands leave you unavailable.The Organizational StructureUp until early 1988, we had naivelythought that a precedent base could be developed in a fairly short time. We had beenthinking of three to six months for the 100or so banking and finance precedents wewanted. But we began to realize that it wasgoing to take much longer to produce thequality system we wanted.MILliIUAIN bAI( JUUKINPiLMICHIGAN BARl JtOUIUMiThe legal effect is the same.This firmwide committee has been anessential element in establishing a plainlanguage policy right across the firm. It isessential to have people in each center whoare committed to it and who, on a day-today basis, can ensure that the policy is being implemented.The other major purpose of the firmwide committee is to control the nationalreview of documents. Our goal is to haveconsistent documents in all centers. In otherwords, if you walk into our Perth officeand ask for a guarantee, you will get thesame document as you would from ourSydney office.The firmwide committee establishes thedrafting program for each expert group, setspriorities, and identifies the lawyers whowill prepare the precedents. A by-productof this process is quality. Because all oureffort is put into one document, it is reviewed more vigorously than if we werecreating a different version in each center.49
PLAIN ENGLISHResourcesProgress was much slower than we hadexpected. We started a number of projectsthat stalled because we were unable to devote enough time to them. We then beganto realize that this sort of program is extremely resource-hungry-for people andtechnology, which all add up to lots of dollars. We have spent over 5,000,000 in developing our precedents. Most of this represents unbilled time of the lawyers whoworked on the precedents.n 1988, 1989, and 1990, we employedup to seven lawyers to work full-time onprecedents. During this time we wereable to complete a large number of banking, corporate, and property documents.The pace is not so frantic now, but we stillhave four lawyers working full-time on developing precedents.In addition to the full-time lawyers, it isvery important to have a network for reviewof documents. It is essential that the lawyers who are going to use the documentsare satisfied with them. Otherwise the lawyers won't use them. This point can't be emphasized enough. Therefore, we send thedocuments to numerous experts within thevarious centers for review. This can takemany months, and a lot of hounding (inthe most diplomatic way) is often required.But the result is documents that are highquality and commercially acceptable.Finding the human resources probablycontinues to be the biggest challenge. Butat least having clear goals means that thework which is done is focused.So implementing a plain language policywill cost money-not only in human resources, but also in technology.TechnologyYou can't expect to implement a plain language policy in an organization as large asours without a sophisticated system thatmakes the resources readily available.Some years ago we purchased a fully integrated Wang information processing system (this was before the days of networkedPCs). Although this system does not havethe benefits of a PC-based system, it hasbeen excellent for implementing a consistent precedents policy.All our precedents are on a special precedents database. Everyone (including law50yers) have screens on their desks and haveinstant access to those precedents. The basiclayout features-for example, the layout fora letter or document or signature clausesare programmed to appear automatically.This ensures consistency.All but one of our centers are usingWang equipment. So it is very easy to access a document on one center's systemfrom another center. If our London officewants to produce a guarantee, it simplycalls in the latest precedent version fromSydney and prints it out in London. Thishappens in seconds.We then began torealize that this sortof program is extremelyresource-hungryfor people and technology,which all add up tolots of dollars.We have also made use of technologyin computer-assisted drafting. This systemenables a lawyer to prepare a document bysimply answering a series of questions onthe screen. The document is then automatically prepared by the program. The package we use is called Workform, from Analytic Legal Programs Inc., of New York.We have produced a wide range of applications including loan agreements, guarantees, deeds of priority, legal opinions,memoranda and articles of association, andsecurities. All of these applications arebased, of course, on our plain languageprecedents for those documents.The next stage in technology will be toestablish a networked PC system that willretain all the benefits of the Wang systemand give the added benefit of being able toproduce much better looking documents.The plain language program would breakdown without the technology.TrainingThe plain language program would alsoultimately break down if lawyers were nottrained in the art of plain language drafting. It is all very well to have precedentsMICHIGAN BAR JOURNALin plain language. It is also critically important to have lawyers who can adaptthose precedents and otherwise generallydraft in plain language. Precedents are onlythe starting point in a transaction. Everytransaction involves a lot of "original" drafting. In this area we have a long way to go,but we have started.ll lawyers newly employed in thefirm attend what we call the "Welcome to MSJ" course. Two hours ofthis course are devoted to teaching ourplain language drafting style. This is verybasic, but we do try to teach the lawyers to:" Think before they draft." Think of their audience.* Draft in the present rather than thefuture tense." Draft in the active, not the passive.* Avoid "shall" and other archaiclanguage.9 Use short sentences.We also run a two-day live-in program.In our Sydney office (which is our largest),we run this program twice each year. Allrecent graduates must attend, and we alsoinvite a number of partners and more senior lawyers. We limit the course to 25,which enables a lively interchange. RobertEagleson teaches the course. This coursehas also been run in our Brisbane and Perthoffices, and we are hoping to make it a regular feature in all our Australian centers.The topics covered include:* The central principles of plain language and some causes of legalese." Focus-who are the readers?" Organization-its key role in makingdocuments intelligible.* Grammatical structure-why longsentences fail; how to shorten them; orderof elements in a sentence; active or passive;nouns or verbs." Punctuation." Matters of vocabulary such as handling technical terms and definitions." The proviso." Writing letters." Layout.SELLING PLAIN LANGUAGEOriginally we adopted a policy of plainlanguage because we wanted our precedents to be in plain language. We did notinitially set out to sell plain language to ourclients as a separate product.JANUARY 1994
PLAIN ENGLISHREFLECTIONSMore recently, with the growing demandfrom community groups, the judiciary, andthe government for legal documents to bein plain language, clients are asking moreand more for plain documents. As a response to this demand, we established aplain language unit in the firm about a yearago. At that time Robert Eagleson resignedfrom his post as Associate Professor in theEnglish Department at Sydney Universityto work full-time as our consultant. He andI originally constituted the plain languageunit. More recently another lawyer fromthe firm has joined the unit.What have we been doing?Visiting Program to Clients. We haveestablished a program of visiting clientsand potential clients to talk to them abouttheir plain language needs. So far, we havetargeted banks and insurance companies.Submissions to Parliamentary Inquiries.There is a growing awareness within governments of the need to draft legislationin plain language. Two parliamentary inquiries are currently under way where therehas been an opportunity to make submissions on how legislation should be drafted.We have strongly recommended the adoption of plain language principles.WeWhat Have We AchievedinSeven Years?* Standard format and drafting guidelines.* High-quality documents in plain language-about 60 in banking and finance,all consistent with each other, and another120 in the corporate and property areas.There are many still to be done.9 A culture where plain language has ahigh profile." A comprehensive training program." The demystifying of legal language,particularly for the young lawyer (they don'thave to learn bad habits).* A very solid base on which to expand.What Lessons HaveWe Learned?have also recommended that thelegislative process entail extensivecollaboration with the private legalprofession. Too often, legislation is draftedby parliamentary counsel who do not consult and are not encouraged to consult withthe relevant industry and the private legalprofession to ensure that the legislation canbe understood and is workable. We see aneed for experts in plain language to workwith parliamentary counsel in preparinglegislation.Preparing Pro Forma Documents. Wehave decided that often clients will not beconvinced of the benefits of plain languageuntil they actually see it. Accordingly, wehave a program of preparing a number ofcommonly used documents that we canshow to clients in virtually final form, subject to their own commercial requirementsbeing incorporated in them. These documents include a short-form equipmentlease, a superannuation trust deed, and ahousing loan mortgage. This approach isproving particularly successful.Although the development cost is high,we are able to recoup this gradually by selling the document to a number of clients.It also keeps the cost for any particular client down to an acceptable level. It wouldbe uneconomical to develop some of thesedocuments for a single client.Also, the spin-off effect for other workshould not be underestimated. If you canprovide a high-quality plain language standard document to a client, they are morethan likely to come to you for other work.The plain language document can be the vehicle for attracting new clients to the firm.Marketing Within the Firm. We havefound it useful to market our skills not onlyoutside the firm, but also within. Sometimes, partners will not realize that thereis a plain language opportunity with a particular matter they are handling. One example of this was where Robert Eaglesonand I were visiting an insurance companyand discovered that someone else in thefirm was preparing a trade-practices compliance manual for them. When we returned to our office, we obtained a copyof the manual, which had been preparedby lawyers in the firm who were not skilledin plain language writing. We were able tomake vast improvements to the manual.trJANUARY 1994Ir"AIfl' AnWKSHillUM-l4 Dtf"}'JUUlTlI A IIto Don't underestimate the size of thetask. It will take you longer than you everthought possible.* The management of the firm or corporation must be committed to it.e Don't try to do too much at anyone time.* Continually plan ahead and ensurethat the resources will be available. Controlthe exercise. There is a great potential in alarge firm to re-invent the wheel. You musthave an organizational picture which ensures that you take advantage of economiesof scale.Edward Kerr is the partner in charge of the firm'sPlain English Unit. Hehas extensive expertise inpreparing standarddocuments for banks and otherfinancial institutions. Heis also in charge of thefirm's precedent system.Mr. Kerr graduatedwitharts and law degrees from the University of NewSouth Wales. In 1985 he joined Mallesons StephenJaques (becoming a partnerin 1986). He is a member of the Banking, Finance and Consumer Creditsub-committee of the Law Council of Australia.51
PLAIN ENGLISH* Be flexible. Don't think that there isonly one way to do things. Keep an openmind. Be sympathetic to the fears and defensiveness of others. Don't let your enthusiasm make you a tyrant.* Be sensitive. At first, many lawyers inthe firm did not wholeheartedly embraceplain language. Gradually the pockets ofresistance are dying out. Some of the problems we encountered are:(1) Lawyers who mistakenly believe thatbecause they are good lawyers they mustbe good writers.(2) Lawyers who cling to the old waysbecause they are "tried and true" or because they are frightened to change anddon't have time to research to satisfy themselves that the change in language is safe.(3) Lawyers who cling to outmodedpractices in grammar "because that's whatwe were taught at school" in the 1940sor 1950s!(4) Lawyers who are under the mistakenapprehension that clients like to readlegalese.(5) Lawyers who simply don't understand what plain language is and are afraidIf you can provide a high-quality plain languagestandard document to a client, they are morethan likely to come to you for other work.of it or mistrust it because they think it issomething other than clear, simple, precise writing. An example is the "shall" versus "must" debate. This generated an enormous amount of heat within the firm. Inthe end it came down to a combination ofwhat people "liked" and "didn't like" andalso what they thought was grammaticallycorrect. Five years ago, we had to compromise. Now, the resistance has disappeared.What Are Our Biggest Challenges?e Getting lawyers to devote time to developing precedents. The best solutions Ihave found are to employ lawyers to workfull-time on precedents and to form projectteams who meet regularly to discuss thedocument.Lawyers and JudgesAA/A GroupsMEETING DATESMonday 12:00 PMSt. Joseph Hospital EastBailey Room AParkview and North StreetsMt. ClemensMonday 12:30 PMDetroit Bar AssociationConference Room23rd Floor, Penobscot BuildingDetroitMonday 7:00 PMPrince of Peace Lutheran Church19100 Ford RoadFord Rd. (Altar Rd.) just west ofSouthfield FreewayDearbornMonday 7:00 PMRehmann Health Center147 S. SaginawChesaningWednesday 6:00 PMKirk In The HillsPresbyterian Church1340 West Long Lake Road2 mile west of TelegraphBloomfield HillsWednesday 6:00 PMUnitarian Church2474 South Ballenger RoadLower Level, Room 2C1 block south of Miller RoadFlintThursday 8:00 PMCentral Methodist Church(2nd Floor)Corner of Capitol andOttawa StreetsLansingAIt'LIL"A.!n,,n l.'Hn TAr)5V2.lUMD'UNNXLJNAY19IVIA-1-11WAV4DtM JVU1V4KLe Getting lawyers to use plain languagein their day-to-day work. There is no easyanswer to this because old habits die hard.Certainly having a precedent base writtenin plain language gives you a head start,but then it comes down to training eachindividual lawyer.e Marketing plain language to clients.Most clients will say they want documentsin plain language. Far fewer have the visionto see the economic benefits that could flowby converting their existing documents intoplain language.An im
Using Plain Language in Law Firms By Edward Kerr M allesons Stephen Jaques has had a plain language policy since 1986. This paper de-scribes what we have done. First let me tell you a little about the firm. We are a large law firm even by world standards. We have
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