The Plain Language Advocates group in LinkedIn has recently been discussing the absence of plain English in legal documents. The legal profession, of course, is renowned in every culture worldwide for the convoluted language it uses in its writings. It is accused of seeking to obscure from the general public what it really means to say by employing legalese and Latin maxims not generally known to the man-in-the-street.
If I was to suggest this is a mistaken belief and that the lawyers are badly maligned, I would probably be rounded upon with howls of derision. In part, those howls would be justified. But only to an extent. Certainly, verbose and convoluted language is difficult to read, and any author is duty-bound to aid the reader in understanding his text.
Simplicity -v- Accuracy
However, the law draftsman often faces a dilemma when having to choose between simplicity and accuracy. What is written simply can easily fail to provide a fully comprehensive statement about a legal matter despite its appearing to be comprehensible. By that I mean everyday expressions, when used in a legal context, can have a definition both wider and more subtle than a layman might believe. So the lawyer must ensure that, when confronted with expressions that possess a common meaning and at the same time hold a specific legal constitution, he takes the precaution of expanding on the colloquial usage to encompass its full legal significance.
To illustrate what I mean, I have taken two words from the current Consumer Affairs Act of Western Australia, which covers matters relating to consumer protection. The words are in common usage but within the Act each has a prescribed meaning, which either goes beyond what is generally understood or includes matters that might surprise you. They are:
· Supply (of goods)
Under the Act supply has the usual and expected meanings associated with the word in everyday speech, such as to sell, exchange, lease and hire. In addition, it also includes the ‘exhibition’ of goods for sale, exchange, etc.
In other words, when a motor dealer places a car in his showroom for people to view and admire he is understood to supply the car to a viewer. I doubt very much whether the regular driver realised his car had been supplied to him before he had chosen it. But for the purposes of consumer protection it is thought better for the meaning of supply to encompass wider acts by a seller than is commonly used. This is a benefit to the consumer. But for a lawyer who advises a client who displays his goods to the public, the legal interpretation of the word under the Act poses an obligation to go beyond merely simple language
We are all consumers at one time or another, in the sense of acquiring goods and services, and the Act includes such persons who purchase, hire or lease, or borrow money to do those things. In addition, the Act includes house buyers and tenants.
What might not be understood by the average shop keeper or real estate agent is that the Act envisages a potential consumer falling within the consumer ranks.
Now I have not practiced consumer protection law, but I imagine the courts of Western Australia have taken it upon themselves to explain what constitutes a potential consumer. Perhaps he or she is a ‘browser’ inside the shop inspecting the goods on display or a ‘window shopper’, or merely someone who has the thought of buying something. I don’t know. Clearly the Act casts its ‘consumer’ net widely, and the advisory lawyer to a business man who serves consumers would be wise to ensure his client knows the full extent of the net.
It's A Two-Step Process, Not One
It seems to me that the debate surrounding the legal profession and its avoidance of plain, lucid language has focused too much on the errant use of legalese. So long as ‘affidavit’, ‘ultra vires’, ‘heretofore’ ‘ lodgement of claim’ and the like are off the page and have been replaced with simple words more generally understood, it seems to be argued that all will be well.
I hope I have illustrated that this is a simplistic approach. I believe a further, simultaneous step needs to be taken – an acknowledgement that within legalese lies the essential meaning of the law because it bears the recognition of the courts, and that simplicity of language alone is not the key to a proper understanding of its intent.
If I may suggest an IT analogy, legalese is akin to the HTML code used to build a website. Its transformation into the text and other webpage content is the plain, clear language that we all wish to read. You don’t see the code because it is hidden, but it is essential to the creation of the webpage and without it there would be nothing to read.
Nick Fielden Copywriter
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