How plain language can reduce risk

There’s a persistent myth that plain language lacks precision. Many people (and by people I do mean lawyers) instead rely on legalese because they believe that it can counter risk by being ultra precise – normally by using all the words. To cover every eventuality.

But as plain language pioneer Joe Kimble explains in this article, you don’t have to choose between precision and plain language. Kimble uses the example of a legal clause, rewritten from an original 370-word legalese monster into a three-part, 25-line plain language version.

Here’s a taster of the original:

Promptly after receipt by an indemnified party under Section 1(g), 8(a) or 8(b) hereof of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereto is to be made against an indemnifying party under such Section, give notice to the indemnifying party of the commencement thereof, but the failure so to notify the indemnifying party shall not relieve it of any liability that it may have to any indemnified party except to the extent the indemnifying party demonstrates that the defense of such action is prejudiced thereby.

According to Kimble, a lawyer contacted him after he published the plain language version to say that the newer version was undoubtedly clearer and more concise but that it lacked the legal nuance of the original. Kimble’s response? The original legalese version contained the same ambiguities, but was also difficult to understand, obtuse and verbose.

In the article Kimble points out several other problems with the original which are all mistakes that we often see in legal writing. For example:

1. The word shall is misused. The word shall means “has a duty to” but all too often in legal documents “shall” is used incorrectly. Wherever possible shall should be replaced with must.
2. There is a whole lot of jargon going on. Using words like thereto and herein are confusing and abstract. Kimble calls them examples of antique jargon that are pseudo-precise.
3. There are unnecessary legal doublets. In this case the term “compromise and settlement” but more often seen as “null and void” or “cease and desist”. Legal scholars agree that in most contexts these double terms are superfluous.

Which all goes to show that often it is legalese itself which introduces unnecessary complexity and ambiguity.

Plain language, on the other hand, not only aids the accessibility of communication by making it easier to understand but has the added benefit of reducing risk by clearly showing where gaps and ambiguities remain.

Or, as Kimble puts it: “when you redraft in plain language, you inevitably uncover gaps and uncertainties in legalistic writing. The fog lifts, the drizzle ends, and the light shines through. So I’ll say it again: plain language is usually more precise than traditional legal style. The imprecisions of legalese are just harder to spot.”

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