Plain English and legal advice are essential bedfellows

Should a client be told by their legal adviser that a matter has been ‘expedited’?

Should they worry that a contract is both 'null and void’? Would they want to go so far as to ‘give, devise and bequeath’?

And whether the client is a senior investment banker or a builder who left school at 16, is it reassuring to know that their advice is ‘predicated’ on something?

And what if, in the middle of it all, they get ‘pre-deceased’?

The legal profession is not alone in having its own shorthand and its own private language.

Scientists, accountants, chess players, IT folk, musicians, politicians, entrepreneurs, the army, teenagers, five-year-olds, stockbrokers – all these and many more use a private language when communicating with each other.

But for some reason, lawyers in particular have a reputation for bamboozling non-lawyers with obscure jargon, Latin, Norman French, schedule numbers and unexplained legislative references.

Some lawyers argue that, given that words are what lawyers work with, they should try harder to be clearer.

The argument runs that this is not because lawyers are uniquely unclear, but that they have an enhanced duty to be clearer than the average professional because of the points and topics on which they advise.

‘We are in a very privileged position,’ Neil Quantick, principal of Quanticks solicitors, explains.

‘If you need a solicitor then chances are there’s something significant happening in your life – moving home, buying or selling a business. Maybe you have lost a loved one.’

Recognising this, the Law Society has worked with the Plain English Campaign in the past to ensure that its consumer-facing material could be understood by non-lawyer consumers.

It could even be argued that compliance with the Solicitors Code of Conduct is aided by avoiding legalese when advising lay clients.

A piecemeal heritage

Barrister Peter Rodney, Gibraltar’s senior law draftsman and a consultant to the Plain English Campaign, points out that standard legal phrases can seem florid because their original meaning has been lost.

‘Think of “give, devise, bequeath”,’ he says.

‘Three words with the same meaning – one English, one French, one Latin.’ Using all three was originally about clarity,

Rodney notes, reflecting that a document might need to be clearly understood by clients who understood only one of the three words.

‘It’s the same with “null and void” – where we are using French and English, even though we only have the one language now.’

Rodney argues that, while the law is a complex and intellectual field, some of the complexity stems from the fact that lawyers are apt to add to precedents and standard pieces of drafting, without taking a step back and viewing the document, its structure and its content in the round.

A rewrite may provide more clarity.

Of course rewrites can be time-consuming, so in business terms does such an exercise justify the effort?

The example often cited by plain English adherents is the Australian law firm Fox Andrews.

Fifteen years ago, the firm tasked some of its lawyers with rewriting all of the firms’ precedents to improve their clarity, and marketed the fact that they had done this.

‘It was an absolute marketing success,’ Rodney notes.

‘Clients flocked to the firm.’

In a difficult economic environment, UK firms of all sizes are looking to plain English to provide a helpful point of differentiation in a crowded market.

Ian Blatherwick, managing partner of Browne Jacobsen, explains why his firm is going through just such a process: ‘We have seen how achieving Lexcel and Investors in People status have helped both our profile and the way we do things.’

Attaining the Plain English Campaign’s ‘Crystal Mark’, recognising the clarity of their documents, would not just ‘help in a difficult market’, Blatherwick notes, but also reflect the firm’s values.

‘One of our brand values is that we are straightforward, whether that is communicating with clients, or internally.’

Changes that Browne Jacobson is making to its marketing literature are also running alongside a project to ‘tidy up’ its precedents, paragraph by paragraph.

Recognising that its ‘size and areas of expertise mean market dominance is unlikely’, City firm Nabarro decided a recent rebrand had to be more than cosmetic.

As Nabarro partner Guy Heath recalls: ‘While it was clear that partners had divergent views of what the firm’s culture was on some counts, they and clients agreed that the firm’s approach to advice and service was straightforward – delivered quickly and clearly.’

Branded as ‘clarity matters’, the initiative aimed to create a more ‘user-friendly delivery of the law’, including its lawyers’ approach to drafting.

Anglo-Scottish firm Shepherd & Wedderburn also has its eye on graduate recruitment when seeking to use clear, plain English. ‘We wished to ensure that we were appealing to and attracting a wide range of applicants from an ethnic or minority background,’ a spokesperson for the firm recalls.

The intention was not just to be seen as an ‘equal opportunities employer’, important though that was to the firm, but also to attract applicants for whom English was their second language.

In fact, knowing the target audience, and changing one’s language accordingly, is a key principle of plain English.

‘It’s wrong to say that clear or plain English is always simple English,’ Rodney explains.

‘There is no harm in jargon, for example, if the person you are talking to speaks in the same jargon.’

Even for lawyers who are fluent in legal jargon, Rodney adds, this is not simply a matter of vocab.

For a few years now, he has run plain English training sessions. ‘I’ve come to realise that we spend a lot of time not on use of English in these sessions, but on logical thinking,’ he notes.

Most importantly, a focus on logical thinking, he argues ‘is more likely to meet the standard “must not be capable of being wilfully misunderstood”’.

Quantick believes that standard is more likely to be met by lawyers who ‘write as they speak’.

‘For me, the broad-brush measure of something that’s been written well is that it reads as if you were listening to the writer speaking,’ he notes.

‘That’s where I think lots of people fall down – they write in a completely different language from the language they use when they speak.’

He uses the example of an elderly couple he advised whose long and very complicated wills had been signed decades before: ‘The wills were written in such extraordinarily complicated terms, that neither they nor the solicitors that prepared them spotted that, in among all the unnecessary waffle, the husband’s will had failed to make any provision for his wife.’

Rodney had a similar experience when his own will was drafted by a solicitor recently.

‘In different places my wife was referred to as “spouse”, “current spouse” and “spouse if existing”, and the will failed to provide for some basic eventualities,’ he fumes.

Supporters of plain English note that the ability of people caught up in traumatic events to understand the response of government and the law, and to feel fairly treated, is seriously affected by the success, or failure, of plain English.

Lady Justice Hallett came in for high praise from many sources for the way she conducted, and managed communication during, the inquest in to the 7/7 bombings, concluded earlier this year.

In addition to successfully resisting the home secretary’s attempts to have some evidence heard in private, thereby allowing the bereaved and survivors to hear the fullest possible explanation of the tragedy, she ensured, as one Guardian editorial noted, that survivors, ‘often helped by their lawyers… described their devastating experiences, often revealing a quite indomitable human spirit’.

Hallett’s own use of plain language played a strong supporting role and is widely credited with lending both dignity and humanity to the proceedings.

‘You are amazing, you sound amazing, you look amazing,’ was one typical comment.

‘What has turned this from a moving but potentially voyeuristic experience has been the humanity of the response of Lady Justice Hallett,’ the editorial continued.

In fact, type the search term ‘Lady Justice Hallett praise’ in to search engine Google, and 6,390 hits come up.

That should be a striking statistic for any professional wondering what the principles of plain English might deliver for lawyers and the law.