If you need to draft in plain English, what can you do?

There will be times you’ll need to draft in plain English. A corporate client needs a revised employee manual. Your supervisor asks you to draft a disclaimer for the firm’s website. A nonprofit organization you represent needs a basic contract. Or you need to write the “forepart” of an SEC registration statement, which, since 1998, must be in plain English.

So here are three recommendations for getting up to speed on plain English:

1. Read up on it.
Get familiar with the literature in the field. Yes, I’m going to plug my own book here:

• Wayne Schiess, Plain Legal Writing: Do It.

But here are two other excellent sources for expert guidance on plain-English writing:

• Joseph Kimble, Lifting the Fog of Legalese: Essays on Plain Language (Carolina Academic Press 2006).
• Rudolf Flesch, How to Write Plain English: A Book for Lawyers and Consumers (Harper & Row 1979).

These books will take you beyond simple mantras like “dumb it down” and “write it so your mother could understand it.” They’ll give you concrete, reliable guidance on revising traditional legal language into plain English.

2. Assess yourself.
You can use your word processor to assess the plainness of your text. It will measure the average sentence length—aim for 20 or below. It will tell you the Flesch Reading Ease Score, which ranges from 0 to 100; the higher the score, the easier the text is to read. And it will tell you the Flesch-Kincaid grade level: the numbers of years of schooling a reader would need to understand the text; a passage with a higher score is harder to read.

To do this in Word 2007, find the “Office” button—on the top left with the multicolored logo—then:

• select Word Options > Proofing
• find the section called “When correcting spelling and grammar in Word”
• check the box for “Check grammar with spelling”
• check the box for “Show readability statistics”

While you’re there, consider clicking “Settings” and unchecking all (or most of) the grammar and punctuation items. This will prevent you from having to go through a grammar-check every time you run a spell-check. The grammar check is not a useful tool. Now, each time you spell-check, you’ll get a statistical analysis of your text.

The analysis will show your average sentence length and the numerical Flesch scores. Remember, these scores come from a computer algorithm that measures words and sentences and has no human insights; it can’t tell sense from nonsense.

But if you’ve written a document intended for nonlawyers that has a Flesch-Kincaid Grade Level of 19 (that’s college plus three years), you should probably work on simplifying the text. Likewise, since a Flesch Reading Ease score of 60 is “plain,” if your Flesch Reading Ease Score is in the 20s or 30s (even the 40s might be tough for nonlawyers), it may be time for some pruning and revising.

3. Test your text.
Ask a trusted friend or relative who is not a lawyer to read the text. Then ask follow-up questions. Or ask where the reader got lost or felt “legalese” creeping in. Then revise accordingly.

The cost of revising forms into plain English.

In fact, revising all your form documents into plain English may be unrealistically expensive and time-consuming. Who’s going to pay for it?

Revising complex legal documents into plain English is taxing, tedious, and slow. The resulting plain-English only looks like it was easy to write. In reality, the process has several steps and usually requires collaboration. For example, here’s a process I recommend in my book, Preparing Legal Documents Nonlawyers Can Read and Understand:

• Read the entire document from beginning to end—taking notes—to get a sense of the content and complexity of the text.
• Create a list of the substantive content of the document. This will help you master the content, and you can use it as a checklist when you revise.
• Sort and order the content list, considering reader needs, the important topics, the order in which the transaction will be carried out, and other considerations. Begin thinking about headings, subheadings, and numbering.
• Rewrite the text in plain English.
• Revise and edit the text.
• Test the text on intended users and ask others to read and comment on the text. Your other readers should include at least one lawyer who is an expert on the subject matter and at least one nonlawyer unfamiliar with the subject matter.

Now imagine that process for a series of complex transactional documents. Again we must ask—who is going to pay for it?

What documents should be drafted in plain English?

Not every transactional document needs to be drafted in plain English—there, I said it. Large transactions between knowledgeable parties who have lawyers do not need to be drafted in plain English. Yes, many plain-English principles would work well in those documents, and we do need to improve the general state of drafted language in our transactions, but true plain English might not be right or cost effective for every transactional document.

Here’s a short list of the kinds of documents that should be drafted in plain English:

• Apartment leases
• Basic contracts
• Consumer regulations
• Credit-card agreements
• Employee manuals and handbooks
• Homeowners’ association bylaws
• Consumer insurance policies
• Jury instructions
• Opinion or advice letters
• Public notices
• Releases
• Software licenses and user agreements
• Website disclaimers
• Wills

For example, you wouldn’t write a brief to a federal judge in the same style you’d use for a report of the case to the nonlawyer client, would you? Likewise, you don’t need to use the same style for a $150 million credit agreement and a $150 contract.

Part 1: What is plain English—really?

All legal writing should be appropriate for its audience—it should speak to the reader in words, sentences, and forms the intended reader can understand. Thus, transactional legal writing—legal drafting—should be appropriate for its audience: the parties to the transaction and, if they are represented by counsel, their lawyers. But in many transactions, particularly consumer transactions, the parties are not represented by counsel. The transactions are between nonlawyers without counsel or between a sophisticated party, who dictates the terms, and a nonlawyer consumer. Those nonlawyer consumers need plain English. To meet their needs, I offer this broad description of plain-English legal drafting:

• Plain English is a form of English that can be read and understand by the typical nonlawyer.

Here are some specific traits of plain-English legal drafting:

• Plain English all but forbids insider jargon, legal Latin, and archaic words.
• Plain English strictly limits terms of art and always defines them in plain English.
• Plain English sometimes requires more words and sentences than traditional legal drafting—to define terms of art and to explain complex subject matter.
• Plain English also values brevity and concision—sometimes even at the expense of content.
• Plain English often uses the first- and second-person pronouns you and we.
• Plain English uses contractions.
• Plain English often uses bullet lists, question-and-answer formatting, lots of headings, and document summaries.
• Plain English uses shorter-than-average sentences and paragraphs.

For example, here’s a plain-English provision from a form produced by the Texas Office of the Consumer Credit Commissioner:

• If I don’t pay an entire payment within 10 days after it’s due, you can charge me a late charge. The late charge will be 5% of the scheduled payment.

That’s plain. But ask yourself if that tone and style are appropriate for a complex, multi-million-dollar transaction between large corporations represented by counsel.