By Caryn Gootkin

As a profession, one of the stereotypes that plague attorneys is the tendency to wear legalese as a suit of armour. Many believe attorneys use words as weapons, exaggerating for dramatic effect, overstating to intimidate and confounding with jargon.

When drafting contracts for clients, attorneys use language as a preventative bandage to guard against any harm their clients may suffer. But, in an effort to achieve complete certainty and cover their bases, attorneys often get lost along the way.

As Reed Dickerson, professor of law at Indiana University, said: ‘The price of clarity, of course, is that the clearer the document the more obvious its substantive deficiencies. For the lazy or dull, this price may be too high’ (www.plainlanguage.gov, accessed 6-3-2013).

This article will demonstrate why drafting in plain language is more than just a legal imperative imposed by the Consumer Protection Act 68 of 2008; it will also provide practical examples of how to use plain language to improve drafting.

Defining the beast

‘Legalese’ is defined in the Collins English Dictionary as the ‘conventional language in which legal documents, etc, are written’ www.collinsdictionary.com, accessed 14-3-2013).

Dictionary.com, a free online dictio­nary, gives a more emotive explanation: ‘[L]anguage containing an excessive amount of legal terminology or legal jargon’ (http://dictionary.reference.com, accessed 6-3-2013).

However defined, the problems with this type of writing are that, when drafting contracts, attorneys often:

• Use many words when one would be enough (‘right, title and interest’).
• Choose grand words over simpler ones (‘notwithstanding the fact that’ instead of ‘even though’).
• Use Latin terms instead of their simple English equivalents (‘inter alia’ instead of ‘among others’).
• Begin or join sentences with archaic conjunctions (‘wherefore’ and ‘whereupon’).
• Write in the passive rather than the active voice (‘an application will be brought by the seller’ instead of ‘the seller will apply’).
• List reams of synonyms to amplify a point (‘including, but not limited to’).

The result is writing that is impersonal, convoluted, long-winded and difficult to understand – the opposite of plain language. Bryan A Garner is widely regarded as the foremost authority on writing legal documents in plain language. In the foreword to his book Legal Writing in Plain English, he warns against regarding plain language as ‘drab and dreary’. He maintains: ‘It’s robust and direct – the opposite of gaudy, pretentious language. You achieve plain English when you use the simplest, most straightforward way of expressing an idea. You can still choose interesting words. But you’ll avoid fancy ones that have everyday replacements meaning precisely the same thing’ (Bryan A Garner Legal Writing in Plain English, A Text with Exercises (University of Chicago Press 2001) at xiv).

Plain language is a business, as well as a legal, imperative

While there has been growing support in South Africa for using plain language in the legal profession over the past decade, it is still regarded by many as a quite radical ‘nice-to-have’, rather than the legal and business imperative that it has become. Bevan Frank discussed the laws compelling the use of plain language and the problems inherent in the wording of those Acts in his article ‘Simply unclear – Is the legislature an obstacle to plain language?’ (2012 (Nov) DR 44). Others have covered the definition of ‘plain language’ (Esti Louw ‘Simply legal – Legal language in South Africa’ 2011 (Dec) DR 22) and provided some guidelines on how to use it (Michele van Eck ‘Guidelines for writing in plain language’ 2012 (Jul) DR 21).

Why write in plain language?

In addition to the legal imperative, below are several reasons it makes good business sense to write clearly.

• The simpler the message, the better the chance the target audience will understand the message with ease. In the case of consumer contracts and ‘terms and conditions’, it is important to remember that the target audience is not the client, but their clients/customers. Even regular clients who need commercial contracts like shareholders’ agreements and licence agreements will appreciate being able to digest the documents drafted.
• This will save time since drafters will not need to explain themselves to people who do not understand what they have written.
• Contracts are functional documents, written to be acted on. For the parties to truly agree, they need to understand what they are signing. No lawyer wants to defend a claim that a party felt bullied into signing something he did not fully grasp.
• Vague, complicated documents are more likely to lead to a lawsuit. Often misunderstanding is what drives litigation. Lawyers would also prefer to avoid a court scrutinising their documents. Litigation is costly and attorneys serve their clients best by ensuring their writing is clear and accurate.
• Attorneys who train themselves to draft in plain language will have an advantage over those lawyers unwilling or unable to do so. Those lawyers who learn good drafting skills will attract clients looking for lawyers they can relate to.
• While initially it may take an attorney longer to express himself clearly, once he has learned the skill, he will train himself to think and write clearly in the first draft, reducing the need for hours of editing and rewriting. This increased efficiency will benefit clients and profitability. Author Blaise Pascal explained this apparent contradiction: ‘I have only made this letter longer because I have not had the time to make it shorter’ (Blaise Pascal The Provincial Letters, ‘Letter 16, 1657’ goodreads.com, accessed 13-3-2013).

Writing in plain language requires greater concentration; in order to express an idea or concept clearly, it must be understood fully. In this way, clear writing forces the drafter to think clearly, improving the quality of the document.

• Despite being the lingua franca in South Africa, English is first language to less than 10% of the population (2011 Census). This means that many end users of contracts drafted by attorneys struggle to understand spoken English, let alone written legal documents. Attorneys need to make legal texts more accessible to the vast majority of consumers in the country.
• Many attorneys have foreign clients who use English as the language of business, but are not mother-tongue speakers. Writing clearly when communicating with and drafting for these clients will ensure an ongoing relationship. If an attorney has, for example, a German client with French partners or clients, using plain English is crucial to proper understanding between all parties.
• Often attorneys rely on precedents to form the basis of contractual drafting, repeating convoluted expressions and wordy clauses without thought.

Tips and examples

Below are some tips and examples relating to plain language usage that I have come across:

• There is no need to record obvious intentions in an agreement. If the writing is clear, the intention will be, too. Clauses like ‘The parties intend to record their agreement in writing, as they hereby do’ can be omitted without making any difference to the rights or obligations of either party.
• Use active verbs unless passive verbs are better suited to the context. Passive writing distances the writing from the reader and usually adds unnecessary words.

Original clause: This agreement shall be binding on and enure for the benefit of the parties’ successors in title as fully and effectually as if they were a party to this agreement.

Plain language rewrite: Our successors in title will be bound by all our rights and obligations in this agreement as if they had signed it.

(Note: This example also demonstrates the benefits of drafting in first or second rather than third person. If, however, the third person is used, replace ‘the parties’ for ‘our’.)

• Avoid complicated ways of referring to parties, preferring their proper names or ‘you’.

Original clause: The receiving party is employed to fulfil certain functions with regards to the business of the disclosing party wherein they will become aware of certain confidential information regarding the disclosing party’s intellectual property, business procedures and working practices.

Plain language rewrite: While working for us you will come to know confidential information about our intellectual property, business procedures and working practices.

• Only use as many words as are necessary to convey the intention of the clause.

Original clause: The receiving party furthermore hereby acknowledges that the information aforesaid is being made available to it solely in the course of facilitating the receiving party to being able to render necessary services to the disclosing party and for no other purpose whatsoever and that such information would not otherwise have been made available to the receiving party.

Plain language rewrite: You have access to this information for one purpose only, to enable you to fulfil your employment obligations.

• Cession clauses are often convoluted and wordy. Usually, these can be rewritten very simply. Below is such an example:

Original clause: You acknowledge that you may become indebted to us during this contract. We require you to give us security for your debts by ceding your rights to receive payment to us.

Plain language rewrite: As security for any amounts you may owe us, you cede to us your rights to receive any amounts you are entitled to receive in terms of this contract.

• Another type of clause that is often overwritten is the dispute resolution clause. These can be simplified by referring to the relevant Acts or to a company that specialises in mediation and arbitration. Below is a simple example providing for negotiation, litigation or arbitration:

‘Dispute Resolution

1. We will negotiate in good faith to settle any dispute that arises out of this contract.
2. If we can’t settle the dispute, then, unless any specific part of this contract provides otherwise, the aggrieved party may seek relief from any competent court having jurisdiction.
3. In addition, we may agree to arbitration in accordance with the Arbitration Act 42 of 1965 to settle the dispute. We must conclude this written agreement to arbitrate within 7 (seven) days of the dispute arising and it must contain all the details of the arbitration process.’

• Wherever possible, strong, active verbs, such as ‘apply’, should be used instead of their weaker and wordier equivalents, such as ‘make application’.

Original clause: You will be able to make payment by way of debit order.

Plain language rewrite: You can pay by debit order.

This example also illustrates how using ‘can’ instead of ‘be able to’ simplifies a sentence.

• Avoid using ‘shall’ at all costs. Use ‘may’, ‘must’ or ‘will’, depending on the context:

–        The seller shall be entitled to advertise the sale.

–        The seller shall advertise the sale.

–        The seller shall be a preferred creditor.

In each case there is a more accurate word than ‘shall’, as illustrated in the following rewrites:

–        The seller may advertise the sale.

–        The seller must advertise the sale.

–        The seller will be a preferred creditor.

The end is near

Lawyers often draft an agreement that is not in plain language despite the fact that their client prefers or needs to communicate with their clients/consumers in plain language.

Practitioners should start changing the way they write to be more accessible to non-lawyers.

Caryn Gootkin BA (UCT) BProc (Unisa) MA (Cantab) is a plain language practitioner, writer and columnist at In other words in Cape Town.

This article was first published in De Rebus in 2013 (April) DR 19.