|Oregon State Bar Bulletin AUGUST/SEPTEMBER 2006|
For as long as I have been in practice there has been a movement toward legal writing in plain English. The movement has not yet swept our profession, but it has been gaining speed and gathering momentum: Two continuing legal education programs aimed at strengthening our writing have been offered in Oregon in the past several months. Much of the emphasis in various presentations has been on persuasion, as it surely should be: persuasion is not only our primary professional purpose, but, as Matthew Arnold said famously, persuasion is the only true intellectual process. Hence the current focus on artful argument in our briefs, our memos, and our correspondence.
But what of documents? How frequently do our clients, even those sophisticated in business, turn to us in exasperation and complain about the obscurity of what we’ve written? "Can’t you people write in plain English?" is a common question, no doubt thought even more than asked. Surely after our considerable education we can write in plain English, but if we can but don’t, why not? There are some possible reasons.
Why We Shun Plain English
Few of us are the primary authors of our documents. Countering the advice of old Polonius we both borrowers and lenders be and actually are mostly borrowers from our mentors and our peers. We consistently borrow from form books. Presumably those forms have survived contests, and they usually include provisions that escaped our previously uninformed intention. Drafting a document in an area of law that’s unfamiliar, as every legal field is at first, without starting from a form someone else has used is like climbing a mountain without a map. And if we are in a larger firm with years of tradition, the partners expect us to use the forms refined in their experience; suggesting a change in those sorts of documents may seem to our seniors as an affront to their core competence, and it sometimes is.
Another reason for using documents others wrote is the time it takes to draft around issues that are intricate and consequential — just to make a change in style becomes a considerable task. Changing the gender of the parties can be daunting even with all the word-processing aids available.
So we resist plain English writing because of a general lack of motivation and some reasonable professional trepidation — unless respected clients aim barbs in our direction. Or we find ourselves revisiting an old form and actually reading it. If we come away confused ourselves, we may be pushed beyond the brink, imprison ourselves in our offices, turn off our phones, quit our emails and wrestle with our words. That’s what happened to me last fall when Bryan Garner disturbed my professional conscience.
Garner has eye-popping credentials. Among many other things, he has recently revised the Federal Rules of Civil Procedure, and he has presented to more than 34,000 lawyers, judges and students at law schools and CLEs. Garner’s book, Legal Writing in Plain English, is a helpful guide for anyone who takes legal writing seriously. When I participated in Garner’s OSB CLE program last fall, he engaged me instantly.
Much of Garner’s presentation concerned persuasive writing. Because I prepare wills and trusts a lot, where the rubber met the road for me was drafting documents. He gave us 10 commandments for our improvement. When recently I was faced with the task of preparing an irrevocable life insurance trust, I distilled his 10 imperatives to three: 1) rid your document of redundancies; 2) use active verbs; and, most difficult of all, 3) eliminate the "shalls."
Dealing with Redundancy
Using two or three words when one will do is as endemic in legal documents as balsamroot on Dog Mountain. When I read my ILIT form handed down to me by a partner in a law firm I worked with 20 years ago, sensitized by Garner’s comments, I’m afraid I saw things I had not focused on before. The opening read, "On this___day of______, 20__, this trust agreement was made and executed by and between John and Mary Smith." Not a favorable beginning.
Probably the use of multitudinous synonyms is an effort at precision. But if a document is made, doesn’t that mean the parties signed it? If John and Mary sign the trust, surely they are responsible for its creation. I’m lost to justify the endemic couplet.
My form’s definition of ownership suggested more redundancy than Webster’s Dictionary of Synonyms. Why was it necessary, after stating that the trustee is owner of the policy, to add that trustee "…is authorized and empowered to exercise and enjoy, for purposes of the trust herein created, as absolute owner of such rights with respect to each such policy or certificate of insurance, all the options, benefits, rights and privileges incident to the interest in such property and policies so transferred"? Surely the term ownership includes all of these and maybe more. I lined out the surplusage and moved on. But I noticed something happening to my attitude; I was thinking about my choice of words and the accuracy of my sentences with increased care.
Using Active Verbs
Obviously drafters may disagree on precise descriptions and definitions; it’s the thinking about our words that Garner is after. I began questioning my use of verbs.
I admit I had not thought much about the impropriety of passive verbs before. Bryan Garner reminded us of a lesson I should have learned in grade school: our usual sentence structure begins with the subject and is followed by the verb that describes what the subject is to do — that’s plain English. When we say a document is made and executed, couldn’t we better say that John and Mary make this trust? And all the uses of "distributed" and "administered." Fortunately, Garner says that the use of active verbs is preferred and not mandated. There are places in a trust, such as "the trust must be administered as follows" where reorganizing the sentence seems awkward if not needless. The question is the essential.
I discovered another benefit from the exercise with verbs: I was asking if the identity of the actor was obvious. Usually it was, but sometimes I had to dig to find it. Originally the ILIT stated: "From time to time during any calendar year in which any property is transferred to the Trust, Trustee may withdraw the value of the property transferred divided by the number of beneficiaries authorized to make withdrawals." Revised that sentence became: " In a calendar year in which the Trust receives property Settlors donated to the children, each child receiving a gift may withdraw the lesser of $5000 or such other amount the Code specifies." Reasonable practitioners may differ on the substance, but I found it difficult to deny that the writing was plainer English.
Drafting a Shall-less Document
Bryan Garner challenged us to write a shall-less document: the word "shall" possesses some unfortunate ambiguity that sometimes a court must resolve. If you take Words and Phrases off the shelf and look up cases where the meaning of "shall" is at issue, you will find 36 pages of case summaries in the supplement alone where the court was asked to decide whether in specific contexts "shall" was permissive or mandatory. Most of those cases concern legislative language, but there are a few interpreting contracts, wills and trusts. Such phrases as these are common in the cases: "The word ‘shall’ as used in constitutions and statutes is ordinarily mandatory, but to give effect to the intent the word will be construed as ‘may’." " ‘Shall’ is not always imperative." "‘Shall’ ordinarily means beginning as of the date of the contract." Evidently the ubiquitous "shall" is the stuff litigation is made on.
Revising the shalls in my ILIT, did not prove a simple task: I found "shalls" everywhere. Back to those Crummey powers: "A withdrawing beneficiary shall withdraw…;" "such beneficiary shall appoint…"; "Beneficiaries shall exercise their rights…"; "Trustee shall give written notice…" Looking at my documents through Garner’s perceptive eyes I began to see his point: sometimes "shall" meant "may," and other times meant "must." I needed to write what I meant. When I completed my revision I found I’d made some surprising choices, and I had chosen "may" and "must" in roughly equal number. Now with the fervor of a new convert I’ve taken arms against the sea of "shalls" and by opposing intend to end them.
Believing in What We Do
In the second and third decades of the last century, Sir Arthur Quiller-Couch was King Edward VII Professor of English Literature at Cambridge University. The first course he taught in 1913-1914 was The Art of Writing, and his second lecture was on The Practice of Writing. Sir Arthur insisted throughout his lecture that writing is an art and requires assiduous practice. Near the end of that second lecture he told his students, "While the ways of art are hard at the best, they will break you if you go unsustained by belief in what you are trying to do."
Is plain English possible in our legal writing? Of course it is, but it takes believers. Fortunately, their tribe increases. Bryan Garner and his like-minded colleagues help our unbelief.
ABOUT THE AUTHOR
James E. McCobb is a Portland business and tax planning attorney whose avocation is writing poetry and the occasional essay. He can be reached at firstname.lastname@example.org.
© 2006 James E. McCobb