Will Rogers, famous comedian,
on the way lawyers write
Will Rogers (November 4,
1879 – August 15, 1935)
was an American cowboy,
comedian, humorist, social
commentator, vaudeville
performer, actor, and one
of the best-known
celebrities in the 1920s
and 1930s.
Then
if you
give
it to
The
you
read
If it’sminute
in
a few
words
another
lawyer
to
and is plain
andyou
something
and
understandable
read
and
he doesn’t
can’t
understand
it,
onlycan
one
way,
was
know
justalmost
whatititbe
you
written
by
a
nonmeans,
why
then
sure that it was
lawyer.
you
can
drawn
upbebysure
a it
was
drawn up by a
lawyer.
lawyer.
Canadian Bar
Association and
Canadian Bankers
Association Joint
Committee Report
(1990)
“The Decline
and Fall of
Gobbledygook:
Report on Plain
Language
Documentation”
Legalese is a style
of writing used by
lawyers that is
incomprehensible
to ordinary
readers.
Is legal writing different from (or
superior) to ordinary writing in English?
UCLA Prof. David Mellinkoff:
If it’s bad writing by the
standards of ordinary English,
it is bad legal writing. If it’s
good writing by the standards
of ordinary English, it is more
likely to be good legal writing.
Is legal writing different from (or
superior) to ordinary writing in English?
Richard Wydick
 Professor
Emeritus
at the
Good
legal
writing
University
California at
should
notofdiffer,
Davis School of Law
without good reason,
 Lecturer, International
from
ordinary wellLegislative Drafting Institute
written
English....
presented
in New Orleans
the Public
Lawlegal
Center, a
Inbyshort,
good
joint venture of Tulane and
writing
is plain
Loyola law schools
English.
National
University of
Singapore,
Legal Writing
Programme,
2001
Judge Gerald Lebovits, New York City Civil Court;
faculty member: Columbia University - Law School, Fordham University
School of Law, and New York University School of Law
The hallmark of good legal writing is that an
intelligent lay person will understand it on
the first read.
“Free at Last From Obscurity: Clarity — Part 2”
Legal writing should be directed to smart
high-school students. If they understand
you, so will a more educated readership.
Keep your words, sentence structure, paragraphs,
and organization simple. Complex prose is weak
prose. The erudite explain difficult concepts in easy-to-read
language.
“Legal-Writing Myths — Part II”
US Supreme Court Justice Clarence
Thomas on accessibility
Bryan Garner’s
interviews with
US Supreme Court
justices
I’d love one day for someone at
a gas station who is not a
lawyer to come up to me and
say to me, “You know, I read
your opinion, and I don’t agree
with you.” Wouldn’t that be
wonderful? “I’m not a lawyer, I
read your opinion, I understood
it, I don’t agree with you, but
thanks for making it accessible.”
So we talk of it in terms of
accessibility.
US Supreme Court Justice Stephen
Breyer on clarity for ordinary persons
If an ordinary person who is not a lawyer
can understand it, I think that gives weight
to what the Court does, and law is
supposed to be intelligible. They should be
able to follow it without having to take
special vocabulary courses.
Garner: Do you think
it matters whether
ordinary people can
understand judicial
opinions?
And the purpose of an opinion is to give
your reasons, and you give your reasons
both for guidance, but also it should be
possible for readers to criticize the writer.
Now, people can’t criticize what I say, they
can’t explain why they think it’s wrong,
unless they can understand.
Michigan Bar Journal article
What is legalese?
Prof. Richard Wydick, UC Davis School of
Law, in “Plain English for Lawyers” (1979)
We lawyers cannot write
• wordy
plain English. We use eight
words to say what could be
• unclear
said in two. We use old,
• pompous
arcane phrases to express
commonplace ideas.
• dull
Seeking to be precise, we become redundant.
Seeking to be cautious, we become verbose. Our
sentences twist on, phrase within clause, within
clause, glazing the eyes and numbing the minds
of our readers. The result is a writing style that is:
Four elements of legalese
Prof. David Mellinkoff, UCLA School of Law, in his
book “Legal Writing: Sense and Nonsense” (1982)
1. Formalisms, such as
comes now
2. Archaic words, such
as hereby
3. Redundancies, such
as each and every
4. Latin words, such as
per curiam
aforementioned
foregoing
henceforth
hereafter
hereby
herewith
hereunder
heretofore
thereafter
thereof
therewith
whereas
wherein
whereof
Characteristics of legalese (1/3)
The legal vocabulary is commonly archaic and
inflated. It abounds in:
 doublets and triplets (give, devise, and
bequeath);
 here-, there-, and where- words (herein,
thereto);
Prof. Joseph Kimble,
Cooley College of
Law, Michigan, USA;
Burton Award for
“Reform in Law”
Federal Rules of Civil
Procedure (2007);
Federal Rules of
Evidence (2011)
 multiword prepositions (with regard to,
subsequent to);
 other wordy phrases (in the event that, until
such time as);
 strange, useless jargon (inter alia; Further
affiant sayeth naught; In witness whereof, the
parties hereto have affixed their signatures).
Characteristics of legalese (2/3)
 Passive voice and abstract nouns (in
place of strong verbs) are overused.
 Conditions are often piled up at the
beginning of the sentence.
 Main verb is delayed by putting lists of
items in the subject or by embedding
Legal
clauses between the main subject and
sentences
verb.
tend to be
long and  Exceptions are tacked onto the end
(sometimes in so-called provisos) instead
flabby.
of putting them in a new sentence.
From BSP Circular No. 702
(protection of credit card holders from unfair collection practices)
Banks/quasi-banks and their subsidiary or affiliate credit card companies shall also provide
the following information to their cardholders:
235 words
in one
sentence
1. A table of the applicable fees, penalties and interest rates on credit card transactions,
including the period covered by and the manner of and reason for the imposition of
such penalties, fees and interest; fees and applicable conversion reference rates for
third currency transactions, in plain sight and language, on materials for marketing
credit cards, such as brochures, flyers, primers and advertising materials, on credit
card application forms, and on credit card billing statements: Provided, That these
disclosures are in addition to the full disclosure of the fees, charges and interest rates
in the terms and conditions of the credit card agreement found elsewhere on the
application form and billing statement; and
2. A reminder to the card holder in the monthly billing statement, or its equivalent
document, that payment of only the minimum amount due or any amount less than the
total amount due for the billing cycle/period, would mean the imposition of interest
and/or other charges;
Provided, That such table of fees, penalties and interest rates and reminder shall be printed
in plain language and in bold black letters against a light or white background, and using the
minimum Arial 12 theme font and size, or its equivalent in readability, and on the first page, if
the applicable document has more than one page.
Characteristics of legalese (3/3)
Kimble in “Lifting the Fog of Legalese”
More generally, legal
writing tends to be poorly
organized and poorly
formatted.
And in its effort to be
precise and exhaustive, it
becomes excessively
detailed and too often sinks
into redundancy, ambiguity,
and error.
The result is legalese
— a form of prose so
jumbled, dense,
verbose, and
overloaded that it
confuses and
frustrates most
everyday readers and
even many lawyers.
Legalese violates nearly
every principle of good writing 1/4
Mark S. Mathewson, Director of Legal Publishing for the Illinois State Bar
Association (Michigan Bar Journal January 2003)
“One L” by Scott Turow
“It was something
Classic account of life during the
like
stirring
first year
at Harvard Law School
concrete with
my eyelashes.”
Legalese violates nearly
every principle of good writing 2/4
The irony of legalese:For the most part, the
substance of the law—
the more you know about
the stuff you thought
words and how to arrange
would be difficult—is
them, the more frustrated
easy compared to the
you are by a ‘‘language’’ that
words, phrases,
violates nearly every
clauses, sentences, and
principle of good writing.
paragraphs under which
it is buried.
Legalese violates nearly
every principle of good writing 3/4
Some distinctive features of legalese
include the following:




Arcane and archaic vocabulary
Overspecificity and redundancy
Abstraction and indirectness
Long sentences and complex,
convoluted constructions
 Grammatical complexity
Legalese violates nearly
every principle of good writing 4/4
Jury instructions
It will be your duty, when the case
is submitted to you, to determine
from the evidence admitted for
your consideration, applying
thereto the rules of law contained
in the instructions given by the
court, whether or not the
defendant is guilty of the offense
as charged.
Your duty is to
determine whether
the defendant is
guilty of the offense
charged. You must
do this by applying
the law contained in
these instructions to
the evidence
admitted for your
consideration.
Reasons to avoid legalese
The costs of legalese are not
entirely stylistic. Many studies have
shown how it costs clients money,
impairs persuasiveness, and
generally detracts from a writer’s
reputation.
“Lifting the Fog of Legalese” by Joseph Kimble
Australian company sues because
it didn’t understand the contract
Alternative to legalese: Plain English
Plain English requires
the writer to take each
sentence and ask:
 Will this be
misunderstood?
 Is this
the clearest,
Many lawyers
These
questions
don’t
demand
know
focus
how to write
in plain
efficient
on message,
English.
Theyrespect
never unlearned
for audience,
the badmost
habits
they way
writeinit?
and intent
gleaned
from
to be
thecoherent.
poor roleGood
models theytoread
law
legal writers
school.
Although
writeknowledgeable
the document in the law, lawyers
Islearn
this word
in asociety’s
—
way thatbest
bestpaid
serves
writers
the — need to
more
necessary?
reader.communication.
about
They convey ideas with
the greatest possible clarity.
Lawyers’
In
defenseobjection
of Plain Language
to Plain Language
The need to
express complex
ideas precisely
makes plain
languagePainting with print: Incorporating
concepts of typographic and layout
impossible.
design into the text of legal writing
documents, by Ruth Anne Robbins
Plain English used in the UK Inland Revenue Tax Law
Rewrite project (started 1996 and ended March 2010)
Rewritten laws (since 1996):
The project’s total cost: £26m
Savings for businesses
and individuals: £4bn a year
 Capital Allowances Act 2001
 Income Tax (Earnings and
Pensions) Act 2003
 Income Tax (Pay as You Earn)
Regulations 2003
 Income Tax (Trading and
Other Income) Act 2005
 Income Tax Act 2007
 Corporation Tax Act 2009
 Corporation Tax Act 2010
 Taxation (International and
Other Provisions) Act 2010
From legalese to Plain English
Disclaimer by American Bar Association:
“The materials contained herein represent
the opinions and views of the author, and
should not be construed to be the views or
opinions of the law firms or companies with
whom such persons are in partnership with,
Bryan A. Garner, associated with, or employed by, nor of the
editor in chief,
American Bar Association, unless adopted
Black’s Law
Dictionary
pursuant to the bylaws of the Association.”
Plain English disclaimer by Garner:
“The essays in this volume represent the author’s
views -- not those of the American Bar Association.”
Garner’s Dirty Dozen (words to avoid)
1.
2.
3.
4.
and/or
deem
herein
know all men by these
presents
5. provided that
provided, however, that
providing
6.
7.
8.
9.
10.
11.
12.
pursuant to
said
same
shall
such
whereas
witnesseth
Legalese: formalisms and archaic words
Legal language in regulations and other
documents is a major source of annoying
jargon. Avoid the following terms, among others:








above-mentioned
aforementioned
foregoing
henceforth
hereafter
hereby
herewith
hereunder








heretofore
thereafter
thereof
therewith
whatsoever
whereat
wherein
whereof
Plain English in construction contracts 1/2
CICC Model Terms Of Construction
Contracts For SubContract Works
Primary drafter of the Model Contract: Sr Noushad Ali Naseem
Ameer Ali, Professor in University Technology Malaysia
Plain English in construction contracts 2/2
Before: This Contract shall be
deemed to be a Malaysian Contract
and shall accordingly be construed
according to the laws for the time
being in force in Malaysia and the
Malaysian Courts shall have
exclusive jurisdiction to hear and
determine all actions and
proceedings arising out of this
Contract and the Contractor hereby
submits to the jurisdiction of the
Malaysian Courts for the purposes of
any such actions and proceedings.
After:
Malaysian law
governs this
contract and
Malaysian courts
have exclusive
jurisdiction.
Before: 69 words in one
sentence
After: 11 words
Examples from Rhode Island 1/3
“Plain English Is the Best Policy” by John Aloysius Cogan Jr.
Before
After
What happens
if myas
spouse and I both
The plan covering
the patient
have health coverage for our child?
a dependent child of a person
is covered under more than
whose date Ifofyour
birthchild
occurs
insurance
policy,
the policy of the
earlier in theone
calendar
year
shall
adultthe
whose
birthday is earlier in the year
be primary over
plan
pays the claim first. For example: Your
covering thebirthday
patientisas
a
in March; your spouse’s
dependent ofbirthday
a person
is in whose
May. March comes earlier in
date of birth the
occurs
laterMay,
in the
year than
so your policy will pay
forprovided.
your child’s claim first.
calendar year
Examples from Rhode Island 2/3
After
Before
What happens
if I am
separated or
However,
in the case
oflegally
a dependent
divorced?
child of legally separated or divorced
If yourthe
childplan
is covered
by your
and also by the
parents,
covering
the policy
patient
of your separated
or divorced
spouse, the policy
as apolicy
dependent
of the parent
with legal
of the parent
legal custody
pays first. In other
custody,
or as awith
dependent
of the
words, if you have legal custody, your plan pays first.
custodial
parent’s spouse (i.e.,
The same rule applies even if your child is covered by a
stepparent),
shall be
primary
over the For example:
health insurance
policy
of a stepparent.
planYour
covering
the patient
as acustody, and his/her new
former spouse
has legal
spouse’s of
policy
child. legal
The new spouse’s
dependent
thecovers
parentyour
without
policy will pay your child’s claim first.
custody.
Examples from Rhode Island 3/3
After
Before
Your
injury
or illness
haveincluding
been caused
In the
event
a thirdmay
party,
yourby someone
else. If so, we can collect from that person any claims we
employer/agent,
is or may be responsible for
pay on your behalf. For example, if we pay for your
causing
an illness
or injury
which
hospital stay,
we can collect
thefor
amount
wewe
paid for your
provided
any
benefit
or made
anyyou.
payment
hospital stay
from
the person
who hurt
We cantoalso
collectwe
payment
from that person
if he
she agreed
you,
shall succeed
to youreven
right
of or
recovery
to
pay you
directly
or has beenparty.
ordered
by is
a court
to pay
against
such
responsible
This
our right
you.
If the person who
caused
your
injury
has already
of subrogation.
If you
do not
seek
damages
forpaid
you, we can collect from you the amount he or she has
your
illness
or
injury,
you
must
permit
us
to
already paid to you. This is called subrogation. In addition,
initiate
on your
behalf
if you dorecovery
not try to collect
money
from(including
the personthe
who
right
toyour
bring
suityou
in your
caused
injury,
agreename).
to let us do so in your name.
From the State Bar of Michigan
Plain English Committee 1/2
Before
After
I give my Agent the power to exercise or perform any act,
power, duty, right, or obligation whatsoever that I have or may
I give
my
agent
hereafter acquire, relating to any
person,
matter,
transaction, or
property, real or personal, tangible
intangible,
theorpower
tonow
doowned or
hereafter acquired by me, including, without limitation, the
anything that
following specifically enumerated powers. I grant to my Agent
full power and authority to do everything
in exercising
I have anecessary
right or
any of the powers herein granted as fully as I might or could do
duty
to
do,
now
if personally present, with full power of substitution or
orconfirming
in theallfuture.
revocation, hereby ratifying and
that my Agent
shall lawfully do or cause to be done by virtue of this Power of
Attorney and the powers herein granted.
From the State Bar of Michigan
Plain English Committee 2/2
Before
“[Name] informed you of the
procedures for calculating
interest for insufficient
estimates. If the enclosed
invoice(s) include charges for
insufficient estimates, a
detailed insufficient estimated
[sic] used to calculate these
charges is also enclosed.”
After
“How to pay your
bill: To avoid
penalties as well
as further interest,
you must pay this
bill by its due
date.”
Examples from Kimble 1/3
Before
After
Please be advised that I am
in receipt of your letter in
regard to the above matter
and have enclosed my
response to the same.
I received your letter
about the Spann case
and have enclosed my
response.
From a jury instruction:
The fact that the defendant
did not testify is not a factor
from which any inference
unfavorable to the defendant
may be drawn.
Although Mr. Charles
didn’t testify, you should
not hold that against him.
Don’t consider it in any
way.
Examples from Kimble 2/3
Before
After
In case any building or structure is erected, constructed,
reconstructed, altered, converted or maintained, or any
If any use of land or of a
building, structure or land is used, or any land is divided into
structure
— article
or if the
lots, blocks or sites in violation
of this
or of any local law,
structure
violates
ordinance or other regulation
madeitself
under—
authority
conferred
article of
orthe
a local
or
thereby, the proper localthis
authorities
town, law
in addition
to
regulation,
the proper
other remedies, may institute
any appropriate
action or
authorities
mayconstruction,
take
proceedings to prevent town
such unlawful
erection,
reconstruction, alteration,
conversion,
maintenance,
legal
action to
correct or use or
division of land, to restrain,
or abate and
suchto
violation, to
endcorrect
the violation
prevent the occupancy of
said building,
structure
prevent
any illegal
useorofland or to
prevent any illegal act, conduct,
business or use in or about
the premises.
such premises.
Examples from Kimble 3/3
Before (from a standard provision in
contracts):
After
If any term, provision, Section, or
portion of this Agreement, or the
application thereof to any person,
place, or circumstance, shall be held
to be invalid, void, or unenforceable by
a court of competent jurisdiction, the
remaining terms, provisions, Sections,
and portions of this Agreement shall
nevertheless continue in full force and
effect without being impaired or
invalidated in any way.
If a court
invalidates any
portion of this
agreement, the
rest of it
remains in
effect.
Example from bank document
Acceptance by the bank of payments in arrears shall not
Irregular
Payments
constitute a waiver of or otherwise
affect any
acceleration
payment hereunder or other right or remedy exercisable
You
accept
late
hereunder. No failure or delay on
thecan
part of
the bank
in
partial
exercising, and no failure to filepayments
or otherwise or
perfect
or
enforce the Bank’s security in or
with respect even
to any
payments,
collateral, shall operate as a waiver
of any
right are
or remedy
though
they
hereunder or release any of the undersigned, and the
marked “payment in
obligations of the undersigned may be extended or waived
full,” without
losing
by the bank, contract or other agreement
evidencing
or
relating to any obligation or collateral
may
be amended
any of
your
rights and
any collateral exchanged, surrendered,
or otherwise
under this
note. dealt
with in accordance with any agreement relevant thereto, all
without affecting the liability of any of the undersigned.
Insurance company form letter
Before
After
We have recently implemented
enhancement
We arean
a little
late in
to our computer system that
will enable
us to
sending
your renewal
provide better service to our
valued customers.
documents
because we
This has resulted in a slight
delay
in the
have
made
a change in our
processing of your renewal.
The difference
computer
systemyou
in order
will notice is in the payment
schedule.
Your service.
to provide
better
annual policy premium has
been
divided
over 11 will
Your
annual
premium
(eleven) months, and as now
a result
monthly
be your
divided
over 11
payment will have increased due to the reduced
months instead of 12 so
number of monthly installments.
the monthly payment will
increase slightly.
Example: DSWD website
Does availing of the 20%
senior citizens discount on
hospitalization or medical
services preclude utilizing
PHILHEALTH benefits at
the same time?
No, a senior citizens discount
on hospitalization and/or
medical services can be
availed of separately. Thus,
PHILHEALTH coverage can
still be utilized on top of the
20% senior citizens discount.
Can I use the 20%
senior citizens
discount on
hospitalization or
medical services and
my PHILHEALTH
benefits at the same
time?
Yes.
Example: PVAO website
Educational Benefits
heretofore
Who may enjoy the benefits?
The following persons who have never heretofore enjoyed educational benefit under
Philippine law nor under United States law, who desires to study, shall upon
certification of the Administrator, be admitted to any school, college, university or
institution authorized by the Government.
A. Veterans of the Philippine revolutions against Spain and the Philippine-American War;
B. Veterans of the Philippine Army or of any recognized or deserving guerilla organization
who took active participatin in the resistance movement and/or in the liberation drive
against the enemy during World War II from 8 December 1941 to 2 December 1945;
C. Veterans of the Philippine Expeditionary Forces to Korea (PEFTOK) during the period
from 15 September 1950 to 31 May 1955;
D. Veterans of the Philippine Civic Action Group or Philippine contingent in Vietnam
(PHILCAG) during the period from 31 August 1964 to December 1969.
E. The unmarried surviving spous of the deceased veteran; or
F. One (1) direct descendant of a veteran in whose favor he renounces such right or one
(1) direct descendant of the deceased veteran in whose favor such right is applied for
by the surviving spouse or legal guardian of such descendant.
The term “descendant” shall refer to a child of the veteran, or if no one is qualified, to
a grandchild, and so on.
Possible revisions without legalese
Educational Benefits
Educational Benefits
Who may enjoy the benefits?
Who may enjoy the benefits?
The following persons who
have never heretofore enjoyed
educational benefit under
Philippine law nor under
United States law, who desires
to study, shall upon
certification of the
Administrator, be admitted to
any school, college, university
or institution authorized by the
Government.
Upon certification by the
Administrator, the following
persons who have not
previously enjoyed
educational benefit under
Philippine law or United
States law will be admitted to
any institution authorized by
the Government:
Legalese: PVAO citizen’s charter
ACCRUED / POSTHUMOUS PENSION
benefits
Represents pensions and other benefits, to include
arrears or unpaid pensions, which were not received
by a veteran or a surviving spouse before his or her
death. The benefit/s therefore accrue/s to the
deceased pensioner’s legal beneficiaries.
Processing of Accrued / Posthumous pension
involves two major stages 1) computation of arrears
and 2) issuance of statement of distribution which
takes time due to its quasi-legal nature.
quasi-legal
“Why lawyers can’t write”
Bryan A. Garner, American Bar Association Journal, March 2013
Dunning-Kruger
(1999
study,
University)
Lawyers on theeffect
whole
don’t
writeCornell
well and
have noorclue
that they don’t
write well.
Unskillful
unknowledgeable
people:
(1) often think they are quite skillful or knowledgeable,
While lawyers are the most highly paid
(2) can’t recognize
genuine
skill in
others, the
rhetoricians
in the world,
we’re
among
most
inept wielders of words.
(3) uniformly fail to recognize the extremity of their
own inadequacy, and
(4) can recognize and acknowledge their own
previous unskillfulness only after highly effective
training in the skill.
Dunning-Kruger effect
Bryan A. Garner, American Bar Association Journal, March 2013
Skillful people tend to
overestimate others’ skills
and underestimate their
own.
Designing and improving websites
for lower-literacy users
 Improving websites for lower-literacy
users can also help higher-literacy
users.
Jakob Nielsen  People capable of understanding
complex information nonetheless
is considered
preferred more straightforward
as “the world’s
information.
leading expert
on Web
 Revising the text for a broad
usability” by
consumer audience makes a good
U.S. News and
site excellent and benefits all users.
World Report.