The plain English movement has been going on for a long time. The first law reports in England, The Year Books (1260 to 1535), were all in the French language. Legal texts were published in England in the French language in the 16th century. But French was not the language of the people and it took a long time to get the courts to use English rather than French or Latin.
“After 1704 all reports are in English” – see The Language of the Law by David Mellinkoff, page 130.
David Mellinkoff’s book, published in 1963, is credited with starting the plain English movement in American law. The book presents a scholarly treatment of legal language from its earliest days until the 1970s. Doublets were common, such as, last will and testament. The word for child could be “minor” (latin) or “infant” (French) or “child” (English).
Mellinkoff’s book is over 500 pages. Here at Maritime Law Book we have used a book of less than 100 pages titled Plain English for Lawyers by Richard Wydick. The book is now in its 5th edition. Our editors, when writing a headnote, attempt to apply the rules stated by Wydick. Some of the rules are:
- Omit surplus words, do not use redundant legal phrases;
- use the active voice, judges decide, defendants pay;
- avoid nominalizations, turning a verb into a noun, use the word conclude rather than they draw conclusions;
- use short sentences, long sentences make legal writing hard to understand;
- arrange words with care, put modifying words close to what they modify;
- use familiar words, Aristotle said “clearness is secured by using words that are current and ordinary”; and
- do not use legal phrases such as whereas, res justae, and hereafter.
The Legal Writing Institute, a non-profit organization, stated that Plain English for Lawyers,
has become a classic. Perhaps no single work has done more to improve the writing of lawyers and law students and to promote the modern trend toward a clear, plain style of legal writing.
Applying Wydick’s few simple rules is not easy.
Wisdom goes arm in arm with simplicity. The keen mind is one that can absorb a complicated problem, then state it in simple direct terms that will transfer the idea quickly and accurately to the minds of others. To put complicated ideas in simple language is not child’s work.
(See The Technique of Clear Writing (1968) by Robert Gunning.)
Gunning states that books that are popular best sellers use short sentences and use very few words of three syllables or more.
A law report editor reading a judicial decision is trying to determine the issues in the case and how they were decided. Such work is difficult when the issues are intermingled and the language is not clear. Sometimes judges write long sentences which must be carefully read and re-read.
I believe that the application of Wydick’s rules creates objective standards for clear writing.
Does anyone doubt that short sentences enhance clarity?