The Potential for Reducing Claims With Plain Language

The focus of my career has shifted from primarily creating legal information for those without legal representation to now include risk management and loss prevention for lawyers. This expanded focus has also broadened my view on the importance of plain language for our profession. The benefits of a plain language approach for self-represented litigants are clear, but it also offers the potential of reducing claims risk for lawyers and their clients.

As noted in the recent Slaw article by Jennifer Leitch, NSRLP Executive Director, “Thinking Like a Non-Lawyer: When Plain Language is Not Enough”[i], there is increasing support for plain language:

A plain language approach to legal drafting is taught in most law schools, and members of the judiciary are urged to generate decisions for parties in plain and ordinary language.

So much so that I was surprised to learn the that the legal industry was still ranked third in a study on industries with the most confusing jargon[ii]. This study analyzed Google search term data, such as the ‘what does [jargon term] mean’, ‘what is [jargon term]’ and [jargon term] definition and found that the only industries with more confusing jargon is IT followed by finance.

The Slaw article by Jennifer Leitch also refers to a recent address to the joint Canadian Institute for the Administration of Justice (CIAJ) and National Self-Represented Litigants Project (NSRLP) conference, “A dialogue on Self-Representation,” in which the speaker, Dr. Greiner, suggests that ‘once trained in law, it is almost impossible for an individual to write about the law in a non-legal way’.

If the deficits in existing plain language legal information are due to the inability of the legally trained brain to develop comprehensible materials for the public, what does this say about our ability to clearly communicate with our clients and other lawyers? Prior to my experience in the lawyer professional liability realm, I likely would have assumed the Google searches referenced in the study above were conducted by those without legal representation. Now I’m not so sure. Could at least some of these searches be by those represented but unable to understand what their lawyer is telling them?

Poor communication is a leading cause of professional liability claims against lawyers. As noted by the Law Society of Alberta[iii],

Convoluted client letters, email communication and conversation style may leave your client unable to make a knowledgeable decision because they do not know what is happening. Clients may feel uncomfortable or ashamed to ask for clarification.

Being able to express legal terms and processes to clients through a plain language approach may reduce the risk of miscommunication with the client and therefore reduce the potential for error.

According to a 2023 study[iv], lawyers also struggle with legalese and that simplifying legal documents would be beneficial for lawyers and nonlawyers alike. The study found that lawyers:

1. a) like laypeople, were less able to understand and recall “legalese” contracts than content of equivalent meaning drafted in a simplified register; and
2. b) rated simplified contracts as equally enforceable as legalese contracts, and rated simplified contracts as preferable to legalese contracts on several important dimensions.

Risk of claims could potentially also be reduced if there is less room for misinterpretation in our legal documents. For example, see the three-year effort to promote plain-language contracts at GE Aviation’s digital-services business[v] that has resulted in 60% less time to negotiate contracts and universally positive customer feedback. There also hasn’t been a single customer dispute over the wording of a plain-language contract.

But also note the difficulty GE Aviation had in implementing this approach. The GE Aviation team found unlearning how to write like a lawyer more difficult than they expected and it took more than a month to produce the first draft contract. Plain language drafting taught from the start may help avoid such a tedious process.

Numerous loss prevention materials have been developed to assist lawyers with their communication skills[vi], but issues may be further avoided by continuing to introduce those skills during the training process and by making plain language the norm rather than an onerous process to undertake later. New approaches in legal training and an emphasis on plain language legal writing, including judicial decisions, are underway. Only time and closer inspection will tell if the current changes have the desired impact on claims or if more thought is needed.

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[i] Jennifer Leitch, “Thinking Like a Non-Lawyer: When Plain Language is Not Enough” (23 April 2024), online: <Slaw.ca> [https://www.slaw.ca/2002/02/20/thinking-like-a-non-lawyer-when-plain-language-is-not-enough/].

[ii] Yell Business, “Which Industries Have The Most Confusing Jargon” (23 April 2024), online: <business.yell.com> [https://business.yee.com/sme-insight/industries-with-the-most-jargon/#post-content].

[iii] Law Society of Alberta, “Simply Speaking” (April 23 2024), online: <lawsociety.ab.ca> [https://www.lawsociety.ab.ca/resource-centre/key-resources/legal-practice/simply-speaking/].

[iv] Eric Martinez, Francis Mollica & Edward Gibson, “Even Lawyers Do Not Like Legalese” (April 23, 2024), online: <pnas.org> [https://www.pnas.prg/doi/full/10.1073/pnas.2302672120].

[v] Shawn Burton, “The Case for Plain-Language Contracts” (April23, 2024), online: <hbr.org> [https://hbr.org/2018/01/the-case-for-plain-language-contracts].

[vi] See for example a recent blog post, “The 7 C’s of Effective Communication”, by the Canadian Lawyers Insurance Association (CLIA).