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Plain or patronising?

I remember discussing plain language with colleagues in a legal service once. The context was setting up a series of precedent documents, so that there was consistency about language across the legal service, and to save lawyers and admin lots of time (not dictating/typing the same letters from scratch, over and over again!)

One colleague who was against the idea said that they thought plain language could be patronising. That’s what I want to focus on in this blog post. How do you use plain language to be clear and concise, but not be patronising or paternalistic?

It’s actually pretty simple: think about it like Dr Seuss. You should ‘say what you mean and mean what you say.’

If you want to say “you need to go to court on 12 September” then just say that. There’s not need to put it really formally like “your attendance is required at the Shepparton Magistrates’ Court on 12 September.”

You need to think about what message you are trying to convey, your audience’s literacy levels (especially when working with disadvantaged or culturally & linguistically diverse communities) and the main purpose of communication: clarity.

You aren’t being paid by the word. You aren’t going to impress your client with complex vocabulary and grammar. All that happens when you use overly formal or archaic language is that you look pretentious. I remember receiving an email from another law firm once that was written in such archaic and overly formal language that it made me laugh. That should not be your aim when communicating between firms!

A really good example of archaic language and structure is the standard text of most wills. John Gibbons uses an Anglo-Saxon will, contrasted with a modern will, to show how useless and confusing excessive jargon can be. (John Gibbons, Forensic Linguistics, Blackwell Publishing 2003, page 25)

The will of Wulfsige (1022-43)

Here is this document it is made known to whom Wulfsige grants his possessions. First, for his soul, two-thirds of the estate at Wick to Bury St Edmunds and the third party to Bishop Ælfic, except one yard land and mast for twelve swine which Wulfwyn shall have for life, and after her death to Bury St Edmunds; and all the men are to be free for the sake of the souls of us both.

And I grant to my royal lord two horses and a helmet and a coat of mail, and a sword and a spear inlaid with gold. And I grant to my lady half a mark of gold, and to my niece an ore’s weight in gold. And Stanhand is to have everything which I have bequeathed to him, and my brother’s children their own land, and two horses with harness, and one coat of mail and one cloak.

And he who alters my will, may Almighty God turn away his face from him on the Day of Judgement unless in this life he will quickly make amends for it.

It’s quite straightforward, isn’t it? Despite the archaic grammar structure that comes from Old English (translated into something more readable for modern eyes) the terms of the will are pretty straightforward. Wulfsige wants most of his land to go to the church at Bury St Edmunds, and a small portion to be left for the pigs who are to go to Wulfwyn (his wife? Son?) to be able to have an ongoing income of sorts.

Anyone reading this will can easily understand what Wulfsige wanted to happen with his lands and possessions. It’s quite straightforward.

So why are modern wills so complex? On page 26 of Forensic Linguistics, Gibbons gives an example of a modern will. I’m going to intersperse this text with my comments and questions about why this language is not ideal.

THIS IS THE LAST WILL AND TESTAMENT of me JOHN PETER GIBBONS of ….. in the State of New South Wales, Lecturer.

Modern legal English is drawn from two sources: the French that the Norman conquerors brought with them, which over time developed into this horrendous pigeon of Law French, and Anglo-Saxon English. This meant that for hundreds of years it was considered necessary to have all legal terms in English and Law French or Latin: will and testament, devise and bequeath, breaking and entering, acknowledge and confess, goods and chattels, had and received, fit and proper, free and clear. All of these pairs mean the same thing, but are couplets made of words drawn from French and English, respectively. Does modern law need the repetition? Can’t we just say one thing? 

I HEREBY REVOKE all former Wills and Testamentary Dispositions heretofore made by me AND DECLARE this to be my last Will and Testament.

Quite a mouthful. Would a simple “I revoke all previous wills and declare this to be my last will” suffice? Or better yet, look at the dates of the documents! Every will usurps the previous wills. Do we need to clarify that this will revokes all previous wills when that is the purpose of a last will??

I GIVE DEVISE AND BEQUEATH the whole of my property of whatsoever nature and wheresoever situate and over which I have any power of appointment and not otherwise disposed of in the due administration of my estate to my dear wife…. for her sole use and benefit absolutely AND I APPOINT her Executrix and Trustee of this my Will.

“Give, devise and bequeath” is one of those phrases that comes from the amalgamation of Anglo-Saxon, Latin and Law French. Is it necessary in the modern age? Would another verb that carries legal meaning do the job? “I grant to X all the property that I own, and appoint X as the Executor of my Will.” Doesn’t this achieve the same effect?

Why insist on using archaic, duplicated phrases in the modern era?

Executor and Trustee – these are different functions under law, and I will defer to succession law specialists on this, but … do we need both? Is one sufficient? If you have not established a trust, then do you need a trustee?

IN THE EVENT that my said wife predeceases me or dies within one (1) month of my death then I DECLARE that the following provisions shall take effect…

Unnecessary capitalisation is a pet peeve of mine. Yes, it does make it easy to identify various clauses at a glance, but do we really need it?

Why do we need to specify “my said wife”? Are we presuming that the author has more than one wife, and we need to specify which wife? That would be bigamy and illegal, so how about we drop the ‘said’! Similarly, ‘predeceases’ is not a terrible archaic word and does have a technical function, but “dies before me” has the same meaning and is clearer to non-lawyers.

IN WITNESS WHEREOF I have hereunto set my hand to this my Will this fifth day of July One thousand nine hundred and ninety four.

SIGNED by the Testator as and for his last Will and Testament in the presence of us both present at the same time and we at his request in his presence and in the presence of each other have hereunto subscribed our names as witnesses:

This part is just ridiculous. A standard sworn statement, statutory declaration or affidavit simply requires the person making it to sign and date before the witness(es) who also sign and date. Also there is no need to write the date in long form: wouldn’t it be easier to read if it was the 5th day of July 1994? Or simply just 5 July 1994?

(I do agree that having the month written as a word and not a number helps avoid any confusion around Americanised or English/proper dating!)

When we compare these two wills, we can see how much legal language has become encumbered by unnecessary jargon

Now I had this debate with the other lawyer in the last community legal centre that I worked at: is it legally required for wills to use certain jargon, like “give, devise and bequeath” or “will and testament” or the clause about revoking past wills?

I don’t think it is, and all that is required for a will to be valid is that it is a clear and unequivocal expression of the testator’s instructions.

I would be interested in hearing from succession lawyers in the comments about whether there is any legal impediment to changing the way we draft wills, to embrace plain language and clarity. 

So what is patronising?

Language is patronising when it is phrased in such a way that it suggests that the speaker or author believes that the audience is incapable of understanding them, and that this belief is incorrect. Everyone knows the experience of being patronised – that infuriating sense of “there is no need to speak to me as if I am a small child.”

Let that be your guide. Are you speaking clearly and plainly, or are you infantilising the audience?

Tone also has a lot to do with how our words are perceived. If you adopt a sing-song tone when explaining something, it doesn’t really matter how reasonable the words you’ve chosen are, it is likely to be interpreted badly.

Just think about what you need to say, and then say that. It’s not really rocket science!

 

 

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Lawyer by day, knitter by night, with random geek-related theory crafting at all hours.

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