Chapter 1 - The Never Ending Struggle PDF

Chapter1 THE NEVER ENDING STRUGGLE A. THE HISTORIC PROBLEM OF POOR LEGAL DRAFTING The problem of poor legal drafting goes back as far as there has beena legal profession. The reasons for it start with historic — the use of Latin and thena combination of Latin and French inlegal documents followi...

Chapter1 THE NEVER ENDING STRUGGLE A. THE HISTORIC PROBLEM OF POOR LEGAL DRAFTING The problem of poor legal drafting goes back as far as there has beena legal profession. The reasons for it start with historic — the use of Latin and thena combination of Latin and French inlegal documents following the Norman conquest of England in1066. More simply, critics just blame lawyers. As one stated, “[l)awyers have two common failings. One is that they do not write well, and the other is that they think they do.”2 In saying this, he was echoing the comment made by Reed Dickerson, one of the first critics of the legal writing skills of both lawyers and law professors, that each group not only considers its members well-trained and expert legal drafters, but do not see writing inadequacies in other lawyers or law professors.° We agree with both critics. We make this acknowledgely harsh judgment on the basis ofa combined 75 years experience drafting constitutional, statutory, and rule provisions, writing appellate briefs, teaching writing skills to law students and legal professionals, as well as writing many books and law review articles. We also believe that part of the fault lies in our educational system, both pre-legal and legal. In elementary (not coincidentally once known as grammar schools) and high schools, the role of English grammar, composition, and now even cursive writing have given way to all students being given the notebook version ofa computer, eliminating the need forbooks and pencil and paper. These developments are not new. It was over a half century ago that Rudolph Flesch published his famous critique of primary education IV/iy Johnny Can't flood. Since then, we have gone through the 1970s with open, unstructured classrooms with the focus on creative writing to the current teaching to the standardized test mandated by the “No Child Left Behind” Act that involves onlya check ina box foran answer. Things are no better at the college level, where many if not most students can graduate without ever having writtena paper or been faced with an exam that requires an essay answer. The situation in law schools has traditionally been even worse. The mandatory first year legal research and writing course gives the illusion of teaching good legal writing skills without really doing so. The reasons forthis failure are several-fold. First is the structure of the courses. Most ofthem call fora two credit course in each semester. The first semester includes legal research — how to use the law library and do legal research online. Attention is then given to legal writing, often with emphasis on the ' R. Dickerson, Legislative Drafting 3-4 (1964). 3 4 THE NEVER ENDING STRUGGLE CH.1 KISS (Keep ItSimple, Stupid) principle. Students then writea short legal memoran- dum. The second semester is devoted toa moot court program inwhich the student writesa brief and makesa short oral argument inan appeal froma trial court decision, the “record” being onlya two or three page summary ofthelower court proceedings. Needless to say, the total amount ofattention given to the legal writing aspect of the course is so limited as to be next to useless. A further problem is the quality of the instructors in these courses. In many if not most lawschools, they are recent law school graduates who have not yet practiced and who hold the position for onlya year or two. Few have any experience in teaching writing skills or anything else. There isa minority of law schools that do have instructors who makea career of the position, but often they do not have full faculty status. The result is, as might be expected, that most law students learn little about good legal writing in the first year. The fault is not in the instructors. They do thebest they can. The fault lies in the system and especially in those in charge of the system. This is not surprising in light of Dickerson's comment noted above that most law professors consider themselves excellent legal writers. There areadditional opportunities in the second and third years, such as courses in legal writing (especially those using Richard Wydich's Plain E:nglish for Lawyers), courses in legislative drafting, as well as law review, but these reach onlya small minority of law students. For the large majority, eight or ten hours of classroom instruction in legal writing bya neophyte instructor is all they are going to get. This situation fully justifies the criticism quoted above that the problem is that lawyers do not write well but think they do.Even worse, it supports Dickerson's further criticism that since law school professors do not seea problem with the legal writing skills of themselves or other lawyers, they see no reason forthe law schools to do anything to correct the problem other than to let those few professors (and practitioners) who think there isa problem propose and teacha course in legal or legislative drafting. One effort to improve the teaching of legal writing and the status of those who do it is the Legal Writing Institute, founded in 1984. It has publishesd The Journal of the Legal Writing Institute since 1988. An older organization, The American Society of Legal Writers, hasa somewhat broader focus, legal writing in general. It publishes The Scribes Journal of Legal Writing. B. EFFORTS TO IMPROVE LEGAL DRAFTING Ina curious twist, the effort to improve the quality of legal drafting in general began in the United States with the effort to improve legislative and rule drafting. Rudolph Flesh's first book in1946, f'fie AR of Plain Talk, was an an attack on the poor drafting of federal administrative rules affecting consumers. This defect made the rules difficult for consumers, the intended beneficiaries of the rules, to know and enforce their rights under therules. To the same effect was his 1979 book How toWrite Plain English: A Book for layers and Consumers. Reed Dickerson's first book, ’ There areexceptions, including the University of Cincinnati. For a review ofefforts to give legal writing instructors faculty status, see Weresh, Form and isubstance:Mtandazds for Promotion and Itetenfion of L.egal lYritiiip f’ocu/ty or Ciitttcof 7’e uze Track, 37 Golden Gate U. L. Rev. 281 (2fO7). C. THE SPECIAL PROBLEMS OF STATUTORY AND RULE DRAFTING 5 published in 1954, was Leqisfotire Drafting. It was not until 1965 that he published F'undamentals oflegal Drafting, which wasa project of the American Bar Founda- tion. Since these early efforts, there has beena host of books and articles on improving legal drafting. While several of them focus on legislative and rule drafting, most of them have legal drafting in general or some aspect of drafting private legal documents such as contracts as their main focus. The best known is Wydick's Plain E:nglish for Layers. The largest publisher of books for lawyers lists over 20 books on legal drafting in its catalog, only one of which is on legislative and rule droftmg. Some federal agencies have gotten into the act. The Securities and Exchange Commission, for example, adopted rules in 1998 and 2006 requiring the use of Plain English in prospectuses and certain types of disclosure filings with the SEC. Individual states have adopted similar requirements for insurance policies and other types of consumer documents. How successful have these efforts been? One indicator may be the form contract for the sale of real estate issued in 2010 jointly by the Florida State Bar (a body under the supervision of the Florida Supreme Court) and the Florida Board of Realtors. The contract is 11 pages long, contains 600 lines, and averages over 15 words per line, for a total word count of almost 10,000 words.A contract of this length, intended to be signed by persons with little or no experience in real estate, has a host of legal implications that are far beyond theunderstanding ofthose who sign it, not to mention the real estate agents presenting it for signature. At the very least, the contract requires each party to have its own attorney, something not usual in most real estate transactions that involve only private residences. (Of course, changing that situation may be the goal of the contract, at least from the perspective of the Florida Bar.) C. THESPECIALPROBLEMSOFSTATUTORYANDRULE DRAFTING As badasthestate of legal writing in general is, the sorry state of statutory and rule drafting is far worse. The problem has, of course, the same root cause as poor legal drafting in general—the almost universal misconception oflawyers that they are expert legal drafters, as explained in the two previous sections. When it comes to statutory and rule drafting, however, the evils that flow froma poorly drafted statute or rule in most instances dwarf those that flow froma poorly drafted private legal document such asa contract. This is becausea private legal document usually affects onlya limited number ofpeople, most of whom voluntarily become parties to the contract. They have an opportunity before being bound by the contract to review its terms and makea choice whether to enter the contract and to have legal advice when doing so. Witha statue or rule, however, onlya few of those ai'feeted by it have participated in its preparation, but all must comply with its provisions. Under these circumstances, the ability of these people — the public — to understand their rights and duties under the statute or rule is fundamental to its effectiveness. It is not too much ofan overstatement to say that due process in the sense of notice requires that a statute or rule be written clearly enough so that those affected by it can read it and 6 THE NEVER ENDING STRUGGLE CH.1 understand their rights and duties under it. The notion thata statute or rule must bewritten in language that the general public can understand has ancient origins. One of the first, the Statute of Pleadings, was enacted in 1362. Even though the statute itself was written in French, it required that pleas filed in court be “pleaded, shewed, defended, answered, debated, and judged in the English Tongue.” It was not until 1489, however, that all English statutes were written in English. Even that preceded the adoption of English as the language of legal documents in 1649.° In light of this history in England, it is not surprising that at the time of the American Revolution, important players such as John Adams andThomas Jefferson criticized the language used in statutes. Adams called for “common sense in common language” in statutes, clearlya precursor of the Plain English movement. Jefferson was particularly forceful when he described statutes whichfmm their rer6osi@, their endless lautologies, tfietr tarofuttons of cnse within case, and parenthesis mith,in parenth.esis, a,nd their multiplied efforts at certainty by saids and aforesaids, by ors and bp ands, to make them mom plain, do cally render them more perplexed and incomprehensible, not only to common readers, but to layers tfiemse/res. The first effort to improve the quality of the drafting of statutes began inEngland by Seremy Bentham attheend ofthe18th century. In one of his many writings, View ofa Complete Code ofLaws, first published in 1843, some 11years after his death but written much earlier, he called not only for the substitution ofa code of laws for the common law, but gave detailed instructions of how the code should be drafted. Key to the whole enterprise was that the code be drafted in language the common person could understand. As he put it, laws should not be in “any other legal terms than such os arefamiliar tothepeople.” If it is necessary to use technical terms, they should be defined in the law in “consort and know wonls.”7 He also gave detailed instructions as to drafting style. These aI'e discussed below in Chapters 10 and 12. As will be seen, his views on drafting style are very similar to the principles of Plain English as they have developed in the past half century. It is not an exaggeration to identify Bentham asthefather, or perhaps the grandfather, of the Plain English movement. Unfortunately, Bentham had little effect on the manner inwhich English statutes were drafted. The next effort was by George Coode inhisbook Legislative E!xpmssion: or, the Language oftire tten Law, published in 1845. He developed the notion ofa statute involvinga legal subject and a legal action, againa precursor of the Plain English movement's the “Who” and the“What.” His other major contribution was to condemn the use of the proviso, advocating the placement of conditions at the beginning of the sentence rather than addinga proviso at the end of the sentence,a staple of Plain English style. Following him was Thring's Practical Legislation, ' Ormond, Th.e Use of Fsnglish: Lan,y.ag,e, balk a,nd Political Culture in Fourteett,th-Cenlnirg Elngland, 78 Speculum 750 (2003).The most extensive treatment of the transition from French to English in English legal proceedings and statutes is D. Mellinkoff, The Language ofthe Law 95-135 (2004). ‘ Mellinkoff, suyra note ñ, at 253. J. Bentham, Works 209 (Bowring, ed., 1843). C. THE SPECIAL PROBLEMS OF STATUTORY AND RULE DRAFTING 7 published in 1877, and Ilbert's Lepis/otire Methods and For, published in 1901. The next major work, this time inCanada, was Driedger's Composition ofLegistation, first published in 1957. As noted above, the first efforts in the United States to improve statute and rule drafting were Diekerson's Lepisfatire Draping, published in 1954, and Flesch's 1956 book the Art of Plain Talk. Notwithstanding this early focus, until recently, most attention in the United States has been on improving legal drafting generally, with no special focus on statute and rule drafting. All buta few of the books published on the drafting skills of lawyers in the past thirty years, including those advocating the use of Plain English, have ignored and rule drafting asa special form of legal drafting. The first major effort to combine Plain English with statute and rule drafting was the Law Reform Commission of Victoria, Australia, which publisheda report, Plain English and the Law, in 1987. The authors' book Drafting Legislation and Rules in Plain English published in 1991 was, in fact, the first comprehensive treatment of the subject in book form inthe United States. While there have been limited efforts to improve the drafting of legislation, there has been an effort to require that the rules adopted by federal administrative agencies be written in common or plain language. The first one often cited is an order supposedly issued by President Nixon in 1972 that required the Federal Register be written in “layman's terms,” but this claim is of dubious validity. The first formal executive order on the subject was No. 12044 issued by President Carter in 1978 mandating that federal regulations be “as simple and clear as possible... written in plain English... and understandable to those who must comply with it.” President Carter in 1979 issued another executive order mandating the use of“clear language” in certain legislation and rules. President Clinton went much further in 1998 when he issued an order not only requiring the use of “plain language” in both rules and other types of documents issued by federal agencies but establishinga framework forimplementing the policy. More recently, President Obama signed Executive Order 13563 in2011 that mandated that each federal agency review its rules and “ensure that regulations are written in plain language, and easy to understand.” Although no further action was taken inthe Bush Administration to advance the use ofplain language by the Federal Government, in2010, Congress passed and President Obama signed the Plain Writing Act of 2010,5 U.S.C.§ 301 note. It requires federal ' The article cited to support this claim is Lutz, Notes Tou›arda Description of Doubtespeak (Revised), 13 (n.2) Quarterly Review ofDoublespeak 10-11 (January 1987). This in inaccurate. Lutz does not discuss the matter. On page 10 oftheissue, which is printed in two columns, there isa note titled “Plain English Loses Again” that comes before the Lutz article. It states that “In 197Z the Nixon Administration decreed that henceforth the Federal Register was to be written in ‘laymen's terms’” but with no citation. There is no such order published in the Federal Register. An inquiry to the Nixon Library by the authors received an email reply froma archivist at the library stating that she could not find any record of such an order atthe library or on the website of The American Presidency Project. 9 The history of the presidential executive orders is detailed in Berent, Plain Writing Legislative History 2007-2010, www.Plain-Writing-Association.org (2012). See also www.plainlanguage.gov, Government Man- dates (2012). 8 THE NEVER ENDING STRUGGLE CH.1 agencies to use “plain writing” in government documents issued to the public and sets up procedures forimplementing the requirement. While passage oftheAct was hailed asa major step forward in the government's use of plain language, the Act does not apply to either statutes passed by Congress or rules issued by Federal agencies. Further, its definition of clear writing is not very strong. The Act defines it to mean ‘Sting that is clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience.” It is doubtful, consequently, that the Act will have much effect. The United States Supreme Court has primary responsibility for adopting rules governing procedures inthe Federal Courts.io It exercises that responsibility through the US Judicial Conference, which in turn acts througha Standing Committee on Rules of Practice and PI'ocedure. For many years, it adopted rules written in traditional legal style, but in 1997, the Standing Committee adopted Guidelines for Drafting and Editing Court Rules designed to apply basic Plain English principles to the federal rules. These guidelines were first used ina revision of the Federal Rules ofAppellate Procedure in 1998 and more recently in revisions of the Civil Procedure Rules in 2007 and the Federal Rules of Evidence in 2011. At the state level, several states have adopted plain language requirements forsome consumer contracts and insurance policies. None hasadopted similar requirements for either statutes or rules. In Great Britain, the rules of civil procedure were rewritten in 1999 with one of the goals that they could be understood by the litigant not represented bya lawyer. D. CRITICS OF PLAIN ENGLISH IN DRAFTING STATUTES AND RULES Although there has been no meaningful criticism of the use of Plain English in the drafting of government communications and consumer, insurance, and other types of private legal documents,a small group of experts in the field criticize its use in the drafting of statutes and rules. One of the first was Professor Frank Grad, for many years the director of the Legislative Drafting Research Fund atColumbia University. In 1979 he wrote that “[wt]a,ny proh(cms that need legislative resolution are complex If complex Emblems requi.re complex language for tkeir resolution so be(t.”'1 Perhaps the best summary oftheobjections to Plain English (or Plain Language) is the 2003 article Plaiit Lan.guage in Legislative Drafting: An Achievable Objective or a LaudabidIdeal? by Brian Hunt.12 The author,a staff member oftheOffice of Parliamentary Counsel in Ireland, the drafting service for the Irish Parliament, started out the article by saying that he is “moderately ia fa our of the use of plain 10 28 U.S.C. §4 2071-2077. 11 Grad, Legislati oe Drafting as Eegal Pmblem Solving — Form Moths Function, to. Drafting Documents inPlain English 481, 489 (Pt-acticing Law Institute 1979). ‘2 Hunt, 24 Statute L. Rev. 112 (2003). E. OUR VIEW 9 language in relative dmping”'° butthen devotes the rest of the article to showing why it really does not work. He begins by stating and then challenging the two basic assumptions of Plain English advocates. The first is that ordinary people havea desire to read legislation. He suggests there is little evidence to support the statement, but offers little evidence to refute it. The second assumption is that Plain English legislation will function as effectively as that drafted in traditional style. His argument against this assumption is that Plain English is not inherently clear because no word is inherently clear. He concludes, consequently, that using plain or simpler words ina statute produces no greater clarity than the traditional language of the law. His only solution to the inherent lack of clarity in any word is, adopting the suggestion of Francis Bennion and Peter Blume,' to have each new item oflegislation be accompanied by explanatory materials that will explain the changes in the law contained in it. In his and Bennion and Blume's view, lawyers are the intended audience of legislation and should be drafted with only them inmind. Communicating themeaning oflegislation is an entirely different function. That should be included in explanations and summaries addressed to the general public. It is hard toimaginea worse proposal. If words areso inherently unclear that it is a waste of time to worry about clarity ina statute, the same is true for words in an explanatory document. What is worse, if the words ina statute are interpreted to mean onething and the words inan explanation to mean another, there isa conflict thata court will almost certainly resolve in favor of the statute, to the detriment ofthe person who relied on the explanation. Hunt's solution is really an argument fordraftinga statute in as clear language as possible so that it can be understood by the largest audience possible, including both lawyers and the public. Hunt also ignores the drafting techniques that are an essential part of the Plain English approach to statute and rule drafting. Word selection is only one part of Plain English. Drafting style goes hand and hand with it. Hunt and other critics of Plain English also discuss it only in terms of statutes. Equally if not more important is its use in administrative rules. Not only are there far more rules than statutes, they are far more likely to be draked and applied by non-lawyers, and most certainly to be applicable to and read by non-lawyers. E. OUR VIEW Inourview, the proponents of Plain English as the cure for the historic and continuing problem ofpoor legal drafting, and particularly poorly drafted statutes and rules, have much thebetter argument. There is no excuse fora drafter ofa statute or rule to use any drafting style that is not designed to makea statute or rule as clear and as understandable as possible to the general public or to use any words that are not '° Bennion, Don 1 Put the Lotc info Public Hands, The Times, December 24, 1995; Blume, 'fi Communicalimi oflegal Rutes, 11 Statute L. Rev. 189 11990). 10 THE NEVER ENDING STRUGGLE CH.1 incommon usage. This approach, which is known asPlain English, dates back over two hundred years but has been largely ignored by those who draft statues and rules for reasons that have no validity. The authors have written this book in an effort to present the Plain English approach todraftinga statute or rule ina form that can be used both asa teaching tool ina law school and a-a manual foruse bya statute or rule drafter. We believe that the goal of lawmakers should be to have laws written in language that enables the public to understand their rights and duties under them. Following the Plain English principles and rules set out in this book will guide the drafter ofa statute or rule in accomplishing that goal.