Joseph Kimble—No, the law does not (normally) require legalese (Editing Goes Global, 2015)

Joe Kimble has been advocating for plain legal language for more than three decades: he is a founding director of the Center for Plain Language, a past president of Clarity International, the editor of the “Plain Language” column in the Michigan Bar Journal, and the author of Lifting the Fog of Legalese: Essays on Plain Language and Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law. He also redrafted U.S. federal court rules (which he spoke about at PLAIN 2013). At Editing Goes Global, Kimble gave us a few tools to help us work with lawyers who claim that legalese is mandatory.

Kimble has heard many stories about plain language projects that died after they were “sent to legal.” In one of his own projects, he redrafted bicycle regulations for a city. “The redraft went to legal,” said Kimble, “and their indifference was palpable. I knew almost immediately that this project was dead.”

How do we prevent projects from ending up in the graveyard? Lay the groundwork, said Kimble, by communicating with the legal department in the project-planning phase. “Don’t wait till the project is finished and then send it to legal. Do everything you can beforehand to make sure legal is receptive or at least knows it’s coming.” Show them samples of the work you plan to do, and keep them apprised of your progress as you reach project milestones. “A little sample should reduce anxiety, not create it,” said Kimble. “Everyone will get a feel for the contours of the road ahead.” For more pointers, Kimble recommends reading “Working with lawyers on your projects,” an article by Cheryl Stephens in Clarity, issue 66.

Some lawyers have prejudices against plain language and may insist on using legalese, although their arguments may change depending on whether you’re working with codified law or caselaw (also known as common law).

In codified law, lawyers tend to copy the exact wording of the underlying law. One example Kimble gave was of a warning sign at a Michigan gas station that reads, “A person shall remain in attendance outside of the vehicle and in the view of the nozzle.” This language was taken directly from Michigan Administrative Code R.295235, §, which says that warning signs “shall incorporate the following or equivalent wording” (emphasis added). In other words, warning signs that convey the same message but in plain language are perfectly acceptable.

If a lawyer says that you have to use a particular bit of legalese, ask for a legal citation—the name of the code and the numbers—and find the original. If it says that you must use particular wording, then you’re stuck, but “as often as not,” said Kimble, “the underlying law does not require legalese.” Look for words like “equivalent to,” “substantially similar to,” or “containing all the following information,” which gives you the flexibility of expressing the same concepts using different—hopefully simpler—language.

That said, Kimble acknowledged that the underlying law often gets copied anyway—“The fear of departing from the underlying language can be paralyzing”—so we should keep pushing for plain language in legislative and regulatory drafting.

In caselaw, lawyers will be reluctant to change what they consider terms of art. “Nothing shuts down a conversation more quickly than a lawyer proclaiming, ‘term of art!’,” said Kimble. “Pursuant to, in witness whereof, and prior to are not terms of art.” Nor are the here-, there-, and where- words (thereby, heretofore, etc.) so often seen in legalese. “Legal language is not as precise as lawyers think it is,” said Kimble. “Lawyers grossly exaggerate the constraining effect of terms of art.” Words like thereby have the feel of precision, but they can actually add ambiguity to a sentence.

Look out for what Kimble calls “legal doublets,” which often have shorter or plainer alternatives. For example, jointly and severally can be rewritten as together or individually, which is immediately understandable.

In some cases, you will have a hard time finding a plain equivalent—for example: reasonable doubt, probable cause, or negligence. But most of the time, a plain alternative exists. Why write indemnify when you can say pay for? (On that example, he cited the September 2013 “Plain Language” column.) “If you can’t bear to part with a word like indemnify,” said Kimble, “pair it the first time with a plain word. Then try using the plain word the rest of the way through.” See Law Words, on the Clarity International website, for help or inspiration.

For plain language more generally, Kimble recommends the following resources:

A longer list appears in an appendix to Lifting the Fog of Legalese.