What is plain language? It’s what you use to communicate effectively when there is a high price for ambiguity. It’s what you use when you have complicated information to convey to busy people who don’t have the time for gibberish. It’s language that is free of jargon and gobbledygook. It leaves terms of art intact and explains them. It’s the language to use when precision counts.
Sixth-grade concepts don’t become graduate-level analysis by the use of jargon, endless sentences, and alphabet soup. And subject-matter experts should write in plain language for other subject-matter experts because you have important things to talk about and don’t want to have to jump back and forth between text and abbreviation chart.
Writing in plain language is good for your business. If you are a patent lawyer writing an article in the bar’s magazine for other patent lawyers, imagine a family lawyer pouring a cup of coffee at the end of the day and opening up your article. If you use plain language, the family lawyer might read your article. Consequently, if one of their clients needs a patent lawyer, they will remember your article and may refer that client to you. If you use jargon when you could write plainly, the patent lawyer might not even read your article.
Plain language removes ambiguity in contracts, which reduces the potential for litigation. It’s cheaper to pay a plain language editor to go over your work than it is to pay litigation costs or to deal with the consequences of having a contract dispute, especially if you have to find a new vendor in the meantime or meet payroll when the merchant doesn’t pay you.
Writing in plain language is good for public health. We have all gotten written material in a healthcare setting, whether we are starting a new medicine, preparing for a medical procedure, or being discharged from the emergency department. It’s only fair that we be able to understand what we have, what the medicine is, what side effects, why we got stitches, when to go back to the hospital. If the material is impossible (and it often is), it increases the likelihood of a bad outcome. If you are a healthcare professional, don’t you want your patients to understand their conditions, what to expect from treatment, and how to comply with your instructions?
And plain language is what democracy looks like. The people should be able to understand the written law. There is no excuse for creating a situation where a voter can’t decide whether to support a bill because the bill is impossible to understand. For example, here is the American Health Care Act of 2017. Here is Section 101 (a)
(a) In General.—Subsection (b) of section 4002 of the Patient Protection and Affordable Care Act (42 U.S.C. 300u–11), as amended by section 5009 of the 21st Century Cures Act, is amended—
(1) in paragraph (2), by adding “and” at the end;
(2) in paragraph (3)—
(A) by striking “each of fiscal years 2018 and 2019” and inserting “fiscal year 2018”; and
(B) by striking the semicolon at the end and inserting a period; and
(3) by striking paragraphs (4) through (8).
(b) Rescission Of Unobligated Funds.—Of the funds made available by such section 4002, the unobligated balance at the end of fiscal year 2018 is rescinded.
This is the very beginning of a bill that was supposed to affect every citizen in this country, and we had to rely on politicians and journalists to tell us what it says. It all looks like that. On one hand, the law amends a lot of other laws. On the other, it’s what decides whether your sister gets chemotherapy. Even the parts that had more words in them looked like this:
(b) Definitions.—In this section:
(1) PROHIBITED ENTITY.—The term “prohibited entity” means an entity, including its affiliates, subsidiaries, successors, and clinics—
(A) that, as of the date of enactment of this Act—
(i) is an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt from tax under section 501(a) of such Code;
(ii) is an essential community provider described in section 156.235 of title 45, Code of Federal Regulations (as in effect on the date of enactment of this Act), that is primarily engaged in family planning services, reproductive health, and related medical care; and
(iii) provides for abortions, other than an abortion—
(I) if the pregnancy is the result of an act of rape or incest; or
(II) in the case where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself; and
(B) for which the total amount of Federal and State expenditures under the Medicaid program under title XIX of the Social Security Act in fiscal year 2014 made directly to the entity and to any affiliates, subsidiaries, successors, or clinics of the entity, or made to the entity and to any affiliates, subsidiaries, successors, or clinics of the entity as part of a nationwide health care provider network, exceeded $350,000,000.
(2) DIRECT SPENDING.—The term “direct spending” has the meaning given that term under section 250(c) of the Balanced Budget and Emergency Deficit Control Act of 1985 (2 U.S.C. 900(c)).
You had to read at an advanced level to see that it appears that some entities that provided abortions to mothers of dying fetuses couldn’t get something something something. There is no excuse for this. I mean the writing. I’m not even going to get into the policy.
In contrast, here is the text of the Affordable Care Act, which is 906 pages of mostly plain reading.
SEC. 2711. NO LIFETIME OR ANNUAL LIMITS.
(a) IN GENERAL.—A group health plan and a health insurance issuer offering group or individual health insurance coverage may not establish—
(1) lifetime limits on the dollar value of benefits for any participant or beneficiary; or
(2) unreasonable annual limits (within the meaning of section 223 of the Internal Revenue Code of 1986) on the dollar value of benefits for any participant or beneficiary.
There’s writing in it. Here’s another random chunk of it:
(1) APPEARANCE.—The standards shall ensure that the summary of benefits and coverage is presented in a uniform format that does not exceed 4 pages in length and does not include print smaller than 12-point font.
(2) LANGUAGE.—The standards shall ensure that the summary is presented in a culturally and linguistically appropriate manner and utilizes terminology understandable by the average plan enrollee.
The writing could be a bit clearer, but you know from what you see that there are no lifetime caps and that the insurance company has to tell you what it covers.
Before you as a voter decide whether you agree with a piece of legislation, it ought to be possible for you to read it yourself. Even if you aren’t a lawyer or a subject-matter expert.
It is true that some concepts are inherently difficult. You just can’t write about some things in a way that everyone will understand them. Nor should you take your physics paper and make it a one-paragraph squib that fits on the side of a cereal box. But it’s possible to make your work more understandable to a wider audience.
You don’t need infra, in situ, ex contractu, or profert and oyer. Every appearance of the phrase party of the first part should require a financial penalty to the party of the first part. In contrast, terms of art can make writing clearer because of their precision. For example, consider the term parol evidence, which is what we are likely to think of when we imagine legalese. A nonlawyer would be unlikely to recognize the term, at all. There’s nothing you can do about that. Parol evidence has a specific meaning. On the other hand, is there any reason to make it impossible for a lay person to look it up and understand it without a semester of contracts?
So, parol evidence. Let’s say you buy a car. When you buy a car, you sign a written contract. Within the four corners of your contract, it says that you agree to pay $25,000.00 at 4.27% interest over the course of 60 months. But you’re not sure that you can afford that monthly payment. So you hesitate. Let’s say that the dealer, who is sitting across the table from you, responds to your hesitation with the following: “Well, of course, if you don’t have the money for a few months, don’t worry about it. You can skip some payments every now and then.” Those words are different from the writing within the four corners of the document. So let’s say you listen to Larry the Car Salesman, and so for a couple of months in a row when money’s tight, you skip payments, and the bank repossesses your car. Then what? Parol evidence rules are about whether the court will even hear testimony about Larry’s words. Here’s what the Uniform Commercial Code* says:
§ 2-202. Final Written Expression: Parol or Extrinsic Evidence.
Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented
(a) by course of dealing or usage of trade (Section 1-205) or by course of performance (Section 2-208); and
(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.
I don’t know about you, but reading that gave me a headache, even though I’m a lawyer as well as an editor. So I’m going to make a stab at writing this more clearly:
§ 2-202. Final Written Expression: Parol or Extrinsic Evidence, Edited by Karin Cather.
If parties write down an agreement, no party may contradict anything in that writing by relying on oral statements or on prior agreements. The written terms may be explained or supplemented
1) by course of dealing or usage of trade (Section 1-205), or by course of performance (Section 2-208); and
2) by evidence of consistent additional terms, unless the court finds that the parties intended the writing to be a complete and exclusive statement of the terms of the agreement.
Even though a lawyer needs to use the term parol evidence, there’s no need to make it impossible for a nonlawyer to determine the meaning. After all, this concept affects the rights of all of us, every time we sign a contract.
Of course, sometimes terms of art hide in plain sight. Consider words like search, seizure, stop, or arrest. All of these words have specific legal consequences and their meanings have been heavily litigated. In Fourth-Amendment jurisprudence, a stop and an arrest are not the same thing. Deciding that a certain chain of events involves an arrest and not a stop can make the difference between a criminal case and a lawsuit. In fact, lawyers who write about those terms will choose their words carefully, so as not to confuse them. Terms of art like seizure or offer are deceptively easy for lay people to misunderstand, because these words have less-precise meanings in common parlance. If your audience includes lay people, it might be fair to identify these as terms of art.
When people rely on the information you provide to make high-stakes decisions, it’s important that you communicate clearly, with as little ambiguity as possible. The greater the power differential between you and your audience, the plainer should your writing be. Otherwise, your readers think you have something to hide.
*The Uniform Commercial Code was written by a group of legal scholars and is intended to serve as a model for states setting laws governing commercial transactions.