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ClarityNumber 63 May 2010

Journal of theinternational associationpromoting plain legal language

Editor in chief:Julie Clement

Guest editor for Clarity 64:Neil James

In this issueJudge Mark P. PainterWriting Smaller 5

Cheryl Stephens withMichelle Black and Janice (Ginny) Redish, PhDPlain Language in Plain English, Chapter 8: Identifythe purposes of the document 8

Irene EtzkornSimplifying frequent overlookedcustomer touchpoints 14

Susan BellHow to conduct readability researchaccording to the standards of professionalmarket and social research 18

Professor Barbara McFarlandFive tips on writing to a judge 24

Karen Schriver, Annetta Cheek, and Melodee MercerThe research basis of plain languagetechniques: Implications for establishingstandards 26

Professor Joseph KimbleTwo drafting examples from the proposed newFederal Rules of Evidence 34

George ClarkMultilayering in plain language texts 40

Clarity and general newsContributing to the journal 4Drafting Notes 1 4Members by country 7New members 13How to join Clarity 13Coming conferences 17, 44Corrections 17Drafting Notes 2 33Member news 39Drafting Notes 3 41Message from the President 42

2 Clarity 63 May 2010

Country representatives

Slovak RepublicIng. Ján [email protected]

South AfricaCandice [email protected]

SpainCristina [email protected]

SwedenHelena Englundhelena.englund@

sprakkonsulterna.se

UKSarah [email protected]

USAProf Joseph [email protected]

ZimbabweWalter [email protected]

Other European countries:Catherine [email protected]

All other countries:Please contact the USArepresentative

Patrons The Rt Hon Sir Christopher Staughton, The Honorable Michael Kirby, andH E Judge Kenneth Keith

Founder John Walton

CommitteePresident: Christopher Balmford ([email protected])Members: Country Representatives plus Simon Adamyk, Mark Adler, Michèle Asprey, Peter Butt,

Sir Edward Caldwell, Richard Castle, Annetta Cheek, Julie Clement, Robert Eagleson,Jenny Gracie, Philip Knight, Robert Lowe, John Pare, Daphne Perry, John Walton,Richard Woof.

ArgentinaMaximiliano Marzettimaximiliano.marzetti@

erasmusmundus-alumni.eu

AustraliaChristopher [email protected]

BangladeshA.K. Mohammad [email protected]

CanadaNicole [email protected]

ChileClaudia Poblete [email protected]

FinlandHeikki [email protected]

GermanySiegfried [email protected]

Hong KongEamonn [email protected]

IndiaDr. K.R. [email protected]

IsraelMyla [email protected]

ItalyChristopher [email protected]

JapanKyal [email protected]

LesothoRetsepile Gladwin [email protected]

MalaysiaJuprin [email protected]

MexicoSalomé Flores Sierra [email protected]

The NetherlandsHélène [email protected]

New ZealandLynda [email protected]

NigeriaDr. Tunde [email protected]

PeruRicardo Leó[email protected]

PhilippinesVictor [email protected]

PortugalSandra Ramalhosa [email protected]

Honor roll of donors to Clarity

Clarity is managed entirely by volunteers and is funded through membership fees and donations.We gratefully acknowledge those financial supporters who have contributed to Clarity’s success:

$2,500+ Plain English Foundation, one anonymous donor, Christopher Balmford

$1,000+ Joseph Kimble, Julie Clement

$500+ None

$100+ None

Clarity 63 May 2010 3

An international associationpromoting plain legal languagewww.clarity-international.netPresidentChristopher [email protected]

Clarity … the journalPublished in May and November

Editor in chiefJulie ClementPO Box 13038Lansing, Michigan 48901Fax: 1 517 334 [email protected]

Advertising ratesFull page: £150Smaller area: pro rataMinimum charge: £20Contact Joe Kimble, [email protected]

Copyright policyAuthors retain copyright in their articles.Anyone wanting to reproduce an article inwhole or in part should first obtain theauthor’s permission and should acknowledgeClarity as the source.

SubmissionsWe encourage you to submit articles to beconsidered for publication in Clarity. Sendsubmissions directly to editor in chief JulieClement. Please limit submissions to approxi-mately 1,500 or 3,000 words.

This issueThe past several issues of Clarity have focusedon a number of themes, so Clarity 63 is a col-lection of articles and other short pieces thathave been building up in my files. This collec-tion brings us back to an ongoing debate: whatshould Clarity be? At one end are those whowould like to see the journal take a more aca-demic approach: perhaps a peer-edited journal.At the other end are those who believe thearticles are too academic. They want to see amuch more practical journal—straightfor-ward ways to use plain language in theday-to-day practice of law.

Clarity 63 is a collection of each—a nice bal-ance, I think. Rather than attempt to classifythe articles myself, I’ll leave that to you, thereader. For each of you, though, I hope some-thing in these pages will guide your skills andpractice. New to this issue is a series of draft-ing notes, contributed by Mark Adler. Let meknow if you would like to see more of these.

As Clarity—the organization—grows andchanges, the debate over the journal will be-come more important, I suspect. So give itsome thought, and let me know: How can thejournal help advance plain legal language?How can the journal (and the organization)help you?

Meanwhile, exciting things are in store. Onpage 42, president Christopher Balmford in-vites you to take a more active role in Clarityin the coming months. Would you like to helpwith the journal? Help with membership?Write a blog? Help guide our future? And haveyou accessed your Clarity membership infor-mation on our Wild Apricot site yet? Thissystem is making an enormous difference inhow we reach you and manage our member-ship records. If you have not renewed yourmembership and updated your records, pleasedo so immediately. Use your email address andthe password clarity to sign on. Then changeto a more secure password.

Will we see you in Lisbon in October? Thispromises to be a wonderful conference, andit’s not too late to make plans to attend.Sandra Fisher-Martins extends her personalinvitation on page 17.

Neil James will be our guest editor for Clarity64, which will be devoted to the standardspapers distributed in draft form at the PLAIN


conference in Sydneylast year. Clarity 65 (May2011) will feature papersfrom the upcomingLisbon conference, andClarity 66 (November2011) is underway, aswell. Guest editor SallyMcBeth is gathering articles on how plain-language consultants can best work withlawyers. That will bring us to papers fromPLAIN’s 2011 conference in Stockholm, ten-tatively scheduled to appear in Clarity 67(May 2012). So we have a great deal of workahead of us when we return from Lisbon. Seeyou there!

Drafting notes 1Drafting notes 1Drafting notes 1Drafting notes 1Drafting notes 1

A newspaper cutting recently quoted on BBC radio’s News Quiz read:

Too many police can’t shoot straight or take bribes.

This is a common form of syntactic ambiguity—ambiguity arising from sentence struc-ture. It is caused by the writer’s failure to show whether “can’t” governs just “shootstraight” or both “shoot straight” and “take bribes”. Is the writer complaining thatsome police take bribes or that they can’t take bribes? This structure will cause problemswhere both alternatives are possible.

So how can writers show what they mean? Mathematicians’ formulae use brackets,writing something like

(A) Too many police ([can’t shoot straight] or [take bribes]).

(B) Too many police can’t (shoot straight or take bribes).

Here are some other possibilities:

(A) Too many police either can’t shoot straight or take bribes.

(B) Too many police can’t either shoot straight or take bribes.

(A) Too many police take bribes or can’t shoot straight.

(A) Too many police can’t shoot straight or do take bribes.

(A) Too many police can’t shoot straight, or take bribes.

(A) Too many police: can’t shoot straight or take bribes.

(B) Too many police can’t: shoot straight; or take bribes.

Contributing to the journal

Clarity often focuses on a specific theme(like conferences or drafting or stan-dards), but we also publish articles on avariety of other plain-language topics.Please submit your articles to the editorin chief for consideration.

Would you like to be a guest editor? Ourguest editors gather articles, work withthe authors, make layout decisions, andedit and proofread a single issue. If youwould like to guest edit an issue of theClarity journal, send an email to the edi-tor in chief.

Finally, if you have ideas about improv-ing the journal, the editor would like tohear from you, as well. Our editor inchief is Professor Julie Clement, with theThomas M. Cooley Law School. Emailher at [email protected].


Judge Mark P. PainterUnited Nations Appeals Tribunal

In law school, I don’t remember any profes-sor telling us to “write like a lawyer.” Maybe“think like a lawyer,” but not write like one:take all verbs out of your sentences; make everysentence at least 200 words, with as manyclauses as possible; have your paragraphs goon from page to page; use words and phrasessuch as pursuant to, whereas, heretofore, priorto, and provided that. And of course use two,and perhaps three or four, words when onewould do: rest, residue, and remainder; free andclear; null and void.

None of these lawyerisms are necessary, andall are distracting and confusing—not only tolaypeople, but also to judges and lawyers.

The problem is that we read cases by old deadjudges who were not good writers when theywere alive. Certainly, there were good judicialwriters—Holmes, Cardozo, Jackson—but theydid not write on every issue to be covered in acasebook. So the casebook editor had to pickdull cases. And even after editing, they werestill badly written.

So we read stilted, backward, and downrightclumsy language that had been passed downfor generations—and internalized it. When wegot out of law school, we thought that’s howjudges and lawyers write, so I should write thatway too. Thus the tradition of bad legal writ-ing continued.

Too long words

We tend to use a longer, more formal word,when a shorter one would do better: subsequentrather than after, pursuant to rather than under,provided rather than if.

Here, there, or where do not take any extra let-ters. Hereinafter, therein, whereas, wherein, andthe like should be banned.

And we use phrases when one word woulddo: in possession of for possess; adequate numberof for enough; make an examination of for exam-ine. Always question these phrases: in order tois just to, and by means of is by.

Too many words

It’s not just long words—we use way too manywords.

Has anyone ever come to your office seekinga will and testament? Are they two things?And did they then say, “I would like to givethe rest of my estate to my spouse, the residueto my daughter, and the remainder to my son”?Would that be possible? Of course not—theyare the same thing, so why do we use threewords?

The same goes for null and void, goods andchattels, free and clear. These were couplets inNorman French and Old English.

The explanation of why we started doing thisis too long for this article, but you can read ashorthand version in Kohlbrand v. Ranieri, 823N.E.2d 76. It has something to do with theNorman Conquest—we have been doing thisfoolishness since shortly after 1066. It’s time tostop. The rest of the estate is enough, as is cleartitle. If anyone tells you these words have dif-ferent meanings, they are just wrong. (Thereare a few that are not couplets but separateissues: joint and several, for instance. They arethe exception and are easy to spot.)

Redundancies

Many times we just write redundancies: adistance of five miles = five miles (five miles is adistance); a period of a week = a week (a weekis a period).

Only write during the month of May if you havea poetic license and insert merry, merry be-fore month. See http://www.youtube.com/watch?v=pQAn0SGDf0M&feature

Nominalizations

Do not write filed a motion unless the filingitself has some significance. Filed a motionconjures up in readers’ minds someone walk-ing up to the clerk’s counter and having apile of papers stamped. Write moved. Smithmoved for summary judgment.

Nominalization is taking a perfectly goodverb, such as examine, and turning it into a

Writing smaller


noun, examination. Then you need a verb, whichis always a weak one, in this case make. Makean examination of is four words, three of themuseless.

These are some common nominalizations. Seehow many word you can save by turningthem back into verbs. And you gain clarity.

performed a search on searched

provide responses respond

offered testimony testified

provide assistance help

place a limitation upon limit

make an examination of examine

provide protection to protect

reach a resolution resolve

reveal the identity of identify

makes mention of mentions

make allegations allege

was in conformity with conformed

entered a contract to contracted,agreed

filed a counterclaim counterclaimed

filed a motion moved

filed an application applied

is in violation of violates

made application applied

made provision provided

The preposition of is sometimes a marker fornominalizations. Always question any ofs inyour writing—they may mark not onlynominalization, but also false possessives.

Write Ohio Supreme Court, not Supreme Courtof Ohio. There is nothing wrong with the pos-sessive. Write the court’s docket, not the docket

of the court. Recently I read upon motion ofHarmon. Why not on Harmon’s motion? Some-where, someone told lawyers not to usepossessives, maybe because docket of the courtsounds more formal. Or maybe we got con-fused by someone banning contractions fromlegal writing (another error), and the posses-sive apostrophe got unjustly maligned.Whatever the error’s genesis, the of construc-tion is clutter. And much harder to read.

But of course start sentences with and and but

And do not be afraid to start sentences withand or but. This signifies good writing. Thereason your grammar-school teacher told younot to start a sentence with and was becauseyou wrote, I have a mother. And a father. And adog. The last two weren’t sentences.

Use but rather than however to start a sentence,and see how much better it reads.

Almost any example of good writing pulledat random will contain numerous examples.The Wall Street Journal and The New York Timesare well-written—look at the front page ofeither and circle the number of sentencesbeginning with and or but.

Pick up any work by a good writer, and youwill find countless examples.

Examples of and and but

Holmes:

Courts proceed step by step. And we nowhave to consider whether the cautiousstatement in the former case marked thelimit of the law . . .

But to many people the superfluous isnecessary, and it seems to me that Govern-ment does not go beyond its sphere inattempting to make life livable for them.

Jackson:

But we think the previous cases indicateclearly that respondents are within the Act.

Pound:

Hence it is an unjustifiable interferencewith a natural right. And this is exactlywhat the court said in an actual case.

Shakespeare:

But I am very sorry, good HoratioThat to Laertes I forgot myself;For, by the image of my cause, I see


The portraiture of his: I’ll court his favours.But, sure, the bravery of his grief did put meInto a towering passion.

Tom Wolfe:

He had grown up associating religionwith the self-delusion and aimlessness ofadults. But now he thought about thesoul, his soul. Or he tried to. But it wasonly a word!

William Faulkner:

But it was not for him, not yet. The humilitywas there; he had learned that. And hecould learn patience.

Isaac Asimov:

But it would be silly to wear clothes in therain. You didn’t wear clothes in the shower.If it rained, you would take off your clothes.That would be the only thing that madesense.

© Mark Painter, 2010

Mark Painter served as ajudge on the Ohio Court ofAppeals for 14 years, after 13years on the Hamilton County(Cincinnati) Municipal Court.In 2009 he was elected by theUN General Assembly as one ofseven judges on the UnitedNations Appeals Tribunal. Aninternationally recognizedauthority on legal writing,Judge Painter is the author of400 nationally published decisions, 130 legal articles,and 6 books, including The Legal Writer: 40 Rules forthe Art of Legal Writing, which is available at http://store.cincybooks.com. Judge Painter has given dozens ofseminars on legal writing. Contact him through hiswebsite, www.judgepainter.org.

(A much expanded version of this articleappeared in GP Solo, a publication of theAmerican Bar Association, in May 2009.)

Argentina 3Australia 83Austria 1Bahamas 2Bangladesh 6Belgium 8Brazil 1British Virgin Islands 1British West Indies 3Canada 59Cayman Islands 1Chile 4Cote d’Ivore 1Denmark 3Finland 8France 2Germany 1

Gilbralter 1Hong Kong 16India 8Ireland 4Isle of Man 1Israel 4Italy 6Jamaica 1Japan 7Jersey 1Kenya 1Lesotho 2Malaysia 2Mexico 6Mozambique 1Netherlands 7New Zealand 22

Nigeria 10Peru 1Philippines 1Portugal 4Singapore 6Slovak Republic 2South Africa 160Spain 3St. Lucia 1Sweden 23Switzerland 1Thailand 1Trinidad and Tobago 4United Kingdom 131USA 214Zimbabwe 1

Members by country

Total 840


Cheryl Stephens with Michelle Black andJanice (Ginny) Redish

Thoughtfully determining a clear purpose for yourproject is at the core of plain language. This topicis dealt with in a new book, Plain Language inPlain English, covering the full process of pro-ducing plain language. Virginia (Ginny) Redish,Michelle Black, and Cheryl Stephens address pur-pose in the book chapter we reproduce here. Cheryledited 18 collaborators in producing the book. Seemore about this at PlainLanguageInPlainEnglish.com. –Ed.

Part B: Audience Considerations discussed howimportant it is to know for whom you are writing.The next step is to identify the purposes of yourdocument—why you are writing. To decide whatcontent to include, or the best way to organize thatcontent, or what tone and style are appropriate,you must first define the purposes of your docu-ment.

Kenneth W. Davis discusses the task in his blog:

If a coworker interrupts us while we’rewriting a letter and asks, “What are youdoing?” most of us will answer “Writing aletter.” That answer reveals a focus on thewritten product, not on its purpose. Suchproduct-focused thinking keeps our writingfrom being as effective as it could be. Thisweek, when you start each writing job, takea few seconds to think about your purpose—about what effect you want to have on yourreader. This week, if a coworker interruptsyour writing and asks what you’re doing,be prepared to answer (for example), “I’mtrying to get this customer to forgive us fora shipping mistake we made.” 1

The importance of identifying a document’spurpose

Just as an architect’s goal is to design a build-ing that is ideally suited for its intended use,a writer’s goal must be to create a documentthat is ideally suited for its intended use.

Architects always know, before they start todesign, whether they are creating a house,hospital, office tower, or something else. Theyask who is going to use the building and whatthose people are going to use it for. Architectscan only begin to design to meet the users’needs after they learn who the users are andwhat their needs are.

Similarly, as a writer, you must know

• who will use your document, and

• what the document is meant to achieve.

Figuring out what you want to achieve throughyour document, before you begin writing,greatly increases your chances of achievingyour purposes. Your purposes then drivemany of the decisions you make as you furtherplan, write, produce, and distribute yourdocument.

Almost always, understanding your purposesgives you the reasons for writing in plain lan-guage.

For example, think about writing a proposalfor a project. Your readers may be companyexecutives, grant officers in a foundation orgovernment agency, or fellow scientists actingas reviewers. They are busy people who havemany tasks in addition to reading proposals.They are probably reading several proposalsat the same time, and may read them whenthey are tired or under pressure to meet adeadline.

Your purpose is to convince them to chooseyou, to fund your project, and accept yourway of doing the project.

If you can clearly say to yourself why you arewriting something, chances are better thatyour audience will clearly understand whythey are reading it.

Plain Language in Plain EnglishChapter 8: Identify the purposes of the document


Begin defining the document’s purpose

To help you know why you are writing, askyourself: “What do I want to happen aftersomeone reads this document?”

Many writers start with general purposes:

• to persuade

• to inform

• to gather information

That is fine as a first step in thinking aboutyour purposes, but it doesn’t go far enough.Those purposes are too vague, and they don’tinclude a measurable outcome.

Other writers create a grocery list of informa-tion that must be communicated and call thisthe document’s purpose. But that grocery listis about what you want to say, not why. It’snot a statement of purpose.

To answer the why question, define thedocument’s purpose more specifically andconceptually by defining who and what foreach general purpose. Here are some examplesto illustrate this:

My document will be successful (that is, itwill achieve its purposes) if

• I can persuade (whom) to (do what).

• I can inform (whom) so that (who) will (dowhat).

• I can gather information from (whom)that will allow (what to happen).

At some point, you will want to measure thesuccess of your document by determiningwhether it has achieved its purposes. You won’tbe able to measure your success unless you havedefined the document’s purpose using specificstatements that include people and actions.

Here is a tip:

If you have difficulty defining the purposesof your document, focus on picturing whatyou want your readers to do after they haveread it. Putting that mental image into wordswill help you get started on defining yourdocument’s purposes.

Common purposes for functional documents

This book focuses on functional documents, likebusiness letters, handbooks, instructions, pro-posals, progress reports, and so on. When youwrite a functional document, you want some-thing to happen.

Here are some examples:

When you write this you may want readers to . . .type of document,

Business letter • reply with the answerthat you need

• be satisfied with youranswer and not writeback

Handbook • find answers toquestions withoutcalling your help line

• do the right thingwhen an issue orproblem comes up.

Instruction • use the productcorrectly withoutcalling your help line

• in the case of medica-tions or medicalprocedures, follow thedirections with theaim of achieving theexpect results

Proposal • fund the project

Progress report • continue funding theproject

Insurance policy • find information forthemselves withoutcalling your help line

• submit a claim at theappropriate time

Legal brief • accept your argumentsso you win your case

Let’s look at a few of the most common pur-poses in more detail.

Purpose: To persuade people to do something

After reading this document, I want readers to:

• take action (what action or actions?)

• make an informed decision (about whatspecifically?)

• make a specific decision that will help me(what decision?)


• change a habit (what habit and whatchanges?)

• change attitudes or beliefs (about whatspecifically to what specifically?)

• buy a product

• adopt an idea or behavior

Purpose: To inform people so they do some-thing or something happens to them

After reading this document, I want readers to:

• feel better (about themselves? how? aboutsomething else? what?)

• understand more about something (so thatthey can do what?)

• learn how to do something (whatspecifically?)

• use a product appropriately

• apply a policy appropriately

• improve their performance

• inspire and mobilize others

Purpose: To gather information from peopleso that I or they can do something

I want readers to use this document to:

• fill out a form completely and correctly

• give me (or someone else) information(about what? so that I can do what?)

Other purposes: In some cases, a documentmust serve purposes beyond the actions thatpeople take.

I want this document to:

• be an official record of something

• ensure compliance with a law, rule, orprocedure

• be legally accurate and sufficient

Multiple Purposes, One Document

When you have multiple purposes, you mustask yourself whether one document canachieve all of them.

In many cases, plain language is the key toachieving multiple purposes with one document.Regulations are a good example—typically,they have at least two purposes. Regulationsmust inform people of what they must do andnot do. And they must do so clearly enoughthat people can find what they need and

understand what they find. Regulations writ-ten in plain language reduce problems andlawsuits because people can find out easilywhat they must do and not do to comply.

Multiple Purposes, Different Documents

Sometimes, multiple documents are neededto achieve multiple purposes—or other solu-tions—based on when and where peopleneed the information.

For example, consider the instructions forusing a product. Your purposes may be to:

• encourage people to buy the product anduse it

• help people to use the product correctly, sothey won’t give up and return it as“broken” when it is not broken, and won’tcall your help line unnecessarily

• help people avoid harm to themselves, andprevent lawsuits against your company.

You know that the users of your product arebusy people who do not have time to read a lotof information. You also know that most peopledon’t read a product manual all the waythrough before starting to use the product.

You might decide to create a very short (perhapsone or two pages), very visual, step-by-stepplain language sheet with just the informationthat people need to set up the product andstart to use it. Keeping this document veryshort will improve the chances that peoplewill read it and follow the instructions. Mak-ing it part of a large manual would probablydecrease its use.

You may decide you want to create someremovable stickers to attach to the productto draw attention to potential dangers.

You might also decide that the best way tohelp people while they are using the productis to build plain language into the interface ofthe product, so people won’t need any furtherhelp.

Say you are developing a software productfor home computers:

• Make the content and layout of each screenso obvious that users won’t make mistakes.

For example, specify what format youexpect for the date, such as dd/mm/yyyyor mm/dd/yyyy.


• Write the error messages in plain language,always explaining what happened, what theprobable cause is, and what to do about it.

For example, avoid error messages that justsay something like “error 376, invalid entry”.

Multiple Purposes, Different Documents,Different Audiences

Your document may have more than onepurpose. You must identify a main purposeearly.

On the blog Information Design, Robert Linskydiscussed purpose using the example of themonthly invoice for his auto lease. Differentmessages were being added most months thatpushed the billing details onto a second pageof paper and made them more difficult to find.

Most of the variable data documents I workwith are perfect vehicles for marketing orcross selling . . . But bear in mind that eachof these documents have one and only onemain purpose. All other uses are secondaryand should be treated as such . . . All ofthese messages are important to a certaindegree, but all are secondary to the paymentof the invoice. These messages should haveappeared after the detail and only thosethat could fit on one page should appearand in some kind of hierarchical order. Notevery message is “important.” Generallyspeaking only one message is important,while others are “nice to haves.” The simpleanswer to why this happened, I wouldguess marketing may have been involved;no one took the time to determine thepurpose of the document, the user and thecost of adding pages.2


Remember that plain language is languagethat is appropriate for your audience. In somesituations, this will lead you to create differentdocuments to convey similar information totwo or more distinct audiences. Each versionis tailored to be “plain” to its target audience.

For example, the US National CancerInstitute website has information abouteach type of cancer at two levels. Thegeneral purpose of both levels is to provideinformation, but the levels are aimed atdifferent audiences.

Level 1 is for patients, their families, andcaregivers. The purpose of this version isto provide enough information so peoplebegin to feel that they understand thedisease and get answers to their basicquestions. Level 2 is for health professionals.The purpose of this version is to providehealth professionals with details of differenttreatments so they can make an informeddecision about how to treat each patient.

Both levels of information are available toeveryone. Over time, patients learn the moretechnical terms that are used in the healthprofessionals’ section, and many go therewhen they feel ready for that level of detail.Health professionals go to the patients’section to find the right words to use whentalking with their patients.3

The next step: achieving your document’spurposes

As you will see in Chapters 9 through 17 of thisbook, using plain language guidelines will in-crease the chances that your document achievesits purposes. Here is a preview of some of theseguidelines, using a project proposal as our ex-ample:

• Choose only the content that is relevant tothe questions your readers want answered.

• For a project proposal, the programannouncement or request for proposaloften gives you these questions.

• Organize that content logically so yourreaders can follow your answers easily.

• Include clear headings that give your readersa quick overview of the project when theyfirst scan the proposal. If the request forproposal gives you headings, use those asthe first level. Then write clear, informativesentences of your key messages (mainpoints) for headings within each section.

• Write short sections with short sentences,active voice, action verbs, and words yourreaders won’t stumble over.

• Raise your credibility by making the proposala pleasure to read because your readersunderstand it the first time they read it.

As you work through each step of the design-ing, writing, and rewriting process, you willneed to make many decisions about how toproceed. For help to make these decisions,ask yourself:

• Would doing things this way help or hinderthe document’s ability to achieve its purposes?

• How well would this approach work formy audience?

• How would this approach affect how myaudience uses the document?

Answering these questions will help ensurethat your document achieves its purposes.

© Cheryl Stephens, Michelle Black, andJanice (Ginny) Redish, [email protected]@[email protected]

Cheryl Stephens has 20 yearsof experience in plain languagework. See plainlanguage.com.She now publishes books aboutplain language atplainlanguagewizardry.com.The book from which thischapter was excerpted is PlainLanguage in Plain English.

For the past fifteen years,Michelle Black has specializedin developing clear, usableinformation for diverseaudiences, from low-literacy tovery specialized readers. WithSimplyRead (www.simplyread.ca), she helps organizationsclearly communicate with theiremployees, customers, andcommunities.

Michelle holds an M.Ed in workplace learning and morethan 12 years’ experience teaching and facilitating. Shealso speaks, reads, and writes French and Spanish, whichhelps her to more ably manage translation projects andunderstand cross-cultural communication issues.


Ginny Redish helps clientsand colleagues communicateclearly. For more than 30 years,Ginny has been a prominentfigure in the plain languagemovement. In addition to herconsulting work, Ginny iscurrently vice-chair of the U.S.-based Center for PlainLanguage. Her most recentbook, Letting Go of the Words—Writing Web Contentthat Works, continues to receive rave reviews.

Endnotes1 This week: Start with purpose,” Manage Your

Writing at http://www.manageyourwriting.com/2009/10/this-week-start-with-purpose.html,October 19, 2009

2 The Purpose of the Document,” InformationDesign at http://informationdesigndoc.blogspot.com/2009/10/purpose-of-document_31.html, October 31, 2009

3 See an example, go to http://www.cancer.gov/cancertopics/pdq/treatment/breast/patient.

AustraliaGina FramptonDarling Pt.

Kerry HardingCoorparoo, Queensland

Andrew HarnischWestin ACT

Neil JamesNew South Wales

Office of Parliamentary Counsel[Natasha Fogarty]Kingston, AG

Rosy JolicMelbourne, Victoria

Marko LaineCity East, Queensland

Anna MacGillivrayBrisbane, Queensland

Helen McGowanIndigo Valley, Victoria

Walter MunyardPerth, WA

Robert PhillipsNew South Wales

New membersThailandAllan WichelmanBangkok

United KingdomAshurst LLP[Rosie Warren-Cafferty]London

Frances MooreLondon

Fay SilverstoneLondon

United StatesJean BrodiePortage, Michigan

Patrick LongBuffalo, New York

Thomas MyersAuburn Hills, Michigan

Hank WallaceWashington, D.C.

CanadaWordsmith Associates[Chari Smith]Calgary

FinlandHelena HaapioHelsinki

Hong KongJ.S. Gale & Co.[John Gale]Wanchai

IsraelEllis SimpsonRa’anana

NorwayFrederick EsborgStokke

SwedenMalin AnderssonBromma

Jennifer PalleySaltsjö-Boo

Note: In our recent change to the Wild Apricot online membership-management system, we mayhave missed a few members. If so, please let us know; we’ll include you in the next issue.

How to join Clarity

The easiest way to join Clarity is to visit http://sites.google.com/site/legalclarity/, complete an appli-cation, and submit it with your payment. You may use PayPal or a credit card to pay.

Prospective members in Canada, Italy, and the United States may also pay by bank draft. If you pre-fer to submit a hard copy of the application, you may contact your country representative forsubmission instructions. Country reps are listed on page 2.


Irene EtzkornExecutive director, Siegel+Gale, LLC USA

For the past thirty years, Siegel+Gale, LLC hasapplied plain English and information designtechniques to customer information both in printand online. Repetitive, frequent communications,such as bills, statements, and contracts, can enhanceor detract from the overall customer experience.The following case studies, from a hospital, a bankand a technology company, showcase the savingsthat can accrue from simplification efforts andhow customers in diverse industries can benefit.

The Cleveland Clinic

The Cleveland Clinic realized that its highlycomplex bills were the source of tremendousfrustration to patients and the cause of out-standing and bad debts to the hospital. Siegel+Gale’s challenge was to simplify and redesignbilling statements to provide patients with aclear, comprehensive view of their medicalcharges and payments.

We quickly learned that monthly account bal-ances fluctuated wildly as physicians andhospital divisions input charges at differenttimes and insurance payments were applied.To bring order to this chaos of charges, wecreated two documents: a Billing Notice, sentonly once, that explains the upcoming billingprocess, confirms insurance coverage, and in-forms patients that they will receive monthlyBilling Statements once insurance claims havebeen resolved; and the Billing Statement itself,which requests payment for charges not cov-ered by insurance. Detailed charges arecategorized by What you owe now and Whatyou may owe later—clarifying which chargesare still pending with insurers and allowingpatients to better anticipate future billing.

The response from patients was overwhelm-ingly positive, as was the impact on TheCleveland Clinic’s bottom line. Faster payments

and a sharp drop in bad debts translated to$1 million per month in additional revenue.Paper and printing costs also dropped, due toa decrease in average bill length. Now, only10% of bills are four pages or longer, downfrom 50%.

SunTrust

By becoming one of the top 10 banks in America,SunTrust faced the enviable branding task ofdealing with success: They were now playingagainst the big boys.

SunTrust wanted to announce its new statusin a way that would guarantee to attract retailcustomers and investment bankers alike.SunTrust also needed to harmonize its internalsubcultures (the result of a string of very suc-cessful acquisitions) to find its unique brandingproposition and brand voice. And, of course,all this had to happen quickly.

Thus began Siegel+Gale’s relationship withSunTrust.

After an exhaustive discovery process, Siegel+Gale distilled the views of over 12,000 cus-tomers and employees into three very simpleand compelling truths:

1. SunTrust customers loved doing businesswith the bank and its bankers;

2. despite its size, people appreciatedSunTrust’s local, community flavor; and

3. many people had no idea how muchSunTrust offered.

Distilling a Brand Promise.

This led Siegel+Gale to develop a brand prom-ise for driving communications and governingbehaviors: “SunTrust. Not just at your service.At your side.”

Next, we crafted a new common mission state-ment and brand architecture built on a masterbrand strategy that clarified its offerings and

Simplifying frequently overlookedcustomer touchpoints


eliminated internal silos. Our designersdeveloped a new corporate identity thatdrew many of the subcultures togetherunder a new visual identity system anda campaign built around the guidingconcept of “Doing the right thing for thecustomer.”

Enhancing Customer Information.

To further demonstrate the organization’scommitment to customers, Siegel+Galeworked closely with SunTrust to offercustomers access to account informa-tion online and in print with greatercustomization.

SunTrust sends out over 68 millionstatements per year for checking andsavings accounts. They lacked customerfocus and friendliness and missed the op-portunity to market additional SunTrustproducts.

Changing Customer Behavior.

Studies show that 89 percent of customersopen and read their statements, lookingfor inconsistencies and seeking recogni-tion that the transactions are truly theirs.SunTrust realized that they were under-utilizing an important customer touchpoint.

Siegel+Gale simplified and strengthenedthe bank statements by devising a formatthat made them all “Of a Family,” furtherreinforcing its brand promise for customers.Plain English and more colloquial terminol-ogy, such as “Money In” and “Money Out,”were used as well as customized messaging.These changes dovetailed with creating acompatible online format, easing the desiredcustomer transition to more frequent andpersonalized transactions over the “net.”

Research revealed that customers preferredthe new statements, particularly the new ter-minology, and that the new formats encouragedcustomers to combine all their accounts intoone postage-saving mailing.

Estimates annual savings of $5million as a result of combiningstatements and having fewer pagesper statement. —SunTrust

Old statements.

New web statement.

New print statement.


IBM Canada simplified contracts

Although IBM Canada is a leadingprovider of high-speed laser printerscapable of producing first-class docu-ments, its sales contracts used to looklike poor photocopies of typewrittenoriginals—not exactly a ringing en-dorsement for its own products.Siegel+Gale worked with IBM to makeits contracts as state-of-the-art as itstechnology. The new contracts areeasy to use, customized, and crisplydesigned. The central feature of thesimplified contract is a timeline thatspecifies the rights and obligations ofeach party in plain language at spe-cific milestones. These innovativecontracts don’t just seal the deal, theyhelp cement the customer relationship.

IBM Canada turned a legal require-ment into a marketing opportunitywith simplified contracts designed forhigh-speed laser printing—on its ownequipment.

© Etzkorn, [email protected]

Irene A. Etzkorn, as one of thenation’s foremost experts inplain language writing andsimplification of businessinformation, has helped set newcommunication standards inseveral industries. Her clientshave included more than half ofthe nation’s top ten banks andbrokerage firms, and herexperience in insurance, trust,credit, energy,telecommunications and health care is equally broad.

She has delivered speeches for executive gatheringssponsored by General Electric, Allstate Insurance, TheConference Board, IBM Canada, American BankersAssociation and the Securities Industry Association.

Her speeches and articles include, “Don’t Strategize,Empathize,” “How Financial Paperwork Can BuildYour Brand,” “Bundled Billing Formats: Works of

“Anybody in a service business will tell you that people are their most importantasset… Siegel+Gale helped us understand what it is about our people that makeus who we are. And then they showed us how to translate that spirit into how wetalk and behave as an organization.” —Craig Kelly, CMO, SunTrust

“The new agreement doesn’t looklike a contract. It answers my ques-tions. It tells me what I own and howmuch it costs.” —An IBM customer in a focus group

New IBM Canada simplified contract.

Art or Tape and Glue?,” and “Achieving AssetRetention Through Improved Communications.”Irene also contributed a chapter, “Why GovernmentHas Difficulty Communicating” to the book, PlainLanguage: Principles and Practice.

Irene holds an M.A. in professional writing fromCarnegie Mellon University and a B.A. from C.W. PostCollege. She serves on the Board of the Center for PlainLanguage and has also served on the English AdvisoryBoard at Carnegie Mellon University and on theCommunications Advisory Board of Dalbar.


Lisbon gives a warm welcometo Clarity members

Dear Clarity members

I am delighted to invite you to Lisbon, Portugal, for this year’s Clarityconference. Our office has been a hub of activity for the last tenmonths to make this event special and interesting for everyone.

Plain legal language and more

To make sure we got it right, we went around asking Clarity members what you wantedout of these conferences. So we have plenty of case studies, master classes, and specialistsfrom different areas giving us their perspective on communicating clearly with the pub-lic.

Along with the world’s top experts in plain legal language, you’ll have the chance to seeinformation designers demonstrate how images can be used to clarify legal texts, and us-ability experts discuss ways of testing your documents with real users.

For those of you who asked for evidence, we put together five multidisciplinary teams ofstudents and experts who will rewrite, redesign, and user-test legal documents, andshare their results with us.

Making a difference

The concept of plain language is fairly new in southern Europe, with laws and govern-ment communication still incomprehensible to most citizens.

In Portugal, clear legal and administrative language just entered the political agenda. ForPortuguese professionals and government officials, this conference represents an invalu-able opportunity to exchange ideas with the world’s top experts. For Clarity members,it’s a chance to use your collective experience as plain-language practitioners and advo-cates to help shape a culture of clarity.

I look forward to seeing you in October. If you’ve never been to Lisbon, don’t miss thisopportunity; the White City is beautiful this time of the year.

Sandra Fisher-Martins

PS–Visit the conference website at www.clarity2010.com for the latest news. You canalso find us on Twitter and Facebook.

CorrectionsOn page 31 of the previous issue (No 62), there was an incorrect mentionthat the new U.S. Federal Rules of Civil Procedure retained the shall inthis sentence: “There shall be one form of action to be known as ‘civil ac-tion’.” Actually, that sentence was converted to “There is one form ofaction—the civil action.” The full story of how shall was (with one pain-ful exception) replaced throughout the rules appears in Professor JoeKimble’s article in Volume 12 of The Scribes Journal of Legal Writing.


Susan BellMarket and social researcher Australia

Introduction

The purpose of this article is to share my expertisein conducting readability research. By way of back-ground, I am a professional market researcher with20 years’ experience. For much of that time, I havehad a particular interest in, and have focused on,conducting readability tests for government andcommercial clients in Australia. On those projects,I have often worked with plain language profes-sionals—so I understand the practical issues facingwriters and designers who need to evaluate docu-ments as part of making those documents as clearas they can be. Along the way, I have attained theAustralian Market and Social Research Society’sQPMR (Qualified Practising Market Researcher)status. That means that I bring extensive researchexpertise and a sound knowledge of researchtechniques and standards to the readability field.

In this article, I explain that there are differenttypes of readability research, and I describe howto conduct each type. I argue that the term ‘read-ability test’ should be reserved for a particularstyle of readability research. A lot of what peoplein the plain-language world call ‘document testing’is better thought of as ‘document trialling’ or ‘diag-nostic research’. The distinctions are important.

The article will be of most use to plain-languagewriters and designers who want to learn the bestway to conduct this kind of research. Organisa-tions considering outsourcing readability researchmay also find it useful.

What is readability research?

The best way to define readability research isto explain what it is used for.

The most common form of readability researchis the ‘readability test’—also known as usertesting, protocol testing, or document testing.Readability research reveals whether a

document’s target market can use the docu-ment as it is intended to be used. FollowingGinny Redish, ‘using’ in this context meansbeing able to find information, understandthat information, and apply it.1

Types of readability research

The right way to conduct readability researchwill depend on your reasons for conductingthe research. The four main types of readabil-ity research are:

1. Usage behaviour. To learn how peopleactually use certain documents.

2. Diagnosis. To understand the problemsthat users face with current documents.

3. Feedback. To gain feedback on drafts ofyour work.

4. Evidence. To provide evidence that onedocument version is easier to read or usethan another.

How to conduct readability research

The two main forms of research are qualita-tive and quantitative research.

• Use qualitative research to learn about orunderstand something

• Use quantitative research to measure orevaluate

Qualitative research

The two main types of qualitative research are:

• Unstructured interviews about how peoplethink or feel

• Observation, to reveal how people actuallybehave.

In qualitative research, the interview questionscan vary from interview to interview, as theresearcher adapts them to the person beinginterviewed. The interviewer may also changethe order of questions at each interview.

How to conduct readability research according to thestandards of professional market and social research


Writers and designers who ‘try out’ drafts oftheir document on a small sample of potentialreaders are using the qualitative researchmethod.

The results of qualitative research should bedescribed in words, not numbers. Use wordssuch as ‘the cluttered design made the infor-mation hard to find’. ‘Users found the sectionon liability but did not understand it’. It’s okayto use words like ‘most’ or ‘few’, as in ‘mostpeople interviewed could not find the . . .’

Quantitative research

If you want numeric output, such as, ‘80% ofthe target market found the right answer with-in 45 seconds . . .’ use quantitative researchmethods.

The three main types of quantitative researchare

• Face-to-face interviews

• Phone interviews

• Any kind of ‘self-completion’ methodologyonline or offline.

For quantitative research, the researchermust use a formal questionnaire—by that, Imean a prepared list of questions, possiblywith some likely (‘precoded’) answers.

This questionnaire must be administered ex-actly the same way with every participant.The wording for the questions and the orderof the questions must be the same for everyparticipant—regardless what the participantunderstands or fails to understand.

Quantitative data can be reported:

• Numerically, as in ‘7 out of the 20 peoplewe interviewed’; or

• As a percentage, as in ‘75% of the sample’.

Reporting results as a percentage implies thatyou are confident that you can generalise theresults of your sample to the whole population.So you should use percentages to describeyour results only if:

• You have collected quantitative data; and

• You believe your particpants reflect therelevant population—which I discuss below.

Sampling: the two key issues

Is your sample skewed?

Many people mistakenly think that choosingthe right sample is about choosing the size ofthe sample. In fact, your first question abouta sample should be about its skew. A skewedsample can give misleading results.

One way to prevent skews in your sample isto be careful who you recruit for your inter-views—for example, not students and notcolleagues.

Sample size is relevant here—in general, thesmaller the sample, the more likely it is thatthe sample will be skewed.

Do you have the right sample for what youwant to do with it?

Whether you have the right sample dependson what you are planning to do with the in-formation. If you are planning to use the dataquantitatively, you will need a larger sample.The table at the top of page 18 explains this:

Qualitative research sample sizes

Practitioners vary in their preferred samplesizes for qualitataive research—though fewerthan 15 in a sample would usually be consid-ered too small.2 The decision about the samplesize comes down to practicality and the num-ber of ‘types’ of reader you want to interview.Here are some fairly common samples:

Qualitative research Recommended sizesample types

Basic sample 15

Sample with 2 sub- 8 per subgroupgroups, such as heavy (16 in total)users and light users

Sample with 3 sub- 6 per subgroupgroups, such as heavy, (18 in total)medium, and light users

Readability research which adaptsquestion wording and order to theparticipant’s level of understandingis, by its very nature, a qualitativeinterview.

If you want to quote a ‘score’, suchas ‘8 out of 10’ readers or ‘65% ofreaders’ then you must conduct theresearch using quantitative methods.


In some cases, you can use samples as smallof 5, but . . .

As described by Ginny Redish,3 and JakobNielsen4 writers and designers can gain highlyvaluable feedback from potential users of thedocument or website if they conduct theirtesting or research with samples as small as 5,but there are certain conditions that must bemet first.

Testing with samples of 5 or so is appropriatefor iterative designs. That is, you start with asmall sample of about 5 people. After inter-viewing them, you go back to your documentand apply what you have learned. Then youtest your redraft with another 5 people—andso on.

This iterative form of feedback is very usefulwhen you are conducting the research to spotnavigational or comprehension problems. Thelogic is that if 1 or 2 people out of 5 face a prob-lem with your document or site, then you needto fix it before going any further, and then youtest again to see if your ‘fix’ solved the problem.

While these small samples are great for prob-lem identification, they are not suitable forevaluation. If you are evaluating one documentagainst either a benchmark or another docu-ment, then you need a larger sample so thatyou can quote the results in percentage terms.Larger samples are also necessary if there isquite a high degree of variation among users,or if problems are likely to be encounteredonly by a specialist sub group of your sample.

How to choose which research method to use

Use quantitative research methods if you want to report your results numerically

Your objective The method to use What this means

Use the right method for your objective

If your main objective is to then you should use Use a formal questionnaire, consistentprovide numeric data, . . . quantitative methods. for all participants.

Use a sample size of at least30 people.Report your results in numericor percentage form.

If your objective is to learn then you should use Prepare a list of questions but adapt itwhy people do not understand qualitative methods. in the interview if you need to.something, or to test out Samples of 10 to 20 are commondifferent ideas with the people Report your results using wordyou interview, . . . . descriptions, not numbers.

If you are using feedback as then you should usepart of an iterative design to qualitative methods.help you in your work, . . .

Use qualitative research if you have not conducted tests on this document before

How much you know already The method to use What this means

Qualitative research is the best way to start

If this is the first time you then you should use You may find that people do nothave tested this document, . . . qualitative methods. understand the document because

they do not understand the productor service—or for some other reason.If you conduct quantitative researchonly, you may not discover this.


Quantitative research sample sizes

Although sample size for qualitative studiescomes down to pragmatics, sample size forquantitative studies—such as those whichcompare one document against another—isabout how representative the sample is of thepopulation that it purports to describe.

Statistically, the larger the sample, the morelikely it is that it represents the population—so the more confident you can be that theresults from your sample of people wouldoccur from any sample drawn from thatpopulation. Statisticians have shown that for asample to be representative, it needs to contain30 or more people. Professional researcherstherefore insist that samples for quantitativeresearch should be at least 30.

If you want to claim that one document is su-perior to another, then you need to be able toback up your claim by showing that the dif-ference between the scores for each documentis statistically significant. It may surprise manypeople that, for the purpose of statistics, forresults from a sample of 30 people:

• There is no significant difference between ascore of 70% and a score of 50%; and

• For this difference to be statisticallysignificant, the scores would need to be74% and 50%. This would give 95%confidence that this was a real difference.

Yet people conducting readability testing withsample sizes of about 10 people often quoteresults in percentages.

So, the ideal quantitative sample is 30 peopleor more. However, if your budget restricts youto a small sample, what should you do?

In your report, it is good practice to state thesample size you have used, particularly if youquote percentages.

In some forms of quantitative research, samplesizes need to be much larger—for example forlarge-scale comprehension and engagementstudies.

What to call readability research

In the market and social research and scien-tific communities, the word ‘testing’ meansmeasurement. The phrase ‘test conditions’captures the purity of measurement expectedof tests. So professional researchers wouldexpect that something described as a ‘read-

If your only option for quantitativetesting is to use samples less than 30

• Make it very clear in the reportthat the sample is ‘indicativeonly’.

• Quote numbers, not percentages

• Only take note of large differ-ences:

• For example, on a sample size of10, a shift from 7 people findingsomething easily in one versionof a document to 9 people findingthe same thing in another versioncould be caused by chance. Thedifference is too small to be sta-tistically significant—so youshould consider it to be ‘probablythe same’.

• If the difference is larger—sayfrom 3 to 9—and you can be cer-tain that your sample is notskewed in any way, then you canfeel more confident that your re-sult is more than a chance and is‘really’ due to the differences be-tween the 2 versions of thedocument.

ability test’ would be a form of measurement,and therefore based on quantitative data.

People working in plain language and usabilityhave used the word ‘test’ in other, different,ways—for example:

1. Evaluation of a document, usually incomparison of an improved documentversus its original. If the ‘test’ usedquantitative methods to evaluate the twodocument, then the word ‘test’ is theright word. However, if the documentwas evaluated qualitatively with a smallsample, then the word ‘test’ could bemisleading.

2. Feedback as part of iterative design isoften called ‘usablity testing’.


For a professional researcher, the word ‘test’here is problematic as it implies that quantita-tive data have been collected according toaccepted statistical standards. To avoid ambi-guity, use the word ‘test’—and related wordslike ‘testing’—only for quantitative data. Youwill be clearer—plainer—if you describequalitative readability research as ‘trials’ or‘diagnostic feedback’.

Who to interview as part of your research

You should interview users of the documentor website, whoever you are writing for—that of course, sounds obvious. The trick is inhow you define these users. The best sampleis one which is broadly representative of users,or intended users, of the document or website.

If there is a skew in the sample, then it shouldbe towards people who have lower levels ofability with the document or language, or whohave had less education. However, some peoplewith higher education levels sometimes makemore comprehension mistakes than peoplewith less education—this is because they pre-sume what the document will say, rather thanreading it to find out what it really says.

In general:

• Avoid interviewing experts, unless they areonly part of the sample, because their higherlevels of knowledge may affect their approachto the document.

• Avoid interviewing light users who willspend most of the time coming to gripswith the product or service the documentrelates to—unless light users are your targetmarket.

Should you include people from CALD (Cul-turally and Linguistically Diverse) communities,in your sample?

If your target market is people from a varietyof language groups, then, yes, you should.It’s best to do it this way:

• First assess how well native speakersunderstand a document written in theirlanguage.

• If native language speakers misunderstandit, then you can be reasonably sure thatsecond-language learners will as well.

• If native language speakers understand it,and you have a significant CALD targetmarket, then test the document with this

audience—in whatever language they arelikely to see it in.

Who should conduct the interview?

Should the document designer or writer con-duct the interviews, or should this beoutsourced to specialists, such as researchers?

Broadly speaking, the issues here are:

• Learning. If the aim of the interview is forthe designer or writer to ‘learn how peoplethink’ or to watch people use a draftdocument, then it makes sense for thedesigner or writer to be the interviewer orco-interviewer. One thing to be careful of isnot to pretend that you are not the writer.Be truthful.

• Objectivity, real or apparent. Interviewersmust not at any time betray their ownthoughts and feelings about the documentto the person they are interviewing. If youare the designer or writer, then you mustnot be defensive about your work or criticalof an original version of the document. Youmust not teach a reader why he or she‘should have’ understood something. Youmust report all your results, even if they arecritical of your own work. If you can’t doall that, outsource.

• Budget. Budget is one of the main reasonspeople conduct their own interviews.However, lack of budget should never bethe sole reason why a designer or writerconducts his or her own interviews. Nevercompromise objectivity. If you expect totest, then make sure that you budget for itat the beginning. Get a quote from someonewho is independent before submitting yourown quote.

• Briefing. If you outsource, make sure thatyou brief the researchers very carefullyabout the kind of output you are expecting.You may require specific feedback—onheadings, or the use of boxes, or the wayyou define unfamiliar terms. The researcherneeds to know how much detail you expect.The researcher will also need to know whetheryou need qualitative or quantitative output.

How to interview

Avoid doing readability research in groups

The traditional market research ‘focus group’is the wrong method for this kind of work.5


The main reasons for this are:

• In groups, participants influence each other.

• People in groups work best if they bond. Inmany cases, groups bond by expressingattitudes towards things. Often, the attitudeexpressed is towards the product or serviceresponsible for the document you aretesting. Therefore, the group talks abouttheir attitudes to the product or service, notabout the document.

• The first person to find something usuallytells the others. This makes it impossible togauge how easily things are to find.

• Once someone in the group understandssomething, he or she might explain it to theothers. This makes it impossible to gaugehow well the others understood thedocument.

The best alternative is to conduct all inter-views individually. You can, of course, recruita group of people to attend at the same time,if all they are going to do is a self-completionquestionnaire or be interviewed by themselves.It’s best to call this ‘individual interviews con-ducted in a group setting’.

Observation and interviewing

Depending on your objectives, try to watchhow people read or use the document orwebsite. In this part of the interview, don’tspeak; just watch and record what the per-son does.

The skills needed for interviewing

Regardless of the type of readability researchconducted, interviewers need

• Apparent objectivity, as described above

• The ability to build rapport with people,and make them feel comfortable in astrange situation

• Patience

• Curiosity—curiosity will help you explorewhy people use documents in unexpectedways

Conclusion

There are four different types of readabilityresearch: research into usage behaviour, diag-nosis of problems with existing documents,feedback on drafts, and evidence that one

document is better than another. The firstthree of these are best conducted using quali-tative research methods. The last one needsto be conducted quantitatively.

Qualitative research uses flexible interview-ing and small samples as a diagnostic tool tohelp designers and writers work out howbest to write or design the document. Callthis type of interviewing ‘qualitative readabil-ity research’, ‘diagnostic research’, or‘document trialling’, rather than testing.

Quantitative research uses the same questionwording and order with every participantand is best conducted with samples of at least30. Results can be expressed in percentages.It is reasonable to call such a study a ‘test’.

© Susan Bell, [email protected]

Acknowledgment

Many thanks to Christopher Balmford for hiscomments on an earlier version of this paper.

Susan Bell is a professionalmarket and social researcher.She blends extensive on-the-ground research experiencewith a deep interest in plainlanguage. She conductsqualitative and quantitativedocument research, particularlyfor financial servicesorganisations. Sue is also ahighly experienced conferenceand workshop presenter, andhas delivered highly regarded papers at six researchindustry conferences, several of them on thecommunication theory semiotics. Sue sits on the NationalCouncil of the Australian Market and Social ResearchSociety (AMSRS) and is QPMR accredited. Sue was bornin England, and graduated from the University ofReading with Honours in English and Linguistics; shelater gained a Graduate Diploma in Psychology fromMonash University.

Endnotes1 http://www.redish.net2 The US “Federal Plain language Guidelines”

suggest sample sizes of 6–9 for protocol testing.http://www.plainlanguage.gov/howto/guidelines/reader-friendly.cfm

3 http://www.redish.net4 http://www.useit.com5 Debra Isabel Huron made the same point in her

Clarity article ‘Testing plain language texts withadult learners’, Clarity 51, May 2004.


Professor Barbara McFarlandDirector, Student Success InitiativesNorthern Kentucky UniversitySalmon P. Chase College of Law

Numerous books and articles have been writ-ten on this topic. As a teacher of legal writing,I’ve read many of those books and articles. Asa clerk who has written for six different federaljudges, however, I have my own pretty goodidea of what a judge expects of a brief ormemorandum. So, here are my top five tips,in descending order of importance.

Tell the Truth

Credibility is the most important asset an ad-vocate can possess. Once lost, it is not easilyregained. Deliberate deception is rare, but itdecimates the reputation of the deceiver. Morecommon are inadvertent misstatements oromissions, but their impact is only slightlyless devastating.

Misstatements of law frequently result fromfailure to read an entire opinion or to put astatutory provision in the appropriate context.Counsel will write, “The court held . . .” andinsert a quotation from an early page of anopinion—or, even worse, from a headnote oreditorial summary—without reading on tolearn that the court actually held somethingquite different. Or, reading from a computerscreen, the writer will paraphrase or quotelanguage, attributing it to the court withoutrealizing that what appeared on the screenwas a dissenting opinion, not the opinion ofthe court. Carefully and thoroughly read,analyze, and update every authority you cite.

Material facts that are adverse to the client’sposition must be included in documents filedwith a court. The court is going to learn thosefacts eventually, so you need to acknowledgethem, address their impact on the legal issues,and protect your credibility. Although you mustinclude adverse facts, you need not empha-size them.1

Finally, be honest with the court about thestrengths and weaknesses of your client’s case.Make concessions that do not harm your client’sinterests, admit to the court when you areasking it to change or advance the law, andacknowledge valid points made by the otherside to the extent possible. Often, counsel canagree that a particular statement of the law isaccurate, which is helpful to the court, with-out agreeing on its application to the facts ofthe case before the court.

Cite the Right Law

Whenever binding precedent is available, startthere. A court is primarily interested in opinionsof the courts with appellate jurisdiction over it.As one former judge often said, “I don’t carewhat the Ninth Circuit says, counsel; it’s theSixth Circuit that delights in reversing myjudgments.” Tell just enough about each pre-cedent you cite that the court understands itsfacts, result, and relevance to the case at hand.When describing a statute or rule, quote onlythe pertinent parts, but paraphrase the remain-der so the court understands the overall context.

Avoid string citations that waste your spaceand the court’s time. If more than one authoritymakes a particular point, indicate that fact intext; then begin your citation with an appro-priate signal: “Kentucky law on this topic iswell established. See, e.g., X v. Y, . . . .”

Perhaps most importantly, always update everyauthority you cite. My favorite memorandumin response to a motion had one line: “Thestatute upon which defendant relies was re-pealed by the Kentucky legislature years ago.”

Organize Issues for Maximum Impact

As a general rule, when you have multipleissues to address, order them from strongestto weakest and eliminate any that are unlikelyto achieve the desired result. This general rulehas three exceptions, however:

1. when the argument depends on a logicalprogression of issues, mirror that pro-gression in your document—discussionof why your client’s conduct should notbe considered a breach of contract shouldfollow, not precede, any issues regardingthe formation of that contract;

2. when both threshold and substantiveissues must be addressed, put thethreshold ones first, regardless of their

Five tips on writingto a judge


relative weight—a response to a motion todismiss for both lack of personal juris-diction over the defendant and failure tostate a claim should convince the courtthat it has jurisdiction before moving onto the sufficiency of the complaint; and

3. when your strongest argument is likely toresult in a remedy your client does notwant, argue for the preferred remedyfirst—after a criminal trial, you may havesome fairly strong arguments for a newtrial, but because your client really wantsa judgment of acquittal, argue for thatresult before you argue for the new trial.

When applying the rule and its exceptions tosubissues within a larger issue, a fourth ex-ception applies: when you must satisfy aconjunctive multi-part test, discuss the partsin order. In attempting to have a case certi-fied as a class action, you would, therefore,first discuss the four prerequisites for certifi-cation in the order in which they appear inthe rule. On turning to the type of class, how-ever, you could either revert to the generalrule and put your strongest argument first, orapply the third exception and argue first forthe type of class you would prefer.

Make it Perfect

Advocates might be surprised at the negativeimpact spelling, typographical, punctuation,and word choice errors have on a court’s im-pression of their competence. A federal circuitcourt judge once wrote that while reading abrief peppered with mechanical errors, thejudge may experience “a gnawing feeling onoccasion that the obviousness of the uncor-rected errors indicates that the brief, havingnot been read for these errors, may be equallyunreliable in its substantive reasoning or itsanalysis of authorities.”2 So, proofread, edit,and correct until your documents are as per-fect as you can make them.

Follow the Court Rules

Rules are the advocate’s friend; they mandatecertain content and form, so you need notagonize over those aspects of the writtendocument. Read them and follow them to theletter. You may not get past the clerk’s officeif your document does not follow the rules.One attorney tried to file a motion without asupporting memorandum, which was re-quired by local rule. When the clerk informed

the attorney of the rule, the attorney hand-wrote the word “motion” over what hadbeen the title of the document and the word“memorandum” over what had been theone-sentence request for court action. Theclerk then accepted the document, but thecourt was not impressed.

An attorney can even be sanctioned, if the ruleviolation is egregious.3 Should your attemptsto write in plain English ever conflict withany rule or preference of the recipient of yourdocument, follow the rule. You can alwaysadvocate for a rule change later.

Remember that, despite the time and attentiondevoted to the federal rules back in law school,they are not the only rules you must follow.Local courts frequently have rules; specializedcourts have their own sets of rules; and individualjudges may also have rules and proceduresfor you to find, learn, and follow. A phone callto the clerk’s office of the court to which youare writing will usually yield you copies of, orat least references to, all the applicable rules.

As a busy practitioner, you may not have timeto read whole books on the topic of improvingyour writing. However, by following these fivetips, you may improve your ability to persuadea court to rule in your client’s favor.

© Barbara McFarland, [email protected]

Endnotes1 Many valid techniques may be used to minimize

the impact of adverse facts, but that is a topic forsome future article.

2 Wilbur F. Pell, Read Before Signing, 60 A.B.A.J. 977(1980).

3 See, e.g., Ernst Haas Studio, Inc. v. Palm Press, Inc., 164F.3d 110, 113 (2d. Cir. 1999)(sanctioning counselfor failing to comply with Fed. R. App. P. 28).

Professor BarbaraMcFarland is the Director ofStudent Success Initiatives atNorthern KentuckyUniversity’s Salmon P. ChaseCollege of Law. In addition toteaching courses for every levelof law student from beginners tothose facing the bar exam, shespent twenty years teachinglegal writing and almost thatlong clerking for severaldifferent federal judges.


Karen Schriver, PhDPresident, KSA Communication Design & Research, Inc.Oakmont, Pennsylvania USA

Dr. Annetta L. CheekChair of the BoardCenter for Plain Language USA

Melodee MercerBoard MemberCenter for Plain Language USA

Center for Plain Language,November 20, 2008, Mexico City

Abstract

This paper discusses three issues. First, wediscuss the need for a commonly accepteddefinition of plain language. Second, we dis-cuss some of the research into sentence-levelplain language techniques, and the implica-tions of that research for a technique-basedstandard of plain language. Finally, we discussmeans of testing documents, and advocate atesting-based approach to standards.

Introduction

In our previous paper, presented in Amsterdamin 2007 and printed in Clarity 59, we discussed,among other topics, technique-based standardscompared to process-based standards for plainlanguage. So when Neil James asked a groupof Clarity, Center, and Plain International folkswhich topic each group wanted to discuss, wevolunteered for that one. And I will get aroundto addressing that topic later in this paper.But when I sat down to start working on thispresentation, I realized that we are missing avery critical step that should occur early in ourdiscussions, and I’d like to talk a bit aboutthat first—the definition of plain language.

A short story

Once upon a time, a long, long time ago whenI still practiced the profession I trained for—

archeology—I attended a small conference inOklahoma. It involved only Oklahoma andKansas archeologists, and it covered only onetopic—Kay County chert. Kay County chertis a specific type of stone that was used overa long time and a broad area in Kansas andOklahoma to make knives, arrow points, andother tools. Because it came originally from arelatively small area, its distribution over timeand place could tell us about which groupstraded with or were related to what othergroups—topics near and dear to archeologists’hearts. So, after 25 years or so of research onthis material, the archeologists in the area de-cided to get together at a conference to focuson just this one important material.

Well of course archeologists love artifacts, andmany people brought along samples of theirKay County chert artifacts. And we discov-ered something truly terrible. The Kay Countychert discussed in research from Kansas wasnot the same material as the Kay County chertdiscussed in the research from Oklahoma. Allthose years of research and they weren’t eventalking about the same thing! All that researchthat, all of a sudden, was worthless.

Defining plain language

I’m concerned that we are going down a simi-lar road. When I stand up here and advocateon behalf of the Center for Plain Languagethat we should develop standards for plainlanguage based on how well the languageworks, I’m basing that on my definition. Ifyour readers can find the material they need,understand it the first time they read it, anduse that information to perform their task (orthe task you want them to perform), it’s plainlanguage. This is the definition used in the billpassed by the U.S. House of Representatives in2007, and the one many of us in the UnitedStates have used for some time now.

But I realize your definition of plain languagemay not be the same thing. If you define plainlanguage as documents with an average word

The research basis of plain language techniques:Implications for establishing standards


length of 20 words or fewer, at least 70% ofverbs in active voice, paragraphs of no morethan 10 lines, lots of white space, and so on,we are talking past each other and we haveno common definition on which we can buildconsensus on anything—not internationalstandards, not certification, not research goals.And maybe there are other definitions outthere that I haven’t even considered.

It seems that the different views of what stan-dards should be derive at least in part fromdifferent definitions of plain language. If every-one were to accept the outcome-based definitionthe Center uses (and we didn’t originate it), itwould be logical to accept standards that arealso based on outcomes. On the other hand,if you use a definition based on specific plainlanguage guidelines, then basing standards onthe presence and degree of specific techniquesmakes perfectly good sense.

And so, I think that before we proceed muchfurther with our work, we need to agree on howwe are going to define plain language. If wecan’t agree on that, we may as well break nowand go visit the wonderful Museo Nacionalde Antropología.

Having gotten this topic off my chest, I will nowmove on to the assigned topic of this paper,techniques and testing. Obviously, you’ll allhave to accept, for purposes of this paper, myoutcome-based definition of plain language.

So, how about those techniques?

In our last paper, we addressed several word-level techniques and the research that relatesto them. This year we’ll address some sentence-level issues and the implications of relatedresearch on the question of using techniquesas a basis for plain language standards.

Over the past few decades, plain languageadvocates have developed a variety of tech-niques that are intended to capture bestpractices. These techniques have become ourcommonplaces, and we assume they work.But sometimes there is a gap between whatwe assume and what actually works forreaders.1 To test our assumptions about whatworks, let’s take a look at a few of these tech-niques and consider whether they have anyempirical support.

Here are four common techniques. We’ll ex-plore each in turn and see if the research isout there to support using them.

Technique #1: Use simple sentences.

Studies of syntactic complexity have shownthat complex sentence structures can be de-manding for readers. Dense and convolutedsentence structures can be more difficult forreaders than decoding low-frequency words.4

Dense syntax tends to make it harder for read-ers to construct the meaning of the text.8,2,5 Infact, syntactically complex sentences can makegood readers look like poor readers, slowingdown their reading speed.1,3 Information de-signers can conclude that they should strivefor a simple subject-verb-object (SV0) orderwhen composing English sentences (and forother languages that use this basic word order).

Comment: Good idea? You bet.

Technique #2: Keep clauses short.

Research on clause length indicates that read-ers may have trouble keeping track of what isgoing on when sentences are composed withlong clauses.2 As sentence length increases, textdifficulty increases.2,8,3 Research shows a cor-relation among three text features on readingspeed and comprehension: (1) the number ofwords per sentence, (2) the number of propo-sitions per sentence, and (3) the proportion ofsyntactically unpredictable words.5 The higherthe three numbers, the worse readers performed,with poorer readers hurt significantly morethan good readers.

Comment: So far, still doing well.

Technique #3: Avoid long sentences.

We might conclude that a plain sentence isalways a short one. But a simple sentence doesnot necessarily mean a short one. The truismto always avoid long sentences is one of thosetechniques we need to reconsider.

Research shows that it’s not the length of thesentence that matters, but its syntax and struc-ture. Clear syntax helps readers to parse thetext more quickly and hold in working memorythe words of the sentence in their appropriategroupings while they process the meaning ofthe sentence.4,5 p. 165 In this way, clear syntaxreduces the burden on working memory.Moreover, good syntactic cues can help read-ers recall what the text says.6

Studies in psycholinguistics of English sentencestell us that an important signal of good syntaxis the distance between the subject and the verb;essentially, the shorter distance the better. We


can think of a sentence as a kind of tree, withsubject and verb of the main clause as the trunkfrom which the remaining content branchesout. When we separate the subject and the verbwith clauses, lists, or enumerated sequences(called center embedding or left branchingbecause the information is embedded betweensubject and verb or branches out to the left sideof the trunk (that is the verb)), we place un-necessary demands on readers’ short-termmemories. The effect? We worsen readers’recall, and require them to exert more mentaleffort.7,8,3,9,10,6. Readers of English find it easierto recall the content when clauses are addedto the ends of sentences (right-branching)rather than in the middle.

Roy Clark11 from the Poynter Institute offersan example from the world of newspaperwriting. He asks us to consider the lead to thisNew York Times story about the downfall ofan important political figure:

Gov. Eliot Spitzer, whose rise to politicalpower as a fierce enforcer of ethics inpublic life was undone by revelations ofhis own involvement with prostitutes,resigned on Wednesday, becoming thefirst New York governor to leave officeamid scandal in nearly a century.

That puts 24 words between the subject andverb. To achieve a new pattern, he offers thisrewrite:

Gov. Eliot Spitzer resigned on Wednesday,becoming the first New York governor innearly a century to leave office amidscandal. Having risen to power as a fierceenforcer of ethics in public life, Spitzerwas undone by revelations of his owninvolvement with prostitutes.

Here’s an example from Bryan Garner.12 p. 104

Consider this left-branching little nightmareof a 159-word sentence.

If at any time the Federal Energy Regu-latory Commission should disallow theinclusion in its jurisdictional cost of gas,cost of service, or rate base at any portionof the cost incurred because of this gaspurchase or the full amount of an costsincurred by Buyer for any field services orfacilities with respect to any well subjecthereto, whether arising from any term orprovision in this Agreement or otherwise,including but not limited to price andprice adjustments, the prices provided for

herein, then Seller agrees that the pricewill be reduced to the maximum price forgas hereunder which the Federal EnergyRegulatory Commission will allow Buyerto include in its jurisdictional cost of gas,cost of service, or rate base and Sellershall promptly refund with interest allprior payments for gas purchased here-under which exceed the amount Buyer ispermitted to include in said cost of gascost of service, or rate base.

Implications. Writers of English can stream-line their prose by keeping left branchingsentences to a minimum. But putting the verbat the end of a sentence is not a completelydumb thing to do—good writers do it all thetime when they want to create suspense.Syntactic variety can help to keep the reader’sinterest, so every sentence need not be short,nor right branching. But every sentence doesneed to be clear.

Comment: In sum, our mantra to write shortsentences should be tempered with “we alsoneed to learn how to write good long sen-tences.” Our current techniques for sentencelength seem to advocate a “one-sentence pat-tern fits all contexts” approach and can resultin a boring monotone. So in the case of sen-tence length, we are not quite doing so wellin terms of what research actually shows us.

Technique #4: Avoid more than 7 items in alist.

Many professional writers believe they shouldadhere to the maxim, “use no more than 7items” in a list. The practice of presenting listswith no more than 7 items has been justifiedby linking it to research in cognitive psychol-ogy. In particular, writers rely on GeorgeMiller’s classic 1956 paper, “The MagicalNumber Seven, Plus or Minus Two”.13 In thisfamous analysis of research on human short-term memory, George Miller, a psychologistfrom the Massachusetts Institute of Technol-ogy, noted that, when people were asked toremember random letters, they could remem-ber about 7. However, when they were askedto remember random words, they could re-member about 5. What was surprising wasthat these 5 words consisted of 25 or 30 letters.

Why were people able to remember so manymore letters when they were combined inwords than when they were separated?Miller’s classic insight was that the unit of


short-term memory is the chunk, a patternstored in long-term memory. Thus, the letterp, by itself, is a chunk and the word peach isalso a chunk. But the same letters arrangedbackward as “hcaep” are not a chunk becausethey don’t form a familiar pattern stored inlong-term memory. The fact that we can hold 7unrelated letters or numbers (for example, aphone number) or 5 unrelated words in memoryled Miller to his principle that we can remem-ber 7 plus or minus 2 chunks in short-termmemory.

Notice that Miller was talking about short-termmemory. In short-term memory studies, theitems are presented one at a time, either visu-ally or auditorily, and then they are takenaway. The participant is asked to rememberthem after they are gone from sight or hearing.We can see then that Miller’s principle doesnot apply if the items remain in view.

If we view 7 plus or minus 2 items formattedas a list on a sheet of paper or on a screen, wedo not rely on short-term memory to interpretor remember them. Instead, we interpret theprinted items in the list using our long-termmemory and will be successful in doing so aslong as the words on the list are familiar. Listson paper or onscreen serve as a kind of exter-nal memory (like a shopping list to remind usof important items). We can see then that usinglists with a certain number of items has noth-ing to do with imposing on our readers’ short-term memory limitations. Thus, interpretingMiller’s principle to mean that one shouldhave no more than 7 items in a printed list or7 bullets on a PowerPoint slide is simply wrong.

Comment: Here’s an example in which guide-lines proposed to the professional writingcommunity were based on an inappropriateinterpretation of the research. If plain lan-guage advocates follow this maxim under theassumption that it is research-based, they arewrong. What we need as plain language ad-vocates is an understanding of the empiricalresearch that bears on the topics we careabout and apply those findings appropriately,given our context and our readers.14

Implications of the research for standards

These few examples of the research basis forspecific plain language techniques illustratethe problems with our current commonly-accepted assumptions about some of thosetechniques. Any technique used to build a

standard must have a sound research basis.Even though we may believe there is still goodcause to recommend short sentences or anyother popular technique that is not supportedby research, we cannot use them as the foun-dation of standards. We must defer any attemptto construct technique-based standards untilresearch gives us more answers. Even then, wewill find that some of the techniques we holdmost dear are not supported, and we will haveto abandon them in constructing standards.

Cross-cultural considerations

We also must consider whether we want todevelop a standard that works cross-cultur-ally, or whether we are writing a standardonly for English-language documents. Cer-tainly, our colleagues in Sweden, Portugal,and several Spanish-speaking countries wouldlike to see a truly international standard forplain language. While many of the same tech-niques we favor may work in those languages,the research base is far less extensive and, insome languages, non-existent. We would needresearch demonstrating the effectiveness oftechniques of plain language in each languageto which we wanted to apply the standard,and this is simply not practical for us to do.

And what about languages further removedfrom English? I spoke with several nativespeakers of Mandarin, and asked them to tellme what linguistic features they would use tomake sure their writing was clear, especiallywhen writing to non-experts. With one ex-ception, none of them had given any thoughtto the issue, although they admitted that theyknew clear writing when they saw it. Whenpressed, they came up with one techniquethat contributed to clarity in their language—keeping material short.

One informant was able to discuss what weconsider plain language techniques. ProfessorXiang Duansi, President of Guangdong For-eign Languages University and an expert inEnglish as well as Chinese, commented ex-tensively to me. Apparently, while techniquessuch as using pronouns, avoiding abbrevia-tions, and using lists are recognized as a wayto make writing clear to the average reader,this has not been a subject of study. Therewould be little research to evaluate the effec-tiveness of specific techniques. He had oneinteresting comment—in Chinese, if you canexpress complex ideas using short words, you


are considered an excellent writer. I need himto talk to all the English writers who thinkthat using big words makes them look smart.

In sum, using a technique-based standardwould require us to know far more about ex-isting research than we know, plus far moreresearch on open issues, plus even more re-search on techniques in languages other thanEnglish. The more I know about our currentknowledge of the basis for and the reliabilityof techniques, the more I see a technique-based standard fading into the distance, ratherthan coming closer.

A procedural standard

So what do we recommend? As I noted earlier,the most popular definition of plain languagein the US is that a communication is in plainlanguage if the people who are the audiencefor that communication can quickly and easily

• find what they need

• understand what they find

• act appropriately on that understanding

This is an outcome-based definition; it stressesthe audience’s ability to use a communication.While we say that specific techniques may helpa writer achieve the goal of plain language, thetechniques in themselves do not guarantee thata document can be used effectively. Indeed,depending on the audience, one can write adocument that uses few of the popular tech-niques and yet meets the terms of the definitionabove, or one that uses all the techniques andis still hard to use.

It will come as no surprise that the Centerrecommends a standard that is outcome based,to reflect the nature of our definition of plainlanguage. Our bottom line is that you cannotassert your document is plain language unlessyou have shown that your intended readerscan use the document in the way you intended.The most obvious way to do that is to test yourdocument.

Testing documents

Types of testing

Much of the resistance to testing comes fromthe perception that testing costs a lot and takesa lot of time. This is not necessarily true. Youcan do either qualitative (What do people thinkabout it?) or quantitative (Do the numbersshow that this is a success or failure?) testing.

• Protocol testing and focus groups producequalitative data.

• Control groups produce quantitative data.

Focus groups are conducted with a small groupof people (usually 8–12). They are valuablefor gathering information about how peoplefeel about a document. Participants will tellyou if they like or dislike something. They willtell you if they understand what you are doing.And they may even tell you a better way to dosomething.

While focus groups are valuable in some situ-ations, they are not usually an effective wayto test the usability of a document, or to learnhow well an individual really understandswhat you have written.

Protocol Testing involves real readers engagingwith real documents. There are generally 2 waysto conduct protocol testing. The first involvesasking your readers to think aloud as they readthe document. In this case, you are simply anobserver who makes notes about areas of thetext that trouble readers. A second type oftesting involves a one-on-one interview withreaders, generally 6 to 9. The aim of the inter-view is to get a sense of what readers think thedocument means. Here, you ask each reader toread the text until they reach to a specific cue(usually a dot identifying a stopping point).Each time the reader reaches a cue, you askthem for an explanation of what that sectionmeans. If the reader interprets the sectioncorrectly, you have written it clearly.

At the end of the document, ask additionalquestions, such as—

• What would you do if you got thisdocument?

• Do you think the writer was trying to helpyou?

• Do you think your friends would under-stand this document?

This last question is important because some-times people are more comfortable telling youwhat they think others might find confusing,rather than admitting that they don’t under-stand something themselves.

You should use a different type of protocoltesting when evaluating long documents, likebooklets and regulations. Not only do you testfor comprehension, but you are also make notes


about the way the reader uses the document.For instance you would note how often areader has to flip from page to page to findreferences.

The goal of protocol testing is to ensure thatyour readers understand your document, andtherefore won’t have to call you for an expla-nation. Although this technique is very valuable,it probably isn’t worth the time to test documentsthat go to only one or a very few people.

Controlled Studies produce quantitative dataon how well the general public uses the finaldocument you’ve produced. Quantitative datacan be acquired through surveys, interviews,or user tests. Sometimes you will want a com-parison group (the control); other times not.When you want a comparison, you will needto set a benchmark against which you’ll test anew version. This could be a “before” version,or it could be a new draft. The idea is to iden-tify how much better the “after” is and how itmeets or does not meet your intended goals forquality. You will need information about the useof your “before” versions, and you will need todefine what you will consider a success. Forinstance:

• You currently get 120 calls a week askingyou about your program. You want to getat least 200 calls.

• Every time you send out your letter askingfor updated information from yourcustomers, you get about 100 calls askingfor clarification for each 1,500 letters yousend. You want to reduce that to 15 calls.

• When you send out a request for payment,you get a response rate of 50% within the first30 days. You want to increase that to 80%.

• Typically, 50% of the application forms youreceive contain errors. You want to reducethe error rate to 20%.

In many cases, you will already have data aboutyour “before” documents. In other cases, youmay have to collect that data as part of yourtesting project.

You should use control studies after your quali-tative testing is completed and you believe youhave the best possible document. That’s becausecontrol testing will tell you if the new documentis a success, but it won’t tell you why it is orisn’t a success.

When to use what tool

Like any good tool, focus groups, protocoltests, and control studies are most successfulwhen used for their intended purpose. Thechart below shows the best times to use dif-ferent methods of testing documents.

Testing Method When to Use It What You will Get

Protocol Test/ After completing a • Specific information about what the readers think yourUsability Testing final draft of your document means.(qualitative) document • Information about what they will do with the document

when they receive it.• Observations about how they read your document and

how well they can follow the format.• A basis to revise the document.

Focus Groups Before rewriting an • Information about how readers feel about the old(qualitative) old, usually lengthy, document; what they like and don’t like.

document • What information they need that they don’t have.• A basis to revise the document.

After rewriting to • Information about which versions users prefer.compare the formatof different versionsof a document

Control Group After protocol testing • Data about how many people did what you wanted.(quantitative) and revising a docu- • A comparison between the old document and the new

ment or during a pilot document.• A comparison of 2 different versions of the same

document.• Information about whether your revision was

successful.


Testing as the basis for a standard

There are several advantages of using a processthat involves testing documents as the basisfor a plain language standard:

It does not depend on particular linguisticcharacteristics that would have to be identifiedand tested for each language to which wewanted to apply a standard.

It ties directly back to the definition of plainlanguage as a document that your audiencecan use.

It supports our efforts to spread plain languageby demonstrating that plain language improvesan organization’s bottom line.

It applies to any language.

Summary and next steps

We’ve discussed three issues:

1. The need to adopt a common definitionof plain language before we proceedmuch further with this effort

2. Some of the problems we see in adoptinga technique-based standard for plainlanguage.

3. The advantages of a testing-basedstandard.

The Center believes that any internationalstandard of plain language cannot be based ona set of specific linguistic techniques. Rather, itmust be based on a standard for good process.We believe this process must include testing orsome other procedure that demonstrates that adocument works for its intended purpose. Werecognize there is resistance to testing, based onconcerns about the time and money it requires.But to paraphrase what we said in our lastpaper, we believe it’s more realistic to think wecan get organizations to test their documentsthan it is to think we can get a group of plain-language practitioners to agree on detailed,specific, meaningfully measurable techniques,and to conduct the research needed to demon-strate that we have chosen the right techniquesfor English and for any other language towhich we want to apply our standard.

© Karen Schriver, [email protected]

© Anetta Cheek, [email protected]

© Melodee Mercer, [email protected]

Karen Schriver, Ph.D. isPresident of KSACommunication Design andResearch, a consultancy locatedin Pittsburgh, Pennsylvania(USA). She is a former professorof rhetoric and informationdesign at Carnegie MellonUniversity, where she co-directed the graduate programsin professional writing. Herbook, Dynamics in Document Design: Creating Textsfor Readers—now in its 9th printing—is regarded as anessential work in the field. Karen redesigns websites,instruction guides, educational materials, technicalreports, marketing collateral, and forms. Winner of tennational awards for information design, her clientsinclude Apple, IBM, Mitsubishi, ATT, Sprint, Hoffman-LaRoche, Fujitsu, Microsoft, and Sony.

Dr. Cheek is an anthropologistby training, earning a PhDfrom the University of Arizonain 1974. She worked for the USFederal government from 1980until early 2007. Most of herFederal career focused onwriting and implementingregulations. She spent fouryears as the chief plainlanguage expert on VicePresident Gore’s NationalPartnership for Reinventing Government. She was thechair of the interagency plain language advocacy group,PLAIN, since it was founded in 1995 until she retiredfrom the government. She also administered the group’swebsite, www.plainlanguage.gov. She served for fiveyears as an Executive Assistant to the Administrator ofthe Federal Aviation Administration, focusing on plainlanguage projects and serving on the Web Council. She isthe Chair of the board of the Center for Plain Languageand the Director of Plain Language Programs forNOVAD Consulting and R3I Consulting, DC-areaconsulting firms.

Melodee Mercer is bestknown as Plain LanguageInstructor for the Department ofVeterans Affairs (VA). Shetrained over 7,000 employees towrite in plain language assenior instructor for the VA’sReader-Focused Writing course.She worked for the White Housein Vice President Gore’sNational Partnership forReinventing Government office and helped draft thePresidential Memorandum stating that all newgovernment documents must be written in plainlanguage.

Melodee was the keynote speaker at New Zealand’s firstPlain Language Conference in Wellington, NZ in 2006


and since then has been training their coordinator—longdistance—in document testing techniques. She is pilotinga mentoring program between New Zealand and USgovernment agencies.

Melodee is a founding member and a board member of theCenter for Plain Language. She co-hosted the internet radioshow, MyTechnologyLawyer, featuring the Center forPlain Language. She was the editor of Simply Plain—the Center for Plain Language’s quarterly newsletter,until it was replaced by the Center’s blog. She helpeddevelop the Center’s Demand to Understand Campaignand website and used her acting and producing skills toproduce three public service announcements for thecampaign. She produced the Center’s first PlainLanguage Awards ceremony held at the National PressClub in April 2010.

References1 K. A. Schriver, Dynamics in document design:

Creating texts for readers. New York: John Wiley &Sons, 1997.

2 E. B. Coleman, “Improving comprehensibility byshortening sentences,” Journal of AppliedPsychology, vol. 48, no. 131, 1962.

3 G. R. Klare, “A second look at the validity of thereadability formulas,” Journal of ReadingBehavior, vol. 8, no. 129–152, 1976.

4 J. P. Kimball, “Seven principles of surfacestructure parsing in natural language,”Cognition, vol. 2, no. 15–47, 1973.

5 M. A. Just and P. A. Carpenter, The psychology ofreading and language comprehension. Boston: Allynand Bacon, 1987.

6 C. S. Isakson and J. H. Spyridakis, “The influenceof semantics and syntax on what readersremember,” Technical Communication, vol. 46, no.3, pp. 366–381, 1999.

7 E. B. Coleman, “Learning of prose written in fourgrammatical transformations,” Journal of AppliedPsychology, vol. 49, no. 332–341, 1965.

8 D. Schwartz, J. Sparkman, and J. Deese, “Theprocess of understanding and judgment ofcomprehensibility,” Journal of Verbal Learningand Verbal Behavior, vol. 9, no. 87–93, 1970.

9 W. Larkin and D. Burns, “Sentencecomprehension and memory for embeddedstructure,” Memory and Cognition, vol. 5, no. 1,pp. 17–22, 1977.

10 M. Ford, “A method for obtaining measures oflocal parsing complexity throughout sentences,”Journal of Verbal Learning and Verbal Behavior,vol. 22, no. 203–218, 1983.

11 R. Clark, Branching out can leave verbs out on a limb.St. Petersburg, FL: Poynter Online. 2008. [Online].Available: http://www.poynter.org/content/content_print.asp?id=148598&format=handheld

12 B. A. Garner, Legal writing in plain English: A testwith exercises. Chicago: University of ChicagoPress, 2001.

13 G. A. Miller, “The magic number seven, plus orminus two: Some limits on our capacity forprocessing information,” Psychological Review,vol. 63, no. 81–97, 1956.

14 K. A. Schriver, “Reading online: A review ofresearch on the impact of technology, writing,graphics, and reader characteristics,” Pittsburgh,PA: KSA Communication Design & Research,Technical Report, 1, in preparation.


In Drafting notes 1 (on page 4), I looked at an ambiguity in the sentence:

Too many police can’t shoot straight or take bribes.

Another ambiguity arises if the writer meant

Too many police can’t … take bribes.

There is an understandable inclination for the reader to assume that if someone “can’tdo A or B” can’t is used in the same sense for both A and B. And this inclination is re-flected in the advice that the same word should not be used in different senses,especially in a formal legal document. So this wording suggests that some police are in-capable of taking bribes rather than that they are unwilling to do so.

You might say that this is not ambiguous because “can’t” can only mean “is incapableof”. But if that were so, the sentence wouldn’t have been funny.


Professor Joseph KimbleThomas M. Cooley Law School USA

Editor’s note: We are reprinting, with a few changes,two of four articles published in the August-November 2009 “Plain Language” column in theMichigan Bar Journal. Most of the columns forthe last 20 years are available at www.michbar.org/generalinfo/plainenglish/columns.cfm.

There’s a new milestone on the long road tobetter legal writing. On June 14, the StandingCommittee on Rules of Practice and Procedureapproved the final version of the “restyled”Federal Rules of Evidence. As drafting consult-ant, I began redrafting the rules in mid-2006,working with the Advisory Committee onEvidence Rules, which reports to the Stand-ing Committee.

The goal has been to make the rules clearer,more consistent, and more readable—allwithout changing their meaning. No smallassignment, and as you can imagine, the Ad-visory Committee scrutinized every word,looking for possible substantive change. Thecareful, systematic process is summarized byJudge Robert Hinkle, Chair of the AdvisoryCommittee, in a report that’s available atwww.uscourts.gov/RulesAndPolicies/rules/Reports/EV05-2010.pdf, pages 2–6. The re-port also includes a side-by-side version ofthe current and restyled rules.

Now, the process is not yet complete. The finalversion must still be approved by the JudicialConference of the United States, the SupremeCourt, and Congress. The track record, though,is good: this is the fourth set of federal rules tobe restyled. The Rules of Appellate Proceduretook effect in 1998, the Rules of Criminal Proce-dure in 2002, and the Rules of Civil Procedurein 2007. The new Evidence Rules are scheduledto take effect in December 2011.

During the comment period for the civil rules,I wrote two Plain Language columns (Decem-ber 2004 and January 2005) showing side-by-side

examples of several old and new rules. Thistime, I’ll do something a little different. I’ll lookin detail at two rules and try to describe someof their drafting deficiencies. Then I’ll offer theproposed new rules and, as I did with theearlier columns, ask you to be the judge.

Nobody would claim that the restyled rules areperfect; on a project like this, you can alwaysfind pieces that could have been improved.Naturally, though, I do think that the newrules are far better. See what you think.

Current Rule 609(a)–(b)Impeachment by Evidence of Conviction of Crime

(a) General Rule. For the purpose of1

attacking the character for truthfulness of awitness,2

(1)3 evidence that a witness other thanan accused has been convicted of a crimeshall4 be admitted, subject to Rule 403, ifthe crime was punishable by death orimprisonment in excess of5 one year6

under the law under which the witnesswas convicted,7 and evidence that anaccused has been convicted of such8 acrime9 shall be admitted if the courtdetermines that10 the probative value ofadmitting this evidence outweighs itsprejudicial effect to the accused;11 and

(2) evidence that any witness has beenconvicted of a crime shall be admittedregardless of the punishment, if itreadily12 can be determined that13

establishing the elements of the crimerequired proof or admission14 of an act ofdishonesty15 or false statement by thewitness.16

(b) Time Limit.17 Evidence of a convictionunder this rule18 is not admissible if aperiod of19 more than20 ten years haselapsed since the date of21 the conviction orof the release of the witness22 from the

Two drafting examples from the proposed newFederal Rules of Evidence


confinement imposed for that conviction,23

whichever is the later date, unless24 thecourt determines, in the interests of justice,that25 the probative value of the convictionsupported by specific facts and circumstancessubstantially outweighs its prejudicial effect.26

However,27 evidence of a conviction more than1028 years old as calculated herein,29 is notadmissible unless30 the proponent gives to theadverse party sufficient advance31 writtennotice of intent to use such evidence32 toprovide the adverse party with a fairopportunity to contest the use of suchevidence.33

Drafting Deficiencies

1. For the purpose of is a multiwordpreposition. Make it To attack.

2. An unnecessary prepositional phrase.Make it a witness’s character.

3. Two structural points. (1) Withoutdigging, it’s hard to tell what the pointof distinction is between this firstparagraph and the second one; therestyled rule makes that clear at thebeginning of each paragraph. (2) Thisdense first paragraph contains twopossibilities that should be brokendown.

4. Shall has become inherently ambiguous(among other disadvantages). Therestyled rules use must for requiredactions.

5. A stuffy way of saying for more than.

6. Note the miscue: in excess of one yearmodifies imprisonment but not death. Toavoid the miscue, insert by beforeimprisonment.

7. Arguably, it’s obvious what law we’retalking about. But the restyled rule atleast shortens this clumsy phrasing to inthe convicting jurisdiction.

8. A lot hangs on the word such. It avoidsrepetition, but it would be easy to blowpast.

9. Note the repetition of evidence that . . .has been convicted of . . . a crime from thefirst part of this paragraph.

10. There’s no such the court determines thatin, for instance, Rule 403. The restyledrule omits it.

11. An unnecessary prepositional phrase.Of course we’re talking about the effecton the accused. Strike to the accused.

12. The adverb should normally split the verbphrase. Whether to put it after the firstor second of two auxiliary verbs can betricky, but I’d say readily belongs after be.

13. Here, the can be determined that languageneeds to stay in order to keep the idea of“readily.” But why is it passive?

14. Prefer the -ing forms—proving andadmitting—to the nouns with of.

15. Another unnecessary prepositionalphrase. Make it a dishonest act.

16. The language beginning with proof is asyntactic muddle. We’re talking aboutthe witness’s admitting something, butnot the witness’s proving something.

17. Not an informative heading. Therestyled heading makes it immediatelyclear when this part applies.

18. Of course we’re talking about a convictionunder this rule. Strike under this rule.

19. Strike a period of.

20. Note the inconsistency with in excess ofin (a)(1).

21. Strike the date of.

22. Make it the witness’s conviction or release.

23. To this point, the sentence uses nineprepositional phrases. The restyled ruleuses three.

24. Note the double negative: is notadmissible . . . unless. Make it isadmissible only if.

25. Again, strike the court determines . . .that, along with in the interests of justice.The latter is a needless intensifieranyway.

26. This is a 72-word sentence.

27. Start sentences with But, not However.What’s more, this sentence actuallycontains a second condition to using theevidence. The rule should be structuredto show that the evidence is allowedonly if two conditions are met.

28. The previous sentence spells out ten.

29. Strike as calculated herein. Also, thecomma needs a paired comma after old.


30. Another double negative.

31. Isn’t notice always in advance? At anyrate, here it certainly has to be.

32. Try a pronoun—it—instead of suchevidence.

33. Try another pronoun—its—as in its use.

Now for the proposed new rule. Most of thechanges are explained by my comments onthe current rule. I’ll just make three salientpoints. First, the current rule contains 262words; the new one contains 213, or 19 per-cent fewer. Second, the new rule is structuredin a way that reflects the content much moreclearly. Third, the new rule improves the for-matting with progressive indents for thesubparts and hanging indents (aligned on theleft) within each subpart.

Restyled Rule 609(a)–(b)Impeachment by Evidence of a Criminal Conviction

(a) In General. The following rules applyto attacking a witness’s character fortruthfulness by evidence of a criminalconviction:

(1) for a crime that, in the convictingjurisdiction, was punishable bydeath or by imprisonment for morethan one year, the evidence:

(A) must be admitted, subject to Rule403, in a civil case or in acriminal case in which thewitness is not a defendant; and

(B) must be admitted in a criminalcase in which the witness is adefendant, if the probative valueof the evidence outweighs itsprejudicial effect to thatdefendant; and

(2) for any crime regardless of thepunishment, the evidence must beadmitted if the court can readilydetermine that establishing theelements of the crime requiredproving—or the witness’sadmitting—a dishonest act or falsestatement.

(b) Limit on Using the Evidence After 10Years. This subdivision (b) applies ifmore than 10 years have passed sincethe witness’s conviction or release from

confinement for it, whichever is later.Evidence of the conviction is admissibleonly if:

(1) its probative value, supported byspecific facts and circumstances,substantially outweighs itsprejudicial effect; and

(2) the proponent gives an adverseparty reasonable written notice ofthe intent to use it so that the partyhas a fair opportunity to contest itsuse.

[End of first article]

In the introductory essay to his book Garneron Language and Writing, Bryan Garner offersa sobering indictment: “a supermajority oflawyers—even law professors—grosslyoverestimate their writing skills, and under-estimate the importance of those skills.”That’s the view of the preeminent authorityon the subject. And what he says goes doublefor the category of legal writing that we calldrafting—statutes, rules, contracts, wills, andthe like.

So why has most legal drafting been so badfor so long? I posed that same question in theOctober 2007 Plain Language column andoffered five reasons: (1) law schools have byand large failed to teach drafting; (2) mostlawyers don’t fill the void through self-education, but rather tend to just copy thelumbering old forms; (3) young lawyers mayhave to “learn” drafting at the hands of olderlawyers who never learned the skill them-selves but who think their expertise in aparticular field makes them adept drafters;(4) lawyers typically believe they should draftfor judges rather than front-end users likeclients, the public, and administrators; and(5) transactional lawyers seem more indiffer-ent to the skill of drafting than litigators areto the skill of analytical and persuasive writ-ing.

Let me add another reason, a cousin to #2:with rare exceptions, the apparent modelsthat law students and lawyers have to workwith are poorly drafted. Think of the Uni-form Commercial Code, the United StatesCode, the Code of Federal Regulations, theFederal Rules of Civil Procedure until late2007, most state statutes and regulationsand court rules, most model jury instructions,


municipal ordinances by the tens of thou-sands—the entire bunch. So pervasive is theold style of drafting that, unless we’ve some-how seen the light, we can’t help but regardit as perfectly normal and good, and we can’thelp but internalize it.

But a remarkable thing happened in the early1990s: the Standing Committee on (Federal)Rules of Practice and Procedure saw thelight. The Committee recognized that the fed-eral court rules were in a bad way, and itundertook the daunting task of “restyling”them set by set. It created a Style Subcommit-tee, which enlisted the help of a draftingconsultant (first Bryan Garner, then me). Theconsultant prepared the drafts; they weremeticulously reviewed by the Style Subcom-mittee and by the Advisory Committee foreach set of rules; they were approved by theSupreme Court; and we now have new Fed-eral Rules of Appellate Procedure (1998),Criminal Procedure (2002), and Civil Proce-dure (2007), and proposed new Federal Rulesof Evidence.

I think it’s fair to say that the appellate,criminal, and civil restylings have been re-markably successful. Everyone seems to agreethat the new rules are much clearer andmore consistent, and since they took effect,only a few corrections have been needed—out of three complete rewrites. Still, duringthe public-comment periods, we heard fromsome quarters that “mere” restyling was notworth the effort or that restyling was a solu-tion in search of a problem or that some othersuch objection loomed large. Never mind thatthe old rules were riddled with inconsisten-cies, ambiguities, disorganization, poorformatting, clumps of unbroken text, uninfor-mative headings, unwieldy sentences,verbosity, repetition, abstractitis, unnecessarycross-references, multiple negatives, inflateddiction, and legalese. (For dozens of ex-amples, see the August–December 2007columns.) Never mind that the old rules werea professional embarrassment. Never mindthat those who would dismiss the restylingsas unneeded must (as most lawyers do) havelittle regard for good drafting—or ease ofreading. Never mind that they’d be willing toconsign us to the old models forever.

So now the evidence rules have been restyled.Last month, I offered an example—a currentrule with detailed comments, followed by the

restyled rule. I’ll do the same this month. Tryto put yourself in the place of a law studentreading the current rule for the first time.And remember that just about all the evi-dence rules—certainly those of anylength—can be given the same treatment.

The restyled version, besides fixing 30-odddrafting deficiencies, uses 41 fewer words,breaks the rule down into subdivisions, andconverts four long sentences to six that areshorter by almost half.

Current Rule 612Writing Used to Refresh Memory1

Except as otherwise provided in criminalproceedings by section 3500 of title 18,United States Code,2 if a witness uses awriting to refresh memory for the purposeof3 testifying, either—4

(1) while testifying, or

(2) before testifying, if the court inits discretion5 determines6 it7 is necessaryin the interests of justice,

an adverse party is entitled to have thewriting produced at the hearing, to inspectit, to cross-examine the witness thereon8

and to introduce in evidence thoseportions9 which10 relate to the testimony ofthe witness.11 If it is claimed12 that thewriting contains matters13 not related to thesubject matter of the testimony14 the courtshall15 examine the writing in camera,excise16 any portions not so related,17 andorder delivery of18 the remainder19 to theparty entitled thereto.20 Any portionwithheld21 over objections22 shall bepreserved and made available to theappellate court in the event of an appeal.23

If a writing is not produced or deliveredpursuant to24 order25 under this rule,26 thecourt27 shall make any order justicerequires,28 except that in criminal caseswhen the prosecution elects not to29

comply, the order shall be one striking thetestimony or, if the court in its discretion30

determines that the interests of justice sorequire, declaring a mistrial.31

Drafting Deficiencies

1. Whose memory? Also, just glance at therule. How discouraging is it to see sucha stretch of unbroken text?


2. Wordy phrasing with a clunky citation.Note the three prepositional phrases.The restyled rule uses one.

3. For the purpose of is a multiwordpreposition. It should usually bereplaced with to. Here it isn’t needed atall. The purpose is clear from whatfollows.

4. Why use a dash, rather than a colon, tointroduce a vertical list? What’s more,the list appears mid-sentence—not thebest practice. Some drafting expertsallow it, but our guidelines for federalrules require that lists be placed at theend of the sentence. See Bryan A.Garner, Guidelines for Drafting andEditing Court Rules 3.3(B) (Admin.Office U.S. Courts 1996).

5. Strike in its discretion. It’s as useless ascan be.

6. Add that after determines. Most verbsneed that to smoothly introduce afollowing clause.

7. A classic. What does it refer to? What’sthe antecedent? Actually, the referenceis forward, but not to any identifiablenoun. It refers loosely to what a party isentitled to.

8. Legalese.

9. As a rule, draft in the singular to avoidambiguity. What if the adverse partywants to introduce just one portion?Sure, the plural probably covers thathere, but other contexts might not be asclear. And by convention the singularincludes the plural.

10. Use that when the relative pronounintroduces a restrictive clause, onethat’s essential to the basic meaning.

11. An unnecessary prepositional phrase.Make it the witness’s testimony.

12. Why is this passive? Quick—who isclaiming?

13. Is one matter enough? See note 9.

14. A lot of words for unrelated matter. Weknow that unrelated means unrelated tothe testimony. Also, put a comma aftertestimony, which ends the longsubordinate clause. Punctuation 101.

15. Make it must. Likewise in the next use(after objections) and the last use (afterthe order). And good riddance to theinherently ambiguous shall.

16. How about delete ?

17. How about unrelated portion ?

18. Even the passive voice—be delivered—ispreferable to the nouner, the noundelivery with of. Better a verb than anabstract noun. See the February 2007column.

19. How about rest?

20. Legalese.

21. Withheld by whom? See the miscue?Withheld by the judge or by whoeverproduces the writing? Using the sameterm as in the previous sentence—excise[d] or delete[d]—would make themeaning immediately clear. Consistencyis the cardinal rule of drafting.

22. Is one objection enough?

23. A lot of words for must be preserved forthe record.

24. Legalese.

25. Another miscue: pursuant to ordermodifies delivered, but not produced.Make it is not produced or is not deliveredas ordered.

26. Strike under this rule as entirely obvious.

27. Should this be may? That’s the kind oftrouble shall causes.

28. Insert a period and start a new sentencewith But. That breaks up a 60-wordsentence.

29. How about does not?

30. Again, strike in its discretion.

31. Everything beginning with the order isindirect and rather clumsy. It shouldsimply say that “the court must do X orY.”


Restyled Rule 612Writing Used to Refresh a Witness’s

Memory1

(a) Scope. This rule gives an adverse partycertain options when a witness uses awriting to refresh memory:

(1) while testifying; or

(2) before testifying, if the court decidesthat justice requires a party to havethose options.

(b) Adverse Party’s Options; DeletingUnrelated Matter. Unless 18 U.S.C.§ 3500 provides otherwise in a criminalcase, an adverse party is entitled tohave the writing produced at thehearing, to inspect it, to cross-examinethe witness about it, and to introduce inevidence any portion that relates to thewitness’s testimony. If the producingparty claims that the writing includesunrelated matter, the court mustexamine the writing in camera, deleteany unrelated portion, and order thatthe rest be delivered to the adverseparty. Any portion deleted overobjection must be preserved for therecord.

(c) Failure to Produce or Deliver. If awriting is not produced or is notdelivered as ordered, the court mayissue any appropriate order. But if theprosecution does not comply in acriminal case, the court must strike thewitness’s testimony or—if justice sorequires—declare a mistrial.

© Joseph Kimble, [email protected]

Joseph Kimble has taughtlegal writing for 25 years atThomas M. Cooley Law School.He is the author of Lifting theFog of Legalese: Essays onPlain Language, the editor inchief of The Scribes Journal ofLegal Writing, the pastpresident of Clarity, a foundingdirector of the Center for PlainLanguage, and the draftingconsultant on all federal courtrules. He led the work of redrafting the Federal Rules ofCivil Procedure and the Federal Rules of Evidence.

Hong Kong Clarity members

Hong Kong Clarity members held their sec-ond breakfast meeting for 2010 on 9 July atthe offices of the Department of Justice.Members discussed topics for the proposedseries of articles relating to legal writing andwere updated on the new document designof Hong Kong legislation implemented inJuly. Further breakfast meetings are pro-posed. Anyone interested in attending shouldcontact Eamonn Moran [email protected].

London breakfast

The next Clarity breakfast in London will beon Thursday, 30 September. Daphne Perrywill demonstrate the StyleWriter plain En-glish software mentioned at previousmeetings, and describe how one law firm hasbeen using it. The breakfast will be in the CityMarketing Suite at the Guildhall (entrance Gon the map at www.clarity-international.net/Conferences/conferences.htm, thanks to Clarity memberPaul Double. As usual, there is no charge andguests are welcome, though we do ask non-members to join Clarity if they come a secondtime. Please email Daphne Perry to reserve aplace and for information about future meet-ings:

[email protected].

Member news


George ClarkPlain language consultant Scotland

Some plain language materials deal withhuge topics for huge audiences1. These mate-rials have to be multi-layered. On the surfacethey are simple and limited to the basic ideasbut underneath they have to point to thecomplexity of the issues and to some of themore subtle points. In these situations youcan think of the material having a ‘core’ with‘extensions’. The ‘core’ is aimed at the less so-phisticated end of the audience and the‘extensions’ at the more sophisticated end.

I have found a lot of material describing howto prepare text and layouts for the core mes-sages but not much about handling extensions.Here are a couple of techniques that I havefound useful.

Cute phrasing

What passes for a very ordinary phrase tosomeone without much experience or knowl-edge can stimulate a wide range of thoughtsin someone who is already familiar with thetopic. Consider the following paragraph froma plain language guide to the Millennium De-velopment Goals:

Text Boxes

You can use textboxes for differentpurposes and youcan design them tolook different on aprinted page orweb site.

Explanatory Boxes

Sometimes you cannot avoid using a jargonword. But its meaning has to be explained toat least some of the readers. You can give theexplanation in a text box where readers whodo not need it can ignore it.

Quote Boxes (supportive)

I think of these as ‘sound bites’ from the ex-perts and authority figures. They can eitherbe extracts from the accompanying text orsupplements to it. The idea is to ‘catch’ themain idea in as few words as possible. If thequotes are poetic and/or humorous then somuch the better. It is sometimes difficult tofind quotes that are not riddled with bureau-cratic verbosity and jargon. Usually some ofthe padding can be dropped and replaced bythree dots ( . . . ellipsis)

Multilayering in plain language texts

We need outside help foranalysing and for a betterunderstanding of oursituation and experience,but not for telling us whatwe should do.

Bhoomi Sena Movement(India) 1977

<<One of the central challenges for the future is to helppoor people to work more efficiently and to be betterpaid for their work. This links to broader ideas aboutfairness in how wealth is created and distributed.>>

The first sentence highlights hot topics for discus-sion amongst ordinary people. It also captures theessence of what the International LabourOrganisation (ILO) calls ‘Decent Work’. A massiveamount of material exists on this topic for thosewho want to dig into it.

The second sentence opens the door to the whole ofeconomics (onward from Adam Smith’s ‘TheWealth of Nations’) and through the word ‘fair-ness’ to the whole of moral philosophy and thusoptions for political paradigms.


Quote Boxes (contrary and/or philosophical)

Most of my plain language writing remainstrue to the tone and spirit of an originaldocument which may be partisan and onesided. Sometimes the main text is glossingover some stark reality or missing some of theoptions that exist. In such cases I use striking,independent quotes to help the reader take awider view of the situation. I am happy to re-port that none of my employers have so farobjected to this approach!

Quote Boxes (voices of the poor)

If you can find a quote from an ‘ordinary’person which serves any of the above pur-poses then use it.

© George Clark, [email protected]

George Clark was active formany years in formal educationin the UK, Jamaica, Zambia,Sudan, Belize and Lesotho. Inmore recent times he has beenpromoting informal educationthrough producing plainlanguage versions ofgovernment poverty reductionpolicies—mainly in Tanzania(see http://www.hakikazi.org/plain_language.htm). He nowlives in semi-retirement in Scotland and does most of hiswork via the internet.

Endnote1 eg UN system publications for global distribution


In speech, ambiguity is often resolved automatically and unconsciously by the pattern ofstresses, or by pauses. Say to yourself

John could only see his wife from the doorway

several times, each time stressing a different word, and see how it changes the meaning.

Because this technique is unconscious, the problem is often overlooked in written text.Then both writer and reader will “hear” in their mind’s ear only the stress pattern thatthe context or their own habits of thought suggest. If these give rise to different mean-ings they will misunderstand eath other.

What can we do about it?

The pause technique can sometimes be reflected by punctuation, as with the comma af-ter “stresses” in the first sentence of this note. But this should be used carefully: it maylead to over-punctuation; and it will sometimes be too subtle.

Stress can be shown by bold or italic type, or by underlining, as long as these devicesaren’t being used to flag something else.

The wording can be changed. For example:

John could see only his wife from the doorway.


• A “librarian”—maintaining and expandingan online library of plain-languagereferences and links etc with a focus onmaterial relevant to lawyers. This positionwill report to the website manager.

• A blog and social networking editor andcoordinator—this may expand into 2 ormore roles. The position(s) will report to theeditor.

Please let me know if you are interested inplaying any of, or part of, these roles—feelfree to “role share” with someone else. Thepossibilities are expanded on below.

Clarity’s blog

The plan for Clarity’s blog is that one personwould manage a small team of people eachresponsible for producing one blog post amonth. The team members could either postthemselves or invite guests to post. The man-ager would review and edit all posts andwould monitor and filter all comments on allposts.

In this way:

• Clarity can send a range of messages indifferent voices;

• Clarity can generate ongoing discussions—similar to the way PLAIN’s Forum does sosuccessfully (but with a focus on legalmatters), see http://plainlanguagenetwork.org/networkindex.html.

• experienced drafters can lead online “howto” discussions or demonstration rewritesof legal text—similar to the “master classes”held at some of Clarity’s conferences;

• people searching relevant terms can findthe posts in the archive on our site, and wecan refer people to them; and

• we make our site more active, which islikely to help it achieve higher rankings onsearch engines.

Clarity’s Tweets

The plan for Clarity’s tweets is that one per-son would manage our tweeting. They wouldinvite suggestions for topics and draft tweetsthat aimed to alert Clarity’s followers:

• to relevant articles, events, blog posts etc;and

• to developments on the Clarity site.

Message fromthe President

Continuing a theme ofchange—moving on tothe website

This “message” builds onthe changes at Clarityoutlined in the previousMessage from the President—which also re-flected on changes in the plain-languageworld. The changes outlined at Clarity werethe new online membership managementsystem and the beginning of formal discus-sions about incorporating Clarity.

Now Clarity needs to do more and it needs todo it faster. It needs to provide more plain-language resources that encourage people tojoin Clarity and it needs to engage membersto be more involved. The keys to achievingthis are:

• providing a more engaging and dynamicwebsite—which more people can beinvolved in developing and maintaining;and

• attracting more visitors to the site throughsocial networking and search engineoptimisation.

With our new online system for “joining andrenewing” and for “membership manage-ment” operating successfully, our website canhelp us to efficiently expand our member-ship. This will enable us to better deliver thebenefits of clear legal communication every-where. It will also enable us to furtherimprove and expand our Journal. Remember,100% of your dues—and thanks to donations,a fair bit more besides—goes into designing,printing, and posting the journal.

With the aim of improving the website andexpanding the membership, the Committeehas approved 3 new web-related roles:

• A membership manager—managing arecruitment program, managing the onlinemembership system and enabling (andmonitoring) members who pay a highermembership fee to list on the website anddescribe themselves and their services etc.This position will report to the president.


Social networking sites

The plan for social networking is that the so-cial networking manager prepares a proposalfor the Committee to consider about Clarityforming social networking groups, for ex-ample on Linkedin and Facebook.

Clarity’s library

The “librarian” would be responsible for ex-panding, organising, and cataloguing therange of reference material, articles, links etcon our site.

Membership manager

The plan for the membership manager is thatthey would:

• develop recruitment materials that all ofus—but especially Clarity’s internationalrepresentatives—can use to attract newmembers;

• manage our online membershipmanagement system; and

• explore how best to enable Clarity to—justas it earns revenue from advertising in ourjournal—earn revenue from advertising onour site.

We would limit advertising to plain-languagerelated activities—for example:

• a law firm with a plain-language approachto advice and contracts etc;

• an author promoting a plain-languagebook; or

• a plain-language practitioner seekingclients.

Adverting space would probably be on dedi-cated pages visible only to people seeking it.All advertising material would be filtered etcby the membership manager.

Technology needs

All these plans are likely to require Clarity tochange the technology on which its site runs.The existing site uses outdated technologythat requires anyone working on the site tohave a package of software and some experi-ence to use. If we are to encourage people tobecome involved in Clarity’s site, then:

• we need to move away from a model thatrequires anyone involved in maintaining

the site to have the relevant software andskills; and

• we need to move towards a “Cloudcomputing” or “Software as a Service”model in which learning how to use thetechnology is intuitive.

To that end, Clarity has prepared a draft newsite using Google’s free website developmenttechnology. You can see the draft site herehttp://sites.google.com/site/legalclarity/what-we-do. As I see it, moving to the newtechnology and a new website will help be-cause:

• the design is much fresher—we couldadopt a modern logo at the same time;

• the new technology is simpler to use andenables us to create interesting roles withwhich to engage new people (withoutrequiring them to acquire the softwarerequired to manage the new site, then learnhow to use it); and

• the greater versatility of the site wouldenable us to have a more dynamic andinteractive site.

I expect the proposed new site will be a step-ping stone between our current site and abigger, redesigned site. But to begin that pro-cess we need to engage more people in thesite and to do more on the site.

Nominations for president

On 31 December 2010, the one year exten-sion to my 3 year term as president ends.Therefore—as is now the convention at Clar-ity—this issue of the journal is the one inwhich the president of the day calls for nomi-nations for the next president. I am happy tostep aside if someone the Committee ap-proves of would like the role. Equally, if theCommittee approves, I am happy to sign-upfor another one year term.

To date, encouraging people to be actively in-volved in Clarity has been frustrating. Thiscreates issues with succession planning. I amhoping that the new roles outlined above en-courage a new group of people to step upand help Clarity. The simple truth is thatMark Adler, Peter Butt, Joe Kimble and CindyHurst have all done much more than theirshare.


Please email me at [email protected] if you would like to contribute,to play any of the web-related roles outlinedabove, or to nominate to be considered by theCommittee for the position of president.

Clarity by-laws

The process of appointing office holders islikely to become more formal. As I mentionedin the previous issue of Clarity, the Commit-tee is working on a draft set of by-laws and isconsidering the possibility of incorporatingClarity.

I expect the Committee will have settled adraft set of by-laws and some more detailsabout those considerations by the next issueof Clarity. But it may end up being the issueafter that. These things take time—andpeople have only so much time available. Atany rate, discussions continue. The Commit-tee looks forward to the members’ review ofthose plans.

Our 4th international Conference—Lisbon,Portugal 12–14 October 2010

Clarity’s 4th international conference is on inLisbon, Portugal in October this year. All ses-sions will have simultaneous translation inEnglish and Portuguese.

For more information on the conference seehttp://www.clarity2010.com/home.html

Membership renewal

Do please renew your Clarity membershipat http://www.clarity.shuttlepod.org/.

If Clarity already has your email address,then your password = clarity. So you can login, change your password, and renew yourmembership, etc. While you’re there, maybesign someone else up as a gift, or send themthe link so they can sign up.

Do come to Lisbon.

Christopher Balmford

President of Clarity

Coming conferences

12–14 October 2010, Lisbon

Clarity, Clarity2010

www.clarity2010.com/home.html.

9–11 June 2011, Stockholm

Plain Language AssociationINternational: Establishing the Frame-work for Plain Language

www.sprakkonsulterna.se/plain2011.

2–4 February 2011, Hyderabad,India

Commonwealth Association ofLegislative Counsel (CALC) con-ference: Legislative Drafting: ADeveloping Discipline

www.opc.gov.au/CALC/conferences.htm

ClarityNumber 63 May 2010

Journal of theinternational associationpromoting plain legal language

Editor in chief:Julie Clement

Editor’s Note

Dear Members:

In Clarity 63, Mark Adler contributed three“Drafting Notes.” You’ll find them on pages4, 33, and 41. On receiving the journal, Markcontacted me with the following note and re-quest:

I see from my copy of the journal (justarrived) that some essential formattingwas lost from the Drafting Notes, makingparts of them difficult to follow ormisleading. Perhaps the easiest and mosteffective way to put this right would be toinclude the notes as a separate document(which I’m attaching) when you send outthe pdf version, if you wouldn’t mind.

I apologize for any inadvertent change to thesubstance of these submissions, and we arehappy to comply with Mark’s request. So in-cluded as part of the pdf version of Clarity63—in the pages that follow—you’ll findMark’s Drafting Notes, in their original for-mat.

I am awaiting the final submissions for Clar-ity 64, which will include the internationalworking group’s papers on standards. Thesedrafts are sure to inspire spirited discussion,at the PLAIN conference in Stockholm thisyear, and well beyond that conference. AndSandra Fisher-Martins and Martin Cutts areputting together a selection of papers fromthe Clarity2010 Lisbon conference for Clarity65.

I hope the new year is bringing you healthand happiness so far!

Warm regards,

Julie Clement, editor in chief

Drafting notes 1

A newspaper cutting recently quoted on BBC radio’s News Quiz read: Too many police can’t shoot straight or take bribes.

This is a common form of syntactic ambiguity — ambiguity arising from sentence structure. It is caused by the writer’s failure to show whether “can’t” governs just “shoot straight” or both “shoot straight” and “take bribes”. Is the writer complaining that some police take bribes or that they can’t take bribes? This structure will cause problems where both alternatives are possible.

So how can writers show what they mean? Mathematicians’ formulae use brackets, writing something like

(A) Too many police ([can’t shoot straight] or [take bribes]).

(B) Too many police can’t (shoot straight or take bribes).

Here are some other possibilities: (A) Too many police either can’t shoot straight or take bribes.

(B) Too many police can’t either shoot straight or take bribes.

(A) Too many police take bribes or can’t shoot straight.

(A) Too many police can’t shoot straight or do take bribes.

(A) Too many police can’t shoot straight, or take bribes.

(A) Too many police:

can’t shoot straight or

take bribes.

(B) Too many police can’t:

shoot straight; or

take bribes.

Drafting notes 2

In Drafting notes 1 I looked at an ambiguity in the sentence: Too many police can’t shoot straight or take bribes.

Another ambiguity arises if the writer meant Too many police can’t … take bribes.

There is an understandable inclination for the reader to assume that if someone “can’t do A or B” can’t is used in the same sense for both A and B. And this inclination is reflected in the advice that the same word should not be used in different senses, especially in a formal legal document. So this wording suggests that some police are incapable of taking bribes rather than that they are unwilling to do so.

You might say that this is not ambiguous because “can’t” can only mean “is incapable of”. But if that were so the sentence wouldn’t have been funny.

Drafting notes 3

In speech, ambiguity is often resolved automatically and unconsciously by the pattern of stresses, or by pauses. Say to yourself

John could only see his wife from the doorway

several times, each time stressing a different word, and see how it changes the meaning.

Because this technique is unconscious, the problem is often overlooked in written text. Then both writer and reader will “hear” in their mind’s ear only the stress pattern that the context or their own habits of thought suggest. If these give rise to different meanings they will misunderstand eath other.

What can we do about it? • The pause technique can sometimes be reflected by punctuation, as with the

comma after “stresses” in the first sentence of this note. But this should be used carefully: it may lead to over-punctuation; and it will sometimes be too subtle.

• Stress can be shown by bold or italic type, or by underlining, as long as these devices aren’t being used to flag something else.

• The wording can be changed. For example: John could see only his wife from the doorway.