68 021313 01 - clarity-international.net · the story of “shall”: ... sir kenneth keith, onz,...

ClarityNumber 68 November 2012

Journal of theinternational associationpromoting plain legal language

Editor in chief:Julie Clement

Guest editors:Annetta Cheek, ChristopherBalmford, and Gina Frampton

In this issueKeynote papers

Candice BurtClarity 2012 opening address 5

Lee RosenthalThe story of “shall”: a parable of plain language 7

Eamonn MoranReflections of a plain-language legislative drafter 13

Amy FriendPlain language in the financial world 16

Karine NicolayThe IC clear project 21

Josiah FiskPlain language and the role of the visual 23

Laws requiring plain language: a Clarity project

Ben PiperPlain language laws in Australia 29

Tialda SikkemaPlain language laws in the Netherlands 31

Annetta CheekThe US Plain Writing Act of 2010 34

Plain language in other languages

Anki MattsonThe rewriting of a statute—a case study 35

Anne-Marie HasselrotThe Swedish approach to clear legislation 36

Rosa Margarita Gálan Vélez andAntonio Canizales GonzálezThe risks and challenges of fostering plainlanguage in Mexico 38

Sissel C. MotzfeldtNorway’s never ending story: improving the languagein laws and regulations 39

Martijn JacobsSimple is smart, smart is fast 41

Aino PiehlPlain language in the new Finnish model for effectivelegislative drafting 46

Clarity and general news

This issue 3How to join Clarity 16Contributing to the journal 16Member news and upcoming conferences 47Meet the committee members 49

2 Clarity 68 November 2012

Patrons The Rt Hon Sir Christopher Staughton; The Honorable Michael Kirby AC CMG; andSir Kenneth Keith, ONZ, KBE, and QC

Founder John Walton

CommitteePresident: Candice Burt ([email protected])Members: Country Representatives plus Simon Adamyk, Michèle Asprey, Peter Butt, Sir Edward

Caldwell, Richard Castle, Annetta Cheek, Julie Clement, Gérald Delabre, Robert Lowe,John Pare, John Walton, Richard Woof.

Country representatives

ArgentinaMaximiliano [email protected]

AustraliaChristopher [email protected]

BangladeshA.K. Mohammad [email protected]

CanadaNicole [email protected]

ChileClaudia Poblete [email protected]

FinlandHeikki [email protected]

FranceJenny [email protected]

GermanySiegfried [email protected]

Hong KongElizabeta [email protected]

IndiaDr. K.R. [email protected]

IsraelMyla [email protected]

ItalyChristopher [email protected]

JapanKyal [email protected]

LesothoRetsepile Gladwin [email protected]

MalaysiaJuprin [email protected]

The NetherlandsTialda [email protected]

New ZealandLynda [email protected]

NigeriaDr. Tunde [email protected]

PakistanMazhar [email protected]

PeruRicardo Leó[email protected]

PhilippinesVictor [email protected]

PortugalSandra [email protected]

Slovak RepublicIng. Ján [email protected]

South AfricaCandice [email protected]

SpainCristina [email protected]

SwedenHelena Englund Hjalmarssonhelena.englund@

sprakkonsulterna.se

UKDaphne [email protected]

USAProf Joseph [email protected]

ZimbabweWalter [email protected]

All other countries:Please contact the USArepresentative

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+ Nicole Fernbach

$100+ None

Clarity 68 November 2012 3

Clarity … the journalPublished in May and November

An international associationpromoting plain legal languagewww.clarity-international.net

This issueWith co-hosts, the Center for Plain Language,and Scribes, The American Society of LegalWriters, Clarity’s committee decided to holdClarity 2012 in Washington D.C. The city isthe hotspot for all those people in US govern-ment agencies working to implement the USPlain Writing Act of 2010 across thousands ofdocuments.

The Act requires the US federal governmentto write all new publications, forms, andpublicly distributed documents in a “clear,concise, well-organized” manner that followsthe best practices of plain-language writing.Each agency is required to appoint an officerto implement the Act. You can read about theAct on the Center’s website. The Center evengives a report card that grades agencies onhow well they are complying with the Act.

At the conference, Clarity launched a projectto create a database of all the laws around theworld that require the use of plain language.The purpose of the project is to encourageand help people everywhere to call for more—and better—plain-language laws. TialdaSikkema from The Netherlands and Ben Piperfrom Australia are coordinating the projectand, at the conference, gave papers on therelevant laws in their countries. In their com-bined article, Tialda and Ben report on theirdiscoveries—some encouraging and some lessso.

Ben and Tialda invite you to contribute:

• to the database of international clarity laws;

• findings on how lawmakers deal withdifficulties about defining plain language,about compliance and about enforcement.

To be sure, some of these difficulties—in par-ticular, the problem of defining plainlanguage—are likely to shrink as the Interna-tional Plain Language Working Groupdevelops an internationally accepted definition

PresidentCandice [email protected]

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.


of plain language and sets plain languagestandards. You can read about the Group’swork in its substantial Options Paper pub-lished in Clarity 64, November 2010, at http://www.clarity.shuttlepod.org/Resources/Documents/64_032111_04_final.pdf

At the conference dinner, the Center pre-sented its third annual ClearMark Awards.The awards celebrate some of the best docu-ments in the United States, and poke somegentle fun at some of the worst. Both the din-ner and the conference were held at theNational Press Club in Washington D.C.

As with the location of the conference, thestructure and content of Clarity 2012 reflectedthe likely interests of people—especially law-yers—working on implementing the Act.

Some speakers were from agencies activelyimplementing the Act. One highlight was JodiDaniel, Director in the Office of the NationalCoordinator for Health Information Technol-ogy (ONC) at HHS, speaking about a modelconsumer privacy notice that HHS developedin response to personal health record vendors’concerns about new privacy regulations. Theysuggested that they can compete on privacy.ONC developed the model notice, with inputfrom vendors and consumer testing, to furtherthis aim and enable companies to communi-cate complex information to their customersin a clear way. Vendors using this notice, in-cluding Microsoft, do so voluntarily as a way ofbeing clear and transparent about their privacypolicies.

Terry Lemons of the Internal Revenue Servicedescribed the USA tax office’s obligation tocollect about $2.3 trillion tax from 141 milliontaxpayers and what the impact was of sendingthe wrong message. The response of many re-cipients of the IRS’s “Notice of Intent to Levy”:to call up to ask what they should do as theyhad received a notice that was meant for Levi’s!

Kathryn Catania from US Citizenship andImmigration Services (which has until recentlyreferred to people as “aliens” and “derivatives”)described the benefits of changing an obliga-tion from:

You must show that sufficient physicalpremises to house the beneficiary have beensecured.

to

You must show that your employee has anacceptable place to live.

To help reassure people new to plain languagethe conference included presentations from awide range of lawyers—for example, Clarity’sown Eamonn Moran spoke on “Confessionsof a plain-language legislative drafter”. Wehad the joy of listening to Professor JosephKimble. And we heard from the legal lexicog-rapher and author Bryan Garner, and fromLee H. Rosenthal, a United States DistrictJudge.

These combined issues of Clarity offer high-lights from Clarity 2012—our 5th internationalplain language conference. Although wecan’t fit in all the highlights here, you can seenearly all the presenters’ slides—and in somecases their full papers—at www.clarity-international.net/conferencepapers2012.html

Next conference

Clarity’s next conference will be in 2014 inBelgium. It will be a major event co-hosted byIC Clear (International Consortium for ClearCommunication), PLAIN and IIID (Interna-tional Institute for Information Design). Otherpartners will be contacted to join.

US plain language awards

See the Center’s website <www.centerforplainlanguage.org> for information about the 2013Awards. They are to be held on Tuesday 16April, again at the National Press Club.

Christopher BalmfordManaging DirectorWords and Beyond, Australia

Annetta CheekChairCenter for Plain Language, Washington, DC

Christopher Balmford, a formerlawyer with Baker & McKenzie,from Melbourne, Australia, is aninternationally recognised expert inmaking legal and related documentsclear, accurate, and easy to use. He isimmediate past-president of Clarity,(www.clarity-international.net);founder and managing director ofplain language consultancy Wordsand Beyond Pty Ltd, whose clientsinclude major law firms, public companies, governmentagencies, the United Nations, and the European Central


Bank (wwww.wordsandbeyond.com); founder and formermanaging director, online legal document providerCleardocs Pty Ltd (www.cleardocs.com) acquired byThomson Reuters, in 2011.

Dr. Annetta L. Cheek is ananthropologist by training,earning a PhD from the Uni-versity of Arizona in 1974. Sheworked for the US federalgovernment from 1980 untilearly 2007 and spent four yearsas the chief plain languageexpert on Vice President Gore’sNational Partnership forReinventing Government. Shewas the chair of the federalinteragency plain language advocacy group, PLAIN,from its founding in 1995 until she retired from thegovernment, and administered the group’s website,www.plainlanguage.gov. She was a founding member ofthe Center for Plain Language, www.centerforplainlanguage.org, a federally tax-exempt corporation. Shehas served as Chair of its board since its founding in2007. In that role, she was instrumental in getting theUS Congress to pass the Plain Writing Act of 2010.Annetta is also Director of Plain Language Programs forR3I Consulting, a DC-area consulting firm.

Candice BurtPresidentClarity, Johannesburg, South Africa

Welcome, everyone, to Clarity’s Fifth Interna-tional Conference.

In 1995, the then South African Minister forJustice, Mr Dullah Omar, addressed a plainlanguage seminar about the transformationof justice in our country. He outlined severalkey principles as being important to achievethat transformation:

• the principle of access to justice

• the principle of participation and

• the principle of empowerment.

He called for ‘plain, simple and understand-able language’ in the country’s laws, in courtjudgments, in consumer documents, in radioand television broadcasts. He referred toplain language as “democratising language”,a way to rid ourselves of the exclusionarylanguage of the past.

His speech was captured in law professorFrans Viljoen’s book, Plain Language in a NewDemocracy.

Inspiring stuff for a law student to read—especially on a Friday afternoon in a Latinlecture!

It inspired me to find out more about plainlegal language and to find lawyers who pro-moted the use of plain language in their work.Not an easy task in a country where ‘democ-racy’ was an unknown concept a couple of

Clarity 2012 openingaddress

Keynote papers


years before. A wider search brought me toClarity.

Founded almost 30 years ago by English so-licitor John Walton, Clarity has grown into aglobal organisation of some 650 members in50 countries. There are official representa-tives in about 30 of those countries and thisnumber is growing. This is our fifth interna-tional conference, with previous conferencesin England, France, Mexico and Portugal.

It is clear that the desire for plain language inlegal and other formal texts has turned into ademand. Citizens are no longer prepared totolerate impenetrable legalese, small print,and unstructured laws and contracts. Manycountries have laws and regulations aboutthe use of plain language in legal, financial,health and other texts. Plain language can nolonger be dismissed as a nice-to-have.

Indeed it was during the 2010 conference inPortugal that we heard the US Plain WritingAct of 2010 had been passed into law. And soit is fitting that our fifth conference is here inWashington D.C. the capital of the US. I amexcited to be here and I welcome you all towhat is certain to be an excellent conference.

Clarity’s warmest thanks go to our co-hostsand sponsors, Center for Plain Language andScribes. We are delighted to partner withthese outstanding organisations. We alsothank our sponsors, the Plain English Foun-dation, the Plain Language Commission, thePlain Language Group, Carolina AcademicPress, More Carrot Less Stick, Clarify Now,Simplified, the Victoria Law Foundation, andSprakonsulterna. Special thanks go to spon-sors Redish and Associates, and ChristopherBalmford’s Words and Beyond, both of whichhave made sizeable contributions to this con-ference. Ginny Redish hosted last night’sreception and drinks, which was a wonder-ful opportunity to catch up with old friends,meet some new ones and enjoy an evening ofgetting to know one another.

Personally, I would like to thank Professor JoeKimble, Annetta Cheek, ChristopherBalmford and Joanne Locke for working tire-lessly to make this conference as successful asit is set to be.

And there is a lot to look forward to on theconference program: we have the opportu-nity to learn from the world’s foremostexperts on plain language, from Hong Kong

to Mexico, from Norway to New Zealand . . .and beyond. The diversity of topics showshow widespread the demand for plain lan-guage has become.

The International Plain Language WorkingGroup has been working tremendously hardto move forward with several issues affectingthe plain language industry. We are lookingforward to an update of their progress, aswell as to some exciting announcements fromthe Group.

Also, the International Consortium for ClearCommunications (IC Clear) will share withus its goal of developing a post-graduateclear communication course that draws onthe disciplines of plain language, informationdesign and usability techniques. This projectis a first and its successful implementationwill certainly go a long way to producingcommunication professionals who can meetthe international demand for plain languagerelated skills.

Whew! There is a lot to learn and share —we had better get started.

Thank you all for your support for the con-ference. I hope you have an inspiring time.

22 May 2012

© C Burt [email protected]

Candice Burt is a plainlanguage lawyer. She completedher BA and LLB degrees at theUniversity of theWitwatersrand, Johannesburg,in 1994. Burt was admitted asan attorney of the High Courtof South Africa in 1997. Since1999, she has focused onmaking legal and financialinformation clear andunderstandable. Burt co-founded Simplified, a Johannesburg training andconsultancy firm, in 2004. Simplified’s training hasreached 3000 people in South Africa, Portugal, Kenya,and the UK. In 2009, she contributed chapters on plainlanguage in Neville Melville’s The Consumer ProtectionAct made easy and in Cheryl Stephen’s Plain Languagein Plain English. She also wrote the plain languagechapter of the South African GovernmentCommunicators’ Handbook in 2004. In 2010, Candiceco-founded the Plain Language Group of South Africawith other plain language practitioners. It aims to lobbyfor effective plain language guidelines in South Africa.


Lee RosenthalUS District Court JudgeHouston, Texas, USA

Federal Rules of Civil Procedure

When the “restyled” Federal Rules of CivilProcedure took effect in 2007, most lawyers,judges, and—above all—law students andtheir professors cheered. The style project’sgoal was to simplify and clarify the proceduralrules used in civil cases filed in the federalcourts in the United States, but withoutchanging the substantive meaning of anyrule.1 That proved to be a difficult and fasci-nating task. It took years and engaged scoresof talented and dedicated individuals. This isthe story of one word in that work.

The redrafters

The style project began years earlier, in 1991,with the overall purpose of promoting unifor-mity among the different sets of the FederalRules of Procedure—Appellate, Bankruptcy,Civil, Criminal, and Evidence—as well assimplifying and clarifying each of them. Thisproject was begun by the giants in the proce-dure and legal-writing worlds. ProfessorCharles Alan Wright, one of the country’spremier experts on procedure, was the firstleader and the organizer. Professor Wrightasked Bryan A. Garner, a leading legal-writ-ing scholar, to assist. Bryan Garner prepareddrafting guidelines to serve as a common set ofstyle preferences; those guidelines have beenpublished as the Guidelines for Drafting andEditing Court Rules. Until 1999, he also servedas the style consultant to the Judicial Confer-ence Standing Committee on the Rules ofPractice and Procedure, which oversaw theproject. In 1999, Professor Joseph Kimble,also a well-known legal-writing expert, be-came the style consultant.

Restyling the Rules of Appellate andCriminal Procedure

The first rules to be restyled were the FederalRules of Appellate Procedure, which apply toall appeals filed in the United States federalcourts. The second was the Federal Rules ofCriminal Procedure, which apply to all crimi-nal cases. The restyled Rules of AppellateProcedure became effective in 1998. The re-styled Rules of Criminal Procedure becameeffective in 2002. The successful completionof the restyled Rules of Appellate and Crimi-nal Procedure demonstrated the benefits.

Restyling the Rules of Civil Procedure

The style work on the Rules of Civil Proce-dure was third, for good reason. The CivilRules posed distinct challenges. They werewritten at an earlier time—the mid-1930s—and had been amended more often, usingmore inconsistent language conventions,than the Appellate and Criminal Rules. Theywere longer than the Appellate or CriminalRules, and often complicated. The style workon the Civil Rules began in mid-2000, took overfour years, and produced 775 documentsanalyzing each word and each proposedchange. Both the process and the record itproduced demonstrate how much time andcare and expertise were involved.

The restyled rules are simpler and easier toread, understand, and use. Here are twoshort examples.

Rule 8(e)(2) Before Styling

When two or more statements are made inthe alternative and one of them if madeindependently would be sufficient, thepleading is not made insufficient by theinsufficiency of one or more of the alternativestatements.

Restyled

If a party makes alternative statements, thepleading is sufficient if any one of them issufficient.

Rule 71 Before Styling

When an order is made in favor of a personwho is not a party to the action, that personmay enforce obedience to the order by thesame process as if a party; and, whenobedience to an order may be lawfully

The story of “shall”: aparable of plain language


enforced against a person who is not a party,that person is liable to the same process forenforcing obedience to the order as if a party.

Restyled

When an order grants relief for a nonparty ormay be enforced against a nonparty, theprocedure for enforcing the order is the sameas for a party.

Reformatting

Some of the improvement was achieved with-out changing the words, but instead the form ofpresentation. Form alone can help, or hinder,clarity. The restyled rules use formatting toachieve clearer presentation, more congenialto the modern eye. The rules are broken downinto constituent parts, from block paragraphsto progressively indented subparagraphs, withmore than twice as many headings. They usevertical rather than horizontal lists. Theseformatting changes make the appearance ofthe rule match its structure and make the re-styled rules much easier to read and understand,even when the words were not changed.

Inconsistencies

The project reduced inconsistent, ambiguous,and redundant or archaic words in the CivilRules. After more than 70 years of amend-ments, the rules had become inconsistent insmall and large ways. Because different wordsare presumed to have different meanings,such inconsistencies could, and did, produceconfusion and arguments that in many casesshould not even have been made. The restyledrules used the same words to express the samemeaning. Some variations of expression werecarried forward, however, when the contextmade that appropriate and insisting on asingle word would have changed substantivemeaning. As an example, “stipulate,” “agree,”and “consent” appeared throughout the rules,and “written” qualified these words in someplaces but not others. The number of variationswas reduced, but at times the former wordswere carried forward rather than risk a changein substantive meaning.

Intensifiers

The restyled rules minimized the use of re-dundant “intensifiers.” These are expressionsthat attempt to add emphasis, but insteadstate the obvious and create negative implica-tions for other rules. An example is rules that

stated “unless the order expressly directs oth-erwise.” An order cannot implicitly direct. Andusing expressly suggests that this order issomehow different from all the other ordersin the rules.

Redundancies

The restyled rules also removed the manywords and concepts that were outdated orredundant. A reference to long-abandonedforms of pleading—“demurrers, pleas, andexceptions”—was removed in the style project.There was a reference to “mesne process” inwhat was fortunately a little-used rule. Noone even knew what it meant. It turned outto be a medieval French word meaning “in-termediate process.” This, with other archaicwords, can no longer be found in the rules.

Ambiguous words

An important goal was to reduce the use ofinherently ambiguous words. The worst of-fender in the rulebook was the word “shall.”Depending on the context, it can, and does,mean “must,” “should,” or “may.” And it is aword that is almost only used in written legaldocuments, not in modern spoken English orin plainly written English. The style project’sgoals of having the rules say what they meanand mean what they say, and shedding archaicexpression, demanded that “shall” be con-signed to the vocabulary scrap heap. Oncethat decision was made, it became self-fulfill-ing because the other major goal of the styleproject was consistency. Leaving “shall” inone or two places and nowhere else was in-consistent with that goal. But the full story ofthe word “shall” teaches much about thecomplexity of language, even when every ef-fort is to make it simple.

The story of “shall”

The decision to eliminate “shall” required la-borious, but fascinating, work. For every“shall” in the rules, teams of professors andreporters and committee members scrutinizedcases and treatises to divine by the use andcontext what the proper translation wouldbe. Professor Kimble recounts that there werealmost 500 “shalls” in the Civil Rules beforeDecember 1, 20072. For most of these 500“shalls,” it was easy to decide, based on con-text and case law applying the particularrule, that the “shall” was meant in the senseof a command, calling for “must.” That hap-


pened 375 times3. In other cases, context andcase law suggested that “shall” was permis-sive, calling for some form of “may.” In yetother cases, a soft imperative—“should”—seemed right.

Rule 56 on summary-judgment motions

One rule, however, defied easy translation:Rule 56, which governs summary-judgmentmotions.4 This rule is one of the most impor-tant in the book. It is what lawyers and judgesuse to decide whether cases can be resolvedon the record without the need for a jury trial.Because the result is a victory for one side anda defeat for the other, without a trial, the stan-dard used to decide when summary-judgmentmotions can be granted is critical. The languagestating the Rule 56 standard had not been re-vised for 70 years, despite major changes inthe caselaw. For 70 years, Rule 56 stated thatsummary judgment “shall be rendered” on ashowing that no genuine dispute of materialfact existed and that the moving party wasentitled to judgment as a matter of law. Theword chosen—whether “must,” “should,” or“may”—to replace “shall” could not changethe substantive meaning of the existing rule.And there was the rub. The caselaw sup-ported at least two out of the three choices toreplace “shall,” but the Committee had tochoose one.

Decisions on Rule 56

Three 1986 Supreme Court decisions5 are thebasis of the caselaw interpreting Rule 56. Twoof the three Supreme Court cases had incon-sistent language on this very point. The opinionin Anderson v. Liberty Lobby stated: “Neitherdo we suggest that the trial courts should actother than with caution in granting summaryjudgment or that the trial court may not denysummary judgment in a case where there isreason to believe that the better course wouldbe to proceed to a full trial.”6 By contrast, theopinion in Celotex Corp. v. Catrett stated: “Theplain language . . . mandates the entry ofsummary judgment, after adequate time fordiscovery and upon motion, against a partywho fails to make a showing sufficient to es-tablish the existence of an element essential tothat party’s case, and on which that partywill bear the burden of proof at trial . . . .”7

The case law after these Supreme Court caseswas both inconsistent and varied8. The varia-tion depended not only on the substantive

area of the law but also on which part of thecountry you were in, because the differentfederal circuit courts had developed divergentarticulations and approaches.9

In 2007, the committees working on restylingRule 56 pieced all this together and concludedthat the soft imperative—“should”—fit best.Although there was a great deal of commenton the proposed restyled rules from bench,bar, and academy, only one comment was di-rected to this change, and even that one didnot argue that “should” changed the sub-stantive meaning of Rule 56.

Later proposed amendments to Rule 56

In 2008, after the restyled Civil Rules becameeffective, the Advisory Committee publishedfor comment an extensive set of proposedsubstantive amendments to Rule 56. This setof proposed amendments was the daughterof the style project, which painfully revealedthe disconnect between the practice of bringingand litigating summary-judgment motions onthe one hand, and the rule’s text on the other.Such a disconnect was not surprising. Not onlyhad the case law interpreting Rule 56 changed,making summary judgment motions both morefrequent and more important, but civil litigationhad changed in other ways that affectedsummary-judgment motions. The number oftrials continues to decline in both state andfederal courts. More cases are resolved bymeans other than trial, including by motions.Discovery has become more complicated, inpart because of changes in technology thatturned it into electronic discovery, and dis-covery is in many cases focused on creatingevidence to support or oppose summary-judgment motions. The 2007 summary-judgmentrule, even as clarified and simplified by thestyle project, had not kept up with the waythese and other changes affected summary-judgment motions because the 2007 rulesteered clear of substantive changes.

Public comment on the proposed amend-ments

The 2008 proposal to make substantive changesto Rule 56 retained the use of “should” andflagged for public comment whether that wasthe right word to state the standard for grant-ing summary judgment when the criteria fordoing so were met. The proposal met with vig-orous and numerous comments. The proponents


of using “must”—that is, of requiring a judgeto grant summary judgment whenever therequirements were met, with no discretion orflexibility—argued that the rule of law itselfwas threatened if judges could deny summaryjudgment to parties who had made the nec-essary showing to obtain it.10 The proponentsof “should” as the standard—the soft impera-tive that would recognize that in most casesjudges ought to grant summary judgmentwhen the criteria for doing so were satisfied,but that in some cases, when the support wasthin or there was no inefficiency from proceed-ing to develop a fuller record at a trial—arguedthat access to courts and the interests of justicewere threatened if judges were stripped of thediscretion to deny summary judgment whenit was technically justifiable but fairness de-manded a fuller presentation.11 It was awonderful debate. Dozens of witnessesweighed in, and many written commentswere submitted.12

Undoing the change to restore “shall”

What did the brave and beleaguered rulescommittees do? They made what was, in fact,a brave choice because it was not the obviousone. They chose to revert from “should” to“shall.”13 That is, to undo the style change af-ter only three years.

Retaining words embedded in lore

Reverting to “shall” recognized that the deci-sion to change the word had itself violated atenet of the style project. That tenet was toleave “sacred phrases” that had become soladen with nuanced meaning from caselawthat to change the words would inevitablyrisk changing the substantive meaning. TheAdvisory Committee and the Standing Com-mittee concluded that the statement of thestandard—“summary judgment shall be ren-dered on a showing that no genuine disputeof material fact existed and the moving partywas entitled to judgment as a matter of law”—was such a sacred phrase and that it had beena mistake to change it as part of the styleproject.14

Avoiding changes in substantive meaning

The result was that there is only one use of“shall” in the Civil Rules. This is, of course,inconsistent with the goal of having consis-tent expression, but this goal bowed to the

greater desire to avoid changing the substan-tive meaning of a heavily used rule. Thesolution was consistent with the overall ap-proach the committees took when theyencountered ambiguities in the rules. Usually,those ambiguities could be resolved by re-search showing that the cases applied a clearand consistent meaning, and that meaningwas used. But there were instances in whichthe ambiguity of the present rule proved in-tractable. The solution in those cases was tocarry the language forward, without change.When the committees could not be sure howto resolve ambiguous meaning, it did notchange the rule, to avoid changing substan-tive meaning. That was eventually whathappened in Rule 56.

The complications—and dynamism—oflanguage

The story of “shall” in the Federal Rules ofCivil Procedure—from “shall” to a proposalfor “may” to “should” and back to “shall”—is a story about language itself. The storyreminds us of what we already knew: thatlanguage is complicated and dynamic. Weknew that words, and word choices, matter;they are consequential. Those of us privilegedto work together to restyle the Federal Rulesof Procedure, to simplify and clarify themwithout changing their meaning, were re-minded us of that, every day. The story of“shall” reminds us that language is unavoid-ably nuanced and subtle. That is not a reasonto abandon work toward simplification andclarification, or to accept that legal writingmust be the convoluted and confusing “legalese”that is all too familiar. To the contrary. Thework to simplify and clarify is what lets us seethe nuances and the subtleties. The fact thatthe Civil Rules are not entirely clear or consis-tent is not a sign of defeat but of success inunderstanding the balance between simpleand nuanced, clear and complex, that is atthe heart of language itself.

The Sistine Chapel Cleaned

The style project continued. Since December2007, when the edited Civil Rules were en-acted, the Evidence Rules have been restyled.For each set of the restyled rules, a side-by-side comparison of the former and the editedrules reveals the promise of the new. It is theproceduralist’s version of cleaning the Sistine


Chapel. The beauty of the original work is re-vealed. But its colors, its lines, its forms, arefresh and clear to the modern eye. And will be,in fifty years, one hundred years—and thenperhaps it will be time for another style project.In the meantime, the best sign of success isthat most have forgotten that there was sucha project or that the Civil Rules ever lookeddifferent than they do now.

© 2012 Judge LH Rosenthal

Endnotes1 Each Committee Note for every Civil Rule, 1 to 86,

contains the following statement: “The languageof Rule X has been amended as part of the generalrestyling of the Civil Rules to make them moreeasily understood and to make style andterminology consistent throughout the rules.These changes are intended to be stylistic only.”The cases and commentary that applied before theStyle Project apply after the project.

2 Joseph Kimble, Lessons in Drafting from the NewFederal Rules of Civil Procedure, 12 SCRIBES J.LEGAL WRITING, 25, 79 (2008–2009).

3 Id.4 Professor Steven Gensler has written the

definitive article on Rule 56 and the Style Project.Steven S. Gensler, Must, Should, Shall, 43 AKRONL. REV. 1139, 1152 (2010).

5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242(1986); Celotex Corp. v. Catrett, 477 U.S. 317(1986); Matsushita Electric Industrial Co. v.Zenith Radio Corp., 475 U.S. 574 (1986).

6 Anderson, 477 U.S. at 255.7 Celotex Corp., 477 U.S. at 322.8 See Memorandum from Andrea Kuperman to

Judge Mark Kravitz, Discretion to Deny SummaryJudgment (February 19, 2008, as supplementedJan. 25, 2009), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Rule%2056%20memo.pdf (describingvarying case law on discretion to deny summaryjudgment).

9 See generally Kuperman, supra (describingvarying case law throughout the circuits ondiscretion to deny summary judgment).

10 See ADVISORY COMMITTEE ON CIVIL RULES, AGENDABOOK FOR APRIL 20–21, 2009 MEETING 124, availableat http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Civil/CV2009-04.pdf.

11 See ADVISORY COMMITTEE ON CIVIL RULES, AGENDABOOK FOR APRIL 20–21, 2009 MEETING 127–131,http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Civil/CV2009-04.pdf. http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Transcript_111708.pdf, at 24.

12 See ADVISORY COMMITTEE ON CIVIL RULES, AGENDABOOK FOR APRIL 20–21, 2009 MEETING, at 120–69,http://www.uscourts.gov/uscourts/

RulesAndPolicies/rules/Agenda%20Books/Civil/CV2009-04.pdf (summarizing writtencomments and testimony on proposed rulespublished for comment); Hearing Before theAdvisory Committee on Civil Rules, February 2,2009, available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/CV02-2009-tr.pdf; Hearing Before the Advisory Committee onCivil Rules, January 14, 2009, available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/FedCtHearing011409.pdf; Hearing Beforethe Advisory Committee on Civil Rules,November 17, 2008, available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Transcript_111708.PDF.

13 See Advisory Committee on Civil Rules, Minutes,April 20–21, 2009, at 3, http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Minutes/CV04-2009-min.pdf.

14 The Advisory Committee recognized that, “[b]ysubstituting ‘should’ for ‘shall,’ the Style Projectmay have inadvertently desecrated a sacredphrase.” See Advisory Committee on Civil Rules,Mins., February 2–3, 2009, at 6, http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Minutes/CV04-2009-min.pdf. At its nextmeeting, the Advisory Committee recommendedthe restoration of “shall,” explaining that

[i]n February the Committee concluded that“shall” should be restored, despite the generalstyle convention prohibiting any use of thisword. Multiple comments on the publishedproposal, which carried forward with “should”from the Style Project, show unacceptable risksthat either of the recognized alternatives,“must” or “should,” will cause a gradual shiftof the summary-judgment standard. Briefdiscussion reconfirmed by unanimous vote therecommendation to restore “shall.”

ADVISORY COMMITTEE ON CIVIL RULES, MINS., April 20–21, 2009, at 3, http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Minutes/CV04-2009-min.pdf. Under Rule 56 as amended in 2010, “Thecourt shall grant summary judgment . . .” FED. R.CIV. P. 56(a). The Committee Notes accompanyingthe 2010 amendment explained:

“Shall” is restored to express the direction togrant summary judgment. The word “shall” inRule 56 acquired significance over manydecades of use. Rule 56 was amended in 2007 toreplace “shall” with “should” as part of theStyle Project, acting under a convention thatprohibited any use of “shall.” Comments onproposals to amend Rule 56, as published in2008, have shown that neither of the choicesavailable under the Style Project conventions—“must” or “should”—is suitable in light of thecase law on whether a district court hasdiscretion to deny summary judgment whenthere appears to be no genuine dispute as toany material fact. Compare Anderson v. LibertyLobby, Inc., 477 U.S. 242, 255 (1986) (“Neitherdo we suggest that the trial courts should actother than with caution in granting summaryjudgment or that the trial court may not denysummary judgment in a case in which there isreason to believe that the better course would beto proceed to a full trial. Kennedy v. Silas MasonCo., 334 U.S. 249 * * * (1948)),” with Celotex


Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“In ourview, the plain language of Rule 56(c) mandatesthe entry of summary judgment, after adequatetime for discovery and upon motion, against aparty who fails to make a showing sufficient toestablish the existence of an element essential tothat party’s case, and on which that party willbear the burden of proof at trial.”). Eliminating“shall” created an unacceptable risk ofchanging the summary-judgment standard.Restoring “shall” avoids the unintendedconsequences of any other word.

FED.R. CIV. P. 56, Advisory Comm. Notes (2010).There are other examples of phrases that were notthe simplest or plainest expression but were notchanged because they were embedded inprofessional lore. One example is “transaction oroccurrence,” used to define the relationships thatmake a counterclaim compulsory. Another is thewords stating the basic standard for certifying aclass action under Rule 23, which were notchanged because they were viewed as “words ofart.”

Judge Lee H. Rosenthal was appointed US DistrictCourt Judge, Southern District of Texas, HoustonDivision, in 1992. Before that, she was a Baker & Bottspartner. She earned Bachelor’s and Law degrees from theUniversity of Chicago and clerked for Chief Judge JohnR. Brown, US Court of Appeals, Fifth Circuit. ChiefJustice Rehnquist appointed her to the JudicialConference Advisory Committee on Civil Rules in 1996.

She chaired the Class Actionssubcommittee, which wrote the2003 amendments to Rule 23.In 2003, Rehnquist appointedher chair, Civil RulesCommittee, which “restyled”the Civil Rules and enactedelectronic discoveryamendments. In 2007, ChiefJustice Roberts made her chair,Judicial Conference Committeeon Rules of Practice and Procedure. She served until2011 and oversaw Evidence Rules “restyling.”Rosenthal is a member of the American Law Institute,where she’s advised the Employment Law, AggregateLitigation, and Transnational Rules of Civil Procedureprojects. In 2007, she was elected to the American LawInstitute Council; in 2011, she was Program Committeechair. She writes and lectures on complex litigation andcivil procedures, including class actions and electronicdiscovery. She’s a Rice University Trustee and on DukeUniversity’s School of Law Board of Visitors. She’s ViceChair, Board of Trustees, Center for American andInternational Law; and President, District Judges’Association, Fifth Circuit. She and her husband havefour daughters.


Eamonn MoranLaw DraftsmanDepartment of Justice, Hong Kong, China

Introduction

Legislative drafters are probably the writingpractitioners who have been the most heavilycriticised by advocates of plain language, in-deed by just about anyone. Appendix B to theRenton Committee Report in the UnitedKingdom1 sets out many examples of criticismof drafters from members of the judiciary.Much of that criticism was indeed deserved.Academics and plain-language advocateshave also been to the fore in heaping criticismon drafters. And again much of the criticismhas been deserved. The criticism continues tothis day although it is now, in my perceptionat least, less frequent and less vitriolic. Clearlyeither legislative drafters are doing somethingright or the critics have tired of the task. I sug-gest that drafters are doing something right.

This article sets out to place legislative draft-ing in context. It explains the constraints ondrafters in terms of writing style. It acknowl-edges that much of what drafters have towrite about is of great inherent complexity.Finally, it indicates how legislative draftingoffices may best set about making changes indrafting techniques in the pursuit of plain-language drafting.

What is legislative drafting?

Legislative drafting has been defined as “theart of converting legislative proposals into le-gally sound and effective law”2. Legislationregulates how a community operates and al-locates rights and duties to members of thatcommunity, either across the board or by cat-egory of person or activity in which they areengaged. Unlike contractual arrangementsbetween parties, generally there is no elementof voluntary agreement on the part of an in-dividual to being bound by legislation.

Because of the breadth of its operation and adrafter’s inability to foresee all the circum-stances that may arise and that legislationneeds to cover, both great detail and broadsweeping provisions may be necessary. This isno easy task. And the task is all the more de-manding because so much legislation dealswith complex subject-areas. The drafter hasto work hard at understanding the underly-ing concepts and then set about describingthem in a way that is as readily understand-able as possible.

Implications arising from the nature oflegislative drafting

There is no getting away from the fact thatwriting the law by which members of societyare bound, and which may result in them losingtheir liberty or in suffering a large financialpenalty should they fail to comply with it, isa highly responsible task. It’s understandablethat drafters may wish to stick closely to well-trodden paths and avoid trialling new writingtechniques or substituting a new word for atried and tested one. They are also operatingwithin an environment that imposes manyrestraints on their freedom of activity. Theserestraints may be both textual and institutional.

Textual restraints arise from the fact that muchnew legislation is in fact amending legislation,that is, legislation that makes textual changeswithin an existing law so that it operates dif-ferently in the future or covers some matternot previously covered by it. Many jurisdic-tions publish consolidated texts of theirlegislation incorporating all amendments todate. Amended laws need to appear to thereader to be coherent and unified, not a mot-ley collection of highly individualised writingstyles and structures.

Even a new principal law—that is, an entirelynew law, not one amending an existing law—should sit apparently seamlessly within thejurisdiction’s statute book. Legislation contain-ing general principles about the interpretationand construction of legislation and even defi-nitions of commonly used terms will alreadybe in place in the particular jurisdiction. Therewill be legislation about how courts operateand the kinds of penalties they may impose.There will be legislation about how public fi-nance operates and the reporting andaccountability provisions that must generallybe complied with. There is likely to be an es-

Reflections of a plain-language legislativedrafter


tablished regime for the scrutiny of delegatedlegislation that must be attracted. All of these,and other legislation with a general applica-tion, impose limitations on the individualdrafter’s capacity to innovate. On top of that,the legislature may have in place rules andpractices requiring a particular structure andformat—both for legislation as introducedand for amendments moved in the course ofa bill’s passage. In many jurisdictions legisla-tive drafting is carried out in a centralisedoffice that has in place a manual setting outthe styles and techniques that members of thatoffice must use in drafting legislation.3 And,with varying degrees of thoroughness, legis-latures may scrutinise draft legislation for itscompliance with established practices.

Drafters understand the need for acces-sible law

Today’s drafters generally recognise the im-portance of producing comprehensible laws.They are aware of statements like that of theEuropean Court of Justice in Sunday Times vUnited Kingdom4 that “the law must be ad-equately accessible: the citizen must be ableto have an indication that is adequate in thecircumstances of the legal rules applicable toa given case”. They understand that accessi-bility of the law is increasingly seen as a criticalelement of the rule of law and as a factor tobe considered in determining whether some-thing purporting to be a law is indeed a validand effective law.5

Drafters are conscious of the criticisms ofparticular characteristics of traditional legis-lative drafting and they have access to manytexts and articles setting out techniques forproducing plain writing. They understandthat writing must be in a contemporary styleif it is to be understandable to communitymembers. And they realise that they will failin their task if the intent of the law they writecannot be discovered, even by a court carry-ing out a detailed analysis.

Although it is now a recognised practice inmany jurisdictions for courts to read provi-sions in context and in the light of theirapparent purpose, text still plays a vitally im-portant role. A drafter’s chosen words are ofcritical importance. Drafters must also be alertto how they structure the provisions withinthe draft legislation: a helpful structure andclear document design are every bit as impor-

tant as the words in producing a plain-lan-guage product.

Balanced against all of this is the fact thatmany subject areas about which legislation isdrafted are inherently complex. The draftercannot be expected to produce legislation in acomplex subject area that will be readily under-standable by a person without some specialistknowledge in that area. The drafter can,however, be expected to ensure that any diffi-culties in understanding the text result fromthe underlying complexity of the concepts,not from the language or structure chosen bythe drafter.

Change is both possible and necessarydespite the limitations

To my mind there is no doubt that because itis important that members of society under-stand the laws by which they are bound, it isessential for drafters to strive for change despitethe limitations on them. Writing standardsand practices evolve over the generations.Drafters cannot operate in a time warp. Theymust strive for ways to maintain the coherenceof the statute book while at the same timeadopting changes in their writing techniquesand practices. An obvious way of doing thisis seeking editorial powers to reshape the ex-isting body of law to make it make it matchnew law in appearance and layout. In exer-cising editorial powers, drafters must be carefulnot to change the legal effect of existing pro-visions. In granting editorial powers thelegislature may provide a fail-safe mechanismby legislating to prevent editorial changeschanging the law being edited.6

Drafters must continue to explore ways inwhich they can enhance the accessibility oflaws, whether through:

• using notes, examples and other reader aids,

• pruning archaic language from the statutebook,

• pursuing a program to rewrite elderly laws,

• effectively using hyperlinking on electronicversions of law, or

• regularly reviewing document designtemplates.

Conclusion

In the course of my career the call for the useof plain language in legislative drafting has


moved from being mainly the call of outsidersto the profession (whether judges or others)to drafting practitioners themselves. Thewebsites of many drafting offices contain ma-terial explaining approaches to achievingplain-language products.7 Conferences ofdrafters regularly have sessions focussing onplain language.8 The issue is no longer shouldlaws be written in plain language but howbest might they be. Clarity and certainty areno longer seen as dichotomous but as a uni-tary concept. Drafting practitioners havebecome adept at achieving change within arigid environment.

None of this is to say that we are in draftingnirvana. Some jurisdictions show greater evi-dence of plain-language drafting than others.This is not necessarily because the draftersthemselves are opposed. They may have alegislature that is resistant to innovation indrafting techniques. They may be so overbur-dened with work that they don’t have the timeto stand back and review their drafting prac-tices. Because of their lack of internal resourcesthey may have heaped on them the work ofoutside consultants unskilled in plain-languagedrafting. And, of course, even in those juris-dictions that have adopted plain-languagewriting techniques, there needs to be a regularreview of current practices and a commitmentto continuous improvement. This is time con-suming and may be neglected in the face ofother demands. Drafters also need to be vigi-lant to ensure that they do not fall back intoold ways. A good way to guard against this isfor a jurisdiction to make public its commit-ment to plain language and to detail thetechniques they use to achieve it. It’s muchharder to break a publicised commitment andstatement of drafting practices than to breachpurely internal guidelines.

It’s time for there to be more publicacknowledgement of the steps taken by legis-lative drafters in pursuing plain-languagedrafting. Many of their private practitionercolleagues still write much as they alwayshave, whether in drafting wills or convey-ances or other private documents. Legislativedrafters have pursued plain-language draft-ing despite the limitations and the intrinsicdifficulty of their task. Critics also need to takeinto account any underlying complexity of thearea to which legislation relates and to givecredit where the drafter has clearly tried—through the use of plain-language

techniques—to make that legislation as un-derstandable as is possible in the circumstances.

Those of us who have adopted legislativedrafting as a career path nod in agreement withthese words spoken by Lord St. Leonardsabout statutes more than 150 years ago:“Nothing is so easy as to pull them to pieces,nothing is so difficult as to construct themproperly”9.

© 2012 E [email protected]

Endnotes1 Committee appointed by the Lord President of the

Council, The Preparation of Legislation, Cmnd. 6053(1975).

2 How Legislation Is Made in Hong Kong, publishedin 2012 by the Law Drafting Division, Departmentof Justice, Hong Kong and available onwww.doj.gov.hk.

3 See, for example, Drafting Legislation in Hong Kong:A guide to Styles & Practices, published in 2012 bythe Law Drafting Division, Department of Justice,Hong Kong and available on www.doj.gov.hk.

4 (1979–80) 2 EHRR 245.5 See, for example, The Rule of Law, Tom Bingham,

London: Penguin Books, 2011, p.37 where it isstated that the law “must be accessible and so faras possible intelligible, clear and predictable”.

6 See, for example, section 13 of the LegislationPublication Ordinance (Cap. 614) (Hong Kong).

7 See, for example, Working with OPC - A Guide forClients at http://www.opc.gov.au/about/documents.htm.

8 See, for example, http://www.opc.gov.au/calc/conferences.htm.

9 O’Flaherty v M’Dowell (1857) 6 H.L. Cas. 142 at179.

Apart from brief stints as abarrister and solicitor, EamonnMoran has been a legislativedrafter for 37 years. Hisdrafting career has taken himfrom Belfast, Northern Ireland,to Melbourne, Australia, and toHong Kong, China. He wasChief Parliamentary Counsel inVictoria, Australia, 1999-2008,and, since 2008, Law Draftsmanin the Department of Justice inHong Kong. He’s on the Law Reform Commission ofHong Kong and instructor in legislative drafting,Athabasca University, Alberta, Canada. Eamonn was amember of the Law Reform Commission of Victoria,Australia, 1989-92; he contributed to the Commission’swork on plain language. In 2005 he was awarded aPublic Service Medal in Australia for “outstandingpublic service to legislative drafting and public law, andto the promotion of plain legal language.” Eamonn was


Amy FriendManaging DirectorPromontory Financial Group, Washington, DC

Introduction

Federal financial regulators and Congress areawakening to the need for simplified disclo-sures that help consumers understand andexercise their rights. Disclosures are at theheart of many of the consumer financial pro-tection laws in this country. Think about thedisclosures you receive when you buy a house,open a credit card, or lease a car. Or considerthe monthly statements you get for loan pay-ments or regarding your bank accounts.

Embedded in these disclosures are the termsof the product or service that, if not well under-stood, can come back to haunt any consumer.Terms address topics such as how much youowe each month; whether that amount remainsconstant or resets at a higher rate over thecourse of the loan; whether the minimumpayment you’re making actually leaves youowing more, not less, over time; whether thereis a penalty for early payment on a mortgage;and whether you have been charged for apurchase you never made on a credit card.

And so, if we as consumers are to protect our-selves based on these disclosures, we have tounderstand them. And yet, until recently, thegovernment has been more concerned with thelegal precision of these notices than their read-ability or usability by consumers. And giventhat focus—and the litigious society we livein—it’s only natural that financial companiesthemselves have been more concerned aboutliability and legal requirements than the qual-ity of their disclosures.

Graham-Leach-Bliley Act and federalprivacy notices

Although the Securities and Exchange Com-mission has actively promoted plain languagedisclosures to investors for decades, the other

President of the Commonwealth Association ofLegislative Counsel 2007-11 and is currently a Councilmember for Asia on that body. Eamonn holds an honourslaw degree from Queen’s University, Belfast, and aMaster of Laws degree from the University of Melbourne.He was appointed Queen’s Counsel in Victoria, Australiain 1998.

Plain language in thefinancial world

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].

How to join Clarity

The easiest way to join Clarity is to visithttp://sites.google.com/site/legalclarity/,complete an application, and submit it withyour payment. You may use PayPal or acredit card to pay.

Prospective members in Canada, Italy, andthe United States may also pay by bankdraft. If you prefer to submit a hard copy ofthe application, you may contact your coun-try representative for submissioninstructions. Country reps are listed onpage 2.


financial regulators have been late to the game.For those regulators, the aha! moment can betraced to financial privacy notices.

There has been a lot of talk lately about whetherCongress should have repealed the Depres-sion-era law that separated commercial andinvestment banking. Why even mention this?In fact, the law responsible for repealing thedepression-era Glass-Steagall Act is the samelaw that required financial institutions to de-velop privacy- and information-sharing policiesand provide privacy notices to their customers.

In 1999, Congress mandated that all financialinstitutions establish and abide by privacypolicies. Congress required financial institutionsto notify their customers of how they use andshare consumer personal information and howconsumers could opt out of certain sharingpractices. This was a big deal—the first timethe federal government required mandatoryprivacy notices.

What drove this law was the revelation in alawsuit by a state Attorney General (AG) thata very large bank was sharing its customers’credit card numbers and personal informationwith telemarketers, unbeknownst to the bank’scustomers and in contravention of the bank’svoluntary privacy notice. The AG’s office wasalerted to this practice when customers begancomplaining that mysterious charges wereappearing on their credit cards. Apparently,bank customers would sign up through thetelemarketer for a magazine or entertainmentpackage for a trial period. At the end of thatperiod, they had to opt out to stop the service.Only they didn’t think of opting out becausethey had never given their credit card infor-mation to the telemarketer, so how could theybe charged? That a trusted financial institutionwould engage in this type of practice was trulyshocking at the time and prompted Congressto act.

The law required seven federal agencies toimplement the statute—a consortium of bank-ing agencies, the SEC, and the FTC. In responseto proposed regulations, the agencies receiveda number of comments from the industry ob-jecting to the lengthy notices they claimedwould be necessary to comply with all theregulatory requirements. In response, the finalrules contained a set of sample clauses com-panies could use to satisfy the disclosurerequirements.

The clauses were provided to demonstrate tofinancial institutions how brief the noticescould be—not the telephone book-length no-tices they complained about—and to give theman easy means to comply with the rules. Infact, if the companies used the sample noticescorrectly, they were shielded from liability. Ican tell you, the agencies gave little consider-ation to the consumer’s ability to actuallyunderstand these clauses. Terms such as“nonpublic personal information”, “consumerreporting agency”, “nonaffiliated third party”,“as permitted by law” were not exactly user-friendly.

When the first notice arrived in my mail box,I was so excited to see the fruits of my labor.My husband took one look at the notice andsaid “I have no idea what this means.” He’s alawyer. To make it worse, these sample clauseswere blessed by the agencies and were usedas the basis of a number of notices becausethey were blessed by the agencies.

What a missed opportunity! This first set ofnotices could have provided THE teachablemoment about information-sharing practices.This was something new and novel. Privacywas a hot topic in this pre-Facebook time. Ifthe notices had been done correctly, consum-ers may have actually paid attention to thenotices and may even have reacted to themby opting out of information sharing. Instead,these inscrutable notices dissuaded consumersfrom reading or using them and thus fromexercising their rights. They were often long,in small type, printed on small multi-paneledbrochures. They ended up in the trash. In themeantime, companies spent millions of dollarsdeveloping, printing, and mailing essentiallyworthless notices.

In light of the failure of these notices, the fed-eral agencies responsible for the privacy rulesdecided to host a workshop to highlight bestdisclosure practices and discuss impedimentsto improving notices. One of the presenters wasDr. Alan Levy, a senior scientist at the FDA,who had helped develop the nutrition label—the gold standard at the time for consumerdisclosures. Levy described the process fordeveloping and testing the notice. He empha-sized the importance of testing usability asopposed to what consumers liked—whichwere not always, or even often, the same. So,for example, could a consumer looking for abag of chips with the least amount of fat or


calories use the nutrition label to make theright choice?

This was a eureka moment—perhaps a privacynotice could be reduced to a readable, usablenutrition-type label. And so, an unwieldy groupof agencies, led by Dr. Susan Kleimann ofKleimann Communication Group, embarkedon a self-imposed consumer testing journey—a maiden voyage—with the goal of developinga model privacy notice that (1) increased con-sumer comprehension, (2) allowed consumers tocompare practices across different institutions,and (3) complied with the legal requirements ofthe statute. Years later, while the project wasgoing full bore, Congress expressed its approvalby requiring the formulation of a model noticewith a safe harbor for institutions using the form.

Consumer Testing and the FinancialPrivacy Notice

The seven agency process took six years fromstart to finish. It involved multiple rulemakingsand multiple forms of testing. We began withfocus groups, then preference testing, a pre-testto help sort out design elements, one-on-onediagnostic usability testing reflecting a range ofdemographic and geographic characteristics,and quantitative testing in which we asked theopinions of people we stopped in a shoppingmall. The process was iterative, with the agen-cies continually revising the notice, taking intoaccount the results of each round of testing.

The pursuit of the ideal privacy prototypewas a complex and interesting journey. Alongthe way, we manipulated design elementsand wording. Here’s what we found:

Model Privacy Notice

Model Form with Opt-Out by Telephone and/or OnlineRev. [Insert Date]

FACTS WHAT DOES [ NAME OF FINANCIAL INSTITUTION ] DO WITH YOUR PERSONAL INFORMATION?

Financial companies choose how they share your personal information. Federal law give consumers the right tolimit some but not all sharing. Federal law also requires us to tell you how we collect, share, and protect your per-sonal information. Please read this notice carefully understand what we do.

All financial companies need to share customers’ personal information to run their everyday business. In thesection below, we list the reasons financial companies can share their customers’ personal information: thereasons [ name of financial institution ] chooses to share; and whether you can limit this sharing.

How?

Call [ phone number ]—our menu will prompt you through your choice(s) orVisit us online: [ website ]

Please note:

If you are a new customer, we can begin sharing your information [ 30 ] days from the date we sent this notice.When you are no longer our customer, we continue to share your information as described in this notice.

However, you can contact us at any time to limit our sharing.

To limitour sharing

Call [ phone number ] or go to [ website ]Questions?

Why?

The types of personal information we collect and share depend on the product or service you have with us. Thisinformation can include:

Social Security number and [ income ][ account balances ] and [ payment history ][ credit history ] and [ credit scores ]

What?

Reasons we can share your personal information Does [ name of financial Can you limit this sharing?institution ] share?

For our everyday business purpose—such as to process your transactions, maintain youraccount(s), respond to court orders and legal investi-gations, or report to credit bureaus

For our marketing purposes—to offer our products and services to you

For joint marketing purposes with other financial companies

For our affiliates’ every day business purposes—information about your transactions and experiences

For our affiliates’ everyday business purposes—information about your creditworthiness

For our affiliates to market to you

For nonaffiliates to market to you


• Word choices are critical and simple isbetter—simple words, fewer words. It wasfascinating observing the one-on-one testingbehind a one-way mirror and seeing testparticipants get hung up on words a groupof government lawyers thought were crystalclear—like “nonaffiliated third parties”.

• But oversimplification is not good either.We learned how important it was forconsumers to have a context in which tounderstand the notices—many testparticipants just didn’t have a basicunderstanding of information-sharingpractices or privacy protections.

• Design plays a major role. A tabular formathighlighting key features of the notice wasfar more effective than prose. The visualsmatter. Lots of white space, large font,bulleted items, bolded words.

• Standardization was essential to allowingconsumers to understand information-sharing practices across institutions.

Ultimately, the model notices reflected whatwe learned. Please see the Model Privacy No-tice at the bottom of page 18.

• We found that titles such as privacy noticeor privacy policy deterred consumers fromreading the notice. The title in the form of aquestion is more active and helps consumersunderstand the notice is from the consumer’sbank and that their information is beingcollected and used by the bank.

• “Why?” “What?” “How?” is the key frame.This information provides the reader acontext for understanding the rest of thenotice.

• The disclosure table is key to the model notice.It shows what the institution is sharing andthe reasons for the sharing. The table iscritical to readers’ understanding and abilityto compare.

• The opt-out form tells consumers how tolimit sharing and how to contact thecompany with questions.

And who is using this notice these days? Hereis just a handful of the companies: Bank ofAmerica, Capital One, Citibank, JPMorganChase, SunTrust, TD Bank, Wells Fargo, aswell as credit unions, car financing dealerships.Frankly, it’s everywhere.

What a shame that this project couldn’t havebeen undertaken at the beginning of the pro-cess, rather than 10 years after the law wasenacted. But of course, Congress wouldn’thave tolerated such a protracted implementa-tion of a new legal mandate.

The Consumer Financial ProtectionAgency

Today, we have a single new agency with amandate to promote clear consumer financialdisclosures and a testing regime built into thefabric of the agency. The Consumer FinancialProtection Bureau (Bureau) was created un-der the Dodd-Frank financial reform act. Itreflects the concerns of Congress and the Ad-ministration that consumers were largelyignored before. The financial crisis startedwith a spectacular failure of consumer pro-tection—the proliferation of millions ofunsuitable mortgages. The Bureau consolidates,in a single federal agency, the consumer pro-tection powers of the many financial regulatorsthat failed to stop the burgeoning mortgagecrisis. The Bureau was designed to focus onand address risks to the consumer from fi-nancial products and services whether theyarise from banks or mortgage companies orpayday lenders. I think I can safely say, with asingle agency at the helm, it is not likely thatdeveloping and testing a consumer disclosurewill take six years!

Let’s take a look at the agency

Baked into the new consumer agency’s DNAis the mission to ensure consumers have accessto timely and understandable information formaking responsible decisions. In the list ofstatutory objectives of the agency, that is num-ber one.

To further that mission, the agency is autho-rized to prescribe rules to ensure the featuresof a product or service are “fully, accurately,and effectively disclosed in a manner thatpermits the consumer to understand the costs,benefits, and risks associated with the productor service . . .”

These rules can contain a model disclosurethat uses “plain language comprehensible toconsumers; contains a clear format and de-sign, such as an easily readable type font;and succinctly explains the information thatmust be communicated to the consumer.”


Any model form issued must be validatedthrough consumer testing. Any person subjectto the Bureau’s rulemaking that uses a modelform is deemed in compliance with the dis-closure requirements—meaning they won’tbe liable for the disclosures. This “safe harbor”is very important to institutions.

I had the good fortune to be chief counsel tothe Senate Banking Committee during thecrafting and passage of the financial reformbill. My experience with developing privacynotices made me realize the importance ofplain language, including presentation andformatting, conveying ideas succinctly and inclear terms, and the important role consumertesting plays in arriving at that formulation.Fortunately, I was in the position to advocatefor the inclusion of these concepts in the leg-islation.

The Bureau is taking its mission and its author-ity seriously, having already proposedsimplified disclosures in a few key areas. TheBureau recognises that poor disclosures notonly fail to properly inform consumers, but insome cases may also use misleading terms.Clear disclosures can also lead to positivepolicy changes—after all, who wants to con-tinue a bad practice once a positive alternativehas been clearly laid out?

When you go to the Bureau website, you im-mediately notice that it is not like most othergovernment websites. It’s very user-friendly,and appears to use plain language conven-tions—it’s not cluttered, and it is simple tonavigate. The agency’s Know Before You Oweinitiative is an effort to simplify disclosures forcritical financial products—mortgages, creditcards, and student lending. In addition, theBureau has actively solicited feedback of con-sumers as they develop the disclosures.

This approach makes sense. Do the researchbefore the mandate. Ensure consumers getgood disclosures. Protect the industry againstliability if they use good disclosures. This maytake more time—something Congress isn’tgreat at understanding—but it’s prudent, itsaves money in the long run, and it works. Itis a win-win approach. We’ve come a longway from the first days of those sampleclauses.

© 2012 A [email protected]

Amy Friend is a ManagingDirector with Promontory, aleading strategy, riskmanagement and regulatorycompliance consulting firmfocusing primarily on thefinancial services industry.Amy advises clients on avariety of regulatory issues.Having served as Chief Counsel to the U.S. SenateBanking Committee and Assistant Chief Counsel at theOffice of the Comptroller of the Currency, she helpsdomestic and foreign clients understand and navigate acomplex regulatory environment. Amy most recentlyserved as Chief Counsel of the Senate Committee onBanking, Housing and Urban Affairs, where she played aleadership role in developing legislative responses to thefinancial crisis, including the Emergency EconomicStabilization Act, the Dodd-Frank Wall Street Reformand Consumer Protection Act and the Housing andEconomic Recovery Act. From 1998 to 2008, Amy wasAssistant Chief Counsel to the Office of the Comptrollerof the Currency, where she was the lead representative ona number of interagency rulemakings under the Gramm-Leach-Bliley Act and the Fair and Accurate CreditTransactions Act. From 1987 to 1997, Amy served asMinority General Counsel of the House Committee onBanking, Finance and Urban Affairs (now the HouseFinancial Services Committee), and General Counsel tothe Subcommittee on Consumer Affairs and Coinage.Previously, she was an attorney in private practice. Ms.Friend earned a Bachelor of Arts degree at the Universityof Pennsylvania and a Juris Doctor degree at GeorgetownUniversity Law Center. She is a member of the District ofColumbia Bar.


towards a training program be a survey ofpractitioners worldwide to decide on theknowledge, skills and competencies futureclear communicators need so that this can bereflected in the course’.

Interdisciplinary fields

The IC Clear team is convinced that clearcommunication today is, or should be, aninterdisciplinary field. That’s why it invitedpeople to take the survey from the areas ofplain language drafting and training, infor-mation design, usability testing and peopledealing with psychological aspects of com-munication. The team invited respondents todescribe:

• what they do and what they have done inthe field of clear communication;

• whether they work for a boss or are self-employed;

• who they get their assignments from andwho their audiences are.

Finding out about tasks, skills and futureneeds

To find out which tasks clear communicatorsperform, we asked them what they do on atypical and on an atypical work day. Thenext question was about their accomplish-ments so far and what’s in their portfolio. Wealso asked what skills they felt a clear com-municator should have. Another importantquestion for teaching future clear communi-cators was about the tools the respondentsuse. Because the course should cater for thefuture needs in clear communication, weasked the respondents what they think thenext challenges and trends in clear communi-cation will be.

Warm response

The survey was warmly received by the clearcommunication community. Many people re-sponded and gave us high quality answers.Our Austrian partner will now analyse theanswers and we hope to have defined thelearning outcomes by early September. Wewill then start developing the course modules.The results will be published in due course onour project websitewww.icclear.net.

© 2012 K [email protected]

Karine NicolayProject CoordinatorIC Clear Project, Belgium

IC Clear stands for International Consortiumfor Clear communication. It is a 3-year EU-funded project to develop the first internationalclear communication course. The pilot is ex-pected in October 2013 at the next PlainLanguage International (PLAIN) conferencein Vancouver, Canada.

In 2014, the course will be officially launchedat the first IC Clear Conference in Belgium,with the support of all the major clear com-munication organisations such as Clarity,PLAIN, International Institute for Informa-tion Design, and others.

Partners and advisory group

The IC Clearpartners are higher educationinstitutions and a language institute from eachof Austria, Belgium, Portugal, Canada andEstonia. The advisory group consists of Chris-topher Balmford, Deborah Bosley, FrancesGordon, Joe Kimble, Robert Linsky, KarenSchriver, Ginny Redish and Karel Van derWaarde. All those present at the Clarity con-ference met over lunch to discuss theircooperation and the course. The advisorygroup will keep very close contact with thepartners in the course of the project and willprovide feedback and guidance on the direc-tion of the course.

IC Clear survey

At the conference I called on the delegates totake the IC Clear survey to define its learningoutcomes. The survey followed a recommen-dation made by the International PlainLanguage Working Group’s options paper.The Group recommended that ‘the first step

The IC clear project


Link to the survey: http://www.unipark.de/uc/icclear/8205/

With the support of the Life Long LearningProgram of the European Union

Karine Nicolay is projectcoordinator of the IC Clearproject. In this EU-fundedproject, the consortium ofpartners will design aninternational postgraduatecourse in clear communication.Karine is a member of theInternational plain languageworking group (IPLWG) and isa lecturer on communicationskills and plain language with Katholieke HogeschoolKempen, a Belgian university college. She’s been in theplain language field since the early nineties, starting aseditor-in-chief of a Flemish easy-to-read newspaper.Karine participated and coordinated several European-funded projects. In her actual job she established theschool’s plain language training and rewriting services.She gets training and rewriting assignments from bothprivate companies and public authorities.

Vancouver hosts plain language conference October 10–13, 2013

The Plain Language Association InterNational will hold its 9th biennial conference in2013. The theme of the international conference is Plain Language Advances: Newskills, knowledge, research, and best practices.

“Since 2013 marks PLAIN’s 20th anniversary, it is fitting that we will be back inCanada, in the city where it all began,” said PLAIN President Deborah Bosley. “We areco-hosting with Community Plain Language Services Corp., a Vancouver-based non-profit created by PLAIN’s founder Cheryl Stephens.”

“We are excited to recognize our advances over the last two decades, yet focus on thefuture of plain language,” said Cheryl Stephens, Managing Director of CommunityPlain Language Services Corporation, a conference host. “The program includes inter-national experts and workshops by leaders in the field, who will challenge ourthinking and help plan a path for the coming years.”

Plenary speakers from around the globe will cover topics like the future avenues forplain language, recent research findings, the design of an international training pro-gram, ethical issues, and the affects of recent brain research on our work. Plainlanguage proponents and the main sponsors are the Canadian Union of Public Em-ployees and the Writing and Publishing Department of Continuing Education atSimon Fraser University.

“Technology is having a huge influence on communication, comprehension and cre-ativity,” said Kate Harrison Whiteside, PLAIN co-founder and Principal at KeyAdvice. “We will use the conference to explore technology and plain language. Afterthe success of our International Plain Language Day (IPLDay) virtual conference lastOctober 13, we will be taking IPLDay 2013 to the next level.”

Visit the PLAIN2013.org website for more program news as we confirm details. Watchfor the call for participation and online registration in January 2013.

For information contact:

Cheryl Stephens—[email protected] or 1.604.739.6884.

Kate Harrison Whiteside—[email protected] or 1.250.521.0454.

Deborah Bosley, PLAIN President—[email protected]


Josiah FiskPresident, More Carrot LLC , Boston, Massachusetts

Who needs the visual dimension? Writers forone, especially plain-language writers. In fact,I’ve yet to see a writing assignment that canbe completed without resorting to the visual.Let me explain why.

This magazine, we might all agree, is not overlyvisual. There are a few photos, tables, andgraphs, but little else we normally think of as“visual communication.” If pressed to lookharder, we might note that titles, subtitles, bul-lets, paragraph breaks, sidebars, and italicsare all forms of visual communication—in thesense that we perceive them as visual patternsand also derive some degree of meaning fromthem. Yet we’re still nowhere close to recog-nizing the full extent of what is visual in thismagazine. To demonstrate, here’s a passagefrom which I have removed all visual com-munication:

That’s right. It’s blank.

What we writers tend to forget is that thewritten word itself is conveyed through visualmeans. Note that this situation is not sym-metrical: visual communication has noparticular need for words. This is one clue tothe nature and power of visual communica-tion, and to the reason that we, as writers,might want to use that power to help us reachour goals.

Plain language and therole of the visual

The intuitive and the learned

Consider these two images:

While we easily recognize them as letters, it’salso possible when they’re in this orientationto see them merely as images. When we do this,we observe that the left image has only one loopwhile the right has two. This observation isinstantaneous, even involuntary.

Now let’s look at the same images in theirusual orientation:

It’s hard for anyone familiar with the Romanalphabet to see these as anything but letters. Werecognize them as symbols and this overwhelmstheir status as images. Each symbol, for us, isconnected to a rich network of concepts andattributes—words in which it appears, otherletters that often follow it, the way it sounds,and so forth.

All of this may seem as innate as our abilityto spot the difference between one loop andtwo. But it is not.

The visual distinction is intuitive: no one hadto teach us how to make it, nor did we haveto practice it. The letter distinction is learned.If we do it easily, it’s only because of years ofdaily practice. And if we are very young, orstruggle with literacy, or are used to a differentalphabet, we will find the learned distinctiondifficult or even quite beyond us—while thevisual distinction will still be effortless.

The ever-present visual

One way to understand the power of the visualis to try turning it off. You can’t. So long as weare talking about text on a page or screen,there will be visual cues and they will signalthings to us. They will do it quickly, too—wetypically process a number of them even be-fore we read the first word.


As we further examine content, however, wesee that the intended grouping is quite theopposite:

Had the program’s developers paused to lookat the visual cues they were sending, theycould have fixed the problem in minutes witha simple spacing adjustment:

And if the software giant valued its custom-ers enough to apply established principles ofinformation design, they might eventuallyhave ended up with something like this:

As we can see, it is possible to solve this par-ticular communications challenge withoutusing words at all, and without most of thevisual clutter and confusing object order ofthe original.

By “visual cues” I mean the basic connotationsthat our eye gleans from visual conditions. Forinstance, through spatial relationships we au-tomatically infer groupings and connections.We also easily perceive similarities and differ-ences of size, shape, and color. We immediatelyrecognize hierarchies and patterns. Our eyesalso can visually “connect the dots” to com-plete certain patterns that are not actuallyrepresented in full.

Since these cues are always present, we reallyhave just two options in dealing with them.We can manage them so that they support ourcommunications goals (or at least don’t inter-fere with them), or we can ignore them andlet the user deal with whatever unintendedconsequences ensue.

The latter is obviously expedient but can comeback to haunt us. If you are not even askingwhat messages your visual cues are sending,there is essentially no limit to the amount ofconfusion that can ensue, as we can readilyimagine.

But why imagine when there are actual exam-ples? Let’s start with the page set-up menufrom one of the most widely used softwareprograms in the world:

Based on spacing—one of the simplest andstrongest visual cues—the eye initially as-sumes that within the “Orientation” section,the two items in the center form a group:


Why is solving something visually better thansolving it with words? As I noted earlier, in-clusiveness is one reason—visual solutions areaccessible to more people than text solutions.But even for people who have no literacy orlanguage barriers, visual solutions are ofteneasier to absorb. In short, there is no audiencethat is better served by a version of this menuthat includes words than a version withoutwords. (The one possible exception is non-sighted people who use automated text readers;for this audience, words are still needed, thoughthey could likely be embedded in hidden form.)

What’s the worst that could happen?

While a poorly designed software menu maycause annoyance and may waste the time andpaper of millions, it’s unlikely to have life-or-death consequences. But there are cases inwhich ignoring the power of the visual hashad serious consequences, even tragic ones.

The December 5, 1999 edition of the New YorkTimes carried an article in which a surgeonfrom a Denver hospital made a stunning rev-elation. In a certain procedure that involvedboth a paralyzing drug and a drug that re-versed the paralyzing drug, 5 out of 6 doctorsadmitted giving the wrong drug at least once.This confusion was traced to a simple cause:although the drugs were labeled correctly, thecontainers looked identical and both drugswere kept in the same drawer.

Note that the visual cues here were not mis-leading, merely absent. In theory, since thewording was always accurate there shouldhave been no failures—especially since thedrugs were being administered by highlytrained professionals, and everyone was wellaware they could not rely on any visual cues.And yet failures occurred—not just once withone surgeon, but multiple times with multiplesurgeons.

Happily, in this instance the problem was easilyfixed. The hospital switched to color-codedcontainers and put the drugs in differentdrawers. Reported errors fell to zero. Mostimportantly, no one died or suffered lastinginjury. In fact, the physician who revealed thestory stated that this was what made it possiblefor him to do so. Had the errors created groundsfor malpractice claims, his disclosure wouldhave amounted to professional and financialsuicide.

Are there cases, then, when people have actu-ally died as a result of confusing or inadequatevisual cues? Given the pressures to suppressthat information, we’ll never know how manytimes this may have happened. What we doknow is that such mistakes are completelyunderstandable on a human level, completelyunacceptable on a cultural level (at least whenit comes to medical care), and often easy toprevent through small, simple, visual changes.

Actually, it IS rocket science

One of the worst space disasters in historyoccurred on January 28, 1986, when the spaceshuttle Challenger blew up shortly after launch.All 7 astronauts were killed and America’sspace program was dealt a severe and lastingblow. The explosion was traced to the o-ringsbetween booster rocket sections, which failedto “seat” properly when cold weather reducedtheir suppleness.

Could the Challenger disaster have been pre-vented? There was plenty of data to indicatethat a low-temperature launch was dangerous.But it was not provided to decision-makers ina visual form. Here’s what they received in-stead1:

Note how this memo is written. After severalstatements that raise significant concerns, itconcludes by stating support for a launch.Note also that only two lines use direct, im-mediately understandable language: “If theprimary seal does not seat, the secondary sealwill seat” and “MTI recommends STS-51Llaunch proceed.” These lines convey a positivemessage. Meanwhile, most of the negative in-formation is in “engineer-ese.”

It’s not hard to imagine what has happenedhere. The person signing the memo has


3. If the left half of the curve is correct, therisk of damage is 1–2 orders of magnitudehigher than at “normal” temperatures.

4. Ultimately, we really have no idea if thecurve is high, low, or about right, becausewe have no actual data from anywherenear the temperature range in question.We are deep into uncharted waters.

What if the engineers had submitted this chartto their manager? It seems likely he would havehad a clearer understanding of the situation.But most importantly, it would have made itfar more difficult for him to suggest that thelaunch should go forward. The very clarity of

the chart makes the “cost” of suchan act extremely high. That’s be-cause the chart is clear not only torocket scientists but to people likereporters, politicians, and ordinarycitizens. That kind of clarity has thepower to sway not only decision-making, but public accountability.

Putting the visual to work:Example 1

Even if we acknowledge the power of the vi-sual, does it have much application to the

average plain-language task? I be-lieve it does.

In 2009, Manhattan artist CandyChang created a highly visualguide for street vendors that is richin factual information—and itdoes the job of many pages of le-galese. The guide unfolds likemap. Here is the first informationyou see when you begin to unfoldit:

You can see the guide at http://candychang.com/street-vendor-guide/

passed along the factual concerns of his engi-neers, thus avoiding any charge of cover-up,while also offering the opinion he knows hissuperiors want to hear. Yet it would be veryhard to read this memo and come away witha clear idea of whether proceeding with thelaunch is a good idea or not.

In his book Visual Explanations, the eminentinformation designer Edward Tufte takes theactual data that the engineers were looking atand graphs it. The horizontal scale representstemperature at time of launch, the vertical scalethe overall amount of damage to the o-rings.Each dot represents a previous test firing of thesame type of rocket used in the Challenger:

Further clean-up and the addition of one cru-cial element make the point of this chart evenclearer:

The curved line is a mean derived from thedata points—actual on the right half, extrapo-lated on the left. The higher the line, the greaterthe anticipated damage to the o-rings.

Presenting the data this way immediatelymakes four things clear:

1. There is an apparent correlation betweeno-ring damage and temperature.

2. There has never been a damage-freefiring of this type of rocket below 65degrees F (and the forecast temperaturefor launch day is 35–40 degrees colder).


Even before we start reading, we can see howthe document is organized. There’s a (very short)title, an introduction under the title, and to theright, four panels. We may also notice that bykeeping words to a minimum, the piece has roomto present text in five languages without evenbeginning to look cluttered.

Looking at the panels, we see that they arenumbered (so we’re clear about reading order)and that each one has an icon. While the iconsaren’t a complete communication, each rep-resents something that is central to the messageof the panel. That gives us a “head start” oncomprehension, by narrowing down the sub-ject area and giving us a conceptual “anchor.”When we begin reading the first panel, forinstance, we aren’t thinking “what is this panelabout?” but rather “what are they saying abouta camera?”

The value of this narrowing may seem trivial.But when you think, for instance, of all thetexts you’ve encountered that failed to orientyou in their opening sentences (or ever, for thatmatter) it may be easier to believe that we haveseriously underestimated the value of a visualnudge in the right direction.

As the piece opens up further, we see moredetailed, but still very clear, translations ofwritten regulations into visual information:

At a glance, this tells a vendor about all of thesomewhat fussy measurement standards theymust not violate. This information is highlyimportant to street vendors because the stan-dards are strictly enforced and a single violationcan cost thousands of dollars. That is a heftyfine by anyone’s standards, but it is potentiallyruinous in a business where most participantsare economically marginal and not highlyfluent in English, let alone equipped to tacklelong pages of dense legalese.

Putting the visual to work: Example 2

Even in documents where text remains centraland the order of information is fixed by statute,the visual can play a very important role.

Through nothing more than organizing andformatting, the example above was trans-formed into the one below:

Note that even the finished version is not ahighly “visual” document. That’s intentional.Graphic design—making things look interest-ing and attractive—is minimal here. Informationdesign—introducing visual cues to help thereader—is used heavily, but within a restrainedrange. The result is a “serious document” (inthis case a summary prospectus) that none-theless gives the impression of being bothsophisticated and approachable.


Incorporating the visual requires a shift inthinking and in work methods. The only wayto get the full power of verbal-and-visualteamwork is to truly integrate the two ap-proaches, asking what each one can bring toeach communication challenge. But the resultsof this teamwork can be more powerful thaneither verbal or visual communication alone.As communications professionals, that’s anadvantage we can’t afford to live without.

© 2012 J [email protected]

Endnotes1 I am indebted to Michael McClory of WriteSmart

LLC for bringing this memo to my attention andfor pointing out the disconnect between the factspresented and the conclusion.

Josiah Fisk is the founder andcreative director of More Carrot, afirm that combines plain languagewith information design to createsimplified, user-centric documents.Based in Boston, More Carrot justopened a second office inLuxembourg to serve the growingneed for simplification in Europe.More Carrot continues andexpands on the work done by Firehouse FinancialCommunications, which Fisk co-founded in 1997.Firehouse developed simplified prospectuses for over1,500 U.S. and European mutual funds, and has doneindustry-leading work in business forms, accountagreements, shareholder reports, and workplacecompliance communications. Before founding Firehouse,Mr. Fisk worked for ten years as an independentconsultant for a range of industries, with a focus onfinancial clients. In 1991, he was the plain language leadfor the team that created the first simplified prospectus inthe United States. Mr. Fisk is a frequent presenter atconferences in the US and Europe. He holds a B.A. withhonors from Harvard University.

Available fromCarolina Academic Press

(www.cap-press.com)at a 10% discount;

from amazon.com; or frombookdepository.com

(with free worldwide shipping)


Clarity laws around the world

At Clarity’s 2012 conference in WashingtonD.C., Clarity launched a project to create adatabase of all the laws around the worldthat require the use of plain language(“plain-language laws”). The purpose of theproject is to encourage and help people every-where to call for more—and better—plain-language laws.

Ben Piper from Australia and Tialda Sikkemafrom The Netherlands are coordinatingClarity’s project and have provided the infor-mation about the laws in their countries.

In this combined article, Tialda and Ben reporton their discoveries—some encouraging andsome less so. And Annetta Cheek reports onthe US Plain Writing Act.

They, and Clarity, invite you to contribute:

• to the matrix of international clarity laws;

• findings on how lawmakers deal withdifficulties about defining plain language,about compliance and about enforcement.

To be sure, some of these difficulties—in par-ticular, the problem of defining plainlanguage—are likely to shrink as the Interna-tional Plain Language Working Groupdevelops an internationally accepted definitionof plain language and sets plain languagestandards. You can read about the Group’swork in its substantial Options Paper pub-lished in Clarity 64, November 2010, at http://www.clarity.shuttlepod.org/Resources/Documents/64_032111_04_final.pdf

Ben PiperChief Legislative Drafter and CounselNational Transport Commission, Melbourne, Victoria,Australia

Australia has 1 federal government and 8‘provincial’ governments. Between them, theyhave produced 41 different primary or subor-dinate laws that contain a plain-languagerequirement1. However, unlike America, Aus-tralia has yet to produce a law that has theuse of plain language as its sole topic. Cur-rently, all of the plain-language requirementsin Australian laws appear as part of broaderlegislative topics. The plain-language lawsare a mixed bag. They seem to exist largelybecause of individual policy officers activelypushing or plain language.

Although the plain-language laws in theAustralian Capital Territory are all based onnational laws, each of the other Australiangovernments has produced a plain languagelaw unique to itself.

The laws have all been enacted since 1984.But the vast majority was made after themid-1990s, with most being made between2000 and 2011.

Lessons from the Australian laws

Anyone wanting to create a plain languagelaw faces at least 3 crucial questions:

1. How can you have a law aboutsomething that—pending the outcomeof the work of the International Plain

Laws requiring plain language: a Clarity project

Plain language laws inAustralia


Language Working Group—is yet to beproperly described?

2. Who should you direct the law at?

3. How can you enforce the law?

The Australian laws provide some help withthese questions.

How can you have a law about somethingyet to be properly described?

One only needs to attend a plain-languageconference to see the difficulties in definingplain language. Law drafters do not have theluxury of imprecision. For a plain-languagelaw to be effective, the concept of plain lan-guage needs to be defined in a way that enablesa judge—if the worst comes to the worst—tosay that something is, or is not, plain language.Or so the theory goes.

The Australian laws demonstrate that in atleast 41 instances Australian drafters wereprepared to draft a law imposing a plain-lan-guage requirement without defining whatplain language is. In some cases, the laws dorequire specific plain-language elements to beused, for instance by specifying the use of aminimum font size. Sadly, 2 laws require 12point, 1 requires 10 point, and 1 requires a“size and style that is easy to read”.

Of course not defining plain language hasconsequences:

• It creates uncertainty. If a plain languagerequirement is not defined, then no onereally knows whether they are complyingwith it. However, 2 of the Australian lawsshow a way round this. Broadly, theyprovide a mechanism by which an officialopinion can be obtained on whether thedocument is in plain language. For instance,the Queensland Manufactured Homes(Residential Parks) Act 2003 has a procedureby which application can be made to atribunal for its opinion as to whether arelevant document is in plain language.

• It is a broad-brush approach. Short ofspecifying desired plain-language features,anyone drafting in this way cannot beconfident that the law will ensure that eachelement of plain language is adopted in thedocuments they regulate.

• It turns the courts into law makers, thearbiters of what is plain language. Thereare many who would suggest that that isnot an ideal situation.

Who should you direct the law at?

An Australian drafter would answer this ques-tion by saying “A plain language law should bedirected at anyone but the government”. Thisis an answer born of pragmatism—Australiangovernments do not impose binding require-ments on themselves by law except inexceptional circumstances. Of the 41 Austra-lian examples, there is only one that imposesan obligation on executive government, andthat is quite a minor obligation. The Telecom-munications (Interception) Act 1979 (Federal)requires the relevant Minister to publish a no-tice calling for public submissions in anewspaper “in plain English”.

But doesn’t the US have the Plain Writing Actof 2010, which imposes lots of requirementson executive government? It does, but the USdoesn’t have the Westminster system of gov-ernment. The US Act was imposed on theexecutive branch of government by the legis-lative branch. That can happen in the USbecause those 2 branches are separate fromeach other. By contrast, in Westminster sys-tems the executive government controls thelegislature.

For a government in the Westminster systemthere’s almost no upside in passing a plain-language law imposing obligations on itself.Although there may be some favorable presswhen the law is passed, no one will really no-tice if the law is complied with. But if it isn’tcomplied with, then lots of people are likelyto be critical of the government. So a plain-language-friendly government can more safelyattempt to give effect to a plain-languagepolicy by administrative means. This poten-tially gives it favorable publicity but alsoprovides much more wriggle room if thingsgo awry.

So who should you direct plain language lawsat? The Australian examples show that thereare lots of options, including government enti-ties that are independent of executivegovernment—for example, courts, tribunalsand statutory authorities. Those regulated inAustralia are mostly the providers of goodsand services.

How can you enforce the law?

Speaking as a drafter, my answer to how youcan enforce the law is “not very well”. You can’tmake non-compliance with something that isa legally vague concept a criminal offence.


No court would be prepared to convict a per-son for failing to do something that is yet tobe effectively defined, or so the theory goes.

In fact there are a few Australian examples ofmaking a failure to express a document inplain language a criminal offence. They are notgreat precedents, but they exist. The most ex-treme example is section 25 of the QueenslandManufactured Homes (Residential Parks) Act2003, which imposes a maximum fine ofA$20,000 for site agreements that are not“clearly expressed in plain language”.

Of course, laws can achieve results withoutimposing criminal penalties. In particular,documents that confer rights on those whowrite them are prime targets for plain lan-guage laws. It is easy for a law to providethat such documents are legally ineffective ifthey are not written plainly. Many of theAustralian examples involve those sorts ofdocuments, but curiously only one of themexplicitly provides that non-complying docu-ments don’t confer rights on those who seekto benefit from them. Section 33 of the SouthAustralian Second-hand Dealers Act 1995 pro-vides that a purported waiver can be foundto be ineffective if it is not “written in plainEnglish”.

In many of the other examples it may be pos-sible to argue that those seeking to rely onrights conferred by non-complying documentsshould not be able to do so, but it would havemade it easier for all concerned had the lawsput this matter beyond doubt.

It is also possible for a law to provide a mecha-nism to enable a regulator to stop reliance ondocuments not written in plain language. Amechanism like this exists in the Common-wealth’s Corporations Act 2001. Section 715Aenables the regulator, the Australian Securitiesand Investments Commission, to stop a com-pany from using a prospectus that is not “clear,concise, and effective”. Anecdotal evidencefrom plain-language practitioners suggeststhat ASIC uses this mechanism effectively.The practitioners report receiving calls fromagitated representatives of major banks seek-ing urgent help to improve the clarity ofprospectuses that ASIC has just rejected—afine example of a plain language law directlyimproving a document’s clarity. A similar re-sult can be achieved under the QueenslandManufactured Homes (Residential Parks) Act2003 and the Victorian Credit Act 1984.

In summary

Although the Australian laws provide somepractical assistance to those seeking to pro-mote laws requiring plain language drafting,the Australian laws probably only provideglimmers of hope—hence the need forClarity’s project.

© 2012 B [email protected]

Ben Piper worked as alegislative drafter for the Officeof the Chief ParliamentaryCounsel, Victoria from 1985 to2006. Since 2006, he has workedat the National TransportCommission. He is theCommission’s Chief Counsel; itsSenior Manager, LegislativeDrafting; and its ProjectDirector, Maintenance. Plain English has been a passionof his throughout his professional career. He has spokenfrequently at conferences, and has published severalarticles on Plain English issues.

Tialda Sikkema

Lecturer,HU University of Applied Sciences Utrecht, Netherlands

At what point does a government feel the urgeto establish laws that ensure organizationscommunicate intelligibly? There are two rea-sons that motivate a government:

1. to protect civil rights; and

2. to protect civilians against risks—or moreprecisely to enable consumers to bestaccess information so they can makeinformed choices.

In this paper, you can read about several Dutchlaws developed for each of those reasons andabout how lawmakers got in, or out of, thewoods of prescribing clear language. I cannotsay much about the effect of plain-languagelaws in the sense of civil rights being better

Plain language laws inthe Netherlands


However, although there are cases in whichattorneys have attempted to nullify a claimbecause it lacks clarity, I have found no casesin which those attempts were successful.

Other examples of plain-language laws aimingto protect civil rights are the extensive lawsconcerning the rights of juvenile prisoners.Reglement justitiële strafinrichtingen, art. 12 lid 4requires a jail governor to communicate certaindecisions concerning young inmates in writingand in language that is as much as possible un-derstandable to them. The ‘as much as possible’seems to reflect the difficulty of defining ‘un-derstandable language’. I found no casesconcerning this obligation of governors.

Consumer protection

Most of the Dutch clarity laws concern con-sumer protection. Health risks are intended tobe avoided by labels on food and medication.Financial risks are intended to be limited byobliging financial institutions to give clearmortgage information. And there is a very im-portant law that protects the rights of chocolateconsumers: Warenwetbesluit cacao en chocolade,art. 12 requires that part of the label must dis-close whether vegetable oils other than cocoabutter are used.

The obligation of financial entrepreneurs tocommunicate understandably about complexfinancial products comes close to a true claritylaw. However, in a way, this law is both protect-ing consumers against a disagreeable financialrisk, and requiring clear disclosure so consum-ers can protect themselves against that risk.

A key notion in this law is that the person whoobtains the financial information is a ‘reason-ably informed person’ who can be expected tolook into information so as to make the rightchoice. So here we have the legislator tryingnot to fall into the pit of mentioning only thata document needs to be understandable, butrather also mentioning who the document’sintelligibility needs to be measured against—although the concept of a ‘reasonably informedperson’ is just as vague as the concept of ‘un-derstandable’.

There have been several cases of clients at-tempting to hold a financial company liablefor financial loss due to loan documents beingtoo complex. Most of these cases concerned ashare lease construction in which consumersused borrowed money to buy shares but ended

protected, or civilians living a safer life or mak-ing better choices. But I do have some consider-ations that might help give the project depth.

Searching laws

Despite the difficulties of defining plain lan-guage, there are laws in The Netherlandsprescribing a certain way of informing orwriting to civilians. In my odyssey to findthese laws, I first defined when a result froma search entry was relevant or not.

I treated a law as a plain-language law if itrequired that a text be able to be understoodby the intended reader—however vague thelaw’s concept of ‘understanding’ and ‘reader’was. On the other hand, I regarded a law asirrelevant for this project if the element of‘understandability’ referred to the nationallanguage, physically accessible language ororal communication.

In the online database of Dutch law, I searchedmore than 60 different words or word combi-nations. The more precisely my entry referredto (written) language, the more likely it wasto generate relevant hits. But because there wasno way of looking into the legislator’s mind,it was very uncertain if all searches actuallyshowed all relevant laws. Of the 60 entries, 10referred to laws containing plain-languagerequirements.

Word combinations such as “understandablelanguage”, “clearly readable” and “easily read-able” produced quite relevant hits. Searches for“understandable”, “clearly stated” or “clear”provided too many hits. So, acknowledgingthe risk of losing relevant information, I onlychecked entries with 30 hits at most.

I excluded criminal law from my survey, butsome of the results there will probably also berelevant.

Civil rights

One of the basics of a constitutional state is theright of civilians to defend themselves againstclaims or accusations. A necessary conditionfor defending a claim is the ability to under-stand the claim in the first place. For this reason,the law requires the relevant documents to setout the claim and its foundation clearly andcoherently. The party making the claim is re-sponsible for formulating a clear claim, and thejudicial officer is responsible for serving a clearwrit. At least, that is what the law says.


up with no return and a debt of tens of thou-sands of Euros to the financial company. In onecase, the court said that the company ignoreda duty to take care of its customers and to givethem the right information to help them makean appropriate decision. In the end, this was theprimary reason among many for the judge’sdismissing the company’s claim to collect thedebt from the client.

But this particular case dates from 2005—yearsbefore the global financial crisis and before theenactment of a Dutch law that prescribes abank’s duty to inform a client thoroughly. Eventhough the plain-language law didn’t existthen, there was a notion that individual con-sumers had to be taken care of. Actually theprinciple to take special care of customers be-fore selling very risky financial products datesfrom the 1997 Supreme Court judgment inRabobank v Everaars. Today financial companieshave to write extensive brochures in under-standable language. Research on thesebrochures by the University of Utrecht showsthat there is no evidence that these documentsenable clients to make appropriate decisions.

In short

The documents covered by laws requiring in-formation to be clear are food-packaginglabels, medical leaflets, pension overviews,financial brochures and judicial writs.

There have been very few cases concerninglosses suffered because companies didn’tcomply with these requirements. There are ahandful of cases in which a defendant ob-jected to an impenetrable court document,but in each case the judges rejected the claim.The court has held that readability of courtdocuments is not an objective in itself. Instead,the objective is enabling respondents to un-derstand the documents so as to be able todefend themselves.

Establishing a set of rules to protect peopleagainst injustice, or consumers against (fi-nancial or health) risks seems for a fittingobjective for a government. But the wholeconcept of providing information to upholdthis protection is subject to many precondi-tions and assumptions. There is the difficultywith definitions, the range of skills in readers,the inability of readers to read and interpretinformation. Then there are the problems fororganizations that are subject to vague laws.There is no reason to believe lack of compli-

ance leads to court cases, nor is there any evi-dence that clarity laws actually make peopledo the right thing. Although this result mightcome across as rather disappointing, the factthat I haven’t found complaints about badwriting doesn’t mean that there is no cause forcomplaint. It may just be that the problemdoesn’t appear in court records.

Research has shown that for many years andin many countries readers have found it diffi-cult to understand the various document typesthat I have written about in this article. I maynot easily show success at this stage of my re-search but in the years to come, we’ll learnmore about the US Plain Language Act andwe’ll learn more about how to use laws as aninstrument to improve the effectiveness ofdocuments.

© 2012 T [email protected]

Tialda Sikkema is a lecturer inwriting and argumentation atHogeschoolUtrecht (HU). Since2009, she has worked in the legaldepartment, for the Academy forDutch Judicial Officers, part of theHU. Tialda also works as a layjudge in the Commission ofAppeal for primary and secondaryCatholic Education. As a memberof a Readability Committee of theRoyal Professional Organisationof Judicial Officers in The Netherlands, she has workedon rewriting writs. She works on an overview of claritycodification in The Netherlands. In 2012, she will startPhD research on the written communication of debtcollectors and bailiffs with debtors. Tialda has an MA inLanguage.


The US Plain Writing Actof 2010

Annetta CheekCredentialsLocation, United States

The US Plain Writing Act, PL 111–274, 124STAT. 2861, applies to Executive Branchagencies, not to the Congress or the JudicialBranch. It is not the only US law requiringplain language. For example, the AffordableHealth Care Act requires health providers towrite part of every health plan description inplain language. But the Plain Writing Act isthe only one that is specifically and exclu-sively about plain language.

The Plain Writing Act defines “plain writing”to mean writing that is clear, concise, well-organized, and follows other best practicesappropriate to the subject or field and the in-tended audience. It covers both paper andelectronic information. Although it does notapply to federal regulations (there were po-litical obstacles), it applies to any otherdocument that:

• is necessary for obtaining any federal-government benefit or service or for filingtaxes;

• provides information about any federal-government benefit or service; or

• explains to the public how to comply witha requirement that the federal governmentadministers or enforces.

To achieve its purpose, the Act sets out a se-ries of steps that each agency must take. Italso requires the Office of Management andBudget (part of the Executive Office of thePresident) to develop and issue guidance onimplementing the Act. The OMB might havebeen expected to appoint an establishedagency to help develop that guidance. How-ever, in an unusual move, the OMB gave thatinteragency role to the U.S. federal groupthat advocates for plain language1—thegroup that originally created the Center for

Plain Language. And that guidance was is-sued in April 2011.2

Full implementation of the requirements ofthe Act was not required until October, 2011.Some agencies have done a good job so far,others have not. The Center for Plain Lan-guage is monitoring the Executive Branch’sprogress. In June of this year, the Center is-sued a report card on 12 different agencies.3

The Center intends to issue similar reports onthese and other agencies every year for thenext several years.


Endnotes1 http://www.plainlanguage.gov2 http://www.whitehouse.gov/sites/default/

files/omb/memoranda/2011/m11-15.pdf3 http://centerforplainlanguage.org/resources/

plain-writing-laws/plain-language-report-card/

Dr. Annetta L. Cheek is ananthropologist by training,earning a PhD from the Uni-versity of Arizona in 1974. Sheworked for the US federalgovernment from 1980 untilearly 2007 and spent four yearsas the chief plain languageexpert on Vice President Gore’sNational Partnership forReinventing Government. Shewas the chair of the federalinteragency plain language advocacy group, PLAIN,from its founding in 1995 until she retired from thegovernment, and administered the group’s website,www.plainlanguage.gov. She was a founding member ofthe Center for Plain Language, www.centerforplainlanguage.org, a federally tax-exempt corporation. Shehas served as Chair of its board since its founding in2007. In that role, she was instrumental in getting theUS Congress to pass the Plain Writing Act of 2010.Annetta is also Director of Plain Language Programs forR3I Consulting, a DC-area consulting firm.


Plain language in other languages

The rewriting of astatute—a case study

Anki MattsonPresidentSprakkonsulterna, Stockholm, Sweden

Agency statutes

An agency’s statutes are one of the more dif-ficult text types to change. They are very formaland heavily influenced by the language in thelaw book. They are in effect the law of theagency for others to follow, and they are at thevery top of the text hierarchy—directly underSwedish law. In short, the statutes governingSwedish agencies such as the tax office, thepolice, the Work Environment Authority:

• complement laws and statutes issued by theGovernment,

• are issued by the agencies by permission ofthe Government,

• follow strict rules of publication,

• fall under the Language Act, and

• regulate the conduct of other agencies,official and commercial bodies and citizens.

The trust-method

Texts as formal as statutes need a redraftingmethod that involves close co-operation be-tween the legal expert and the language expert,working on one statute and one paragraph ata time. The actual editing is done in severalsteps:

1. The two experts review the statuteseparately.

2. They meet and compare notes. Duringthis meeting they argue their sometimesdifferent cases.

3. They go back and edit separately. Theycheck and double-check their facts andtry to meet halfway. This step ofteninvolves several short meetings over thephone or via email.

4. They meet and merge their versions. Bythis time the versions are not so differentfrom each other.

This process is more about establishing trustbetween the two experts than about rewritingand editing together. Each has to trust thatthe other has no ulterior motives, such as over-simplifying or over-legalizing the text.

A question of confidence

As an example of this process I have chosen ashort statute of 7 paragraphs about transfer-ring documents electronically.

The agency I chose as an example in this caseis the IAF, a supervisory agency under theSwedish Ministry of Labour. It exercises super-vision over unemployment insurance fundsand the Swedish Public Employment Service’shandling of matters that relate to unemploy-ment insurance. The IAF is to inform about itsown activities relating to supervision, follow-ups and administrative tasks. It is also to clarifythe system of rules in the area of unemploy-ment insurance.

I started by making a priority list of obstacles,with the preamble at the top. This is the mostformal part of any statute, and it takes a greatdeal of courage to make any changes to it.But I know that if you can make a small changethere, the rest of the process goes moresmoothly because of the confidence a smallchange gives the legal expert—they are en-couraged by the impact of the change on theclarity of the document. So my first suggestionwas to make the preamble into a bullet list—


the natural choice for presenting a list of para-graphs. After some discussion and reassuringthe legal expert that this was the preferredmethod for new statutes and laws, we madethe change.

The most interesting thing about these discus-sions is that the legal expert’s biggest concernwas (and actually always is) how, and if, thischange would be accepted by the General Di-rector of the agency. Since the General Directorin this case had no legal skills (a typical situa-tion), the concern must be not that the legalstatus of the statute would suffer from thechange, but rather that there would be a “social”cost: There is a deep and widespread fear of“getting it wrong” or of going against traditionand thereby losing face. I have seen many ex-amples of there being sufficient legal basis formaking this kind of change but of insufficientcourage in the editor to defend the change.

An inspired attitude

But once the legal expert and the languageexpert understand and trust each other, theyco-operate smoothly. In this example, I didn’thave to do much of the remaining editing—the legal expert was so full of enthusiasm andexcellent suggestions that I just had to standby and concur. We substituted some long andabstract prepositions, shortened a few sentencesand made one more bullet list. The result is aclear and comprehensive statute that is easyto understand and to follow.

© A [email protected]

Anki Mattson is a plainlanguage expert with a diplomafrom The Stockholm UniversityLanguage Consultancy Program.Since 2004, she has run one ofSweden’s largest plain languageagencies, Sprakkonsulterna (TheLanguage Consultants), withclients in the public and privatesectors. Her work focuses onofficial and legal language, andshe is a strong advocate for plainlanguage. Her experience with major Swedish agencieslike The Swedish Migration Board and The GovernmentOffices has made her an expert on official legal language.She helps agencies to rewrite their statutes in clearerlanguage and teaches legal officers to write statutes moreclearly. She is guided by the motto: “Clear officiallanguage is a citizen’s democratic right, and a clear legallanguage is a human right!” Anki’s agency hosted thePlain 2011 conference in Stockholm, Sweden.

The Swedish approachto clear legislation

Anne-Marie HasselrotDeputy Director and Language ExpertSwedish Government Offices, Sweden

Anne-Marie Hasselrot, Office of the Prime Min-ister, Sweden, describes how changing two littleletters in one word can bring about all sorts ofother changes.

Clear legislation affects drafting of otherdocuments

Legislation has an impact on decision-makingat all levels of society. Modern democraciesaim to ensure openness and clarity withinpublic administration and to guarantee thatdocuments are written in a way that meetsthe readers’ needs. To achieve this, it is im-portant to start at the top and modernise thelanguage used in legislation. The idea behindthis is that if legislation is written in clear lan-guage, this will have an impact on the languageused in all administrative documents. Thelanguage of the law has a tendency to influ-ence official language at all levels.

Plain-language drafting is integrated intolaw-making

An important factor for success is that plainlanguage work is an integrated part of thelaw-making process. In the Swedish PrimeMinister’s Office, there are four language ex-perts and five lawyers who work as a team inthe Secretariat for Legal and Linguistic DraftRevision. They ensure that all new and amendedlegislation is of high legal quality and as clearand user-friendly as possible. The Secretariathas a key role in the legislative drafting in theministries. No Government Bill, GovernmentOrdinance or Committee Terms of Referencemay be sent to the printer without the ap-proval of the secretariat.


The role of plain-language experts

The work of the language experts involvesreading all draft legislation at the governmentlevel and offering suggestions on how to im-prove the organisation, sentence structure andwording of these texts. Obviously, there is a lotof contact and discussion between the languageexperts and their lawyer colleagues on the onehand, and the drafters on the other. Eventu-ally, agreement is reached for each draft. Thelanguage experts are also kept busy helpingcreate guidelines and recommendations andgiving in-house training to new personnel onhow to write parliament bills and legislation.

Conflict between changing text and keep-ing it consistent

Most day-to-day drafting involves amendingexisting legislation, rather than creating newlaws and ordinances. This may present some-thing of a challenge, as there may be an inherentconflict between keeping the legislation con-sistent while modernising the text—changingone section of a law may make its style incon-sistent with the rest of the text. On the otherhand, it becomes much more difficult tomodernise at all if you can’t modernise thetext a few sections at a time.

Changing ”skall” to ”ska”

One example of how this might be resolved isthe reform from the spelling ”skall” to the moremodern spelling ”ska” (roughly the Swedishequivalent of ”shall”). Obviously, this is a verycommon word in legislation. Once the Secre-tariat had secured agreement at the top to carryout this reform, drafters were instructed thatnew legislation must contain ”ska” throughout.In amending existing text, amenders have tochange ”skall” into ”ska” throughout the wholesection. The Secretariat for Legal and LinguisticDraft Revision decreed that making a blanketchange from ”skall” to ”ska” in the preambleof a document is not acceptable. We believedthat inserting the actual word in the text mayleave greater scope for modernising the entiresection, as drafters always strive to modernisethe language of the entire section that is beingamended. This often results in changing morethan just one word—from ”skall” to ”ska”. Inthis way, removing two little letters in one wordhelps bring about change in larger parts ofredrafted legislation.

© A [email protected]

Anne-Marie Hasselrot is aDeputy Director and LanguageExpert from the SwedishGovernment Offices, where shehas worked since 1997. Herwork there involves taking anactive part in the process ofrevising and modernising thelanguage of all kinds ofgovernment documents,primarily legislative acts.Other tasks include writingguidelines, training Government officials, and takingpart as an expert in law commissions. She is alsoinvolved in the EU Language Service, which providessupport to the Swedish translators and terminologists inthe EU institutions and to the Swedish ministries andpublic agencies in EU-related language matters.


Rosa Margarita Galán VélezHead of the Language Department, Instituto TecnológicoAutónomo de México (ITAM), Mexico City Mexico

Antonio Canizales GonzálezCoordinador of Languages, Instituto TecnológicoAutónomo de México (ITAM), Mexico City, Mexico

Getting the Citizens’ Language or PlainLanguage program started

Vincente Fox’s election as president of Mexicoin December 2000 ended 71 years of one-partyrule in that country. Citizens’ Language orPlain Language was a program designed andpromoted by the federal government’s Ministryof Public Administration. Carlos Valdovinos,with the assistance of Salomé Flores, was incharge of the program.

In two years, Valdovinos and Flores put intoaction a well crafted project. They immersedthemselves in the subject, visited Sweden, de-signed the program, learned from world experts,and formed a network. The project involveddeveloping materials and manuals, workshoppresentations, online training programs, andorganizing a great contest. Hundreds of publicservants participated in the activities. At theend of 2008, Mexico hosted the Clarity Con-ference at InstitutoTecnológicoAutónomo deMéxico (ITAM).

However, by 2010, plain language had prac-tically vanished from the Ministry of PublicAdministration. The program still appears onthe Ministry’s website, but it is no longer co-ordinated or promoted.

What happened and why

Plain language virtually disappeared becauseof a variety of structural, motivational andlinguistic factors:

• It was a project fostered during the secondpart of a six-year government’s term ofoffice. The new administration did notmaintain the initiative.

• Actions were proposed quickly from the topdown, but they failed to take root or togenerate commitment.

• The magnitude of the challenge of writingin plain language was not understood.Public servants did not appreciate that usingplain language involves higher-order thinking,linguistic maturity, a strong command ofbasic literacy, and a familiarity with theelements of other types of literacy. So itbecame impossible to resolve the languagedeficiencies of public servants with five-hour workshops or basic online courses.

• The movement was new and did not havemuch of a tradition in Spanish-speakingcountries.

What is happening to the cause of plainlanguage in Mexico today

Even though the program no longer has gov-ernment support, a commitment to plainlanguage endures in the academic world andamong key people from the old program. Thepromotion of plain language drafting is in-creasingly necessary.

At ITAM, for instance, there is steady demandfor plain language writing courses from privateindustry and government institutions—suchas Rural Finance, Bank of Mexico and theFinance Ministry—as well as within theInstitute’s programs. For example, the LegalDepartment offers a class on Legal Writingand Research that includes plain languagedrafting. This course is mandatory so studentshave to pass the subject to continue with theirstudies.

But Mexico is going through a period of socialand political upheaval. There is disquiet aboutthe quality of education and the country isfacing an election. Perhaps educational prac-tices will be improved and there will be aresurgence of support for plain language as away to fight corruption and as a tool for im-proving transparency and efficiency.

In summary

Plain language began as a government project,flourished for a few years and then practicallyvanished. But it is likely to re-emerge. It stillhas life as an academic project and throughconsultants. There is hope that it will return tothe fore in coming years. Mexicans are facingmany uncertainties, turmoil and politicaltransition, but now is also a time to rethink

The risks and challengesof fostering plainlanguage in Mexico


and review the country’s educational programsand to promote plain writing. It is time foraction to keep the focus on clear communica-tion sharp.

© R M Galán Vé[email protected]

© A Canizales Gonzá[email protected]

Rosa Margarita Galán Vélezis President of the PlainLanguage network in Mexicosince August 2006. Since 1998,she is the Head of the LanguageAcademic Department at ITAM(Instituto TecnológicoAutónomo de México), in whichshe is a full time teacher. Shecoordinates the GraduateDiploma on ProfessionalWriting. She has participatedin national and international conferences as a speaker ofteaching and evaluation of writing. She has a PhD inEducation and a Master’s Degree in ComparativeLiterature.

Antonio CanizalesGonzález is the Coordinatorof Foreign Languages at theInstituto Tecnológico Autónomode México (ITAM), where he isa full-time professor. He is alsothe coordinator of the GraduateDiploma on Translation ofSpecialized Texts in ITAM’sContinuing EducationDepartment. He hasparticipated in national andinternational conferences as a speaker on translation,academic writing, and language teaching. He has taughttranslation and consecutive interpretation as a visitingprofessor at the Monterey Institute of InternationalStudies (Monterey, California) and translation at theUniversity of Ottawa. He has an MA in Translation(University of Ottawa) and BA in Translation(Universidad Intercontinental).

Sissel C. MotzfeldtSenior adviser and project managerAgency for Public Management and eGovernment,Norway

Sissel Motzfeldt reports on efforts to ensure thelanguage used in Norwegian legislation, in thecivil service and in the legal profession is clearand plain.

In 2008, politicians frustrated by the archaiclanguage they met in administrative docu-ments started an initiative to improve thelanguage of the civil service. They establisheda central clear language project and sincethen more than 120 agencies and ministrieshave been engaged in clear language projectsof various sizes and levels of complexity. Theproject is run by The Agency for Public Man-agement and eGovernment and TheLanguage Council. The project offers grants,courses, coaching and seminars, but perhapsits most important contribution is building acentral pool of knowledge where agenciesand ministries can find inspiration from oth-ers.

The Norwegian public has a high degree oftrust in the authorities. But a survey done at thestart of the clear language project showed thatmore than 35% of the public struggled to un-derstand the language used in bureaucraticletters and forms. The project has also revealedthe impact that the language in laws andregulations has on other texts from the Gov-ernment. So in 2011 the Agency started a projectto improve the language in laws and regula-tions with these goals:

1. To establish a knowledge base

2. To fight resistance in the civil service

3. To avoid the use of legalese

4. To establish a knowledge base

Sissel Motzfeldt tells how the agency neededa combination of humility and knowledge towin the support of the legal community. The

Norway’s never endingstory: improving thelanguage in laws andregulations


Agency started with a roundtable conferenceto which lawyers from academia, courts of-ficers and the civil servants were invited.Several of them became members of theAgency’s resource group. The Agency con-ducted two surveys—one directed at thegeneral public and the other at civil servantsfrom ministries and agencies. To their sur-prise, the surveyors found that 54 % of thepublic said they had read a law or regulationin the previous year concerning work, health,welfare, housing or the economy. Thisshowed that clear legislation was importantfor the general public too. A civil service sur-vey confirmed that:

• older laws were more unclear than newones;

• the language is generally more complicatedthan necessary; and

• the same terms mean different things indifferent laws.

The survey also showed that linguists wereseldom used in the legislative process andthat draft laws were almost never user-tested. In the autumn of 2012, the Agencyhopes to conduct a third survey directed atjudges to find out about their preferred writ-ing styles.

1. To fight unwanted attitude andbehaviour in the civil service

The language used in laws and regulations isa theme addressed at seminars and confer-ences, in articles and on the web. The Agencyis currently developing a tailored course forcivil servants engaged in writing laws andregulations. In the autumn of 2012, theAgency hopes to have developed a web-based toolbox with advice and tips formaking legal language more understandable.

2. To avoid the use of legalese

The toughest goal of the project is to dissuadedrafters from using legalese. The Agencyhopes to work with academia to offer lan-guage training for law students. Thelaw-making process is also being reviewed toidentify where plain language measuresshould fit in. The Agency also hopes to re-write some important laws for the public thatcan serve as model laws.

The Norwegian prime minister, JensStoltenberg, has recently presented theGovernment’s new digitalisation programme.If the programme is to succeed, it will partlydepend on how clear the language will be indigitalised services. Working with improvingthe language is a never-ending story!

© 2012 S C [email protected]

Sissel C. Motzfeldt is a senioradviser at the Agency for PublicManagement and eGovernment,which aims to strengthen theGovernment’s work in renewingthe Norwegian public sector. Shewas project manager for “PlainLanguage in Norway’s CivilService” from 2009 until thesummer of 2011, and is nowleading the new project on plainlanguage in laws andregulations. She has more than 35 years of experience inthe Norwegian Central Government and has played amajor role in the development of the new CentralGovernment Communication Policy. In addition, she hasprimarily worked with user involvement and strategydevelopment for ministries and agencies in the field ofcommunications.


Martijn JacobsLoo van Eck Communicatie, The Netherlands

How do you make sure a reader can read andunderstand your letter in just 15 seconds?That was the challenge we faced. The result?A new way (for us) of writing. Dozens of in-surance companies in the Netherlands arenow successfully using our new, scientificallyproven style. In this article, I show you whatour writing style looks like.

A letter by an insurance company, housingcooperative or local government should beclear. After all, that’s in the best interest ofboth sender and receiver. The question is:what makes a letter clear? Our clients ask usthis over and over. However, that questionimplies the question: how can we make sureour customers will understand our letters?

Unfortunately, language is not math. Itwould be great if I could provide10 guide-lines to guarantee a certain output, but that’snot how language works. There is no cer-tainty about readability—for the simplereason that people differ from one another.They all have different reading experiences,needs, interests, commands of language, andintellectual backgrounds. Despite that, wesucceed in writing letters in such a way that85% of our readers can understand them.

A fundamental aim is that a reader shouldhave to invest as little time as possible to un-derstand a letter. We use a standard of 15seconds. Within these 15 seconds, the readermust be able to know:

• what the most important messages are;

• what they need to do;

• where they can find more information.

We target 15 seconds because we believe areader doesn’t want to invest more time thanthat in a letter from their insurance company,bank, power company, or housing coopera-

tive. Our motto: a letter is clear if the readerlearns what they need to know from it within15 seconds. Here’s how we achieve this.

1. Limit the number of messages

Writers often want to include too much infor-mation in a letter. This especially happenswhen experts write the letters themselves, asthey often do. Experts usually want to men-tion all the details. This is strictly forbidden inour new way of writing; letters have roomfor only 3 or 4 messages. I will illustrate thisby rewriting the following letter:

Dear Mr Jones,

In February, you let us know that youwanted to open a savings account. Thisaccount is required for paying your mortgageinstalments. Thank you for your request. Inthis letter, I will inform you about yoursavings account.

Your savings account

We have opened a savings account for you.This account has been opened in <name>’sname. The account number is <number>. Thesavings account type is “Capital AccountHomeowner”.

Purpose of your savings account

This account is meant for your mortgageinstalments. The law also requires you to usethis account to pay off the debts for:

- your house;- your spouse’s house, or;- your domestic partner’s house.

Your savings

You save <amount> every month. Thisamount will be debited monthly from yourother bank account: <number>.

First payment

The first payment is due on the datementioned on your quote, or on the date youhave arranged your mortgage. You willreceive a letter with all the details aboutpayment before the first payment is due. Arethe data incorrect? Please let us know. Youcan reach us at <phone number>.

Your interest

You will receive interest from the amount inyour savings account. The interestpercentage equals the interest percentage of

Simple is smart, smart isfast


your mortgage. Both percentages are fixedfor the same amount of time. This meansmore financial stability.

Questions

Do you have any questions? We are here tohelp you. Don’t hesitate to call us at: <phonenumber>

Kind regards,

This letter is considerably clear in itself. How-ever, the reader needs more than 15 secondsto read it. This is partly because there are toomany messages in the letter: at least 5. That istoo much. Don’t forget that this letter has tocompete for the receiver’s attention withmany other messages and media.

It is important to know that there are 4 typesof messages. A letter has information that:

• the reader needs to know;

• the writer needs to tell;

• the reader likes to know;

• the writer likes to tell.

By judging the messages a writer puts intotheir letter, we delete from bottom to top.This means we first delete the informationthe writer likes to tell. An example from theletter:

The law also requires you to use this accountto pay off the debts for:

- your house;- your spouse’s house, or;- your domestic partner’s house.

It’s not necessary to put this information inthe letter, because the previous sentence says:

This account is meant for paying yourmortgage instalments.

You could easily replace this with:

With this savings account, you pay off yourmortgage.

There’s nothing unclear about that.

So we keep the number of messages low.Keep to a maximum of 3 messages for unin-terested readers, to perhaps 4 for readerswho are willing to read, who are familiarwith the subject, and who are able to readdifficult text.

Let’s take another look at the letter. Four mes-sages remain after we delete the unnecessary

information. The reader has to know that:

The bank has opened a savings account forthem.

They have to pay off their mortgage with thissavings account.

Their first payment is on the date in theircontract.

The client receives interest on the amountthey save.

These are the messages the reader needs toremember after reading this letter.All otherinformation is redundant.

2. Formulate the messages as simple andsingular sentences

We have to rephrase the messages we haveselected. They have to become simple sen-tences, with one meaning per sentence.When we rephrase them, the 4 messages looklike this:

We have opened a savings account for you.

You have to pay off your mortgage with thissavings account.

Your first payment has to be by <date>.

You receive interest on the amount you save.

What you see now is the 15-second line: it’spossible to read and understand those 4 sen-tences within 15 seconds.

3. Shape the messages as headings

We have chosen to use the complete messagesas headlines in the letter. It looks like this:

Dear Mr Jones,

Thank you for your request to open a savingsaccount for your mortgage.

We have opened a savings account for you

This account is in <name>’s name. Theaccount number is <number>. The savingsaccount is called ‘Capital AccountHomeowner’.

You have to pay off your mortgage with thissavings account

You save<amount> every month. We willdebit this amount monthly from your otherbank account: <number>.

Your first payment has to be by <date>

You will receive a letter with all the details


about payment. You will receive this beforethe first payment. Are the data incorrect?Please let us know. You can reach us at<phone number>.

You will receive interest on the amount yousave

The interest percentage on your savingsaccount is just as high as the interestpercentage on your mortgage. Bothpercentages are fixed for the same amount oftime.

Call us if you have any questions: (055) 57981 00

We are here to help you.

Kind regards,

The letter’s look has changed entirely. Manywriters have to get used to this new way ofwriting. They feel awkward using a wholesentence as a heading, even though we areall familiar with that technique because it’swidely used newspapers.

4. Extend the messages to short and clearparagraphs

Of course, you still need to extend the mes-sages. Paragraphs should:

• be short (6 lines max);

• refer to the message (the headline); and

• have the most important information at thetop.

In fact, the paragraph is meant only as back-ground information for the message. Thisway, the reader can choose whether theywant to read the information, or not.

5. Write concretely

Readers prefer a concrete text over an ab-stract text because it’s easier to remember.Research shows that a reader will reproduceinformation from a concrete paragraph 3times better than information from an ab-stract paragraph.1 That’s why we use clearlanguage in letters. But that’s not all. We alsobelieve that the information itself needs to beconcrete. Here’s an example of a letter by aninsurance company.

With regard to the request for the C-section (daily payment at temporarydisability) the following applies: due toexcess weight, the insurance premium is

raised with an extra charge of 25 percent.

This fragment contains abstract words andits meaning is abstract. Better to say exactlywhat you mean, like this:

We can offer you disability insurance for 345 per year. Unfortunately, you have to pay 83 more for this insurance than is usual.

This is because you weigh 130 kg. Because ofthis, you are more likely to be temporarilydisabled.

The difference? We mention the exactamounts by translating the 25 per cent to aconcrete number and making the weight is-sue clear. Of course, this also has adisadvantage. Many readers think it is insen-sitive to put the information in a letter thisway. On the other hand, we would like thereader to learn what they need to know asquickly as possible. Covering it up with ab-stract language doesn’t help. And it doesn’tchange the insurer’s decision, either.

6. Choose common words and expres-sions

Research results (about the effect of difficultwords on text understanding) often contra-dict each other. Nevertheless we think it isappropriate to choose more common word.There is a better chance a reader will know acommon term. This means the words will notobstruct the easy intake of information.

How do we identify easy and commonwords? This question is hard to answer.There is no scientifically tested dictionary togive us a definite answer, so we must use ourcommon sense. For example:

All insured living abroad and receiving apension benefit need to send us proof of life,so we can confirm their right to pensionbenefit is still valid.

This sentence is from a letter from a pensionfund. I have underlined the difficult wordsand expressions. Those words slow thereader down, especially if they go on for twopages. We can easily simplify this languageby changing words, or by writing more di-rectly.

Every year, you have to prove that you arestill alive. When you do this, we know thatyou are still allowed to receive your pension.To do this, you have to send us a form. You


can collect this form at the embassy in yourcountry.

7. Be consistent

At school, we learn to vary our words whenwriting text. If you write about a doctor, youlearn that it’s better to refer to a doctor withdifferent words. So teachers direct us to use arange of words such as medical practitioner,physician, or surgeon, even though we are re-ferring to the same person.

This is okay if you want to entertain areader—or when you are learning at schooland one of the teacher’s aims is to help youexpand your vocabulary. But is it good forclarity? I doubt it. The reader needs to thinkabout with which term refers to what. Take alook at the next fragment.

The participant has a right to an old-agepension. Your employee will receive thispension at the pensionable age. They willreceive payment on the 21st of every monthafter reaching 65 years of age. In this letter,you will find an overview of the accumulatedcapital of each employee.

In this text, the writer refers to the term ‘old-age pension’ with different words. The writeruses words like ‘old-age pension’, ‘pension’,‘payment’, and ‘capital’. Apart from this,they also mix the words ‘employee’ and ‘par-ticipant’. However, both those words refer tothe same person. For a lot of readers, this canbe confusing and cost the reader too muchtime.

8. Limit the jargon

Jargon is useful for people in the know. Ouradvice however is to limit the amount of jar-gon in texts meant for readers who don’tknow much about the topic, aren’t very inter-ested, have a limited education, or have anaverage command of language. Chances arethese readers will not understand the jargon,and it will slow their reading.

9. Mind the cohesion

Firstly, I want to be clear that I am not advo-cating writing short sentences. I amadvocating writing short sentences with suffi-cient cohesion between sentences. By this, Imean the correct use of easy conjunctions like‘because’, ‘but’, ‘so’, et cetera.

What about the length of the sentences? I of-ten hear people say a sentence should not belonger than 15 words, or 12. I believe that theproblem with sentences isn’t in the number ofwords, but the density of their information.The greater the density becomes, the harder itis to understand the information in a sen-tence. For example:

Imagine writing this:

During our interview, we pointed out to youthat unfortunately, you will not receivecompensation for the special chair designedto suit your disability.

In this sentence, three messages are hidden:

1. We have had an interview.

2. You will not receive a compensation forthe special chair.

3. We are sorry for this.

The sentence has 19 words. That can beshortened, and it can be easier. Now readthis:

We had an interview. I told you that youwon’t receive money for the special chair. Iwant to apologise for it.

I have put each message in a separate sen-tence. With that, the average length of eachsentence has significantly decreased. I under-stand that in English it is somewhat abrupt(perhaps, rude) to put it this way. But inDutch it is fine.

10. Choose a clear perspective

In our letters, we use both the word ‘I’ and‘we’. We use ‘I’ for actions of the writer, and‘we’ for actions or decisions of the organiza-tion. Because of this, writing becomes a loteasier and, more importantly, the writer feelsmore responsible for the letter. It is crucialthat the writer signs the letter in their ownname.

The mix of ‘I’ and ‘we’ is also important tothe reader. They will experience this as com-ing from a more involved writer. The readerwill read a letter written by a person, not byan organization. See the following letter foran example.

Dear MrJansen,

Your former domestic partner, Ms H.J. DeVries, has been receiving a lifelong old-agepension since July 2009. In this letter, I will


tell you what this means for you.

Ms De Vries will receive an old-age pensionof 121.52

We will deduct this amount from your old-age pension. Ms De Vries will receive thisold-age pension for the rest of her life. Wewill pay her this amount monthly.

You will receive a monthly old-age pension of 1,065.00

How did we calculate this?

Your lifelong old-age pension is: 1,490.38 gross monthly.

We deduct wage tax and health insurancepremium: - 303.86

We deduct the old-age pension of Ms DeVries: - 121.52

For you will remain: 1,065.00 net monthly

Each month you will receive the amount onthe 25th

The first payment will be in August. You willreceive 2,130. This is a combination of theamounts of July and August. After this, youwill receive 1,065 each month.

If you have any questions, you can call me

My phone number is (034) 345 46 29. Youcan reach me from 8.30 am until 5.30 pm.

Kind regards,

Karel van Veen

It is my experience that writers have to getused to this way of writing. They aren’t usedto mixing ‘we’ and ‘I’ in one text. I also noticethat if the writers are used to it, they are veryhappy with it. The reader, however, doesn’tneed to get used to it. We also mix ‘I’ and‘we’ in the spoken language, so they are al-ready used to it, just not on paper.

In conclusion

These guidelines have resulted in a new wayof writing letters. Our clients and readerswere satisfied with it. Even so, we faced sev-eral problems when we introduced this styleat insurance companies.

In the Netherlands, there is a certification forinsurance companies, the KeurmerkKlantgericht Verzekeren, which monitors theirstyle of communications.2 We were very sur-

prised to find that the committee disap-proved of our new way of writing. Thereason? There was no scientific evidence tosupport the claim that this new style reallywas clearer than the old style. The committeefinally accepted the new style after a longdiscussion. There was only one condition. Weshould do research.

To prove our case, we asked the Utrecht Uni-versity to do research on the new style. Theirresults were positive: our letters had betterratings on clarity and reproducibility thanthe traditional letters. We know for sure: thefuture is clear!

In an article in the next issue of Clarity, I willfocus on the details of the implementation,the motives of the insurance companies to re-design their letters and the effects on thecustomer. These effects are being researchedas I write this article.

© 2012 M [email protected]

Endnotes1 Bos, J., T. Sanders, L. Lentz,Tekst, begrip en

waardering, StichtingLezen, 2001.2 See http://www.keurmerkverzekeraars.nl/

Martijn Jacobs is CEO of Loovan Eck Communicatie in TheNetherlands. Loo van Eck is atraining and consultancy firmthat has been helping Dutchorganisations and governmentagencies to communicate clearlysince 1983. With almost 50employees, Loo van Eck is one ofthe largest communicationsagencies for plain language inThe Netherlands.


Aino PiehlSenior researcher, Institute for the Languages of Finland

Finland’s present government, elected in 2011,has promised to introduce a development pro-ject called Effective Legislative Drafting into thelegislative process during its term. This projectis a result of evaluation done by the previousgovernment, which found that better regulationobjectives were not satisfactorily met. Freshmethods were called for to give the draftersbetter tools for planning and controlling legis-lative projects.

Flow chart depicting each stage of the leg-islative process

The outcome of the project will be a model forthe legislative process which describes it stageby stage—starting with planning and endingwith approval by the president of the republic.The model is presented as a flow chart showingthe actors, tasks and results of each stage. Thechart also shows connections to other processes,such as budgetary planning of the ministriesand political decision-making. In addition tothe flow charts, the model provides a verbaldescription of the process in which the draft-ers’ obligations are listed in more detail.

Previous provisions for plain drafting

Previous descriptions of the drafting processhave mentioned language only in general terms.The Bill Drafting Instructions from 2004, forexample, state that “proper, plain languagemust be used”, but no instructions are includedfor achieving plain language in a draft bill. Theonly language-related tasks mentioned are theLegislative Inspection—which in Finland fo-cuses on technical legal quality and consistencyof expressions—and translation into Swedish,both of which occur only at the end of thedrafting process. This was also the case with thedraft model produced in the project. However,the Ministry of Justice asked the Institute forthe Languages of Finland to suggest how tofit plain language measures into the model.

Suggestions from the Institute for theLanguages of Finland

The Institute has long tried to find ways toinfluence the lawmaking process and now anopportunity has presented itself. The gist of theInstitute’s suggestions is that plain languagemeasures should be considered from the startand throughout the process. The most impor-tant recommendation was that plain languagemeasures should be included on the chart aspart of the routine and that drafters shouldorganize necessary resources during the draft-ing process. For example, recruiting the help ofexternal experts should be factored into theschedule and budget of a legislative project. Themodel could also be used to emphasize theimportance of the translator’s comments andquestions about expressions that have remainedunclear to them as a plain language tool andto remind the drafters that it is possible to askstakeholders or special target groups to assessthe linguistic quality of a draft bill.

The outcome remains to be seen. The responseat the Ministry has certainly been positive, andthe Institute has been asked to comment on thenext version of the model as well. A handbookfor using the model is currently being preparedin the Ministry, and the project will also includeplain language training for drafters.

Limitations of the project

Of course, this project cannot solve all problemshindering plain and effective legislative drafting.It does not solve the time pressures that affectdrafting or lack of personnel, nor does it solvethe political demands to prepare an importantbill too quickly to make good drafting possible.But for the first time, plain language measureswill be visible alongside other measures intendedto ensure that Finland has effective legislation.


Aino Piehl works as EU lan-guage specialist in the Institutefor the Languages of Finland.Her research interests includethe comprehensibility of lawsand the influence of EU legis-lation on Finnish legislation.She has written handbooks foradministrative texts and workedas language expert in groupsdrafting legislations.

Plain language in the newFinnish model foreffective legislativedrafting


Clarity conference in Belgium (fromKarine Nicolay)

Clarity’s next conference will be in Septem-ber/October 2014 in Belgium. It will be amajor event co-hosted by IC Clear (Interna-tional Consortium for ClearCommunication), PLAIN and IIID (Interna-tional Institute for Information Design).Other partners are contacted to join. At thePLAIN conference in October 2013, IC Clearwill pilot its postgraduate course in clearcommunication and evaluate the course con-cept, the modules and learning outcomes. Atthe conference in Belgium, the course will beofficially launched. The exact date and placeof the conference will be announcedsoon. Watch www.icclear.net for the latestdevelopments.

10–12 April, CALC conference in CapeTown, South Africa

The Commonwealth Association of Legisla-tive Counsel (CALC) is celebrating its 30thbirthday in 2013. The conference is an oppor-tunity to reflect on accomplishments anddevelopments in legislative drafting over thepast 30 years. Fittingly, the theme of the con-ference is Thirty Years of the Winds ofChange in Legislative Drafting. To register forthe conference or find out more about it,visit http://opc.gov.au/calc/conferences.htm

14–18 April, CLC conference in CapeTown, South Africa

Immediately following the CALC conferenceis the 18th Commonwealth Law Conference(CLC), hosted by the Commonwealth Law-yers Association. The conference theme isCommonwealth, Commerce and Ubuntu.Ubuntu is a term used in South Africa thatsignifies the key values of humaneness, socialjustice, fairness, and conformity to basicnorms. To register for the conference or findout more about it, visit http://www.commonwealthlaw2013.org/

10–21 June, International LegislativeDrafting Institute in New Orleans, Louisi-ana USA (From David Marcello)

The Public Law Center (TPLC) launched theInternational Legislative Drafting Institute in1995 in response to increasing global demandfor training of legislative drafters. The Insti-tute is a two-week summer program thatresponds to the worldwide demand on legis-lative drafters for new laws to support theemergence of free market economies anddemocratic forms of government. The Insti-tute draws together diverse domestic andinternational faculty members experienced inthe legislative process. The 19th annual Inter-national Legislative Drafting Institute will beheld June 10-21, 2013, in New Orleans, Loui-siana.

The Institute’s two weeks of lectures,roundtable discussion, instructional site visits,drafting exercises, and faculty consultationsprovide an excellent intermediate-lengthtraining experience. To learn more about thecurriculum, visit the Institute’s homepageat www.law.tulane.edu/ildi.

10–13 October 2013, PLAIN conference inVancouver Canada

The Plain Language AssociationInterNational (PLAIN) is co-hosting thePLAIN2013 conference with CommunityPlain Language Services Corp., a Vancouver-based non-profit organisation. Theconference marks the 20th anniversary ofPLAIN and its 9th biennial conference. Toregister for the conference or find out moreabout it, visit http://www.plain2013.org/

Clarity breakfasts

Daphne Perry, the UK country representa-tive, continues to organize breakfasts inLondon for UK Clarity members. In 2012,speakers at these breakfasts included RichardCastle and Martin Cutts—both luminaries inthe plain-language field. Clarity members at-tended from Cambridge, Brighton, Portugal,the Netherlands, China, and London. Wealso held joint events with the Statute LawSociety and the City of London Law Society.Thank you so much, Daphne, and all whoarranged these meetings, for your ongoingsupport and commitment. Contact Daphne ifyou’re interested in attending future Londonbreakfasts: [email protected].

Member news &upcoming conferences


The Law Project (from Ben Piper andTialda Sikkema)

The Clarity Law Project aims to provide aregularly updated picture of the various ap-proaches to requiring plain language that arein place around the globe in all languages. Byproviding that picture—with links to moreinformation and to the contact details of in-terested people in each jurisdiction—Clarityhopes to help plain-language advocates pro-mote new, and better, laws requiring plainlanguage.To make this project a success, we need yourcontribution. So please share your claritylaws with us and all the other Clarity mem-bers by sending your contributionto [email protected] or [email protected].

From Maria Otilia Bocchini—BrazilianPlain Language Group joined Clarity

New members are editors, writers, universityprofessors, researchers and consultants thathave been working with accessible languagein Brazilian Portuguese, some of them since1990. They collaborate with governmentagencies, public administration and compa-nies. Since January 2013, the Brazilian groupestablished connection with Sandra Fisher-Martins, who runs the firm Português Claro,in Portugal. Members include Maria OtiliaBocchini, Maria Elena O. O. Assumpção,Livio Lima de Oliveira, Cristina Yamazaki,Yuri Brancoli, and Luís Carlos F. Afonso.

From Heikki E.S. Mattila

We have recently published a book, ComparativeLegal Linguistics-Language of Law, Latin and Mod-ern Lingua Francas-Second Edition. This bookexamines legal language as a language forspecial purposes, evaluating the functionsand characteristics of legal language and theterminology of law. Using examples drawnfrom major and lesser legal languages, it ex-amines the major legal languages themselves,beginning with Latin through German,French, Spanish and English.

This second edition has been fully revised,updated and enlarged. A new chapter on legalSpanish takes into account the increasing im-portance of the language, and a new sectionexplores the use (in legal circles) of the twovariants of the Norwegian language. Allchapters have been thoroughly updated andinclude more detailed footnote referencing.

The work will be a valuable resource for stu-dents, researchers, and practitioners in theareas of legal history and theory, comparativelaw, semiotics, and linguistics. It will also be ofinterest to legal translators and terminologists.Full details and page extracts are available atwww.ashgate.com/isbn/9781409439325 .

From Karen Schriver: two new publications

Schriver, K. A. (2012). What we know about ex-pertise in professional communication. In V. W.Berninger (Ed.), Past, present, and future con-tributions of cognitive writing research to cognitivepsychology (pp. 275-312). New York, NY: Psy-chology Press.

Schriver, K. A. (2013). What do technical com-municators need to know about informationdesign? In J. Johnson-Eilola & S. Selber (Eds.),Solving problems in technical communication(pp. 386–427). Chicago, IL: University of Chi-cago Press.


Committee members

Michèle Asprey

Michèle Asprey is one ofthe pioneers of plain lan-guage in the law.

She is the author of thetext Plain Language forLawyers, now in its 4thedition. She was editor-in-chief of Clarity from2003–2005 and oversaw its redesign.

She is also:

• a film critic, with her criticism publishedmonthly in the NSW Law Society Journal forthe last 10 years

• a farmer, growing native rainforest trees forcabinet-making and architectural use

• a drummer, one half of a rhythm section,the other half being her bass-playinghusband.

Candice Burt

I am a South African plainlanguage lawyer. I havebeen writing contractsand other legal texts inplain legal language forclose to 15 years now. Ialso train lawyers andother people how to writein plain language.

I find that telling people I am a plain languagelawyer breaks the ice at a party. People loveto share how misunderstanding a contract orform or legal notice landed them in trouble. Iuse these stories to convince my clients that itis better to be clear.

When I am not simplifying, I enjoy tennis,acrobranching, travelling to far-flung places,comedy evenings, collecting South Africanart, and long, lazy Sunday brunches. As youcan see from my photo, I also enjoy the plea-sures of South African wines.

Peter Butt

Peter Butt is a former Presi-dent of Clarity. He helpedorganise Clarity’s first everconference, in Cambridge,UK. Peter has given work-shops and seminars onlegal writing at universitiesand law firms in manycountries. Peter is EmeritusProfessor of Law at the University of Sydney.He has written several books on legaldrafting: Modern Legal Drafting (CambridgeUni Press – 3rd edition due out early 2013),and Piesse’s Elements of Drafting (10th ed,2004). He is also co-editor of Butterworth’sAustralian Legal Dictionary.

Peter teaches and practises law in Australia,and has written a number of books on Aus-tralian land law. This has led to opportunitiesto draft plain-language land laws for coun-tries as diverse as Mongolia, Dubai andUganda. Peter’s main interests outside laware tennis, music (he is a pianist and organ-ist) and long-distance hiking. He is alwayswilling to introduce Clarity members to thedelights of hiking in the Australian bush!

Annetta Cheek

My PhD in Anthropologywas good preparation fordealing with miscella-neous bureaucrats (25years in the government),lawyers (ditto), and asso-ciation boards (9 years aschair of the Center forPlain Language). Myprincipal hobby is dog training—teachingobedience and protection to pit bulls hashelped me develop other skills useful in navi-gating the world of plain language. I’ve evenco-authored a book on dog training, called DogTraining with the Touch. People tell me it’s veryclear—I should hope so. Aside from advocat-ing for plain language and dog training, Ienjoy traveling with my spouse, especially tosee World Heritage sites, since we are botharcheologists.


language in the world, and is excited by thepossibilities offered by information technol-ogy and design to make knowledge attractiveand accessible.

Kyal Hill

I am a Kiwi running alegal translation com-pany in Japan. I havebeen a legal translator(Japanese into English)for about 10 years nowsince obtaining my mas-ters in Japanesetranslation. After com-pleting my Australian JD and other legaltraining this year, I hope to somehow workas a lawyer-translator. For the last 2 years Ihave also been running legal translationseminars for the Japan Association of Trans-lators. My loves and interests other than clearand effective legal writing and translation arethe All Blacks, CrossFit, red wine, and play-ing the guitar.

Dr. Mazhar Ilahi

I have recently done ex-tensive research work onthe Plain Language Move-ment in Pakistan. I haveconcluded that the PLMwill face additional diffi-culties of multilingualism,heterogeneous (Islamicand Secular norms of) legal system and emer-gency legislation in Pakistan. To benefit fromthe theme of Plain language, Pakistan willhave to develop linguistic harmony coupledwith educational reforms and rely on parlia-mentary machinery for legislation. InFebruary, 2013, I plan to hold a Plain Lan-guage Conference to promote the idea ofclearer legal language in Pakistan.

Julie Clement

My name is Julie Clement,and I’ve been the editorin chief of the Clarityjournal since 2005. I’m anAssociate Professor in theResearch and WritingDepartment at ThomasCooley Law School inLansing, Michigan (USA). My plain-languagetraining began when I was a law student inJoe Kimble’s Research and Writing class.Years later, when I began teaching full time,Joe enlisted me as editor. Since then, I’ve metmany of you at Clarity and PLAIN confer-ences and Center for Plain Language events.I’ve served on all three organizations’ boardsand am looking forward to meeting more ofyou in Vancouver this fall! In my “other” life,I’m married to a musician and portrait artist—we own a small art studio in the (also small)town where we live. I’ve been very involvedin local economic-development efforts, aswell as our local arts council and city govern-ment. Rush (my husband) and I love to travelwhen time allows. I’m a novice quilter andhave just started kayaking. Coming to Michi-gan? Give us a call!

Elizabeth Grindey

Elizabeth is the editor ofEnglish legislation at theHong Kong Departmentof Justice, working along-side drafters to fulfil theGovernment’s pledge tocommunicate the lawplainly. It’s a job made allthe more interesting by the historical contextof this tiny dynamic region. Hong Kong’splain language effort straddles the diverse of-ficial languages of English and Chinese, andit serves as an integral part of the Rule ofLaw during Hong Kong’s transition towardsuniversal suffrage.

Elizabeth is not a lawyer. She confesses tofinding it hard to understand Hong Kong’slaws. This surprised her given that she has adegree in English from Lancaster Universityand a background in writing English educa-tional textbooks and in editing academictexts. To be frank, she found Milton’s “Para-dise Lost” far easier to read! She is happy tojoin the Clarity community to promote plain


John Pare

Like several of the earliermembers I was a HighStreet solicitor. I took alaw degree at the Univer-sity of Kent (atCanterbury), did articlesin Kent, got my first jobin Shropshire, and stayedthere from 1972 until Iretired in 2009. At first Idid anything that walked through the door;latterly I specialised in Commercial and Agri-cultural conveyancing (real estatetransactions). We have moved to a smalltown in rural Herefordshire (the adjoiningCounty to the South). I met my wife when atCollege. She was a Primary Headteacher forthe last 20 years until retiring at the sametime as I. We have four children (3 boys anda girl) from 40 to 33. The third boy is a Barris-ter ( the other 2 being a freelance translatorand a Director of a charitable project, whoalso has his own charity running a school inSri Lanka). Our daughter is a teacher also.We have 7 grandchildren, three of whom ar-rived between March and August last year.My main interests are tennis, skiing, singingin a chamber choir, reading, theatre, cinemaand concert-going.

Claudia PobleteOlmedo

Claudia Poblete Olmedois MA in Applied Linguis-tics from the CatholicUniversity of Valparaisoand a PhD in Spanishphilology (with mentionof European Doctor)from the AutonomousUniversity of Barcelona (Spain). He hastaught in the areas of general linguistics, pro-duction and comprehension and Spanishphonetics and phonology also guided thesisin the area of Forensic Phonetics. From 2011,he has taught undergraduate and graduatecourses in the Institute of Literature and Lan-guage Sciences at the Pontificia UniversidadCatólica de Valparaíso. He has participatedin research teams in the field of production oftexts. His current work focuses on criticalstudies of parliamentary discourse.

Maximiliano Marzetti

I always believed Law it-self was insufficient. Afterquitting law practice inArgentina, I became anacademic pilgrim. I stud-ied Law & Economics inEurope and by chance Idiscovered CLARITY. Isee a natural relation be-tween economics and language: Plain LegalLanguage is—after all—about linguistic effi-ciency. Now, back in Argentina, I teachIntellectual Property Law and Economics atFLACSO Buenos Aires, while I advocate theuse of plain legal Spanish—a truly Quixoticquest.

I obtained a Law degree and an Educationgraduate degree (Pontifical Catholic Univer-sity of Argentina), an LLM in IntellectualProperty (Turin University), an LLM in Law& Economics (Hamburg University) andsoon, hopefully, a PhD (Erasmus University).

I’m a qualified barrister and trademark-patent attorney in Argentina.

Tialda Sikkema

My name is TialdaSikkema and plain legalwriting is what I teachlaw students at the uni-versity of applied sciencesin Utrecht, The Nether-lands. In 2012 I started aPhD-research on thewritten language in documents concerningdebt collection. Think of a final notice, a sub-poena, court order or a writ of attachmentand you’ll understand that those documentscan be more effective when content, style anddesign are adjusted to the needs of the read-ers. I expect readers and companies to benefitfrom plain language in these documents, butthere is a long path ahead of me. Please joinme and let’s talk about you do.


Catherine Rawson

I’m an Australian-bornvagabond who has spentmost of my adult lifeabroad. Changing coun-tries and cultures everyfew years has taught methe universal value ofcommunication based onas few words as possibleset in simple sentences.

After giving up legal practice I helped multi-lingual firms ensure that their staff couldwrite readable English free of typical transla-tion errors aided by tailored editing software.My clients included international law firmsand the European Central Bank.

For now family affairs Downunder keep mebusy when I’m not travelling with my retiredhusband from our home in Kuala Lumpur,Malaysia.

Christopher Williams

Ever since graduating inLondon in 1974 I’ve livedin Italy. I’m full professorof English at the Law Fac-ulty of the University ofFoggia in southern Italy. Itry to ‘spread the word’about Plain language andthe law and about the activities of Clarity notonly during my lessons at the Law Facultywhere the Plain Language movement is anintegral part of the ‘advanced’ English examstudents have to do, but above all throughmy publications, several of which have beendirectly related to the question of Plain lan-guage and legal English. I’ve also writtenabout the ‘Progetto Chiaro!’ in Italy in theClarity magazine, and I’ve presented a num-ber of papers at international conferencesabout Plain language and legal English.

Juprin Wong-Adamal

Juprin Wong-Adamalgraduated in Bachelor ofArts (Law) with Honoursfrom the University ofWolverhampton, Englandin 1984. Upon returningto Sabah, Malaysia, hejoined the State Attorney-General’s Chambers as State Counsel. Hewas admitted to the Rolls of Advocates of theHigh Court in Sabah and Sarawak and calledto the Sabah Bar in 1986. In 1989, he at-tended the Legislative Drafting course at theRoyal Institute of Public Administration(RIPA) England obtaining the Certificate inLegislative Drafting. He actively promotes theuse of plain legal language in legislativedrafting and other legal instruments. As apart-time lecturer, his subjects include LegalResearch and Writing. He is currently SeniorState Counsel and advises government Minis-tries and agencies in the State of Sabah.