Plain English

Using Plain Language in Law Firms

By Edward Kerr

M allesons Stephen Jaques hashad a plain language policysince 1986. This paper de-scribes what we have done.

First let me tell you a littleabout the firm. We are a large law firm evenby world standards. We have ten offices inAustralia and overseas. We have large of-fices in Sydney, Melbourne, and Perth andquite sizeable operations in Canberra andQueensland. Worldwide, we have about180 partners and 420 other qualified law-yers, for a total of about 600 lawyers. Thetotal number of staff is about 1,500.

I have divided this article into threemain parts:

e The first part, "Putting Our House inOrder," describes how we have gone aboutgetting our lawyers to use plain language.

* The second part, "Selling Plain Lan-guage," describes what we have done to sellplain language to our clients.

* The third part, "Reflections," summa-rizes what we have and have not achieved,what lessons we have learned, and thethings that remain our biggest challenges.

PUTTING OUR HOUSE IN ORDERI have found that three things are essen-

tial for a plain language policy to be suc-cessfully implemented:

" Constant planning and goal setting." A strong organizational structure.

0 People who are committed to the effort.An organization, particularly a group of

600 opinionated lawyers, will not start writ-ing in plain language simply because youtell them to. People need to work with itdaily, and having precedents (or forms, asAmericans call them) in plain language isthe obvious and ideal way to give themthis opportunity.

So how do you produce a high-qualityprecedent system in plain language which isconsistent throughout ten offices and read-ily available to 600 lawyers? There are fiveaspects which should be mentioned-howit all began, the organizational structure wedeveloped, the lawyer resources needed, theuse of technology, and the training programwe put in place.

The Early Days

Our long-term commitment to a fullyintegrated precedents system incorporatingplain language principles began in late 1986.Until then, attempts at precedent develop-ment had been sporadic and died after aninitial burst of enthusiasm.

In late 1986 we employed a senior law-yer, Michele Asprey, to take charge of ourprecedents section. Michele had great en-thusiasm and vision and soon convincedus of the need to use the latest computertechnology and to think nationally. At thattime we set the following goals:

9 We were determined to have a high-quality precedent system.

e It had to be in plain language.

* Documents had to be consistent. Thisis most important. If you have a series ofdocuments in a transaction (for example,a loan agreement, a guarantee, and a mort-gage) it is unacceptable if the standardclauses in the documents are not consistent.

We started with banking and financedocuments, and after about a year wethought we had developed a good set ofplain language standard clauses. Then inlate 1987, a turning point came when oneof our senior partners attended a weekendseminar put on by Dr. Robert Eagleson. Hewas very taken with what he heard.

An organization,particularly a group of

600 opinionated lawyers,will not start writing inplain language simply

because you tell them to.

We invited Dr. Eagleson to run a seriesof sessions where we worked through thedocuments that we thought were in plainEnglish. As you can imagine, he pulledthem to pieces-in the nicest possible way!

Probably the single most important thingthat Robert taught us--you could say it wasa case of light dawning on us-was to thinkof our audience. This might sound obvious,but I can assure you that lawyers are not

AR .AIrIIrn r An IJII1 JAURY19lVlI-nlLWIN DKK JUU)KINALJ JANUARY 1994

PLAIN ENGLISH

trained that way. They are trained to writea legally binding agreement. It is irrelevantthat no one can understand it. This lessonresulted in a fundamental change in howwe approached our drafting.

fter working on our documents with

Dr. Eagleson for several months, weIhad, by early 1988, a very good set ofbasic clauses and documents in a plain lan-guage style. However, problems were be-ginning to develop. They were:

* The lack of an organizational struc-ture that would facilitate the developmentof our program.

* Resources-principally in practicinglawyers who were both willing and avail-able to work on documents. I say both, be-cause often the spirit is willing, but clientdemands leave you unavailable.

The Organizational Structure

Up until early 1988, we had naivelythought that a precedent base could be de-veloped in a fairly short time. We had beenthinking of three to six months for the 100or so banking and finance precedents wewanted. But we began to realize that it wasgoing to take much longer to produce thequality system we wanted.

We then established a committee madeup of representatives from all our offices.One of the first things the committee didwas to establish a firmwide standard for-mat for documents and drafting guidelines.Plain language considerations were para-mount in this process. We spent a lot ofeffort establishing guidelines to improvethe readability of our documents.

Probably the single mostimportant thing that Robert

taught us-you couldsay it was a case of lightdawning on us-was tothink of our audience.

For example, we got rid of some unnec-essary archaic features. I am sure that youhave all seen legal documents which endwith something like:

"In witness whereof the parties hereto haveexecuted this deed on the date first hereinbe-fore written."

It now reads:

"Executed as a deed."

The legal effect is the same.This firmwide committee has been an

essential element in establishing a plainlanguage policy right across the firm. It isessential to have people in each center whoare committed to it and who, on a day-to-day basis, can ensure that the policy is be-ing implemented.

The other major purpose of the firm-wide committee is to control the nationalreview of documents. Our goal is to haveconsistent documents in all centers. In otherwords, if you walk into our Perth officeand ask for a guarantee, you will get thesame document as you would from ourSydney office.

The firmwide committee establishes thedrafting program for each expert group, setspriorities, and identifies the lawyers whowill prepare the precedents. A by-productof this process is quality. Because all oureffort is put into one document, it is re-viewed more vigorously than if we werecreating a different version in each center.

49JANUARY 1994 MILliIUAIN bAI( JUUKINPiL

MIC HIGAN BARl JtOUIUMiJANUARY 1994

PLAIN ENGLISH

ResourcesProgress was much slower than we had

expected. We started a number of projectsthat stalled because we were unable to de-vote enough time to them. We then beganto realize that this sort of program is ex-tremely resource-hungry-for people andtechnology, which all add up to lots of dol-lars. We have spent over $5,000,000 in de-veloping our precedents. Most of this rep-resents unbilled time of the lawyers whoworked on the precedents.

n 1988, 1989, and 1990, we employedup to seven lawyers to work full-time onprecedents. During this time we were

able to complete a large number of bank-ing, corporate, and property documents.The pace is not so frantic now, but we stillhave four lawyers working full-time on de-veloping precedents.

In addition to the full-time lawyers, it isvery important to have a network for reviewof documents. It is essential that the law-yers who are going to use the documentsare satisfied with them. Otherwise the law-yers won't use them. This point can't be em-phasized enough. Therefore, we send thedocuments to numerous experts within thevarious centers for review. This can takemany months, and a lot of hounding (inthe most diplomatic way) is often required.But the result is documents that are highquality and commercially acceptable.

Finding the human resources probablycontinues to be the biggest challenge. Butat least having clear goals means that thework which is done is focused.

So implementing a plain language policywill cost money-not only in human re-sources, but also in technology.

Technology

You can't expect to implement a plain lan-guage policy in an organization as large asours without a sophisticated system thatmakes the resources readily available.

Some years ago we purchased a fully in-tegrated Wang information processing sys-tem (this was before the days of networkedPCs). Although this system does not havethe benefits of a PC-based system, it hasbeen excellent for implementing a consis-tent precedents policy.

All our precedents are on a special prec-edents database. Everyone (including law-

yers) have screens on their desks and haveinstant access to those precedents. The basiclayout features-for example, the layout fora letter or document or signature clauses-are programmed to appear automatically.This ensures consistency.

All but one of our centers are usingWang equipment. So it is very easy to ac-cess a document on one center's systemfrom another center. If our London officewants to produce a guarantee, it simplycalls in the latest precedent version fromSydney and prints it out in London. Thishappens in seconds.

We then began torealize that this sort

of program is extremelyresource-hungry-

for people and technology,which all add up to

lots of dollars.

We have also made use of technologyin computer-assisted drafting. This systemenables a lawyer to prepare a document bysimply answering a series of questions onthe screen. The document is then automat-ically prepared by the program. The pack-age we use is called Workform, from Ana-lytic Legal Programs Inc., of New York.

We have produced a wide range of ap-plications including loan agreements, guar-antees, deeds of priority, legal opinions,memoranda and articles of association, andsecurities. All of these applications arebased, of course, on our plain languageprecedents for those documents.

The next stage in technology will be toestablish a networked PC system that willretain all the benefits of the Wang systemand give the added benefit of being able toproduce much better looking documents.The plain language program would breakdown without the technology.

Training

The plain language program would alsoultimately break down if lawyers were nottrained in the art of plain language draft-ing. It is all very well to have precedents

in plain language. It is also critically im-portant to have lawyers who can adaptthose precedents and otherwise generallydraft in plain language. Precedents are onlythe starting point in a transaction. Everytransaction involves a lot of "original" draft-ing. In this area we have a long way to go,but we have started.

ll lawyers newly employed in the

firm attend what we call the "Wel-come to MSJ" course. Two hours of

this course are devoted to teaching ourplain language drafting style. This is verybasic, but we do try to teach the lawyers to:

" Think before they draft." Think of their audience.* Draft in the present rather than the

future tense." Draft in the active, not the passive.

* Avoid "shall" and other archaiclanguage.

9 Use short sentences.We also run a two-day live-in program.

In our Sydney office (which is our largest),we run this program twice each year. Allrecent graduates must attend, and we alsoinvite a number of partners and more sen-ior lawyers. We limit the course to 25,which enables a lively interchange. RobertEagleson teaches the course. This coursehas also been run in our Brisbane and Perthoffices, and we are hoping to make it a reg-ular feature in all our Australian centers.The topics covered include:

* The central principles of plain lan-guage and some causes of legalese.

" Focus-who are the readers?" Organization-its key role in making

documents intelligible.* Grammatical structure-why long

sentences fail; how to shorten them; orderof elements in a sentence; active or passive;nouns or verbs.

" Punctuation." Matters of vocabulary such as han-

dling technical terms and definitions." The proviso." Writing letters." Layout.

SELLING PLAIN LANGUAGE

Originally we adopted a policy of plainlanguage because we wanted our prece-dents to be in plain language. We did notinitially set out to sell plain language to ourclients as a separate product.

50 MICHIGAN BAR JOURNAL JANUARY 1994

PLAIN ENGLISH

More recently, with the growing demandfrom community groups, the judiciary, andthe government for legal documents to bein plain language, clients are asking moreand more for plain documents. As a re-sponse to this demand, we established aplain language unit in the firm about a yearago. At that time Robert Eagleson resignedfrom his post as Associate Professor in theEnglish Department at Sydney Universityto work full-time as our consultant. He andI originally constituted the plain languageunit. More recently another lawyer fromthe firm has joined the unit.

What have we been doing?

Visiting Program to Clients. We haveestablished a program of visiting clientsand potential clients to talk to them abouttheir plain language needs. So far, we havetargeted banks and insurance companies.

Submissions to Parliamentary Inquiries.There is a growing awareness within gov-ernments of the need to draft legislationin plain language. Two parliamentary in-quiries are currently under way where therehas been an opportunity to make submis-sions on how legislation should be drafted.We have strongly recommended the adop-tion of plain language principles.We have also recommended that the

legislative process entail extensivecollaboration with the private legal

profession. Too often, legislation is draftedby parliamentary counsel who do not con-sult and are not encouraged to consult withthe relevant industry and the private legalprofession to ensure that the legislation canbe understood and is workable. We see aneed for experts in plain language to workwith parliamentary counsel in preparinglegislation.

Preparing Pro Forma Documents. Wehave decided that often clients will not beconvinced of the benefits of plain languageuntil they actually see it. Accordingly, wehave a program of preparing a number ofcommonly used documents that we canshow to clients in virtually final form, sub-ject to their own commercial requirementsbeing incorporated in them. These docu-ments include a short-form equipmentlease, a superannuation trust deed, and ahousing loan mortgage. This approach isproving particularly successful.

Although the development cost is high,we are able to recoup this gradually by sell-ing the document to a number of clients.

It also keeps the cost for any particular cli-ent down to an acceptable level. It wouldbe uneconomical to develop some of thesedocuments for a single client.

Also, the spin-off effect for other workshould not be underestimated. If you canprovide a high-quality plain language stan-dard document to a client, they are morethan likely to come to you for other work.The plain language document can be the ve-hicle for attracting new clients to the firm.

Marketing Within the Firm. We havefound it useful to market our skills not onlyoutside the firm, but also within. Some-times, partners will not realize that thereis a plain language opportunity with a par-ticular matter they are handling. One ex-ample of this was where Robert Eaglesonand I were visiting an insurance companyand discovered that someone else in thefirm was preparing a trade-practices com-pliance manual for them. When we re-turned to our office, we obtained a copyof the manual, which had been preparedby lawyers in the firm who were not skilledin plain language writing. We were able tomake vast improvements to the manual.

.tr Ir" A I fl' An f"} ' TlI A I 51

REFLECTIONS

What Have We Achievedin Seven Years?

* Standard format and drafting guide-lines.

* High-quality documents in plain lan-guage-about 60 in banking and finance,all consistent with each other, and another120 in the corporate and property areas.There are many still to be done.

9 A culture where plain language has a

high profile.

" A comprehensive training program.

" The demystifying of legal language,particularly for the young lawyer (they don'thave to learn bad habits).

* A very solid base on which to expand.

What Lessons HaveWe Learned?

o Don't underestimate the size of thetask. It will take you longer than you everthought possible.

* The management of the firm or cor-

poration must be committed to it.e Don't try to do too much at any

one time.

* Continually plan ahead and ensurethat the resources will be available. Controlthe exercise. There is a great potential in alarge firm to re-invent the wheel. You musthave an organizational picture which en-sures that you take advantage of economiesof scale.

Edward Kerr is the part-ner in charge of the firm'sPlain English Unit. Hehas extensive expertise inpreparing standard docu-ments for banks and otherfinancial institutions. Heis also in charge of thefirm's precedent system.Mr. Kerr graduated with

arts and law degrees from the University of NewSouth Wales. In 1985 he joined Mallesons StephenJaques (becoming a partner in 1986). He is a mem-ber of the Banking, Finance and Consumer Creditsub-committee of the Law Council of Australia.

WKSHillUM-l4 Dt JUUl ItJANUARY 1994

PLAIN ENGLISH

* Be flexible. Don't think that there isonly one way to do things. Keep an openmind. Be sympathetic to the fears and de-fensiveness of others. Don't let your en-thusiasm make you a tyrant.

* Be sensitive. At first, many lawyers inthe firm did not wholeheartedly embraceplain language. Gradually the pockets ofresistance are dying out. Some of the prob-lems we encountered are:

(1) Lawyers who mistakenly believe thatbecause they are good lawyers they mustbe good writers.

(2) Lawyers who cling to the old waysbecause they are "tried and true" or be-cause they are frightened to change anddon't have time to research to satisfy them-selves that the change in language is safe.

(3) Lawyers who cling to outmodedpractices in grammar "because that's whatwe were taught at school" in the 1940sor 1950s!

(4) Lawyers who are under the mistakenapprehension that clients like to readlegalese.

(5) Lawyers who simply don't under-stand what plain language is and are afraid

Monday 12:00 PMSt. Joseph Hospital EastBailey Room AParkview and North StreetsMt. Clemens

Monday 12:30 PMDetroit Bar Association

Conference Room23rd Floor, Penobscot BuildingDetroit

Monday 7:00 PMPrince of Peace Lutheran Church19100 Ford RoadFord Rd. (Altar Rd.) just west of

Southfield FreewayDearborn

Monday 7:00 PMRehmann Health Center147 S. SaginawChesaning

of it or mistrust it because they think it issomething other than clear, simple, pre-cise writing. An example is the "shall" ver-sus "must" debate. This generated an enor-mous amount of heat within the firm. Inthe end it came down to a combination ofwhat people "liked" and "didn't like" andalso what they thought was grammaticallycorrect. Five years ago, we had to compro-mise. Now, the resistance has disappeared.

What Are Our Biggest Challenges?e Getting lawyers to devote time to de-

veloping precedents. The best solutions Ihave found are to employ lawyers to workfull-time on precedents and to form projectteams who meet regularly to discuss thedocument.

Wednesday 6:00 PMKirk In The Hills

Presbyterian Church1340 West Long Lake Road2 mile west of Telegraph

Bloomfield Hills

Wednesday 6:00 PMUnitarian Church2474 South Ballenger RoadLower Level, Room 2C1 block south of Miller RoadFlint

Thursday 8:00 PMCentral Methodist Church

(2nd Floor)Corner of Capitol and

Ottawa StreetsLansing

e Getting lawyers to use plain languagein their day-to-day work. There is no easyanswer to this because old habits die hard.Certainly having a precedent base writtenin plain language gives you a head start,but then it comes down to training eachindividual lawyer.

e Marketing plain language to clients.Most clients will say they want documentsin plain language. Far fewer have the visionto see the economic benefits that could flowby converting their existing documents intoplain language.

An important person to convince in anyorganization is the in-house counsel. Some-times you will be criticizing the documentthey prepared. Often they will not appre-ciate the marketing benefits of having plainlanguage documents. Usually they will havea large say in whether the document shouldbe rewritten.

Accordingly, you need to develop an ap-proach where the client can justify theexpense on a cost-benefit analysis and thein-house counsel is supportive.

CONCLUSIONAs you may have gathered by now,

we have an ambitious program. It rangesacross precedent development and main-tenance-both of which have significanttechnology implications-and into market-ing plain language to our clients. It hasbeen necessary to develop databases andother systems that ensure consistency andeasy access. The program also involves law-yer education.

As I mentioned earlier, we have foundthat implementing a plain language pol-icy requires:

" Constant planning." A strong organizational structure." Probably above all, commitment from

the people implementing it and significantresources.

But it is worth every minute and dollarwe have spent! We believe that if we areto continue to be a leader in 10 to 15 years,then we must address these issues now. N

5V2..lUM D' UNNXLJNAY19

If you can provide a high-quality plain languagestandard document to a client, they are more

than likely to come to you for other work.

Lawyers and JudgesAA/A Groups

MEETING DATES

) AIt'LIL "A .! n,,n l.' Hn TAr

IVIA-1-11WAV4 DtM JVU1V4KL JANUARY 1994