Why Plain Legal Language Matters
An Interview with Richard Wydick, Legal Writing Scholar
It’s not often that one has the opportunity to interview a pioneer of plain language, but this April we were lucky enough to speak with Richard Wydick, the author of Plain English for Lawyers and a Professor Emeritus of the University of California, Davis, Law School. He was ahead of the crowd when, in 1978, he wrote his first guide to plain legal English for the California Law Review. At the time, he was a professor at the UCD Law School, where he later served as Acting Dean and received the Distinguished Teaching Award.
Professor Wydick has written many books on legal ethics and writing, and is a member of the Board of Scribes, the American Society of Legal Writers. In 2005, he received the Golden Pen Award from the Legal Writing Institute. This award recognizes individuals who have made outstanding contributions to the cause of better legal writing.
Here is an excerpt from our interview:
|Maria:||Let’s start with the guide you wrote for the California Law Review. We found your wonderful booklet, reprinted by the Law Review, on Plain English for Lawyers, dated 1978! How did that booklet come about, and what brought you to plain English long before people were talking about it?|
The booklet that you saw was a reprint of an article that I wrote for the California Law Review, published by the law school at UC Berkeley. I wrote the law review article to try and build on some work that I had done for UC Davis’ then-newly birthed law review, which was built on a sandy foundation.
Part of the tradition of a law review is to have third-year students—ones who are just about to graduate—teach second-year students how to write really good stuff. To give you an example, I had to do fourteen drafts of my first law review comment. And a comment is about ten pages long. But after fourteen drafts, it really was pretty good! It could have been cut in half with fourteen more drafts. [Laughs] But there was no tradition at our new school of having third-year students teach second-year students how to write well. So, because I had been on the Stanford Law Review in school, I was asked to give a lecture or two on the principles of writing so that a tradition could develop. And in putting together those lectures, I got interested in the topic.
There wasn’t a whole lot of literature about plain language in those days. About the closest that would be useful to lawyers were a couple of books by Rudolph Flesch, written in the forties and fifties. And there wasn’t anything specific to law; his was more general. So I gave those lectures, and then the next year I needed to come up with a sabbatical leave project, and it needed to be a portable sabbatical leave project because I didn’t want to have to carry half of the law library with me on sabbatical. I picked legal writing as the topic, and went off to New Zealand to stay for an academic year and write my law review article, in a suburb of Auckland.
|Lindsay:||When you gave those first few lectures, what was the reaction of the students to your advice to write plainly?|
Polite boredom. [Laughs] Anyway, one of the very few books that I found useful when I was off in New Zealand was at the law school library of the University of Auckland. It's a book called The Language of the Law, by David Melinkoff, who used to be a member of the faculty of UCLA. Before joining the UCLA law faculty, he wrote the definitive book on the uselessness of the way lawyers write. It had been commonly thought that legal writing was somehow different, and had to be different, than standard language in order to work its legal magic. He took all these pages [holds up a thick book] to prove that it just isn’t so. For example, he devotes several pages to explaining that the word “said” is not…
Indeed. No, that the word “said” is not better than the, or that, or any similar substitute. Melinkoff’s work was published in 1963, and if I had not found that book, my article would never have been published, and I wouldn’t have had anything to say. But early in this book, Melinkoff states a premise, and the premise is that legal writing should not differ without good reason from ordinary good writing. He built the book on that premise, and I built my book on his premise.
So it’s not that I was at a time writing differently from other people; rather, mine was a development of past work by others.
|Lindsay:||Some legal professionals worry that plain language documents will not hold up in court. What would you say to them?|
What would I say to these naysaying lawyers? First, you must distinguish things that don't hold up in court because of legal insufficiency from ones that allegedly didn't hold up in court because they were written in plain language. I don't think I’ve ever seen a case or situation in which something was held insufficient because it was too simply written. “We could understand this! It can’t be enforceable!” [Laughs]
Now, if you hand to a court clerk something that is in the wrong format, that doesn’t look like this kind of a document is supposed to look, the court clerk may very well not file it for you. Court clerks are temperamental, and if you cross them, they’re inclined to say, “Oh I’m terribly sorry, the judges won’t look at this affidavit because you failed to put ‘SS’ after ‘County of Yolo,’” for instance. So you need to pay attention to format as well as to the legal requirements of a document if you want to make it useful in court. But again, that’s not got anything to do with writing style.
Now, here is an example of a document that is excellent in writing style, but is in an unfortunate format. In the early 1980s, when plain English was becoming popular in Britain, a homeowner’s insurance company asked the best plain English expert in the country to revise their standard homeowner policy.
The expert did a brilliant job of turning the crusty, old legalistic language of the policy into clear, plain English. But then the new text was put into the hands of a graphics specialist, a document designer who was told to make it “reader friendly.” The resulting document was a booklet on expensive paper, printed in a sophisticated modern font. The text was artfully divided by multicolored headings, and each page featured a handsome color photograph of an object that could be found in a wealthy person’s house – a mantle clock, a fly rod and reel, a copper sauce pan, and the like. What do you think happened?
|Lindsay:||I’ll bet people couldn’t find their homeowner policy when they needed it.|
Right! The booklet looked too much like an upscale mail order catalog, so policyholders didn’t recognize it as an important legal document when it arrived in the daily post. So they tossed it in the trash bin rather than file it away for safekeeping.
|Lindsay:||So a drastic change in format might not always be the best idea.|
Yes, that's correct.
|Maria:||How would you evaluate the success or failure of the plain legal language movement over the past few decades?|
Some folks regard it as a movement, but I never have. And regarded as a movement, I would say it’s remarkably unmoving. At best, it comes and goes. But I think that if the movement ever moves, it will be because private enterprise discovers that plain language produces profit.
About 20 years ago, a group of authors wrote a book discussing a number of private industries in which plain language had made it cheaper to operate. Fewer people having to answer questions on the phone, etc. A good illustration of that in a government context is the Social Security system. If you look at Social Security documents, they’re beautiful! Even for us old people, they are easy to read and understand and not have any questions about. If you do have a question, there’s a phone number right at the bottom of the page and you can call up and get a sensible answer on the phone. And you would think if there were any system bogged down in old, bureaucratic language, it would be Social Security, but it’s not so.
|Maria:||Thank you so much for talking with us.|
|Prof. Wydick:||Thank you.|
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