68 021313 01 - clarity · the likely interests of people—especially law-yers—working on...

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.

ClarityNumber 69 January 2013

Journal of theinternational associationpromoting plain legal language

Editor in chief:Julie Clement

Guest editors:Annetta Cheek, ChristopherBalmford, and Gina Frampton

In this issuePlain language and cultural change

Paul StricklandTrying to change the institutional culture:the European Commission’s clear writing campaign 4

Vicki Lankargeand and Brian BerkenstockStart a plain language program at your organization 5

Kathryn CataniaUSCIS plain language program 7

Katherine SpiveyStriving for clarity: the General ServiceAdministration’s steps towards plain language 8

Terry LemonsThe IRS and plain writing—challenges andaccomplishments for a taxing situation 9

Wayne SchiessTexas pattern jury charges—plain language revisions 10

Community communication

Joh KirbyA study into best practice community legalinformation—a summary 12

Stéphanie Roy and Sarah DoughertyThe challenges of plain language legal informationin various media 14

Charlene Jones and Mark StarfordEmpowering individuals to understand and engage 16

Cheryl StephensYou have the right to remain baffled: plain languageand criminal justice 18

New technologies

Nad RosenbergMobile technology and plain language—a matchmade in heaven 21

Richard B. Horn and Dr. Susan KleimannConsumer testing and the development ofTILA-RESPA integrated disclosures 22

Since the conference: rebutting a critic

Scott AndersonPlain language and statutory drafting:a Stark contrast 26

Joe KimbleWrong—again—about plain language 31

Draft of the Clarity Constitution 37

Clarity and general news

This issue 3How to join Clarity 5Contributing to the journal 13Members news 41Message from the president 42Meet the Clarity committee members 43

2 Clarity 69 January 2013

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]

CanadaNicole [email protected]

ChileClaudia Poblete [email protected]

FinlandHeikki [email protected]

FranceJenny [email protected]

GermanySiegfried [email protected]

Hong KongElizabeta [email protected]

IsraelMyla [email protected]

ItalyChristopher [email protected]

JapanKyal [email protected]

MalaysiaJuprin [email protected]

The NetherlandsTialda [email protected]

New ZealandLynda [email protected]

NigeriaDr. Tunde [email protected]

PakistanMazhar [email protected]

PhilippinesVictor [email protected]

PortugalSandra [email protected]

Slovak RepublicIng. Ján [email protected]

South AfricaCandice [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 69 January 2013 3

Clarity … the journalPublished in May and November

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

This issueAs foreshadowed in Clarity 68’s “This issue”,Clarity 69 contains further articles from Clar-ity2012—our conference held in WashingtonD.C. in May 2012. The “This issue” section ofClarity 68 overviews the aims, highlights andprojects of Clarity2012. You can read thatoverview on page 3 of Clarity 68.

Christopher BalmfordManaging DirectorWords and Beyond, Australia

Annetta CheekChairCenter for Plain Language,Washington, DC

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.


Plain language and cultural change

Paul StricklandHead of Editing and Coordinator of the Clear WritingCampaign, Directorate-General for Translation,European Commission, UK

The challenge

Clarity is a challenge for the European Com-mission. It is a multilingual, multiculturalbureaucracy, producing reports, policy pa-pers and legislation in 23 official languages.However, the principal drafting language ofthe European Commission is English and,since most Commission officials are not na-tive speakers of English, this has predictableconsequences for the clarity of the documentsthat are produced.

Promoting the clear writing message

Improving the quality of documents is thepurpose of the European Commission’s ClearWriting Campaign, launched in 2010 andspearheaded by a small team of editors. Theyget the message across through a website,posters and newsletters, and through a verysuccessful booklet offering drafting advice inevery official language. They offer trainingseminars, an online tutorial and an emailhelpline. And every year they award a certifi-cate to staff who have produced particularlyclear texts.

Recommendations of the Clear WritingCampaign

In 2011, the Campaign’s organisers publisheda report making recommendations for lastingchanges in the way the Commissionorganises its written communication. TheCampaign aims to give all staff more oppor-tunities to learn and develop clear writingskills. People who draft well should be re-warded. And quality control should be builtinto the workflow. Indeed, all importantdocuments should be checked and edited be-fore they are circulated, translated orpublished. Turning everyone into an expertdrafter is challenging, especially when theymay be writing in their second or third lan-guage. But it is important to create a workingculture in which everyone takes pride in thequality of the documents they are responsiblefor.

Changing the culture

No campaign, though, can transform an en-tire culture in just two years. It takes time topersuade any organisation or institution toadopt a culture of clarity. The EuropeanCommission has yet to make a public com-mitment to clear writing. And althoughmany of its top officials are supportive of thecampaign, we lack a strong champion at thevery summit of the institution.

Cost savings

However, the tide may be turning. Grass-roots awareness is much stronger thanbefore: indeed, clear writing looks set to be-come a permanent feature of administrativelife in the Commission. Moreover, in thewake of the current economic crisis, theCommission is under pressure to save moneyand to use its human resources more effi-ciently. It is beginning to dawn on seniormanagement that well-drafted documentsare easier to use and take less time to trans-late. And time is money!

Trying to changeinstitutional culture: TheEuropean Commission’sclear writing campaign


Avoiding ambiguities

There is also political pressure on the Euro-pean Commission to produce betterlegislation. It is essential to avoid ambiguousarticles or clauses, because the translationsmay well diverge—and the law will then beimplemented differently in different coun-tries. Once again, senior management isbeginning to realise that the solution isclearer drafting.

Part of the solution

Given the huge economic and political chal-lenges facing Europe and every other part ofthe world, now is the time to get out of ourcomfort zone and to do what is needed, notwhat we have always done. Clearer commu-nication and better and smarter legislationare more important than ever—in fact, theyare part of the solution.

Perhaps clarity is an ideal whose time hascome!

© 2012 P [email protected]

Paul Strickland is Head ofEditing, EuropeanCommission’s Directorate-General for Translation. He alsochairs an inter-departmentaltask force that runs a ClearWriting Campaign in theCommission. After work in theprivate sector, Paul joined the Commission in 1989 as alinguist. He then spent many years in the areas ofinternational trade and foreign relations before returningto his roots and taking up his recent position. Paul is agraduate of the University of Oxford and has a degree inModern History and Modern Languages. He is marriedand has two grown children.

Brian BerkenstockDirector of Content Services, Marketing Product andCommunications DepartmentAetna, Hartford, Connecticut

Vicki LankargeStrategic Marketing CommunicationsAetna, Hartford, Connecticut

Vicki Lankargeand Brian Berkenstock considerways—overt and covert—of persuading col-leagues to commit to communicating clearly

No matter what your organization does, nomatter whether it’s large or small, it’s also apublisher if it communicates with people inletters, flyers, websites, advertisements andmore. That’s where your writing expertisecomes in. Use your skills to help your organi-zation reach its goals. And show yourcolleagues that to do that, they need to com-municate clearly. Launching a plain languageprogram might not be easy. You know itsvalue, but you have to convince others. Hereare some ideas.

1. Create awareness

Nothing changes until people know there is aproblem. So show them with “Before & After”examples. Back those up with stats aboutreading grade levels. Show real people strug-gling with low literacy. Help your organizationunderstand that all people—especially busypeople—value clear language. This is thefoundation stage of your work. It may passquickly or drag on. But don’t lose hope. Useevery opportunity to show the value of com-municating clearly to the people you serve.

2. Seed your grassroots

You may be lucky to find support at the topof your organization. Your leaders can speakabout plain language. They can add it to yourbrand and to the quality review process. Butif you don’t have that kind of support, startat the bottom and work your way up. Find

Start a plain languageprogram at yourorganization

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.


like-minded colleagues. Share ideas for howto move the plain language agenda forward.

At Aetna—a large US health insurance com-pany—we took two steps to strengthen ourefforts:

a. Give employees resources to take action.

We created:

• a quarterly plain language newsletter full oftips and techniques

• a monthly feature on cutting jargon

• an introductory course in plain language.

b. Give people resources to do the workand support them as they face resistance.

• Recognize the good work people do

• Promote your plain language champions.You can do this in small ways (a thank youemail to the writer and his or her boss) andlarge (a formal recognition program).Brand your true experts as role models.

• Share examples, conduct research, makeyour case

• Testing not only helps us all get better at whatwe do; it also proves that what we do works.

3. Improvise with style

We didn’t start out with a plan. But anytimewe saw an opportunity to advance the cause,we jumped at it. Whether you start with a planor not, you’ll spot opportunities along the way.Tailoring your message to each audience is vital:

• with medical directors—we talk abouthealth literacy as a patient safety issue

• with business people—we talk about returnon investment

• with executives—we talk about thoughtleadership

• with product owners—we talk aboutimproving customer experience

• with advertising and communicationsspecialists—we talk about the value of thebrand.

4. Use covert ops

Two epiphanies helped us expand the accep-tance and support of plain language.

• People love when you do work for them

– Help them simplify their work.

– Show them how great things look whendone well.

– Acknowledge them as your greatestboosters.

• People are looking for experts to makedecisions

– Most people are not opposed to beingtold, “This is the rule.”

– If no one is making these decisions onclarity in writing, you should do it.“Proceed until apprehended!”

– You become the experts.

Convert co-workers through education. Appealto their common sense and their wish for suc-cess. This means you will need to buildrelationships one at a time. Is it slow going?Yes. But each person you bring into the foldbecomes a supporter—or even better—anevangelist. You will never convince everyone.But you will eventually tip the balance in favorof plain language. And there is no downsideto that.

© 2012 B [email protected]

© 2012 V [email protected]

Brian Berkenstock is directorof content services for digitalmedia strategy andcommunications in the marketingproduct and communicationsdepartment at Aetna.

His dad, a plainspoken man, onceasked, “But what do you DO?”Brian said, “I try to get people towrite like human beings who aresimply talking to other humanbeings.” And that, believe it or not, easily fills 8–10hours a day.

Vicki Lankarge has had manywriting jobs in the past 30years. She’s been an Englishteacher, newspaper reporter, and“Mold Queen.” She got the lasttitle from her smart-aleck co-workers at insure.com. That’swhere she spent more than ayear writing for consumersabout the hazards of toxic mold.Today, Vicki is a member of agrowing group of plain language advocates at Aetna.They work together to help consumers better understandand use their health benefits.


and reach employees in remote locations. Wecreated:

• a volunteer committee of plain-languageadvocates from across the country

• a USCIS Plain Language Guide andintranet resource center

• videos reminding folks of better writingtechniques (also available onwww.plainlanguage.gov)

• video conferencing classes for remotelocations

• a class focused exclusively on web writingto teach program offices how to repurposeprint material for uscis.gov

• an annual awards ceremony to honornoteworthy USCIS users of plain language

The new Plain Language and Content Di-vision

Early this year, the Chief of the USCIS Officeof Communications created a new Plain Lan-guage and Content Division to ensure ourproducts (news releases, web material, blogs,etc.) are clear and effective. I have the honorof leading this new division and continuingto provide plain language training through-out the agency.

Fostering the commitment to plain lan-guage

While our writing culture has changed, theinitiative never rests. For every plain-lan-guage document, there’s an uncleardocument that gets out. Our goal is continu-ing to promote clear communication whileintroducing plain language to new employ-ees. We remain committed to encouragingprogram offices and individual employees touse plain language as they create and revisematerial. My team is recruiting volunteertrainers to help meet this demand.

After four years, the USCIS plain languageprogram has come a long way. We will keepworking hard to improve how we communi-cate with the people we serve.


USCIS plain languageprogram

Kathryn CataniaChief, Plain Language and Content DivisionUS Citizenship and Immigration Service,Washington, DC

The task of USCIS

U.S. Citizenship and Immigration Services(USCIS) has roughly 18,500 employees in 250offices around the globe. Many of the indi-viduals we assist as they seek to lawfullyemigrate to the United States speak Englishas a second language. On top of this difficulttask, our business is immigration law whichcan be highly complex. Our biggest challengeis to write with our readers in mind, insteadof writing as subject-matter experts.

Implementing a plain-language program

Implementing a plain-language program at afederal agency isn’t an overnight project. ForUSCIS, it has been a four-year process that’sstill evolving. Today, over 25 percent ofUSCIS employees have taken plain languagetraining.

Using trainees’ own documents

In 2008, we began offering a few genericplain language classes. After a year of medio-cre attendance, we tailored the classes to ouraudience by basing the sessions on docu-ments that they actually write and use. Thissimple change dramatically increased partici-pation. Attendees spread the wordthroughout the agency that the classes reallyrelated to their work and significantly im-proved how they communicate withcustomers. As a result, we offer the class eachmonth, drawing 20 to 25 attendees (somemonths we even have a waiting list).

Going regional and maintaining momen-tum

As demand for the classes increased, we be-gan looking at ways to maintain momentum


Kathryn Catania is the Chief, Plain Language andContent Division, Office of Communications, USCitizenship and Immigration Services (USCIS),Department of Homeland Security. She is also the Chairof the USCIS plain language program. Previously,Kathryn was a Web contenteditor for www.uscis.gov and asenior regulatory editor atUSCIS. Before that, she editedregulations at the Office of theFederal Register. Kathryn isCo-Chair of the Plain LanguageAction and InformationNetwork (PLAIN), a volunteergroup of federal employees whopromote plain language usethroughout the government and managewww.plainlanguage.gov. OMB, in its preliminaryguidance, named PLAIN official inter-agency workinggroup for the Plain Writing Act of 2010.

Katherine SpiveyPlain Language Launcher,General Services Administration, Fairfax, Virginia

Clear and effective communication is vital toany organization, and particularly to those inthe public sector. At The U.S. General Ser-vices Administration (GSA), we have a hugeaudience—all other federal agencies, as wellas some state and local government agencies.

When we started GSA’s plain languageproject, we tested our main website throughGSA’s usability program, First Fridays.

Problems found

Usability testing revealed that our audience—other GSA staff and staff from other federalagencies—did not understand the languagewe used on our pages. It wasn’t hard to seewhy: our pages were full of acronyms andjargon. We also had simply too much text.

We knew that fixing this problem meantmuch more than editing some web pages—we had to change the communication cultureat our agency. This was not an easy task, norone that could be finished in a year.

We used the recently passed Plain WritingAct of 2010 as our call to action. We ex-plained the plain language issue was actuallya critical customer-service problem. This en-abled us to lay the groundwork for GSA’sneed for plain language: we want to make iteasy for agencies and vendors to do businesswith us.

Training

Our initial steps were to provide training,both in-person and online. We partneredwith the online education program, WebManager University (now Digital Gov Uni-versity) to give us the broadest possible reach.Response was positive and enthusiastic.Webinar transcripts are archived on http://www.howto.gov/training/on-demand.

Striving for clarity: theGeneral ServiceAdministration’s stepstowards plain language


Terry LemonsCommunications DirectorInternal Revenue Service, Washington, DC

Big numbers

The IRS touches every facet of American soci-ety—everything from individual taxpayers andthe tax-exempt sector to small businesses andlarge corporations. We collect about $2.4 trillionin tax revenue that funds most governmentoperations and public services. In 2010, weprocessed 141 million individual tax returnsand issued 109.5 million refunds worth $366billion. With numbers this big, it’s paramountthat we communicate clearly with taxpayers.

Clear communication

IRS leadership made clear communication apriority a couple of years ago, and that efforthas evolved to include compliance with thePlain Writing Act. Our leadership knows thathelping people understand what they need todo with their taxes helps both the taxpayer andthe nation’s tax system. Even though we havea complex subject matter—the nation’s tax codeand accompanying regulations run to millionsof words—and even though we have manydifferent audiences to consider, we’ve madesubstantial progress in complying with thePlain Writing Act. Our efforts include rede-signing much of our correspondence withtaxpayers, training our employees and buildingplain language into key parts of our website.

Redesigned documents

In our most visible accomplishments to date,we tackled the poor structure, confusing lan-guage and inconsistent style of most of thecollection notices we issue to taxpayers eachyear. We are already seeing encouraging resultsas taxpayers respond to these letters. This ef-fort is quite important because the IRS issuesabout 225 million notices and letters a year,making them one of our primary interactions

We held our in-person training sessionsaround the DC area. They were led by teach-ers trained by the Plain Language Action andInformation Network (PLAIN). These classeswere open to GSA staff first and extra seatswere made available to other federal agencystaff.

Other less formal efforts included “brownbags” (lunch learning sessions) and group re-writing sessions called “plain-a-thons,” bothin-person and virtual. We also make plainlanguage experts available for consultationduring specific office hours.

Publicity

We pushed GSA’s plain language campaignthrough all available outlets: intranet andSales force Chatter postings, signage, news-letter, and videos. We hope that other federalagencies can use these ideas in their agencies.If you have any questions, please contactKatherine Spivey.


Katherine Spivey is theGeneral ServicesAdministration’s PlainLanguage Launcher,coordinating GSA’s plainlanguage program. Katherine isan active member of and trainerfor the Plain Language Actionand Information Network(PLAIN), teaching plainlanguage courses and holdingbrownbags. Before her detail asPlain Language Launcher, she worked for GSA’s FederalAcquisitions Service in Integrated Technology Services,where she managed web content, coordinated socialmedia, and edited Mary Davie’s blog, GreatGovernment through Technology. Katherine has alsobeen web content manager at the Department ofHomeland Security; web content editor at theinternational law firm Steptoe & Johnson, LLP; andwebsites manager at the International Association ofChiefs of Police. She has taught at local communitycolleges and at the Amphibious Warfare School inQuantico, Virginia.

The IRS and plainwriting—challenges andaccomplishments for ataxing situation


with taxpayers. The Center for Plain Languageacknowledges the best plain language docu-ments and web sites. We were pleased ourredesigns led to the Center’s 2011 ClearMarkAward Grand Prize (with the help of Siegel+Gale) for Simplified IRS Notices as well as aClearMark Award of Distinction again thisyear for more improvements to our notices.

Plain language training

In addition to our notice redesign success,we’ve trained all employees on the basics of thePlain Writing Act. We also train all new hiresand provide continuing education for employ-ees communicating directly with taxpayers.We are nearing the launch of a redesignedIRS.gov website that directly incorporatesplain language guidelines, and all employeeswho create content for the site will completeadditional plain writing training before theycan post material.

Plain language in IRS genetic code

Our ultimate goal is to get plain writing intothe genetic code of the IRS and to make it acritical part of whatever we do, regardless ofthe complexity of the topic. It’s good for tax-payers, and it’s good for America’s tax system.

© 2012 T [email protected]

Terry Lemons has served asIRS Communications Directorsince 2007; he oversees externaland internal communicationsfor 100,000 IRS employees.Lemons is responsible for newsmedia and interagencycommunications, key IRS.govsections, and videos foremployees and taxpayers. He co-chairs the IRS Plain WritingAct Editorial Board chargedwith efforts to follow the new law, train employees, andimprove public communications. He manages IRS socialmedia, including three IRS YouTube channels (2million+ views) and Twitter feeds (25,000+ followers).Lemons spent 7 years as IRS National Media Relationschief, after starting as an IRS public affairs specialist in1998. He was the Arkansas Democrat-Gazette’s DCBureau Chief; a general assignment reporter and editorfor the Democrat-Gazette; a reporter at the Springfield(Mo.) News-Leader; and a free-lance writer. He graduatedwith a BA in journalism, University of Missouri-Columbia in 1985. From St. Louis, Terry is married withtwo children.

Wayne SchiessLegal-Writing Program Director,University of Texas School of Law, Austin, Texas

Revising admonitory instructions for ju-rors

In 2005, a State Bar of Texas task force beganto revise the admonitory instructions in theTexas Pattern Jury Charges. The admonitoryinstructions contain the basic guidelines forjury service and introduce basic concepts tothe jurors, like bias, prejudice, circumstantialevidence, and preponderance of the evi-dence. I was hired as the drafting consultantfor the task force. We had four other mem-bers: a Texas civil procedure professor, asitting trial judge, a practicing trial lawyer,and a member of the state bar publishing de-partment.

The task force’s process

I prepared a revision to the instructions, thetask force then met to discuss the draft, and Iprepared another draft. Besides commentsfrom the task-force members, we also gath-ered comments informally from lawyers,judges, and others. Within six months, wehad a complete revision. We then tested therevision on potential jurors with the supportof a jury consulting firm.

Testing the revisions

Two groups of 48 eligible jurors heard a pre-sentation of a lawsuit and then retired todeliberate in groups of 12 to reach a verdict.The first group of 48 jurors used the originalinstructions. The task-force memberswatched the jurors deliberate and analyzedthe completed verdicts. Based on what welearned, we made more changes to the re-vised instructions. The next day the secondgroup of 48 jurors went through the samesteps using the revised instructions.

Texas pattern jurycharges—plainlanguage revisions


Approving the revised admonitory in-structions

Still, the process continued, and by late 2010the Texas Supreme Court had tentatively ap-proved the revised instructions and publishedthem for comment. By early 2011, the com-ment period had ended, and the revisedadmonitory instructions were officially andfinally approved. They now appear at the be-ginning of every volume of the Texas PatternJury Charges.

ClearMark finalist

In May 2011, the revised instructions werenamed a finalist for a ClearMark Award bythe Center for Plain Language.

© 2012 W [email protected]

Wayne Schiess directs thelegal-writing program at theUniversity of Texas School ofLaw and teaches legal writing,legal drafting, and plainEnglish. He’s also a frequentseminar speaker on thosesubjects. He’s published dozensof articles on practical legal-writing skills, plus four books.His blog on legal writing was named one of the ABAJournal’s top 100 law-related blogs for 2007. Hegraduated from Cornell Law School, practiced law forthree years at the Texas firm of Baker Botts, and in 1992joined the faculty at Texas.

Surveying the jurors

Both groups of jurors completed a survey af-ter turning in their verdicts. In the first partof the survey, we asked 24 subjective ques-tions, such as “were the instructions clear?”The revised instructions scored better thanthe original instructions on 22 of the 24 sub-jective questions. In the second part of thesurvey, we asked 32 objective, multiple-choicequestions, such as “What is circumstantialevidence?” with 4 choices given. Jurors usingthe revised instructions scored higher thanjurors using the original instructions on 23 ofthe 32 objective questions.

It was now 2006, and we had revised the ad-monitory instructions and showed, bytesting, that the revised instructions were animprovement—all within a year.

Advisory committee and pattern jurycommittee input

But then the project slowed down. The TexasSupreme Court, which has final approval ofthe admonitory instructions, brought the re-vised instructions before its 60-personadvisory committee. The committee issued avariety of comments and critiques. The task-force chair decided to circulate the revisedinstructions to trial judges throughout thestate —their comments trickled in. And thestate bar, which publishes the pattern jurycharges, sought input from other pattern jurycommittees, which raised several new mat-ters. Seeking the additional input was wise,but it dragged on. By 2008, the revised in-structions were essentially the same as theversion tested in 2006.

Adding content and changing the revi-sion process

Next the task force began to add content: in-structions for using (or not using) cell phones,instructions for using (or not using) theInternet, and instructions for dealing withforeign-language translation and interpreta-tion. These additions took time. As the taskforce considered these additions, it also aban-doned the approach of having the draftingconsultant prepare a revision and circulate it.Instead, the task-force chair prepared a revi-sion, circulated it, and then sent it to me formy suggestions.


Joh KirbyExecutive DirectorVictoria Law Foundation, Melbourne, Australia

Joh Kirby, Executive Director of the Victoria LawFoundation in Australia, looks at best practice formaking legal information available to the generalcommunity

Much of the work on plain language in the lawhas focussed on the important task of im-proving the quality of legislation and legaldrafting. But for most members of the com-munity these documents, while relevant, areof little practical use in helping them to un-derstand the law.

For many people the first step to solving a legalproblem means searching the internet, findinga relevant brochure or asking family or friendsfor help. In 2011 I undertook a study tour aspart of a Churchill Fellowship grant to exam-ine best practice in community legalinformation. The focus of my research wasvisits to specialist organisations to identify thekey success factors to producing this type ofcommunity legal information. The main find-ings are summarised below.

Key factors to consider

Knowing your audience

The most significant factor in developing ef-fective community legal information was thatit be developed with a clear understanding ofthe audience. That understanding needed tobe based on consultation rather than on as-

A study into best practicecommunity legalinformation—a summary

sumptions. Issues such as cultural backgroundand literacy strongly influenced the successof a publication. This was especially so whenworking with newly arrived immigrants witha limited understanding of the legal system intheir new country.

Publication developing and editing

In developing community legal information,a tension arises between providing an accu-rate précis of the law and developingpublications that are accessible to an audi-ence who may have little or no legalknowledge. Lawyers who have a good legalknowledge may struggle to pare informationdown to the relevant facts; non-legal writersmay not understand the subtle technicalities ofthe legal content.

While all the organisations that I visited ac-knowledged the importance of testing theirinformation, they rarely undertook formaltesting of completed publications due to fund-ing restrictions. But most did work closely withreference groups made up of subject specialistsand user representatives in the developmentof their publications to ensure they were cul-tural appropriate and relevant to the intendedaudience.

Design

All the organisations I visited acknowledgedthe role of good design, layout and formattingin a document’s usefulness. These factors act asa visual guide to help the reader to find theinformation they want more easily. However,organisations that I visited commented thatlimited funds often meant design possibilitieswere not explored as fully as they desired.

Format of publishing and new technologies

The majority of the organisations that I visited,perhaps surprisingly, focussed on hardcopypublishing. Websites and electronic publishingwere secondary areas of focus. The reason forthis varied. Hardcopy publishing tends still to

Community communication


long-term, as with other areas of plain lan-guage, the distribution of legal information tothe community is likely to benefit from therecognition generated by awards, from theadoption of formal standards, from endorse-ments—as in the United Kingdom, and fromthe introduction of legislation requiring thatinformation intended for the general publicbe written plainly.

© 2012 J [email protected]

Endnotes1 8146.0–Household use of information technology,

Australia, 2010–11

Joh Kirby is ExecutiveDirector of the Victoria LawFoundation, a non-profit bodyin Melbourne, Australia, thathelps Victorians understand thelaw and their legal system. Thiswork includes raisingawareness of how using plainlanguage principles can helplawyers and other legal sectormembers to communicate moreeffectively with the community.Joh worked as a lawyer specialising in revenue at CorrsChambers Westgarth before joining the Foundation. In2010, she was awarded a Churchill Fellowship toinvestigate international best practice in communitylegal information.

be preferred by the reader and is more acces-sible to disadvantaged groups who may havemore limited access to the internet. Further,hardcopy publications can have advantagesfor distribution, discussed below.

But the use of electronic formats and electronicdelivery of information is an area that ischanging rapidly. In Australia for example,Australian Bureau of Statistics data showsthat broadband access in Australian house-holds has increased from 64% in 2006/07 to79% in 2010/111. All the organisations that Ivisited had strong web presences and wereinterested in harnessing new technologies todeliver their messages.

Distribution

Distribution was a key factor in the success ofcommunity publishing programs that I visited.No matter how well a publication is produced,if it does not reach its audience it cannot besuccessful. Understanding the audiencemembers and where they may go to find theinformation is an important factor to any dis-tribution plan.

The use of intermediaries, particularly forelectronic distribution of publications, wasevident. Placing links to relevant publicationson websites which dealt with a particularsubject area or making legal service providersaware of how they could download publica-tions from a website all assisted with improvinginformation distribution.

Hardcopy publishing was used effectively formore targeted distribution. Communitygroups placed information where their in-tended readers were likely to find it ratherthan waiting for them to seek it out on theinternet.

Conclusion

Community legal information is an emergingarea with a small number of specialist organi-sations concentrating on its development.There are a number of key factors that needto be considered to ensure that this type ofinformation is useful—it needs to reach itsaudience and to be readily understood. Asthis is an emerging area, more research is re-quired to test how effective the provision oflegal information to a community is. Improv-ing the quality of community legal informationacross the legal sector requires training, shar-ing of ideas and awareness-raising. In the

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].


Stéphanie RoyLawyer and Content Manager,Éducaloi, Montreal, Canada

Sarah DoughertyLawyer and Content ManagerÉducaloi, Montreal, Canada

Summary of presentation at Clarity 2012—Stéphanie Roy & Sarah Dougherty, Éducaloi

What is Éducaloi?

Éducaloi is a non-profit organization based inMontreal, Canada. We give legal informationto the public in plain language. We don’t pro-vide legal advice, just information.

We cover a broad spectrum of media and ac-tivities: a legal information website,citizenship education activities in schools,educational videos, community workshops,consulting services for outside clients, etc.

Plain Language in Various Media

For plain language communicators, wordchoice, sentence structure and organizationof information are important, but so is thechoice of medium—print, web, pamphletsetc.

To pick a medium, you need to understandits particular challenges. Here is a snapshotof the advantages of, challenges to, and tipsfor, four different media.

1. In-Person Information Sessions

Advantages

• Popular: people can easily ask questions

• Variety of presentation methods possible

• Can be interactive

• You can take the pulse of your audienceand respond to it

• You get to know your clientele

The challenges of plainlanguage legalinformation in variousmedia

Challenges

• Cost and time for your organization andfor the participants

• The effort of getting bodies in the room

• A high level of expertise on the topic isneeded to respond to questions asked onthe spot

• Participants may have a variety ofknowledge levels and learning speeds

• You need a dynamic presenter

Tips

• Informally survey your target audience toestablish the best time and place for thesession and to find out what informationpeople want

• Market sessions through existing networksand the places people turn to for help

• If you do not have enough expertise in-house, work with an outside expert andcoach the expert in plain languagetechniques

• Marketing: have a detailed description ofthe session so people end up in anappropriate activity

• Engage your audience: use interactiveexercises

• Customize the session to the people whosign up

• Get feedback on how it went

2. Websites

Advantages

• Easy to update

• Flexibility in design

• You reach large numbers

• Users can share your content easily

Challenges

• Consuming information on a websiterequires fairly high literacy

• Navigating layers of information is notintuitive for everyone

• Internet and high-speed Internet are stillnot universally available


• Market the webinar to your existingnetworks interested in the topic

• Encourage interaction during the webinarto retain participants’ interest

• Work with an external expert if necessary

• Give focused webinars on narrower topicsrather than try to cover a wide topicsuperficially

• Get feedback from participants

4. Videos

Advantages

• Videos using images and enactments canovercome literacy issues

• They accommodate people who learn morevisually

• They may go “viral” if posted online

Challenges

• Videos are difficult to update

• They are pricey to produce

• If posted on the Internet (e.g., YouTube),they are difficult to recall

• People rarely rewind so they have tounderstand the content on one viewing

Tips

• Make your video short—maximum twominutes

• Include only one main idea

• Use humour

• Use images to explain abstract ideas (e.g.,burden of proof: person carrying theburden)

• Emphasize transitions or exceptions withverbal and visual cues

• Test the script by reading to someone outloud

Most of all, enjoy and experiment!

www.educaloi.qc.ca

© 2012 S [email protected]


Tips

• Know about techniques for writing for theweb — search engine optimization,generous use of hyperlinks, etc.

• Know how people read a web page, suchas how they scan the page

• Ergonomics are key: make the site easy tonavigate

• Drive people to your site through socialmedia campaigns, etc.

• Consider different sites for differentaudiences

3. Webinars (online seminars)

Advantages

• Offers time and cost savings fororganizations and participants

• Crosses great distances

• You can record and archive on a website

• Webinars don’t need high productionvalues—usually just a PowerPointpresentation

Challenges

• An organization generally needs to investin webinar technology

• Staff need to learn webinar technology

• Technology is not always intuitive forparticipants

• Participants need high-speed Internetaccess at home or work

• Recruiting participants is challenging

• The anonymity can detract from theexperience

• The content needs to be prepared byexperts on the topic

• Participants may have a variety ofknowledge levels and learning speeds

• The recording needs to be periodicallyupdated

Tips

• You need to support the participants inusing the technology

• Consider allocating two people to presentthe webinar, one dealing with technicalissues


Stéphanie Roy has been alawyer since 2007. She holds aCivil Law degree and agraduate diploma in CommonLaw. She started her legal careerin private practise, focusing onbanking law and Canadian andinternational financing. Shelater worked as a lawyer for anon-profit, specializing in corporate law. Stéphanie Royjoined Éducaloi in March 2009. As a content manager,Stéphanie Roy designs and produces legal informationtools for the general public. She also acts as a plainlanguage consultant and has developed a particularexpertise in plain language contracts.

After studying Englishliterature as anundergraduate, SarahDougherty completed lawstudies at McGillUniversity. She laterpracticed in the fields ofcommercial litigation andconstitutional law with alarge law firm in Montreal.After leaving privatepractice, she co-authored a study on the CanadianCharter of Rights and Freedoms. She returned touniversity in 1999 for a Master’s in journalism, and thenworked as a freelance writer, translator and teacher. In2009, she joined Éducaloi, a non-profit organization thatdoes public legal education. Dougherty creates plainlanguage legal information materials, and acts as aconsultant for clients in the area of plain language.

Charlene JonesExecutive DirectorBoard Resource Center, Sacramento, California

Mark StarfordExecutive Director,Board Resource Center, Sacramento, California

Boards for All Webcast training SeriesBoard Resource Centerwww.brcenter.org

Charlene Jones and Mark Starford describe howa webcast training program is creating opportu-nities for people with low literacy to participatemore meaningfully in their communities

Participation for all in civic and gover-nance matters

Basic human rights insist that everyone beguaranteed equal opportunities to life andliberty. Yet people with limited literacy havehad fewer opportunities to participate, orhave been excluded from participating, in so-cial and governmental affairs. We know,however, that individuals with varied literacyand comprehension abilities can play an ac-tive role in shaping their world throughparticipating meaningfully in advocacy andcivic affairs.

As societies expand the reach of social justice,increased diversity on governing boards isone of the greatest civil rights transforma-tions occurring today. Many governinggroups are examining their policies and prac-tices to address the potential offered by therange of differences that make up their com-munities.

The Boards for All project

Boards for All is a collaborative project be-tween private, state and federal agencies thatis designed to improve nonprofit governance.By providing straightforward instruction inan easy-to-follow design with multi-media

Empowering individualsto understand andengage


cabulary. Design, organization and field test-ing were core components in developing theself-paced public domain tool. Reading andcomprehension levels in multiple languages,along with respect for diverse cultural differ-ences, increase the opportunity to obtaingovernance participation in meaningfulways. Representative community groups de-termined the training format and webcaststructure, video sequence, and narration con-tent. Over the course of two years, projectcollaborators (Board of Directors of EasternLos Angeles Regional Center and CaliforniaState Council on Disabilities), recommendedand tested content, language and webcastlayout. In addition, two consumer advocacygroups also contributed to identifying mostsignificant “boardsmanship” essentials to ef-fective leadership.

The outcome is that Boards for All offers aneasily understood way to learn about boardand committee participation. This allowsmore people to successfully engage in com-munity affairs.

You can see and download the Boards for Allwebcast videos, tools, and plain language re-sources at www.brcenter.org/library.

Boards for All Partners—

Board Resource Center (www.brcenter.org),

California State Council on Disabilities(www.scdd.ca.gov),

Eastern Los Angeles Regional Center(www.elarc.org)

© 2012 C [email protected]

© 2012 M [email protected]

tools, the Boards for All webcast sequencedtraining series opens doors for many more in-dividuals to contribute constructively. Apriority of the project is to provide ordinarycitizens with greater access to, and meaning-ful participation in, governance positions oncommunity nonprofit organizations, state ad-visory committees and federal councils. Manygovernance boards and advisory committeesrequire that community members be repre-sented. By increasing the understanding ofbasic governance requirements by a widerspectrum of people, that representation ismade more meaningful and more productive.

Boards for All advances inclusive communityleadership and civic engagement by servingtwo objectives:

• to increase personal empowerment, and

• to create opportunities for people with lowliteracy to be viewed as fellow communitymembers.

As newly valued contributors, those peopleare recognized as bringing essential voicesand leadership to boards of directors, advi-sory committees and community councils.

Teaching nonprofit governance rules

Boards for All teaches basic rules of nonprofitgovernance for a range of organizations,from advocacy groups to stakeholder com-mittees and nonprofit corporations withmulti-million dollar budgets. The series is di-vided into five video topic areas: Boards ofDirectors, Role of Board Members, Purpose ofCommittees, Board Development, and Facili-tation and Mentoring. It guides users to readcontent pages on each topic, review a “KeyPoints” summary and then complete two tothree questions on a correspondingworksheet all to reinforce straightforwardsubject matter. For example, the topic Purposeof Committees, provides three pages of con-tent, with a “Key Points” page that answerscentral questions: What is a committee andits purpose? What are three types of boardcommittees? How does a board use its com-mittees? The user may continue by using aworksheet with similar leading questions.

Using plain language techniques to makethe material user-friendly

As we know, plain language means morethan short sentences and manageable vo-


Cheryl StephensPlain Language WizardVancouver, British Columbia, Canada

Cheryl Stephens, Managing Director CommunityPlain Language Services Corp., considers the impactof incomprehensible legal language and proce-dures on anyone entangled in the legal system

A 20-year-old statement of entitlement

Twenty years ago, the Canadian Bar Associa-tion said, in Reading the Legal World:

People using the legal system must be able toguide themselves through a process that theyunderstand [...] and, at appropriate placesalong the way,

• recognize they have a legal right or responsibility,in order to exercise or assume it;

• recognize when a problem or conflict is a legalconflict and when a legal solution is available;

• know how to take the necessary action to avoidproblems and where this is not possible, how tohelp themselves appropriately;

• know how and where to find information onthe law, and be able to find information that isaccessible to them;

• know when and how to obtain suitable legalassistance;

• have confidence that the legal system willprovide a remedy; and

• understand the process clearly enough toperceive that justice has been done.

Legalese and police jargon lockingpeople out

In 20 years, little advance has been made. Le-galese and police jargon still create conditionsin the criminal law process that mean an ac-cused person cannot:

• give informed instructions to counsel;

Charlene Jones has been anAssociate with Board ResourceCenter (BRC) since 2007,providing expertise inproduction of written materialsin accessible formats. The focusof her work has been developingeasy to access tools forindividuals that increasepersonal leadership and civic engagement. She providestrainings on diversifying nonprofit agency boards ofdirectors to encourage participation from underservedcommunities. Charlene participated in writing andfacilitating trainings on two key BRC publications;Feeling Safe, Being Safe emergency preparedness webtraining tools and the end-of-life planning publicationThinking Ahead. Additionally, Charlene providestechnical assistance to numerous California serviceprovider agencies on information accessibility andservice quality.

Mark Starford is founder andexecutive director of the BoardResource Center (BRC),established in 1994 to provideleadership development andmanagement facilitation forgovernment agencies, non-profit organizations, andcommunity groups. BRCfocuses on advocating forpeople from underserved communities to increase civicengagement and access to policy-making. BRC partnerswith community, state, and federal agencies to developplain language tools that help people with limitedliteracy to gain self-determination and involvement ingovernance. Active in training and advocacy for 30years, Starford has designed community-specific trainingcurricula with supporting materials in a range ofaccessible formats used across the US. BRC offers acomprehensive library of accessible training tools andmedia that make complex ideas easier to understand andapply. Mark holds a teaching credential and MEd.

You have the right toremain baffled: plainlanguage and criminaljustice


• make informed decisions in the course ofthe criminal process.

Fair and equitable justice is denied when theaccused, witnesses, and victims do not un-derstand what is happening to them becausethey cannot comprehend legal language andthe legal process. Yet only 1 in 8 Americans and1 in 5 Canadians have the communicationskills or cognitive abilities they need to copewith the language and procedures of law andthe courts—65% of those entering prison inNorth America have limited literacy while thelegal system is text-based and highly structured.

On the other hand, someone caught up in thelegal system may be well educated and able toread complex information in their own field butmay still have trouble with specialized legallanguage and with the law’s peculiarities.

The cost in damaged lives

The U.S. has 10 million misdemeanor caseseach year. Prosecutors lay charges in 92% ofthese based only on a police accusation, with-out any review. Most people will plead guiltyto get out of jail or to get the matter over with,without appreciating the effect it will have ontheir lives.

Defendants denied bail are 2.5 times more likelyto plead guilty. Too many people are convictedwithout evidence, legal representation, or achance to tell their story.

Even a petty conviction can be life-changing.A conviction can result in heavy fines thatpoorer defendants cannot pay. A convictionmight lead to deportation. A petty convictioncan negatively affect eligibility for:

• professional licenses,

• child custody,

• food stamps,

• student loans,

• health care,

• public housing.

The crime of not understanding

In Canada, most people get out of jail within24 hours, either on bail or under supervision.But complications arise when a person doesnot understand the documents they receiveon release. Defence counsel may not be aware

that the accused does not understand thesituation. Some say their clients arrive withoutthe papers or with the papers looking like theyhave been in the person’s back pocket for amonth.

In Canada, at least 1/3 of charges are now foradministrative offences. A 2012 B.C. govern-ment commission has confirmed a significantincrease in administrative offences. The majorityof court appearances are either administrativeor for bail.

These are administrative offences:

• not turning up for a fingerprintingappointment,

• not showing up to set a trial date,

• not appearing for a trial,

• being unlawfully at large,

• not complying with a court order,

• breach of probation.

People often have trouble finding the condi-tions in their bail or probation order. This mayresult in breaches and further charges. Thesepeople are then labeled as multiple offenders.One lawyer told of a client who had one sub-stantive charge against him and 20 warrantsfor breach of conditions of release.

Who suffers—victims, the accused, wit-nesses, families, communities

A witness or crime victim, intimidated by thelegal process, may hesitate to call police at all.Someone with poor communication skills mayappear to be causing delays. When it seems aperson is uncooperative, and if an officer is notsensitive to communication problems, things donot go well.

The court may not find a witness credible.When people with cognitive or reading defi-ciencies are witnesses, they may “talk in circles.”Their inability to “get their story straight” mayfrustrate the court. Obstructionist behaviormay be a sign of the thinking patterns thatcharacterize low literacy or oral cultures.People with poor communication skills mayavoid reading and may be uncooperative outof fear they will be asked to read. Their frus-tration or fear may be acted out as aggressiveor violent behavior.


This discrimination is based on the fact thatthe justice system requires people to read andunderstand complex information written inunfamiliar legal language.

Special language and procedures represent arefusal to communicate that is contrary to acollection of international rules, covenants, andtreaties, and national rights codes. Communi-cation in plain language has to be a foundationof fairness and justice.

© 2012 C [email protected]

Cheryl Stephens left lawpractice in 1985 to consult oncontinuing legal education,paralegal education, legalmarketing and communication,plain legal language, andpublic legal education andinformation. She now focusesexclusively on plain languageprojects. Stephens founded theInternational Plain LanguageAssociation in 1993 and International Plain LanguageDay in 2011. She also trained as a personal and businesscoach. Born in California, she has lived in Vancouver,Canada for 40 years.

The Canadian right to understand legalrights

Legal literacy is a person’s understanding oflegal language in the context of legal process.Canadian courts have said:

Detainees must be clearly and fully informed oftheir rights at the outset, or they cannot beexpected to make informed choices and deci-sions about whether or not to contact counselor whether to exercise other rights, such astheir right to silence.

Legal rights must be understood to be exercised.In order for an accused person to be informedof a right, the person must understand andappreciate the substance of the right and trulyappreciate the consequences of giving up thatright.

The police must make reasonable efforts to makethe rights meaningful to the accused. Canada’sCharter of Rights and Freedoms requires com-munication of the right, not a rote repetition of it.Some individual circumstances demand evengreater efforts to communicate effectively.

Legalese is a barrier to justice

Plain language forms and documents will helpto overcome an important type of “systemicdiscrimination” within the justice system.

Table 1. Comparison of NAAL Tasks and Literacy Levelswith Analogous Tasks Encountered in Court Processes

Percent whoSkill answered

NAAL task evaluated incorrectly Analogous court task

Read one-page flier on SSI Prose 58 % Reading any court form instructions,eligibility and find specific literacy although most comprise numerous,

single-spaced pages. (Figure 3)

Enter 3 pieces of information Document 50 % Entering information onto any courtin a maintenance log on the literacy form, although court forms oftencorrect line. (Figure 2) require hundreds of pieces of pieces

of information. (Figure 4)

Using the one page SSI flier, Quantitative 62 % Calculating annual income from acalculate the annual benefit literacy pay stub. This and far more complexfor a couple. (Figure 1) calculations are required for child

support. (Figure 4)

A comparison of reading comprehension and legal reading tasks based on research by theU.S. National Assessment of Adult Literacy (SSI refers to Supplemental Security Income, seehttp://www.ssa.gov/pubs/11000.html).

Literacy and the Courts, Katherine Alteneder, Alaska Justice Forum > 24(2), Summer 2007,http://justice.uaa.alaska.edu/forum/24/2summer2007/a_literacycourts.html


Nad RosenbergPresidentTechWRITE, Woodbury, New Jersey

The rapid spread of mobile devices and theexpansion of the plain language movementare two current trends that may intersect toimprove human communication.

In fact, sometimes it seems as if mobile de-vices were invented to demonstrate the mainprinciples of plain language.

But what does plain language have to dowith mobile devices? The answer is—every-thing. Basically, plain language facilitateseasy comprehension of information, and thisis particularly important for information dis-played on small mobile devices.

Let’s consider some plain language principlesto see how they directly affect mobile devicecontent and design.

Keep text short and to the point

Keeping text short and to the point is particu-larly important in the mobile format. Mobileusers typically are on the go and looking forspecific information. They have no patienceto wade through unnecessary text. So it’s es-pecially important that you get to the point,eliminate unnecessary information and avoidlong sentences and paragraphs. Additionally,it’s difficult to read lengthy text on a mobiledevice. As a matter of fact, several companieshave developed apps that allow users tobookmark long articles on mobile devices sothey can be read later (online or offline) onlarger devices.

Mobile technology andplain language—a matchmade in heaven

New technologies

Make sure users can find informationquickly

Mobile users want to find informationquickly, so it’s critical to anticipate what theywant and to put that information in a promi-nent position. Searching through many linksfor important information is difficult and an-noying, partly because it takes time for pagesto download. And when users need to searchfor specific information, if possible, avoidmaking them type in text. Instead, providedrop-down menus, buttons, prepopulatedlists, or checklists.

Simplify the design to support usabilityand content

Make sure your design is uncluttered so thatusers can scroll without difficulty. It’s best toavoid multiple panes with individualscrollable content. Further, you should elimi-nate rollovers, fly-out menus, etc., whichdon’t work on most mobile device browsers.Finally keep in mind that graphical links usevaluable resources, so replace them with textlinks.

Make sure text is readable

When formatting for mobile, there’s a naturaltendency to want to reduce font size—butthis is a mistake because smaller text is evenharder to read on small devices. Counter-in-tuitively, it’s better (in most cases) to increasethe font size so that text can be read withouteyestrain. This advice applies to running textas well as graphical annotations. Eventhough a larger font size may make the textsomewhat longer, mobile users typically ex-pect some degree of scrolling.

To ensure legibility, it’s imperative to test yourcontent on a variety of devices. And whileyou’re at it, be sure to check out spacing, linebreaks, graphics positioning, etc. Unfortu-nately, various devices and/or browsers mayrender content differently.


Richard B. HornSenior CounselConsumer Financial Protection Bureau, Washington, DC

Dr. Susan KleimannPresidentKleimann Communication Group, Washington, DC

We briefly discuss the Consumer Financial Pro-tection Bureau’s ongoing process for developingintegrated mortgage loan disclosures under theTruth in Lending Act and the Real Estate Settle-ment Procedures Act. The CFPB’s process reliedon qualitative usability testing to develop effec-tive policy proposals and proposed disclosures.

Where we started

The Truth in Lending Act (TILA) and the RealEstate Settlement Procedures Act (RESPA) eachrequire a separate disclosure for most mortgageloans. Both statutes generally require a sepa-rate disclosure within three days after aborrower’s application for a mortgage loan,and then another disclosure at or before the loanclosing. The disclosures under TILA are knownin the industry as the initial (or early) TIL andthe final TIL. The disclosures under RESPA areknown as the Good Faith Estimate (GFE) andthe HUD-1 settlement statement (HUD-1).Both TIL disclosures are typically two pages;the GFE and HUD-1 disclosures are three pages.This means that currently, if an applicant de-cides to compare two loans from one lender orshop between two different lenders, they arecomparing four different disclosures totaling atleast 10 pages. This does not include the manyother disclosures provided under other lawsand regulations that are typically providedwith a mortgage application.

The passage of the Dodd-Frank Wall StreetReform and Consumer Protection Act (theDodd-Frank Act) on July 21, 2010, transferredTILA and RESPA rulemaking authority to thenewly created Consumer Financial ProtectionBureau (CFPB).1 The Dodd-Frank Act required

Consumer testing andthe development of theTILA-RESPA integrateddisclosures

Use graphics judiciously

The limited real estate on mobile devicesmeans you need to carefully consider thenumber and size of your graphics. Besidestaking up precious space, graphics takelonger to download. So be sure to includeonly those graphics that significantly contrib-ute to your content.

The bottom line

By applying these and other plain languageprinciples to mobile device content and de-sign, you can ensure that your mobile site orapp will be easy to read and understand.

To learn more about developing effective con-tent and formatting for mobile devices, seeTechWRITE Inc.’s web site: http://www.techw.com/mobile.htm

© 2012 N [email protected]

Nad Rosenberg is president andfounder (in 1985) of TechWRITE, Inc.(www.techw.com), a communicationsconsulting company based inWoodbury, New Jersey. TechWRITEoffers a wide range of services aimedat making complicated informationeasy to access and understand.TechWRITE’s services include: plainlanguage consulting and training;technical writing, editing and training; e-learning and e-pubs development; m-learning development; web designand content development. Before starting TechWRITE,Nad managed documentation departments for severallarge corporations. She is a graduate of Carnegie MellonUniversity, an Associate Fellow at the Society forTechnical Communication, on the Board of Directors ofthe Plain Language Association InterNational, and aPast President of the Philadelphia Metro Chapter of theSociety for Technical Communication. You can contactNad at [email protected] or 856-848-6593.


the CFPB to propose rules and disclosures thatcombine certain disclosures that consumersreceive in connection with applying for andclosing on a mortgage loan under TILA andRESPA.2 The Dodd-Frank Act mandated thatthe CFPB propose these rules and model dis-closures no later than July 21, 2012. The CFPBissued the proposed rule on July 9, 2012, andit was published in the Federal Register on Au-gust 23, 2012.3 Comments on the integrateddisclosure forms and many other aspects of theproposed rule are due on November 6, 2012.4

The statutory purpose of the integrated disclo-sure as set forth by the Dodd-Frank Act is to:

(a) facilitate industry compliance withTILA and RESPA, and

(b) aid consumer understanding ofmortgage loan transactions by usingreadily understandable language tosimplify the technical nature of thedisclosures.5

For the integrated disclosures, the CFPB, as apolicy, wanted to use a visual design, reduceinformation overload, highlight key informationso consumers could quickly find it, and useplain language as much as possible. The CFPBalso decided that the proposed integrated dis-closures should only contain information aboutthe mortgage loan and not educational infor-mation too. The CFPB knew that certaineducational materials would be available toconsumers under the applicable law andplanned to provide other educational materialson its website. To ensure that the proposedintegrated disclosures actually aided consumerunderstanding, the CFPB conducted qualitativeusability testing with both consumers andindustry participants.6 The testing was a user-centered design process. The CFPB workedwith over 100 initial designs before decidingon the prototypes it would begin testing withactual consumers and industry participants.The testing plan included 10 rounds of iterativetesting and redesign of the disclosures over 10months in nine different cities across the coun-try. The testing used the think aloud techniqueand stressed performance, not preference.7 Inaddition, the CFPB also posted the prototypesbeing tested on its website to supplement thetesting with additional public feedback, whichit titled the “Know Before You Owe” project.

Consumer testing informs design and CFPBpolicy development.

The iterative design and testing process helpedto develop and provide preliminary answersfor many of the issues within the disclosures.Three issues worth noting were:

• the level of detail for closing costs,

• the comparison of the Loan Estimate withthe Closing Disclosure, and

• the importance of a statement regardingthe consumer’s ability to refinance the loan.

Level of detail for closing costs. As revised in2008, the current GFE and HUD-1 requirelenders to disclose lump sums of certain cat-egories of closing costs. Itemization is notpermitted. In contrast, earlier versions of thesedisclosures permitted itemization of these clos-ing costs. One of the reasons for the revisionwas to reduce the detail provided to consumers,which was believed to confuse consumers andhinder their ability to shop for loans.8 For fourrounds of testing, the CFPB showed consumersLoan Estimates with different variations ofitemized and lump sum closing costs. Consis-tently, consumers stated that they preferredmore detail because a mortgage was an impor-tant decision. The CFPB’s goal, however, wasto improve performance and understanding,not to focus on preferences. With the greaterdetail, consumers at the CFPB’s testing askedmore questions, were more likely to say thatthey would challenge some of the numbers,and would ask why some of the charges ex-isted. With the rolled up numbers, they tendedto be passive, simply accepting the numbers,even though there were fewer numbers. Basedon this difference in performance, the CFPBproposed integrated disclosures that itemizeclosing costs.9

Comparison of the Loan Estimate with theClosing Disclosure. The Loan Estimate is givenin connection with the loan application, whilethe Closing Disclosure is given in connectionwith the loan closing and contains more detail.The CFPB’s team developed the Loan Estimateover the first five rounds of testing and thenbegan developing the Closing Disclosure inround six. The first prototypes of the ClosingDisclosure that the CFPB tested were basedon the current HUD-1 format, containingsimilar three- and four-digit line numbering.The CFPB’steam found that consumers hadtrouble tracking the changes, noticed differ-


ences only at a high level, and had difficultyfiguring out why the changes happened. Butworse, they were relatively passive again, askingfew questions. As one consumer said, “I don’tknow what to look for.” In subsequent roundsof testing of the Closing Disclosure, the CFPB’steam matched the closing cost categories, usedonly a two-digit line numbering system, andfurther matched the phrasing, the location ofinformation, and the spacing. In fact, the CFPB’steam matched every detail possible betweenthe Loan Estimate and the Closing Disclosure.By the last rounds of testing, the CFPB’s teamfound consumers would lay the forms next toeach other and compare them easily. They couldalso identify what had changed and often couldarticulate why it had changed.10

Refinancing statement.

One part of TILA requires lenders to disclose,in a format developed by the CFPB that is easilyunderstood by consumers, that “there is noguarantee that the borrower will be able torefinance to a lower amount.”11 The CFPB’sfirst attempts at disclosing language to achievethis said, “You may not be able to refinanceyour loan to lower your interest rate and pay-ments in the future with us or with anotherlender.” Many consumers thought this meantthat the terms of the loan prevented them fromever refinancing. The CFPB’s team tried severaldifferent iterations to improve consumer under-standing, eventually arriving at the followinglanguage for the proposal: “Refinancing thisloan will depend on your future financial situ-ation, the property value, and market conditions.You may not be able to refinance this loan.”Consumers understood that different circum-stances, not the terms of the loan, may preventthem from being able to refinance the loan.

Conclusion

Through consumer testing, the CFPB was ableto see what works to help consumers betterunderstand and use these proposed integrateddisclosures. The user-centered design used bythe CFPB allowed the development of its policiesfor the proposed rule to shape and be shapedby the qualitative testing.

© 2012 R [email protected]


Endnotes1 Public Law 111–203 (2010).2 See Dodd-Frank Act §§ 1032(f), 1098, and 1100A.3 Know Before You Owe: Introducing our proposed

mortgage disclosure forms, CFPB Blog (July 9, 2012),available at http://www.consumerfinance.gov/blog/know-before-you-owe-introducing-our-proposed-mortgage-disclosure-forms/; 77 FR 51116 (Aug. 23,2012).

4 The notice of proposed rulemaking is available onthe CFPB’s website at http://www.consumerfinance.gov/notice-and-comment/ andat Regulations.gov at http://www.regulations.gov/#!documentDetail;D=CFPB-2012-0028-0001.

5 Dodd-Frank Act §§ 1098, 1100A.6 The CFPB contracted with the communication,

design, consumer testing, and research firm,Kleimann Communication Group, Inc., whichspecializes in consumer financial disclosures, toprovide design and qualitative testing services forthe integrated disclosures.

7 The testing was conducted under Office ofManagement and Budget control numbers 1505-0233 and 3170-0003. For a detailed report aboutthe testing, see Kleimann Communication Group,Inc., Know Before You Owe: Evolution of theIntegrated TILA– RESPA Disclosures (July 2012),available at http://files.consumerfinance.gov/f/201207_cfpb_report_tila-respa-testing.pdf.

8 See 77 FR 51116, 51211.9 See 77 FR 51116, 51211-51212.10 See 77 FR 51116, 51239.11 15 U.S.C. § 1638(b)(2)(C).

Richard Horn is a SeniorCounsel in the Office ofRegulations at the ConsumerFinancial Protection Bureau(CFPB), where he works onrulemakings implementing theamendments to various federalconsumer financial protectionstatutes in the Dodd-FrankWall Street Reform andConsumer Protection Act of 2010. Horn has primarilyworked on the design, development and testing of theforms and the rules integrating mortgage disclosurerequirements in the Truth in Lending Act and the RealEstate Settlement Procedures Act. Before joining theCFPB in January 2011, Horn was a Senior Attorney atthe Federal Deposit Insurance Corporation (FDIC) in theNew York Regional Office. At the FDIC, he worked in theLegal Division supported the FDIC’s supervision staff onboth consumer compliance and safety and soundnessmatters. Before that, Horn worked as an associate at thelaw firms Buckley Kolar LLP (now BuckleySandler LLP)and Thacher Proffitt & Wood LLP. After obtaining adegree in Economics from Brown University, he attendedlaw school at the New York University School of Law. Heis admitted to practice law in New York and the Districtof Columbia.


Susan Kleimann, President ofKleimann CommunicationGroup, has over 30 years ofexperience providingthoughtful technicalcommunication expertise tonumerous organizations. Shehas led transformative research,design, and organisationalprocess projects related to publicpolicy documents with highvisibility and far-reaching impact for multiplegovernment agencies. She served as the Director of theDocument Design Center at the American Institutes ofResearch, the first Executive Director of the Center forPlain Language, and Chair of the Center’s firstClearMark Awards.

Available fromCarolina Academic Press

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

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Scott A. Anderson, JD, PhDCapital University Law School

In his recent NCSL article “Plain Language,”1

Jack Stark criticizes the Plain Language Schoolfor attempting to revise arcane statutes so thatcitizens can understand them. Stark arguesthat this attempt should be abandoned, becauseit is wrongheaded, misguided, and inaccurate.He argues that the attempt to render statutorylanguage in plain language:

• is wrongheaded because the values espousedby the Plain Language School—in particular,clarity—are not appropriate drafting values.

• is misguided, because the plain languagemethod creates widespread interpretationproblems.

• is inaccurate, because the translationstrategy from precise statutory terms toplain English terms changes the meaningsof the terms translated.

For these reasons, Stark argues, the plain lan-guage method of statutory drafting is “shotthrough with fallacies” and “generates manyerrors.”

Each of Stark’s three arguments about theplain language method is unsound.

Yet there is a deeper concern with Stark’s po-sition, one that goes beyond language disputes.Stark claims that, when analyzing statutoryprovisions, the appropriate audience consistsof “lawyers, judges and administrators,” notthe citizens who are held responsible for fol-

lowing them. This mischaracterization notonly conflicts with the democratic ideal of “therule of law,” but also inaccurately describesthe roles citizens play in what Stark calls the“language game” of statutory drafting.

1. Stark’s First Fallacious Argument: TheFalse Dichotomy

Stark argues that plain language drafters errin translating statutory provisions because theybelieve clarity should be preferred over accu-racy. Stark further asserts that plain languageadvocates cannot remedy the clarity-versus-accuracy problem by claiming “that a draftercan be simultaneously accurate and clear,”because “[t]he two goals are based on con-trasting assumptions and tactics.” To achieveclarity, one must assume readability andchoose tactics designed to yield simplicity. Toachieve accuracy, on the other hand, one mustassume precision and choose tactics designedto yield conformity with legislative requests.

To adopt clarity as a goal, then, the PlainLanguage School assumes an audience com-posed of citizens, persons who require theirstatutes to be readable. To adopt accuracy asa goal, the Statutory Drafting School assumesan audience of legislative experts, persons whorequire their statutes to precisely conform tolegislative fiat. The two sets of values appearto be contrasting because the value of clarityassumes a citizen-reader, and the value ofprecision assumes an expert-reader. But Starkgives us no argument as to why we shouldaccept the political claim that “the only trueaudience for statutes” is “lawyers, judges andadministrators.” He assumes it.

Without the dichotomy Stark assumes betweenthe correct audience for statutes—legal experts—and the plain language drafters’ incorrect au-dience for statutes—laypeople— there is noreason to believe the two proposed values ofprecision and clarity are incommensurable.One could plausibly hold that statutes shouldbe written in the clearest and most accurate

Plain language andstatutory drafting: a Starkcontrast

Since the conference: rebutting a critic


manner possible. To argue that statutes mustbe either clear or accurate is a “false dichotomy,”a fallacious argument form.

2. Stark’s Second Fallacious Argument: TheHasty Generalization

Another fallacy is the “hasty generalization”—arguing from a single test case (or a single typeof test case) to a systemic conclusion. The ideahere is that an induction—proving a generalconclusion from a set of specific observations—is only as strong as the set of observable data.An induction cannot rest on a small samplesize. I can conclude that the sun will rise to-morrow, because there has been a consistentset of observable data (namely, the sun’s risingevery morning in recorded history) that sup-ports it. But I cannot conclude that all cats areblack, because I saw two black cats on myneighborhood walk last night. In short, toargue convincingly from the specific to thegeneral requires a convincing set of specifics.

Stark presents no convincing set of specificsin arguing that the plain language methodcauses widespread errors. Indeed, he providesone example to conclude that his “doubts aboutplain language have been confirmed.” To befair, Stark also points his readers to other plainlanguage investigations—Euan Sutherland’sEnglish example and Brian Hunt’s 2002 lawreview article—to make his point. But he offersno analysis of Sutherland’s argument, except tobrand it “a meticulous and objective… devasta-tion” of a plain language revision. And he callsHunt’s article “useful.” Unfortunately forStark, he cannot argue from these three ob-servations (no matter how devastating oruseful) that the plain language method shouldbe abandoned. Three observations do notground a generalization. No one would argue,for example, that if three zoologists, each ex-pertly trained in feline anatomy and all with20-20 vision, each saw two black cats in theirrespective neighborhoods, then all cats areblack. Much more investigation would beneeded.

And more investigation is needed to determinewhether the plain language method should beabolished. Stark’s examples demonstrate, atmost, that some persons have offered sloppyplain language readings of statutory legalese.That would be cause for concern, but notcause for alarm. The question now is whetherthis narrow concern is justified.

Stark contends that the plain languagemethod “causes 10 errors in four and a halflines of prose.” The prose is a provision per-mitting the Farm Credit Administration(“FCA”) to aggregate certain kinds of requests.The original provision follows:

12 CFR Sec.602.272 Aggregating Re-quests

A requester may not file multiple requestsat the same time, each seeking portions ofa document or documents solely in orderto avoid payment of fees. When the FarmCredit Administration reasonably believesthat a requester, or a group of requestersacting in concert, is attempting to break arequest down into a series of requests forthe purpose of evading the assessment offees, the Farm Credit Administration mayaggregate any such requests and chargeaccordingly. One element to be consideredin determining whether a belief would bereasonable is the time period over whichthe requests have occurred.

Stark then provides the plain language revi-sion of the provision:

12 CFR 602.16 Combining Requests

You may not avoid paying fees by filingmultiple requests at the same time. WhenFCA reasonably believes that you, aloneor with others, are breaking down arequest into a series of requests to avoidfees, we will combine the requests andcharge accordingly. We will assume thatmultiple requests within a 30-day periodhave been made to avoid fees.

3. Stark’s Third Fallacious Argument: TheStraw Man

Stark’s claim that there are “ten errors” inthe plain language translation of this statu-tory provision is an example of “the StrawMan” argument. The argument strategy is tocharacterize your adversary’s position insuch simplistic terms that, like a straw man,it can easily be knocked over. The argumentform is fallacious, because mischaracterizingan adversary’s position is not arguing againstthe adversary’s position.

In his article, Stark sets up eight Straw Mento arrive at his conclusion that there are “10errors” in the plain language translation ofthe FCA statute. To the extent that only two


of Stark’s ten cited errors survive, we shouldnot be concerned with his conclusion that theplain language method “generates many er-rors.”

A. Stark’s two non-errors

Of Stark’s “ten errors,” two seem not to beerrors at all.

First, Stark claims that the term “series” hasbeen changed to “multiple.” However, this isnot the case. In the original regulation, thephrase is: “break a request down into a seriesof requests.” In the revision, the phrase is:“breaking down a request into a series of re-quests.” There is no change in the usage of“series.” And there cannot be an “error” in anon-change.

Second, Stark claims that there is a contradic-tion in the original provision: it applies torequests filed at the same time and to re-quests filed during an indefinite period. Starkcontends that the plain language interpretermissed the contradiction in the original. Butthe failure to translate a legalese error is not aplain language error. If there is an error inthe original provision, it should be attributedto the member of the Statutory DraftingSchool who made it.

B. Stark’s three policy-based “errors”

Of Stark’s “ten errors,” three seem to bebased on policy, not language.

In the first policy-based revision, accuracyappears to be the goal. The original regula-tion permits the FCA to consider “the timeperiod over which the requests have oc-curred” in determining whether to aggregatethose requests. The plain language revisionchanges this nebulous period to a 30-day pe-riod. The definite period permits a moreaccurate interpretation by citizens,organisations, advisers, administrators andcourts in resolving disputes. This latent im-provement in interpretive accuracy issomething Stark should applaud, especiallysince he believes the appropriate audience forstatutes is “lawyers, judges and administra-tors.”

The second policy-based revision targets in-clusiveness. The phrase “seeking portions of adocument or documents” is removed in theplain language revision. The revised provi-sion applies to any request, even one thatwas not “seeking portions of a document or

documents.” But if there are other types ofrequest that could violate the statutory pur-pose, then there is a policy argument in favorof including them. The policy issue iswhether the FCA should be precluded fromaggregating requests when the requester istrying to avoid the payment of fees in someother way. And that is a policy issue no mat-ter which School revises the regulation.

The third policy-based revision considers theprovision’s appropriate audience. The provi-sion that the FCA “may aggregate”inappropriate requests is changed to a provi-sion claiming that the FCA “will combine”the requests. The change follows the reviser’sshift in audience. The original provision iswritten in the third person, describing whatthe FCA is permitted to do when a requestermakes inappropriate filings. The revised pro-vision is written in the second person: “Youmay not avoid paying fees…” The change inaudience requires a change in tone from per-mission to declaration. The original provisiondescribes what the FCA may do when it findsa violation. The revised provision warns therequester what the FCA will do when it findsa violation. The provision does not, as Starkcharges, “change from a permission to a re-quirement.” It does not require the FCA toaggregate requests. It informs the new audi-ence of requesters what the FCA isauthorized to do if it finds a violation.

C. Stark’s three contextual “errors”

The original statute prohibits the filing ofmultiple requests “solely in order to avoidpayment of fees.” The plain language revi-sion prohibits the filing of multiple requests to“avoid paying fees.” Stark claims that the re-moval of “solely” permits “other causes suchas forgetting that a request has already beenmade and that the agency erred.” But the“solely” phrase has nothing to do withcauses; it is about purposes. If a person forgotthat a request had been made, then the per-son could not have filed her next request toavoid paying fees. If the agency erred, thenthe person did not file her request to avoidpaying fees. The word “solely” adds nothingto the statutory purpose phrase.

The plain language revision of the statute re-moves “acting in concert” and replaces itwith the phrase “with others.” Stark tells usthat this change inadvertently includes “re-


quests made at the same time by chance andrequests with several names on them.”Again, Stark’s interpretation of the revisionartificially removes the phrase about poten-tial violators from the phrase about theproscribed purpose. Requests made “at thesame time by chance” could not have beenmade to avoid paying fees. To act with thepurpose of avoiding fees excludes actionsdone with no purpose whatsoever. Similarly,“requests with several names on them”would not violate the statute if the nameshad been placed on the requests for someother reason than to avoid paying fees. “Act-ing in concert” is just another way of sayingpersons acted “with others” to avoid payingfees. The “how” phrase and the “why”phrase must be read in context.

Stark also has a problem with the fact thatthe plain language revision of the statute re-places “is attempting to break a requestdown” with “breaking down a request.”Stark claims the revision transforms an at-tempt into a completed act. This is amischaracterization, however. The originalstatute can be read in two ways. Stark be-lieves the phrase requires the FCA to findeither an attempt or a completed act of“breaking a request down” in order to aggre-gate requests. Because the plain languagerevision removes the “attempt” language,Stark argues, it permits only a completed actof “breaking down” as evidence of a statu-tory violation. Another way of reading thephrase, however, is to permit the FCA to finda violation of the statute if the requester is at-tempting to avoid paying fees by breaking arequest down into a series of requests. This isconsistent with the overall purpose of thestatute. And it demonstrates that “breakingdown” is one way of “filing multiple re-quests” in violation of the statute. This seemsto be the interpretation provided by the plainlanguage revision. Whether it is correct ornot, however, the second interpretation is notattributable to plain language principles.And, for that reason alone, the removal ofthe attempt language should not count as atranslation error.

D. Stark’s two actual translation errors

Only two of Stark’s original “ten errors” re-main.

The first revision replaces “aggregate” with“combine.” As Stark rightly claims, this

changes the meaning of the provision. To ag-gregate means to “be added up,” not to“blend together to make a big request.” So,the plain language translation is incorrect. Inresponse, one need only use Stark’s proposeddefinition of aggregation as the revision: “ag-gregating requests” becomes “addingtogether requests,” rather than “combiningrequests.” Unfortunately for Stark, this errordemonstrates that plain language translatorsshould be more careful, not that the plainlanguage method of drafting is deficient.

The second remaining revision also is an er-ror. The plain language revision replaces‘[o]ne element to be considered in determin-ing” with “”[w]e will assume.” The revisionchanges a consideration into an assumption.Considering a factor in determining an out-come is not the same as making anassumption that the outcome exists based ona factor. To the extent that the drafters wereattempting a value-neutral translation here,they failed. But maybe they intended thechange. If they didn’t, then the weighing-of-factors determination should be reinstated.

Because there are only two value-neutraltranslation errors in Stark’s example, weshould not be concerned with his conclusionthat the plain language method “generatesmany errors.” Errors based on policy are notbased on language. And errors based on con-text are not based on plain languageprinciples. Even where errors can be attrib-uted to plain language principles, the errorsare easy to identify and fix. Moreover, the er-rors caused by the plain language method arenot so pervasive as to support Stark’s claimthat the plain language method is “shotthrough with fallacies.” Indeed, Stark’s ownargument is subject to that charge.

4. Stark’s foundationalmischaracterization: law-for-lawyers

Stark’s article provides neither a good de-scription of the statutory process, nor a goodprescription for statutory interpretation.These inadequacies can be traced to Stark’sfoundational mischaracterization about therole of laypeople in the statutory process.Citizens are players throughout the statutory“language game.”

Stark describes the drafter’s role in terms ofthe requesting legislator: the drafter’s sole


task is “to effect the intent of the bill’s re-quester as amended.” But where did the ideafor the bill come from? Do we really thinklegislators are sitting around their officesdreaming up new criminal offenses, or newinsurance regulations, or new trademark ac-tions? No. Victims and their families,businessmen, and entrepreneurs go to theirlegislators and tell them that there ought tobe a law regarding something they have ex-perienced. Citizens can be the originalauthors of statutory provisions.

Nor are legal experts the sole intended audi-ence of statutory provisions. Criminal lawsare not meant to proscribe lawyers’ conduct.Insurance provisions are not meant to regu-late judicial behavior. Trademark regulationsare not meant to guide administrative opera-tions. These provisions are meant tocommunicate standards and rules of conductfor laypeople: ordinary citizens, businessmen,government officers, and entrepreneurs. Tosay that the only true audience for the stan-dards communicated by statutes is “lawyers,judges and administrators” is to exclude thevery persons for whom the law is supposedto act as a guide. We do not hold lawyers,judges, and administrators accountable forfailing to follow these statutes. We holdlaypeople responsible for doing so.

This is the danger in Stark’s position. Starkargues that legislative drafting is its own“language game,” an enterprise withinwhich meaning is determined. Within onelanguage game—say, of workers’ rights—aterm like “strike” may have a different mean-ing than in another language game—say, ofbaseball. When assessing a term’s meaning,one should be careful to see how the term isused in each language game. Stark arguesthat the language game of statutory draftingincludes legislators as authors, drafters as

editors, and legal experts, including judgesand administrators, as interpreters. Onlythese identified members are appropriateparticipants in the statutory language game.

Viewed in this manner, Stark is not attackingthe plain language method at all. He is rulingout ordinary citizens as appropriate playersin the statutory language game. For Stark,any perspectives other than those providedby the identified legal experts must be ex-cluded. This not only discounts the rolecitizens actually play in formulating statutes,but also permits excluding citizens from in-terpreting the very provisions that purport toguide and to penalize them.

Stark’s law-for-lawyers perspective also runsroughshod over the constitutional principleof vagueness. A statute whose languagecould not guide a person in conforming herconduct to its dictates will be held “void forvagueness.” Unless the language game ofstatutory drafting includes citizens as play-ers, this constitutional limitation is renderedincoherent.


Endnotes1 Plain Language, http://www.ncsl.org/legislative-

staff/lsss/June-2012-plain-language.aspx.

Scott A. Anderson is Professorof Legal Writing at CapitalUniversity Law School,Columbus, Ohio. Dr. Andersonteaches legal analysis, criminalprocedure, and a seminar oncriminal responsibility. Hisresearch interests include topicsin language and logic, includinglegal indeterminancy andvagueness.


It’s Title 12, Section 602.16, of the U.S. Codeof Federal Regulations. Here’s the before andafter:

Aggregating Requests. A requester maynot file multiple requests at the same time,each seeking portions of a document ordocuments, solely in order to avoidpayment of fees. When the Farm CreditAdministration reasonably believes that arequester, or a group of requesters actingin concert, is attempting to break arequest down into a series of requests forthe purpose of evading the assessment offees, the Farm Credit Administration mayaggregate any such requests and chargeaccordingly. One element to be consideredin determining whether a belief would bereasonable is the time period over whichthe requests have occurred.

Combining Requests. You may not avoidpaying fees by filing multiple requests atthe same time. When FCA reasonablybelieves that you, alone or with others,are breaking down a request into a seriesof requests to avoid fees, we will combinethe requests and charge accordingly. Wewill assume that multiple requests withina 30-day period have been made to avoidfees.

First point: the revision was adopted in 1999,after publication and an opportunity for pub-lic comment. At the time, the agency said thenew rule “amends FCA [Farm Credit Admin-istration] regulations on the release ofinformation under the Freedom of Informa-tion Act to [among other things] reflect newfees.”4 So lo and behold, it’s quite possiblethat any changes from the previous versionwere intended. Or it’s possible that any dif-ferences were considered insignificant inpractice.

Now for the substance. And here we need toknow the context. People must pay a per-page fee for requests, but they get the first100 pages free. Hence section 602.16, de-signed to prevent people from avoiding feesby splitting up a single request into multiplerequests for parts of a document or docu-ments.

Here are Mr. Stark’s assertions (in the firstsentence of each bullet) and my responses (inthe paragraph following):

Joseph KimbleProfessor, Thomas Cooley Law SchoolLansing, Michigan (USA)

In a way, you have to admire someone whohas spent almost two decades campaigningagainst plain language—unsuccessfully—andwho still carries on. As Jack Stark acknowl-edged in his most recent foray,1 “manystatutory drafters have accepted the schooland use its precepts.” Maybe that’s becausethe school and its precepts have somethingimportant to offer—even to respected veterandrafters like Mr. Stark.

What’s troubling is to see the recirculation ofcriticisms that are demonstrably false and thathave been answered so many times. You haveto wonder: how could anyone who knowsthe plain-language literature keep trottingout these inaccuracies and arguments? It’shard to figure.

At any rate, before I take on each of thesemischaracterizations of plain language, I’ll goright to the make-it-or-break-it point.

The charge: plain language generateserrors.

Mr. Stark anchors his criticism on a before-and-after example from an Internetplain-language site. He rattles off a series ofpronouncements about changed meaning, as-serts that “the proof is in the pudding,” andfinds unpalatable “a method of drafting thatgenerates so many errors.”

Let’s set aside the multitude of successfulplain-language projects around the world2

and the endless stream of examples that ad-vocates have put forward for at least 50years, beginning with David Mellinkoff.3

Let’s accept the questionable premise thatone unsuccessful piece of plain drafting raisesdoubt about all the other ones. Let’s look atthis supposedly half-baked pudding.

Wrong—again—aboutplain language


• “Is attempting to break a request down hasbeen changed to are breaking down arequest.”

Again, what does it matter? The original ver-sion was not distinguishing betweenattempting to break down and actuallybreaking down; it was not creating an “at-tempted” violation, like attempted murder; itwas not trying to identify an act that is sepa-rate from and occurs before actually breakingdown a request. In short, the word attemptingwas superfluous in the original: it shouldhave been is breaking down a request—exactlylike the revised version. All the original didwas open the door to a silly, unintended dis-tinction.

• “May aggregate has been changed to willcombine, which is a change from apermission to a requirement.”

Right, the agency obviously decided, as amatter of policy, to take a stricter approach.But even then, the agency presumably retainssome measure of discretion.

• Multiple requests within 30 days now giverise to “an automatic assumption, notmerely a consideration,” as in the original.

Once again, this change is so obvious that theagency drafters must have intended it. Infact, they changed from the indefinite timeperiod over which the requests have occurred toa 30-day period. Mr. Stark calls this change“inexplicable.” It’s actually as clear as can be:the drafters wanted to be more specific.

All in all, then, the changes in meaning thatMr. Stark summons up are nonexistent, insig-nificant in practice, or deliberate. The revisedversion is not only shorter and clearer butalso more accurate. More accurate, not less.And so it is that Mr. Stark’s case against plainlanguage comes unmoored.

Don’t get me wrong: you can find mistakesand flaws in plain drafting. But anyone whoenjoys that pursuit would have much morefun with old-style drafting, where ambigu-ities, inconsistencies, and uncertaintiesflourish in all the verbosity and disorder. Itook four examples from the old FederalRules of Evidence and pointed out 33, 31, 18,and 28 drafting deficiencies in those ex-amples.7 Finding a flaw in a plain-languagestatute or rule does not mean that plain lan-guage doesn’t work or that we’re stuck in

• “Aggregate, which means ‘add up,’ hasbeen changed to combine, which means‘blend together.’”

But combine also means “to unite into a singlenumber.”5 That’s precisely what the draftersmeant and how readers would understandthat term in context.

• “Seeking portions of a document or documentshas been eliminated; the rules now apply toany request.”

So is there a difference in practice? Mr. Starkdoesn’t explain. If, before, you sought part ofa document, that was considered a request.And it still is.

• “Solely has been eliminated, allowing othercauses such as forgetting that a request hasalready been made and that the agencyerred.”

Now, how likely is that? Does anybody forgeta formal request under the Freedom of Infor-mation Act? And the original version appliedto multiple requests “at the same time . . .solely . . . to avoid payment of fees.” So previ-ous requests didn’t even figure into theoriginal version. Mr. Stark’s point here is elu-sive.

• “Acting in concert has been replaced by withothers, which includes requests made at thesame time by chance and requests withseveral names on them.”

Acting at the same time by chance is not thesame as acting “with” someone to avoid fees.And if a request has several names on it, thesigners were presumably acting in concert,just as they were acting with others. In anyevent, the new wording won’t cause theagency to reach a different conclusion than itwould have under the old wording.

• “Series . . . has been replaced with multiple. . . .”

No, it hasn’t. In both versions, the first sen-tence uses multiple requests, and the secondsentence uses a series of requests. Then the re-vised third sentence uses multiple requestsagain, consistent with its use in the first sen-tence. Mr. Stark says that multiple means“many, not more than one.” But in fact, itdoes also mean “consisting of . . . more thanone.”6 This insistence on a single meaning fora word has now become a multiple error.


Association of Legislative Counsel—a groupthat “has helped promote plainer draftingaround the world and share knowledge onhow to go about it.”12 Indeed, the past presi-dent of CALC and former head of thelegislative-drafting offices in Hong Kong andVictoria, Australia, offers this declaration:“We shouldn’t still be having to defend plainlanguage in the twenty-first century.”13

• Advocates believe that “it is moreimportant to be clear . . . than to beaccurate.”

This charge could not be more wrong. I re-sponded to Mr. Stark on this same point 18years ago.14 No reputable advocate has eversaid that clarity trumps accuracy. Yes, I havesaid, “Your main goal is to convey your ideaswith the greatest possible clarity.”15 But ofcourse I mean “convey your ideas accurately.”Nobody who knows my work—or the workof any other advocate—could possibly thinkotherwise. We all take the need for accuracyas blindingly obvious.16 But we do think that,with rare exceptions, clarity and accuracyare complementary—not competing—goals.As Reed Dickerson, the father of modern-daylegal drafting, wryly put it: “The price ofclarity, of course, is that the clearer the docu-ment the more obvious its substantivedeficiencies.”17 Or in the words of anotherexpert: “The purposes of legislation are mostlikely to be expressed and communicated suc-cessfully by the drafter who is ardentlyconcerned to write clearly and to be intelli-gible.”18 Time after time, we have seen clarityimprove accuracy by uncovering the ambigu-ities and errors that traditional drafting tendsto hide. Yet if in some instance, on somepoint, accuracy and clarity really are at odds,then accuracy wins. It goes without saying—almost.

• “Typically, there are lists of 10 or 12 [plain-language] rules, far too few for anenterprise as difficult as statutory drafting.”

First, they are guidelines, preferences, prin-ciples—not inflexible rules. And the completelist of guidelines numbers in the dozens.19

Naturally, you will find top-ten lists and thelike, as advocates try to pull out a handy setof especially important principles. But we arenot so benighted as to think that that’s allthere is to it. We have always taken an ex-pansive view of plain language, sought toground it in research,20 been open to reexami-

reverse, with no choice but to draft in the ar-cane style so roundly criticized for centuries.An occasional mistake does not undo all thegood and potential good.

The charge: plain language makes wrongassumptions and is “shot through withfallacies.”

Now we turn to the rest of Mr. Stark’s criti-cisms, almost all of which are deliveredwithout any supporting authority. Below is abrief response to each one.

• Advocates of plain language assume that“laypeople frequently read statutes.”

Not exactly. We think that “Acts . . . (andregulations too) are consulted by a largenumber of people who are not lawyers.”8

And we think drafters should make statutesand regulations intelligible to the greatestpossible number of intended readers, espe-cially those who are directly affected.9 Mr.Stark notes that people don’t read the Inter-nal Revenue Code. Of course not. It’s acomplete mess. (And it seems like an extremeexample in any event.) But shouldn’t peoplebe able to read and understand—without tra-vail—a regulation that tells them what thefee is for requesting information under theFreedom of Information Act (just to pick anexample)? Who are laws for, after all? Onlysome clique of lawyers?

• Advocates assume that citizens “have aright to read simplistic statutes.”

Our view is not that simplistic. We do thinkcitizens should have the greatest possible ac-cess to the law. Mr. Stark says that if onewants citizens to have that access, then pro-vide “explanatory publications.” That’s fine;we recognize the value and versatility of citi-zens’ guides.10 But why shouldn’t the law beas clear as possible to begin with? Why makethis an either/or choice? Besides, the clearerwe make the law, the less need there will befor any sort of guide.

• “Most of [the] advocates are not pro-fessional drafters but academics and otherswho may never have drafted a bill.”

Well, that would be news to legislative draft-ers in many countries—the UK, Ireland, NewZealand, Australia, Canada, Sweden, the EU,and others—who have endorsed plain lan-guage.11 That would be news to the morethan 1,000 members of the Commonwealth


• “The most damaging Plain Language rule isto write only words that are commonlyused by laypeople in ordinary speaking andwriting.”

Another straw man. You may extract fromsome sources a guideline like “Use simplewords,” but the explanation that follows willusually make clear that this is not a rigid pre-scription. A fair reading of the plain-languageliterature does not support any “rule” towrite “only” ordinary words.27

• “Some legal terms have no Plain Languagesynonyms.”

We know. And we have never said otherwise.But we have said—and shown—that (1)terms of art are a small part of most legaldocuments,28 (2) terms of art should be ex-plained in consumer documents,29 and (3)many terms that lawyers might think of asuntranslatable can in fact be replaced withordinary words.30

• “I would be embarrassed to admit that myjob is to write dumbed down statutes.”

Ah, yes, the old dumbing-down argument—another one that should have been buriedlong ago.31 It’s not dumbing down to writeclearly for your reader in legal, government,and business documents. It takes great skill,and readers love it. Try to find a reader whoprotests that a legal document is too clear,that he or she is insulted by the clarity, thatthe writer should have used a more tradi-tional, legalistic, dense, verbose, contortedstyle. In fact, no fewer than 25 studies showthat readers of all kinds—judges, lawyers, cli-ents, consumers—strongly prefer plainlanguage to the old style, understand it betterand faster, are more likely to comply with it,and are much more likely to read it in thefirst place.32

There’s no need to go on answering critics.Plain language is changing the landscape—aswitness the new Federal Rules of Civil Proce-dure and Federal Rules of Evidence. And I’ddare to say that in the minds of most writersand drafters, the intellectual debate is over.

[This article also appeared in the December 2012issue of The Legislative Lawyer, where Mr.Stark’s article appeared.]

nation, and realized that “bare guidelines arenot enough.”21

• As an example of a rule that he says“makes no sense,” Mr. Stark cites the rule“to address you”—that is, to addressreaders as you.

But here again, advocates do not insist on youin statutes. Rather, they recommend usingyou in consumer documents22—includingregulations—whenever doing so works. Askyourself: Does you seem to work in the regu-lation we reviewed earlier? Is there anydoubt that you refers to the person who is re-questing information? In the right context,you is a great aid to readability. It puts read-ers in the picture.23

• “[Another] fallacy is the command thatshort sentences should be used.”

Nobody commands. We typically say to prefershort and medium-length sentences. Or wesay to break up long sentences (one of theoldest and worst curses of traditional draft-ing) or a pattern of long sentences. Longsentences are not usually needed to connectideas. You can make connections in otherways.24 You can use vertical lists. You canpull longish exceptions into new sentences.You can use patterns such as “The court mayrequire . . . . Or the court may require . . . .”There are lots of ways. It’s telling that Mr.Stark doesn’t give examples of long sentencesthat cannot be broken up. And by the way,look again at the revised regulation. Original:27, 51, and 23 words (= 34 on average). Re-vised: 14, 31, and 17 words (= 21 onaverage).

• Mr. Stark criticizes my example of give,devise, and bequeath as redundant in a will.He says that “give denotes making a giftfrom one live person to another.”

But certainly not in a will. The giver is gone.The giver is giving by this instrument, thewill. Bryan Garner quotes “the leadingAmerican scholars on the law of wills” to“resolve any doubt” about not needing a trip-let.25 They state: “‘I give’ will effectivelytransfer any kind of property, and no fly-specking lawyer can ever fault you for usingthe wrong verb.”26 I invite anyone to find apublished case to the contrary.


18 G.C. Thornton, Legislative Drafting 52 (4th ed.,Butterworths 1996).

19 See Writing for Dollars, Writing to Please, supra n. 2,at 22 (citing authorities that list 42, 50, 42, 45, and25 with lots of subpoints).

20 See, e.g., Daniel B. Felker et al., Guidelines forDocument Designers (American Institutes forResearch 1981) (citing empirical research for eachguideline); Karen Schriver & Frances Gordon,Grounding Plain Language in Research, Clarity No.64, at 33 (Nov. 2010) (describing the current stateof research and recommending further efforts).

21 Writing for Dollars, Writing to Please, supra n. 2, at5.

22 Id. at 10.23 Rudolf Flesch, How to Write Plain English: A Book

for Lawyers and Consumers 44–50 (Harper & Row1979); Janice C. Redish, How to Write Regulationsand Other Legal Documents in Clear English 24(American Institutes for Research 1991).

24 See Joseph Kimble, Lessons in Drafting from the NewFederal Rules of Civil Procedure, 12 Scribes J. LegalWriting 25, 34–38 (2008–2009).

25 Garner’s Dictionary of Legal Usage 391 (3d ed.,Oxford U. Press 2011).

26 Jesse Dukeminier Jr. & Stanley M. Johanson,Family Wealth Transactions 11 (Little, Brown & Co.1972).

27 See, e.g., Asprey, supra n. 16, at 232 (providing aside-by-side list of plain and more formalexpressions, but noting that the formal one is“perfectly fine in some circumstances”); JosephKimble, Plain Words, in Lifting the Fog of Legalese:Essays on Plain Language 164 (Carolina AcademicPress 2006) (“By all means, use the longer, lessfamiliar word if you think it’s more precise oraccurate.”); Richard C. Wydick, Plain English forLawyers 58 (5th ed., Carolina Academic Press2005) (“If an unfamiliar word is fresh and fitsyour need better than any other, use it—but don’tutilize it.”).


29 Id.; see also Christopher R. Trudeau, The PublicSpeaks: An Empirical Study of Legal Communication,14 Scribes J. Legal Writing 121, 149–50 (2011–2012) (confirming the public’s overwhelmingpreference that legal terms be explained in anattorney’s communication).

30 See Law Words (Centre for Plain Legal Language1995) (available at http://www.clarity-international.net/downloads/Law%20Words.pdf)(containing short essays on 28 terms like joint andseveral and right, title and interest).

31 Writing for Dollars, Writing to Please, supra n. 2, at11–14.

32 Id. at 134–66.

Endnotes1 Plain Language, http://www.ncsl.org/legislative-

staff/lsss/June-2012-plain-language.aspx.2 See, e.g., Joseph Kimble, Writing for Dollars, Writing

to Please: The Case for Plain Language in Business,Government, and Law 64–102 (Carolina AcademicPress 2012).

3 The Language of the Law (Little, Brown & Co. 1963).4 64 Fed. Reg. 41770 (Aug. 2, 1999).5 Merriam–Webster’s Collegiate Dictionary (11th ed.

2003).6 Id.7 Drafting Examples from the Proposed New Federal

Rules of Evidence, 80 Mich. B.J. 52 (Aug. 2009), 46(Sept. 2009), 54 (Oct. 2009), 50 (Nov. 2009)(available at http://www.michbar.org/generalinfo/plainenglish/).

8 New Zealand Law Comm’n, Report 104,Presentation of New Zealand Statute Law 14–15 (Oct.2008) (available at http://www.lawcom.govt.nz/project/presentation-new-zealand-statute-law)(giving examples of people who “refer tolegislation in their jobs” and other examples ofwhen people may consult it in their personallives).

9 Writing for Dollars, Writing to Please, supra n. 2, at31–33.

10 See Law Reform Comm’n of Victoria, Plain Englishand the Law 57–58 (1987; repr. 1990)(“[Explanatory texts] are likely to reach a wideraudience than the originals, and to be morewidely used than other means of informing thepublic.”).

11 See Office of Scottish Parliamentary Counsel, PlainLanguage and Legislation 19–28 (2006) (available athttp://Scotland.gov.uk/Resource/Doc/93488/0022476.pdf).


13 E-mail from Eamonn Moran to the author (Oct. 20,2012).

14 Answering the Critics of Plain Language, 5 Scribes J.Legal Writing 51, 53–60 (1994–1995).


16 See, e.g., Michèle M. Asprey, Plain Language forLawyers 92 (4th ed., Fed’n Press 2010) (“We needto be accurate, precise and able to be understoodby all our likely readers.”); Robert D. Eagleson,Writing in Plain English 5 (Australian Gov’t Publ’gServ. 1990; repr. 1994) (“Writers of plain Englishdocuments use language their audience canunderstand, and ensure that their documents arecomplete and accurate statements of their topics.They do not leave out important details . . . .”);Writing for Dollars, Writing to Please, supra n. 2, at40 (“Nobody doubts that legal writers need to aimfor accuracy and the right measure of precision.”).

17 Materials on Legal Drafting 265 (West 1981)(quoting one of Dickerson’s earlier articles, nowdifficult to access).


Joseph Kimble has taught legalwriting for more than 25 years atThomas Cooley Law School. Hehas written a book called Liftingthe Fog of Legalese: Essays onPlain Language, publishedmany articles on legal writing,and lectured throughout theUnited States and abroad. Hisnew book, Writing for Dollars,Writing to Please, collectsempirical evidence about thebenefits of plain language in business, government, andlaw. Professor Kimble is the editor in chief of TheScribes Journal of Legal Writing, the longtime editor ofthe “Plain Language” column in the Michigan BarJournal, a past president of Clarity, and a foundingdirector of the Center for Plain Language. Since 1999, hehas been the drafting consultant on all federal court rules.He has received several national and internationalawards, including two Burton Awards for Reform in Lawfor his work on the federal rules, a 2007 award from thePlain Language Association International, and the 2010Award from the Section on Legal Writing, Reasoning,and Research of the Association of American Law Schoolsfor lifetime achievement in the field.


1. Name

The name of the association governed by thisConstitution is Clarity.

2. Objects

The Objects of Clarity are to promote the use,appreciation and development of plain lan-guage in legal and other formal texts, in anypart of the world, and for that purpose to doany one or more of the following:

(1) maintain and expand an internationalnetwork of people interested in the useof plain language in legal and otherformal texts;

(2) facilitate access to information andmaterials relating to plain language;

(3) promote high standards for the use ofplain language in legal and other formaltexts;

(4) support and encourage the use of plainlanguage generally.

3. Powers

Clarity has the following powers, which maybe exercised only in promoting the Objectsand in compliance with any applicable law:

(1) To hold conferences either alone orjointly with other bodies.

(2) To publish a journal.

(3) To maintain a website accessible to allmembers and to the public.

(4) To publish or distribute information.

(5) To co-operate with other bodies thatpromote the use of plain language inlegal and other formal texts.

(6) To encourage local meetings.

(7) To raise funds.

(8) To borrow money.

(9) To make grants of money.

(10) To maintain insurance policiesagainst risks from Clarity’s activities.

(11) To employ paid or unpaid agents,staff or advisers.

(12) To enter into contracts to provideservices to or on behalf of other bodies.

(13) To do anything else that promotes orhelps to promote the Objects.

4. Membership

4.1 Membership is open to any individual ororganization interested in promoting the Ob-jects.

4.2 The Board may establish different classesof membership, set out their respective privi-leges and duties and set the amounts of anysubscriptions.

4.3 The Board must keep a register of mem-bers.

4.4 Clarity may terminate the membership ofa member whose subscription is more than12 months in arrears. The member may be re-instated on payment of the amount due.

4.5 A member may resign by written notice toClarity.

Draft of the Clarity Constitution

This is a draft of the Clarity Constitution. It was prepared by the Constitutional sub-committee in 2012 and incorporates feedback from the full Clarity committee and thecountry representatives. There are a few outstanding issues that the sub-committee isworking on resolving but we wanted to share our progress with members. Thank youto the sub-committee—Eamonn Moran (chair), Amy Bunk, Ben Piper and CandiceBurt. A very special thank you to Francesca Quint who undertook the unenviable taskof producing the first draft.


4.6 The Board may decide to terminate themembership of any member on the groundthat in its reasonable opinion the member’scontinued membership would be harmful toClarity. Before terminating membership, theBoard must notify the member in writing andset out the grounds for termination. Themember has 14 days to make written repre-sentations to the Board as to why theirmembership should not be terminated. Afterconsidering any written representationsmade by the member, the Board may eithercancel its earlier decision or by resolution ter-minate the membership.

5. General meetings

5.1 Members are entitled to attend generalmeetings of Clarity either in person or (in thecase of a member organization) through anauthorized representative. General meetingsmust be called on at least 21 clear days’ writ-ten notice to the members specifying thebusiness to be transacted. A general meetingmust be called if the Board receives a writtenrequest to do so from at least 10 members.

5.2 There is a quorum at a general meeting ifthe number of members or authorized repre-sentatives personally present is 5 % of themembers.

5.3 The President or (if the President is un-able or unwilling to do so) some othermember elected by those present presides at ageneral meeting.

5.4 Except where otherwise provided by thisConstitution, every issue at a general meetingis determined by a simple majority of votescast by the members present in person orthrough an authorized representative.

5.5 Except for the chair of the meeting, whohas a second vote, every member present inperson or through an authorized representa-tive has one vote on each issue.

5.6 A general meeting must be held in everyother year.

5.7 At a biennial general meeting the mem-bers:

(1) receive the accounts of Clarity for theprevious 2 financial years;

(2) receive the report of the Board onClarity’s activities since the previousbiennial general meeting;

(3) elect from among the members aPresident, Vice President, Secretary andTreasurer to hold office from the end ofthe biennial general meeting until theend of the next biennial generalmeeting;

(4) accept the retirement of those Boardmembers who wish to retire or areretiring by rotation;

(5) elect Board members to fill thevacancies arising;

(6) may appoint an auditor for Clarity;

(7) may confer on any individual (with hisor her consent) the honorary title ofPatron of Clarity;

(8) may amend this Constitution if theterms of the proposed amendment havebeen notified to the members with thenotice of the meeting and the proposedamendment is supported by [two-thirds] of the votes cast;

(9) discuss and determine any issues ofpolicy or deal with any other businessput before them by the Board.

6. Email resolutions of members

6.1 Any question which could be determinedby the members at a biennial general meetingor a general meeting may be determined bythe membership by email resolution.

6.2 21 clear days’ written notice of any pro-posed email resolution must be sent to allmembers setting out the terms of the pro-posed resolution and specifying the responsedate.

6.3 An email resolution is binding if passedby a majority of those members whose writ-ten response is received on or before theresponse date.

6.4 No person has a second vote on an emailresolution.

7. The Board

7.1 The full number of members of the Boardis at least 7 and not more than XX individu-als, all of whom must be members orauthorized representatives.

7.2 The Board consists of:

(1) the President;


(2) the Vice President;

(3) the Secretary;

(4) the Treasurer;

(5) up to XX other members.

7.3 One third (or the number nearest onethird) of the Board members must retire ateach biennial general meeting, those longestin office retiring first and the choice betweenany of equal service being made by drawingnames at random.

7.4 A retiring Board member who remainsqualified may be re-elected.

7.5 A Board member automatically ceases tohold office if he or she:

(1) is absent without good reason from 3consecutive meetings of the Board andis removed by a resolution passed by all[a two-thirds majority of] the othermembers of the Board ;

(2) ceases to be a member of Clarity;

(3) resigns by written notice to the Board;

(4) is removed by a resolution passed by allthe other members of the Board afterthey have invited the views of the Boardmember concerned and considered thematter in the light of any such views.

8. Proceedings of the Board

8.1 The Board must hold at least one meetingeach year.

8.2 A quorum at a meeting of the Board isXX.

8.3 A meeting may be held either in person orby suitable electronic means agreed in ad-vance by the Board in which all participantsmay communicate with all other partici-pants.

8.4 The President or (if the President is un-able or unwilling to do so) some othermember of the Board chosen by the Boardmembers present presides at each meeting ofthe Board.

8.5 Unless otherwise stated, every issue maybe determined by a simple majority of thevotes cast at a meeting of the Board.

8.6 Except for the chair of the meeting, whohas a second vote, every Board member hasone vote on each issue.

9. Board’s decision-making

The Board has the following powers in theadministration of Clarity:

(1) To appoint advisory committees of 2 ormore individuals.

(2) To make rules consistent with thisConstitution to govern the Board’sproceedings.

(3) To resolve, or establish procedures toassist the resolution of, disputes withinClarity.

(4) To exercise any powers of Clarity whichare not reserved to a general meeting.

10. Benefits to Board members

10.1 The property and funds of Clarity mustbe used only for promoting the Objects.

10.2 No member of the Board or connectedperson may receive any payment of money orother material benefit (whether direct or indi-rect) from Clarity except:

(1) reimbursement of reasonable out-of-pocket expenses (including hotel andtravel costs) actually incurred in theadministration of Clarity;

(2) a reasonable rent or hiring fee forproperty let or hired to Clarity;

(3) an indemnity in respect of any liabilitiesproperly incurred in administeringClarity (including the costs of asuccessful defence to criminalproceedings);

(4) other payments or material benefits (butonly with the Board’s prior writtenapproval).

10.3 Whenever a member of the Board or aconnected person has a personal interest in amatter to be discussed at a Board meeting,the Board member concerned must:

(1) declare the nature and extent of theinterest before the meeting or at themeeting before discussion begins on thematter;

(2) be absent from that part of the meetingunless expressly invited to remain inorder to provide information;

(3) not be counted in the quorum for thatpart of the meeting;


(4) be absent during the vote and have novote on the matter.

11. Property and money

11.1 Money that is not required for immedi-ate use may be placed on deposit or investeduntil needed.

11.2 Investments and other property of Clar-ity must be held in the name of Clarity.

12. Records and accounts

12.1 The Board is responsible for ensuringthat Clarity keeps financial records and pro-duces:

(1) a biennial report;

(2) abiennial statement of account.

12.2 The Board is responsible for ensuringthat Clarity keeps proper records of:

(1) all proceedings at general meetings;

(2) all proceedings at meetings of theBoard;

(3) all recommendations of advisorycommittees;

(4) all professional advice obtained.

12.3 Accounting records relating to Claritymust be made available for inspection by anymember who gives 10 days’ notice to theBoard.

12.4 Copies of this Constitution and the latestavailable annual statement of account mustbe posted on Clarity’s website.

13. Notices

13.1 Notices under this Constitution may besent by hand or by suitable electronic meansor (where applicable to members generally)may be published in any journal distributedby Clarity or on Clarity’s website.

13.2 The address at which a member is en-titled to receive notices is the address noted inthe register of members (or, if none, the lastknown address).

13.3 Any notice given in accordance with thisConstitution is to be treated for all purposesas having been received:

(1) 24 hours after being sent by electronicmeans to the relevant address;

(2) 24 hours after the date of publication ofa journal containing the notice;

(3) on being handed to the member or theirauthorized representative personally;

(4) if earlier, as soon as the memberacknowledges actual receipt.

14. Dissolution

14.1 If at any time members at a generalmeeting decide to dissolve Clarity, the mem-bers of the Board then holding office willremain in office as long as necessary to bringabout the orderly winding up of Clarity’s af-fairs.

14.2 After providing for all outstanding li-abilities of Clarity, the Board must apply theremaining property and funds in one or moreof the following ways:

(1) by transfer to one or more other bodiesestablished for purposes connected withthe promotion of plain language;

(2) directly for a specific project or projectswhich are designed to further theObjects;

(3) in such other manner consistent withthe Objects as the members in generalmeeting approve.

14.3 A final report and statement of accountrelating to Clarity must be prepared andmade available to the members.

15. Interpretation

In this Constitution:

15.1 Clarity means

the association known as Clarity andgoverned by this Constitution

authorized representative means

an individual who is authorized by amember to act on their behalf at meetingsof Clarity

biennial general meeting means

a general meeting held under section 5.6

Board members means

members of the Board other than thePresident, Vice President, Secretary andTreasurer


connected person means

any spouse, civil partner, cohabitee,parent, child, sibling, grandparent orgrandchild of a member of the Board, anyfirm in which a member of the Board is apartner or employee, any company ofwhich a member of the Board is a directoror employee or a shareholder who isbeneficially entitled to more than 1 percent of the share

capital material benefit means

a benefit which may not be financial buthas a monetary value months meanscalendar months year means calendaryear

From Claire O’Riordan

Clarity members may be interested in the EUdirective on websites: http://www.simplyput.ie/simplyput_news. Also, we have a free PlainEnglish A-Z Guide to Legal Terms that might be ofinterest: http://www.simplyput.ie/downloads/plain_english_guide_to_legal_terms.pdf.

From Robert Linsky

I am again director of judging for the 3rd timefor the Center for Plain Language’s ClearMarkAwards. It’s too late for entries, but I hope youwill attend the awards dinner on April 16th.Details are here: http://centerforplainlanguage.org/awards.

Also, I was elected to the board of PLAIN lastyear (a 3-year term).

From Sarah Marriott

Plain English has become a compliance issuefor financial institutions in Ireland, with theCentral Bank’s Consumer Protection Code(2012). In a recent review of this code, theCentral Bank criticised banks and insurancecompanies for their failure to use plain English

in consumer communications. The code statesthat information for customers must be ‘clear,accurate, up to date and written in plain En-glish and that key information must be broughtto the attention of the consumer’. As a result,many financial firms are now reviewing cus-tomer communications and training staff inhow to write plain English.

From Peter Butt

Peter Butt, a former President of Clarity, is re-vising and republishing a series of 30 articleson plain-language alternatives to traditionallegal words and phrases. The articles wereoriginally published about 20 years ago, andwere then collected and republished by theCentre for Plain Legal Language at the Uni-versity of Sydney under the title “LawWords”. They are long out of print. The re-vised articles will start appearing in the LawSociety Journal (published by the New SouthWales Law Society) in March 2013, and willrun monthly. They will be introduced by anarticle on plain language by The Hon MichaelKirby, one of Clarity’s patrons.

From Fabio J. Guzmán Ariza

The Dominican Academy of Letters publishedrecently a book by Clarity member Fabio J.Guzmán Ariza, academician and managingpartner of the Guzmán Ariza law firm(www.drlawyer.com) in the Dominican Re-public, titled El lenguaje de la Constitucióndominicana (The Language of the DominicanConstitution). The book examines the constitu-tional text and finds it deficient, especiallybecause of its complex and obscure language.

From Aino Piehl

The Open Government Partnership waslaunched in 2011 in relation to the UN Gen-eral Assembly. Participating countries areexpected to make an action plan which in-cludes concrete commitments to deal withobstacles to transparency. The initiative hasbeen joined by around hundred countries atthe moment, including all the Canada, Esto-nia, Nordic States, U.K. and U.S. Finland isso far the only country to have chosen plainlanguage as one of the themes for the na-tional action plan and commitments.

Member news


Message from thePresident

The Clarity journal

I do hope you have enjoyedreading our bumper issue ofClarity. Thank you to guesteditors ChristopherBalmford, Gina Frampton, and AnnettaCheek for their hard work at gathering, com-piling, editing, and producing this issue. Andour special thanks, as always, to Julie Clem-ent, Editor-in-Chief, who continues to workher magic year after year and issue after is-sue.

We have begun working on a new design forthe journal. Josiah Fisk, president of MoreCarrot LLC, has been working with JulieClement to give the journal an updated lookwhile still delivering excellent content. Wehope to launch our new design later this yearso look out for the new and improved Clarity.

Please let us know if you have any ideas forimproving the journal—both in terms of ap-proach and content. One approach would beto focus the journal on more substantive con-tent and, perhaps, publish one issue a year.We could then put information about confer-ences, seminars, member news, and newcommittee members on the website (or an-other online space).

The 2014 Clarity conference

Clarity’s next conference is most likely to bein September or October 2014 in Antwerp,Belgium. It will be co-hosted by IC Clear (In-ternational Consortium for ClearCommunication), PLAIN and IIID (Interna-tional Institute for Information Design). Wewill let you know the exact dates and timesas soon as possible. This is set to be a majorevent in the plain language industry with theofficial launch of IC Clear’s post-graduatedegree in clear communication. The reputa-tion of Belgian chocolate should sway any ofyou still sitting on the fence!

Conferences in 2013

In my January newsletter, I mentioned threeconferences coming up in 2013. I hope youare able to attend at least one of these excit-ing sessions:

1. The Commonwealth Association ofLegislative Counsel (CALC) Conferencein Cape Town, South Africa from 10–12April 2013. To register for theconference or find out more about it,visit http://opc.gov.au/calc/conferences.htm

2. The Commonwealth LawyersAssociation Conference (CLC)Conference in Cape Town, South Africafrom 14–18 April 2013. To register forthe conference or find out more aboutit, visit http://www.commonwealthlaw2013.org/

3. The Plain Language AssociationInternational (PLAIN) Conference inVancouver Canada from 10–13 October2013.To register for the conference orfind out more about it, visit http://www.plain2013.org/.

The Laws project—we need your contri-butions

Please remember to send your contributionsto the Laws Project. (See the January news-letter for more detail about where we arewith it). You can email Tialda Sikkema [email protected] Ben [email protected] . If you have any ques-tions, or if you need help conducting yourresearch please feel free to contact Tialda orBen.

Thank you to our new volunteers

In response to the January newsletter, KatinaStapleton of the National Center for Educa-tion Research (U.S.) and Cynthia Adams ofIndiana University Robert H. McKinneySchool of Law volunteered for the tasks ofTwitter co-ordinator and Assistant editor re-spectively. Thank you, thank you, thank you.

There will be more on our volunteers in ournext newsletter—a chance for you to get toknow who is doing what and how you, too,can help.

I wish you all the best for 2013 and to an-other of clear, effective communication.

Warm regards

Candice BurtPresident of Clarity


Committee members

Sandra Fisher-Martins runsPortuguês Claro, a training andconsultancy firm that introducedplain language in Portugal andhas been helping Portuguesecompanies and governmentagencies communicate clearlysince 2007.

Sandra is particularly interestedin the use of plain language andinformation design in public documents as a way ofhelping citizens make informed choices about theirhealth, education, welfare, and civil rights. Her clientsinclude the Government, Inland Revenue, SocialSecurity, Caixa (Portugal’s largest bank) and ZON(telecommunications).

Sandra is the Portuguese representative for Clarity, aninternational association that promotes plain legallanguage. She is member of the board of PLAIN—PlainLanguage Association International—and part of theInternational Plain Language Working Group.

Dr Tunde Opeibi is AssociateProfessor at the University ofLagos, Lagos, Nigeria.

He has served as the SeniorSpecial Assistant to Lagos StateGovernor (Speech andCommunication) and he iscurrently Senior SpecialAssistant to Lagos State DeputyGovernor, Lagos, Nigeria.

He was Visiting CommonwealthFellow at the Centre for the Study of Democracy,University of Westminster, London in 2010. He haswritten a couple of full length books and publishedseveral scholarly articles in international journals. Hisresearch interests are in Political Communication, CivicEngagement and Governance, Legal Discourse, and NewMedia Discourse Analysis.

Dylan Fisher-Martins broadens Clarity’s audience by a few decades. And as weplain linguists write for our audience, expect pop-up images and tactile pages in ournext edition.