Plain Language

The Eighth Annual (1999) Clarity Awards

By George H. Hathaway

hy do journalists write negative ar-ticles about legal writing? Theythink it's good for business, be-

cause bad news sells better than good news.Dan Seligman's article in the September 7,1998 issue of Forbes Magazine is the latestexample. Here are excerpts from the arti-cle [with our comments in brackets]:

Why do lawyers write so lousily? They thinkit's good for business. Among nonlawyersthere is broad agreement that legal writingis god-awful. From outpourings of the Amer-ican Bar Association to Supreme Court de-cisions, obvious klutziness abounds .... A lotof lawyers are themselves quite agitatedabout their profession's murky prose....Many big-league law firms now have writingcoaches.... [Miost of them are partisans ofthe plain language movement .... It has... anewsletter (Rapport) ... and.., a Web site(www.plainlanguage.com) .... It is supportedby some state bar associations .... In 1995,the Michigan Bar embraced a goal of abol-ishing legalese by 2000, but progress on thisfront has apparently been, shall we say, deminimus .... [Hold it, Dan. Among themany things that are probably de minimusis your knowledge of the facts. You'rewrong about Michigan almost as manytimes as Lee Corso is. But go on...]

So who's against plain language? Gazillionsof lawyers. Many in the profession want to beobscure. Despite what they've been told inlaw school writing programs, a lot of younglawyers thrill to the idea that they are now

"Plain Language" is a regular feature of the Mkh-igan Bar Journal, edited by Joseph Kimble for theState Bar's Plain English Committee. The assistanteditor is George Hathaway, chair of the Committee.The Committee seeks to improve the clarity of legalwriting and the public opinion of lawyers by elimi-nating legalese. Want to contribute a plain Englisharticle? Contact Prof. Kimble at Thomas Cooley LawSchool, PO. Box 13038, Lansing, MI 48901. For in-formation about the Plain English Committee, see ourweb site-www.michbar org/committees/penglish/pengcom.html

members of an exclusive club whose mem-bers communicate in a language incompre-hensible to the uninitiated.

More important, they come to believe thatthis language has genuine cash value. Moreimportant still, this belief is not entirelycrazy Worth quoting at length in this con-nection is one response to the ProjNet queryIt comes from Michael Bowen, a Milwaukeeattorney (Foley & Lardner), novelist (eightso far) and traitor to his class.

Says Bowen: "Lawyers write obscure and im-penetrable prose for the same reason the me-dieval Church didn't want the Bible printed inthe vernacular They want to control andlimit access to vital information. They don'twant a sales manager to look at a statute anddecide for himself that his rebate program islegal; or a plant operations manager to readan EPA regulation and figure out how to gethis effluent discharges within the legal limit.The legal profession wants them to call law-yers to do these things for them." [Not quite,Mike. The reasons are not so deliberateas that. Your explanation of legal writ-ing to Dan reminds us of the blind lead-ing the blind. Instead of being wrongabout the motives for legalese, why don'tyou accept some responsibility for legalwriting and form a Plain English Com-mittee of the State Bar of Wisconsin, aswe did in Michigan? Anyone can criti-cize legalese; it takes blood, guts, sweat,tears, and long, lonely, thankless years ofpersistence to persuade your fellowlawyers to actually eliminate legalese.Now go on, Dan.]All of which tells us that there is a certaininescapable tension between two of the pro-fessions's priorities: (1) responding to all thereasonable complaints about legaldegook and(2) maintaining the billings at reasonablelevels. Guess which usually wins out.

ResponsibilityThere are two types of people in this

world: those who complain about prob-lems and those who try to solve them. Un-fortunately, for every one hundred peoplewho complain, there is usually only oneperson who tries to solve. The differentialingredient is a sense of responsibility.

David Mellinkoff has it.' He took timeoff from his law practice in the early 1960sto write The Language of the Law, the bookthat started the plain-language movementin the law. His preface says it all. "Withcommunication the object, the principle ofsimplicity would dictate that the languageused by lawyers agree with the commonspeech, unless there are reasons for a dif-ference .... If there is no reason for depar-ture from the language of common under-standing, the special usage is suspect ....This is no crusade for the propagation of anew language .... It is an endeavor to makean existing language better perform itsfunction .... This is a beginning. The goalis nothing more modest than the rational-ization of the language of the law."

Bryan Garner also has it.2 He gives sem-inars to practicing lawyers around the U.S.on clear writing in legal documents. Manyof our previous award winners attendedhis seminars.

And we select lawyers and judges whohave it for our Plain English Committee.For the last 15 years, we have tried to per-suade Michigan lawyers to write in plainlanguage. We have also asked lawyers whoare already involved in the plain-languagemovement in other states to form plain-language committees in their states. Texasdid it in 1989, Missouri in 1993, and Penn-sylvania in 1998.

Www.michbarorg/committees/penglish/pengcom.html is the URL of our web site.Here we explain who we are, how westarted, and what we do. We list all our 15years of monthly "Plain Language" articles.You can directly download the last fouryears of these columns. We also list all ourClarity Award winners and include plain-English examples from 20 types of legaldocuments. Somehow you missed our web-site, Dan. Instead, you stumbled onto theweb site of Cheryl Stephens of The Prece-dents Group in Vancouver, Canada. Every-thing about this group is first-class. Wehave contributed to many issues of theirnewsletter, Rapport. They are writing ex-perts who are trying to persuade Canadian

OqA Itnt1 AA T A AIVIlLI'llUXIN t5RK JUUIINAL M ARCH 1999)

PLAIN LANGUAGE

Figure 1-Winners of Eighth Annual (1999) Clarity Awards

Resolution

Goedert

Ordinance

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Kupferschr

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Prospectus

Anaersen

solution

LJOmOiaK

Mendelson

Resolution

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Willson

Drewz

MARCH 1999MICHIGAN BAR JOURNAL

Drsnltinn

Kimball

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DeNault

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nald-Lopez

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Trahan

MARCH 1999 MICHIGAN BAR JOURNAL

PLAIN LANGUAGE

Figure 2-Clarity Award Categories (for 20 Specific Types of Legal Documents)

Laws Lawsuits Contracts Real Estate Estate Planning" Resolutions e Complaints, Answers, 9 Consumer Finance Contracts * Sales Contracts and * Durable Powers of Attorney" Statutes Motions, and Orders * Construction Contracts Land Contracts 0 Wills" Rules o Sworn Statements and e Sales-of-Goods Contracts e Deeds and Easements o Trusts

Proofs of Service e Sales-of-Services Contracts * Leaseso Opinions, Judgments * Employment Contracts * Notes and Mortgages

and Settlement * Investment ContractsAgreements e Insurance Contracts

lawyers to write clearly. They are doing thisfrom outside the practicing bar. We arepracticing lawyers and judges within theState Bar of Michigan. We write legal doc-uments and are promoting plain Englishfrom within the State Bar. And you eithermissed or ignored the progress we havemade, Dan.

GoalsThe State Bar of Michigan has the fol-

lowing goals and priorities:* Goal VII-Public Understanding of

and Respect for the Justice System andProfession.

' Goal VIII-Openness of the Pro-fession.

* Key Priority of Long-Range Plan-Image of the Profession.

Our Plain English Committee supportsthese goals and priorities through its goalof promoting the use of clear writing bylegal professionals. In 1992, we added aspecific goal of eliminating legalese fromall legal documents in Michigan by theyear 2000. If we promote legal documentsthat are written in plain English withoutlegalese, we directly promote the rational-ization of the language of the law, and in-directly promote the public understandingof and respect for the profession.

Clarity AwardsWe promote our goal by doing three

things. First, we divide all legal writinginto five general categories and 20 specifictypes, and focus on only one specific typeat a time. Second, we identify the specificlawyers or group of lawyers who write eachtype of document. We thus concentrate ononly one relatively small group of lawyersat a time. And third, we find clearly writ-ten examples of each specific type of doc-ument, give them Clarity Awards, and pro-mote them as good examples to follow. Wesearch for good examples throughout the

year and then give Clarity Awards on LawDay, May 1, of each year. See Figure 1 forphotos of this year's winners.

We search for Clarity Awards in the cat-egories shown in Figure 2.

Our search for the Eighth Annual (1999)Clarity Awards is discussed below.

The Search for Plain-English LawsResolutions

State resolutions (www.michiganlegis-lature.org, under Journals) are written bythe 110 representatives (only 11 of whomare lawyers) and 38 senators (only five ofwhom are lawyers) in the Michigan Leg-islature, and by the clerks of the House andSenate. Our subcommittee on resolutions(former Representative Nick Ciaramitaroand Karen Willard; Clerk of the HouseMary Kay Scullion; Bill Steude, of the Mich-igan Municipal League; and Pat McAvoy,Director of Legislative Affairs of the Michi-gan Township Association) has been tryingto persuade the Legislature to remove thelegalese such as Whereas and Now, there-fore from state resolutions. The only stateresolutions that have been written in plainEnglish are Representative Ciaramitaro's1988 HR 691 and Representative Willard's1995 HR 302.

We also promote plain English in theresolutions of the 210 cities in the Michi-gan Municipal League and of the 1,242townships in the Michigan Township As-sociation. This year we give Clarity Awardsfor the following resolutions:

* Grand Rapids City Commission Reso-lution No. 64015, by City Manager KurtKimball;

* City of Ferndale Resolution of Octo-ber 26, 1998, on Tobacco and Alcohol Laws,by the Ferndale City Council and MayorChuck Goedert;

e City of Sterling Heights Resolution ofDecember 15, 1998, by City Attorney PaulO'Reilly and Assistant City Attorney NeilLehto; and

* City of Flint Resolution Approving theFair Housing Study and Action Plan, by ChiefLegal Officer Karen McDonald Lopez.

StatutesMichigan statutes (www.michiganlegis-

lature.org, under Public Acts 1998 Table)are written by the Legal Division of theLegislative Service Bureau. We have givenClarity Awards to Michigan statutes formany years. Our subcommittee on statutes(Carol Cousineau, Director of the Legal Di-vision of the LSB; and Joe Kimble, a legal-writing teacher at Thomas Cooley LawSchool) believes that most of the statutes inMichigan are written in reasonably clearplain English. And even if a statute is notwritten as clearly as it could be, it is mostlikely because of all the competing politicalinterests that influence the passage of abill, not because the drafter wrote it badlyon purpose.

We also promote plain English in cityand township ordinances. This year wegive a Clarity Award for the following cityordinance:

e City of Dearborn Ordinance No. 98, onAlarm Systems, by City Attorney DebraWalling, Deputy Corporation Counsel Lau-rie Sabon, and Corporal Susan Gomolakof the Dearborn Police Department.

Rules

Michigan administrative rules (wwwmigov.state.mi.us/rules/org) are written bythe 19 departments of state government,reviewed by the Governor's Office of Reg-ulatory Reform, and edited by the LegalEditing Division of the Legislative ServiceBureau. Our subcommittee on adminis-trative rules (Mike Zimmer, Director of theGovernor's Office of Regulatory Reform;Roger Peters, Director of the Legal EditingDivision of the LSB; and Diana Pratt, Di-rector of the Legal-Writing Program atWayne State Law School) believes thatmost of the administrative rules in Michi-gan are written in reasonably clear plain

MILt1IUIXIN tSAI( JUUKINAL MARCH 1999IVlIR-NILAIN B5AK JOURNAL MARCH 1999

PLAIN LANGUAGE

English. Each year, we select one clearlywritten rule for a Clarity Award. This yearwe give a Clarity Award to the followingadministrative rule:

* Rule 432.1831, Destruction of Counter-feit Chips and Tokens, by Nelson Westernand Eric Eggan.

To summarize our 15 years of analyzingthe writing style of statutes and rules, webelieve that lawyers do not write unclearstatutes and rules on purpose, and thatmost Michigan statutes and rules are writ-ten with reasonable clarity-far better thanthey were written even a generation ago.

The Search for Plain-EnglishLawsuit Papers

Lawsuit papers are written by membersof the Michigan Trial Lawyers Association,Michigan Defense Trial Counsel, Litiga-tion Section of the State Bar, and Michi-gan Association of Legal Support Profes-sionals. Here there is more reason for yourcomments, Dan-because there is a strongrefusal by litigators to eliminate legalesesuch as Now Comes and Wherefore fromtheir lawsuit papers. But this refusal is notgoing to be overcome by occasional mag-azine articles criticizing the legal profes-sion or by awards for the worst-writtenlawsuit papers.

Our subcommittee on lawsuit papers(Hon. George Steeh, Jr., of the U.S. DistrictCourt for the Eastern District of Michigan;John Mayer, Court Administrator of theU.S. District Court for the Eastern Districtof Michigan; Hon. Chad Schmucker, ChiefJudge of Jackson County Circuit Court;Keith Beasley, Court Administrator of Ma-comb County Circuit Court; Matt Rick, anAssistant Attorney General; and Greg Ul-rich, a former Commissioner of the StateBar) have assumed the responsibility forhelping to promote clear writing in lawsuitpapers. They believe that the followingClarity Awards will help promote this goal:

George Hathaway is asenior real estate attor-ney at the Detroit EdisonCompany and chair of

<73. the Plain English Com-mittee of the State Barof Michigan.

Figure 3-Examples of Plain English

1. Grand Rapids ResolutionRESOLVED, that a 23rd Year Community

Development Block Grant Agreement in aform to be approved by the City Attorneybetween the City and Family Talk, Inc. for ayouth counseling program for the period ofNovember 1, 1997 through September 30,1998, in an amount not to exceed TwelveThousand Dollars ($12,000) [just the num-bers] is approved and the Mayor is author-ized to execute the Agreement for the City.[Better yet: "The Commission approves....The Mayor may sign...."]

2. Femdale ResolutionThe Ferndale City Council realizes the

importance of early intervention programsthat are designed to stop underage drinkingand smoking.

3. Sterling Heights ResolutionUnder federal law, the application for

transfer of control of the cable televisionfranchise is automatically approved if it isnot acted upon unfavorably ["not denied"?]within 120 days.

4. Flint ResolutionIT IS RESOLVED that the City of Flint and

the Flint City Council approve the fair hous-ing study and action plan entitled 'Analysisof Impediments to Fair Housing in GeneseeCounty, including the City of Flint."

5. Dearborn Ordinance 98 to amendSection 14-10 of the City Code:(a)(3) Any person affected by the assess-

ment of a false alarm fee may request andshall be granted a hearing on the matter be-fore the security systems board. Such ["The"]person shall file a request for hearing in theoffice of the chief of police within ten daysof the assessment of the false alarm fee. Theburden of proving an alarm was not a falsealarm shall be ["is"] on the alarm user.

6. Administrative Rule 432.1831(1) This rule applies to a casino licensee

and a casino license applicant.(2) All of the following provisions apply to

the notice of counterfeit chips and tokens:(a) A casino licensee shall notify the board

and the executive director, in writing, im-mediately upon the discovery of a counterfeitchip or chips or token or tokens that resultsin a loss of more than $1,000 to the licensee.

7. Complaint for Divorce of Legal AidBureau of SW MichiganTherefore, I am requesting that the court

grant me a divorce consistent with the reliefrequested in this Complaint.

8. Complaint for Divorce of Central Aid ofCentral MichiganPlaintiff and Defendant were married on

the following date: , in thefollowing place:

9. Answer to ComplaintThe Defendants, Shelby Township and the

Shelby Township Water Department, fortheir Answer to the complaint to removewetland easement, state as follows: ...

Therefore, Defendants Shelby Townshipand the Shelby Township Water Departmentrespectfully request that this Court grantsuch relief as is equitable and just under allthe circumstances presented to the courtduring the course of this proceeding. [Omiteverything after 'just"?]

10. Motion and Order for Admission toPractice Law

Petitioner requests that this Court enter anorder admitting the candidate to the prac-tice of law in the State of Michigan.

11. Stipulation and Order to DismissIT IS ORDERED that Joseph Schumaker

and G. John Schumaker are dismissed with-out prejudice.

12. Release and Covenant Not to SueEmployee agrees that she will keep the

terms of the Release confidential and will notdisclose its terms to anyone.

13. Ford Credit Vehicle RetailInstallment Contract

You must insure yourself and the Credi-tor against loss or damage to the vehicle. Thetype and amount of insurance must be ap-proved by the Creditor. If the Creditor ob-tains a refund on insurance or service con-tracts, the Creditor will subtract the refundfrom what you owe. Whether or not the ve-hicle is insured, you must pay for it if it islost, damaged, or destroyed.

14. Standard Federal EquityLine Agreement

You may use the proceeds of a Loan forany legal purpose, except (a) the purchaseof l"buying"l stocks or bonds, or (b) the mak-ing of ["making"] any payments requiredunder this Agreement.

15. General Motors ProspectusTHE HUGHES TRANSACTIONS We are

proposing three related transactions to en-hance the value of the businesses operatedby our Hughes Electronics subsidiary. Weneed your consent in order to accomplishthese "Hughes Transactions" (1) Hughes De-fense. We propose to spin off the defenseelectronics business of Hughes Electronics toour common stockholders. We call this busi-ness "Hughes Defense" Immediately after thespin-off, Hughes Defense will merge withRaytheon Company Based on the Recent Ray-theon Stock Price, these transactions havean indicated value of approximately ["about"]$9.5 billion.

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PLAIN LANGUAGE

Complaints:* Complaint for Divorce, the Legal Aid

Bureau of Southwest Michigan, by Execu-tive Director Ward McDonough and Man-aging Attorney Richard Kupferschmidt.

* Complaint for Divorce, Legal Aid ofCentral Michigan, by Don Reisig, Directorof Litigation (and former President of theState Bar of Michigan) and Yvette Willson.

Answers:* Answer to Complaint in Cirenese v

Willauer, by David Viar and Donald De-Nault, Jr.

Motions:* Motion and Order for Admission to Prac-

tice Law, by Macomb County Bar Associa-tion, Lori Finazzo, President.

Orders:* Stipulation and Order for Dismissal in

Liberty Home Builders v City of Monroe, byKaren Mendelson.

Settlement Agreements:* Release and Covenant Not to Sue, by

Daniel Bretz.

The Search forPlain-English Contracts

We have written many previous articlesabout contracts. 3 Most of these articles canbe directly downloaded from our web site.The following Clarity Awards not onlyprove that contracts can be written in plainEnglish, but will help promote clear writ-ing in future contracts:

Consumer-Finance Contracts:* Michigan Simple-Interest Vehicle Retail

Installment Contract of Ford Credit, by theFord Credit In-House Counsel Group.

* Equity-Line Agreement and DisclosureStatement of Standard Federal Bank, byDavid Trahan, Ron Palmer, and Greg Clark.

Investment Contracts:* Solicitation Statement/Prospectus of

Hughes Transactions, by Warren Andersen,Attorney of General Motors Corporation.

The Search forPlain-English Real-Estate andEstate-Planning Documents

Most real-estate and estate-planningdocuments are written by the 3,000 mem-

bers of the Real Property Law Sectionand the 3,000 members of the Estate Plan-ning Law Section of the State Bar of Michi-gan. These are the lawyers who can do themost to improve the clarity of real-estateand estate-planning documents. In previ-ous years, we have given Clarity Awardsto a clearly written real-estate sales con-tract, a durable power of attorney for prop-erty transfer, a durable power of attorneyfor health care, a will for property transfer,and a living will for health care. Clear ex-amples prove that real-estate and estate-planning documents can be written in plainEnglish. The implication is: If these docu-ments can be written in clear language,then why can't you write your documentsin clear language?

Examples fromClarity-Award Documents

We have never claimed that our ClarityAward winners are perfectly written legaldocuments-if there is such a thing. In fact,even in the short excerpts below, we haveoffered some gentle editorial suggestions[in brackets]. What we do claim, though,is that the award winners are plainer thantraditional documents of their kind-andless pitted with legalese. We are trying torecognize and promote change and prog-ress. To anyone who thinks they can dobetter, we say go for it. Instead of criticiz-ing a document, send us a document for afuture Clarity Award. We have been askingthis for years.

Public Journalism

In 1995, Davis Merritt, editor of the Wi-chita Eagle, wrote Public Journalism & Pub-lic Life. He said that for decades the perva-sive model of American journalism hadbeen distance. Now, however, he advocatesbecoming more actively involved in thenews. Public journalism moves beyondthe limited mission of "telling the news"to a broader mission of helping public lifego well. It moves from detachment tobeing a fair-minded participant. It movesbeyond just describing what is "goingwrong" to also imaging what "going right"would be like.

Newspaper reporters and magazine col-umnists could help the plain-Englishmovement by practicing public journalism

and writing balanced articles about le-gal writing.

ConclusionWe are now in our fifteenth year and our

Eighth Annual Clarity Awards. The clearwriting that David Mellinkoff recommendsin The Language of the Law and that BryanGaner teaches in his seminars can be usedin current legal documents if enough law-yers assume the responsibility to promoteit. This year we have identified many law-yers who are assuming that responsibility.They include private practitioners, city at-torneys, in-house counsel for General Mo-tors, Ford Credit, and Standard FederalBank, and a past president of the State Barof Michigan who is now the Director ofLitigation for a legal-aid clinic.

Progress may be hard, but it's notde minimus. E

Footnotes1. The Language of the Law (1963; 11th printing,

1990); The Conscience of a Lawyer (1973);Lawyers and the System of Justice (1976);Legal Writing: Sense and Nonsense (1982);Mellinkoff's Dictionary of American LegalUsage (1992); How to Make Contracts Illegi-ble, 5 Stanford L Rev 418 (1953); The Lan-guage of the Uniform Commercial Code, 77Yale LJ 185 (1967); The Myth of Precision andthe Law Dictionary, 31 UCLA L Rev 423(1983); Plain English in the Law, 73 Mich B J22 (January 1994).

2. A Dictionary of Modern Legal Usage (2d ed1995); The Elements of Legal Style (1991);Black's Law Dictionary (1996); Guidelines forDrafting and Editing Court Rules (1996); Find-ing the Right Words, 67 Mich B J 762 (Au-gust 1988); Excerpts from a Dictionary ofModem Legal Usage, 69 Mich B J 1066 (Oc-tober 1990); An Excerpt from the Elementsof Legal Style: Rooting Out Sexism, 70 MichB J 942 (September 1991); Judges on Effec-tive Writing: The Importance of Plain Lan-guage, 73 Mich B J 326 (March 1994); Ex-cerpt from the Indispensable Book: Garner'sDictionary of Modem Legal Usage, 74 MichB J 1062 (October 1995).

3. Motor Vehicle Leases (December 1995); TheWord from the Securities and Exchange Com-mission: Put It in Plain English (December1996); Don't Stop Now: An Open Letter to theSEC (August 1997); Plain English Subcom-mittee on Contracts (October 1997); PlainEnglish in Car Loans (August 1998); PlainEnglish in Home-Equity Agreements (October1998); Plain English in Contract Recitals andBoilerplate (November 1998).

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