Wednesday, July 27, 2005

Language from claim ticket

I just returned from a plane trip. This text was on the back of my baggage claim ticket:

BAGGAGE IS SUBJECT TO APPLICABLE TARIFF INCLUDING LIMITATIONS OF LIABILITY CONTAINED HEREIN, FRAGILE ARTICLES ACCEPTED AT PASSENGER'S OWN RISK.

Comments:
  • There was no "herein" in which the limitations were contained.
  • Why is my baggage subject to a tariff?
  • And do we need the word "applicable"? How would my baggage be subject to an "inapplicable" tariff?
  • The comma is obviously wrong.
  • I had momentary confusion about who is doing the "accepting."
Are my expectations too high? Can we not write down what we mean in standard English?

Monday, July 25, 2005

Tone and style for email

Here's some email advice from a pro:

To determine the appropriate style and tone, consider three things:
  1. your relationship to the reader;
  2. the subject of the e-mail; and
  3. the purpose of the e-mail.
First: Who are you writing to, and how well do you know them? How would you talk to them on the phone or face-to-face?

Second: Is the subject casual and trivial, or is it a serious business issue?

Third: Will your readers review the message and delete it? Will the e-mail be filed? Will it possibly be printed out for distribution at a client meeting? Will it serve as evidence in a legal proceeding?

--Dianna Booher, E-Writing: 21st-Century Tools for Effective Communication 32 (Pocket Books 2001).

Thursday, July 21, 2005

Liking it

I am liking this conference on teaching contract drafting. I'm learning about things I haven't covered in my drafting course before. Things like--
  • using your expertise to improve the transaction for the client
  • negotiating the transaction
  • allocating risk in the transaction
  • managing the work of papering a transaction
  • etc.
Maybe I'll have to add those to the course. And maybe I'll have to use a textbook that covers them.

But for now, I like making the actual drafting (the writing) the focus of my course.

Tuesday, July 19, 2005

To Contract Drafting conf

On Wednesday and Thursday, July 20 and 21, I'll be attending the first national conference on teaching contract drafting, held at Northwestern University School of Law in Chicago. Details here:

Teaching Contract Drafting

Just imagine . . . legal drafting. The hair on my legs is standing up. Of course, that's because I used a new loofah in the shower this morning, but still. My leg hair can sense the excitement this conference will generate. Perhaps I'll get into a discussion of "hereby" or--dare I dream it?--"shall."

I'll check in with updates from Chicago.

P.S. You'd be surprised how many ways there are to spell loofah.

Monday, July 18, 2005

Student can write plainly

I gave my Basic Drafting students a long and legalistic-sounding website disclaimer to rewrite. Their assignment was to rewrite the text into what I call consumer drafting--legal text intended for a nonlegal audience.

When pushed, and I have pushed them, students can completely abandon the overformal, legalistic prose that is so common in legal drafting. They cut all the archaisms, the legal jargon, and the unnecessarily fancy words. They also wipe out the passive-voice constructions, the nominalizations, and the stuffy tone. Honestly, some of these original texts sound as if a robo-lawyer drafted them. The rewrites from my students sound like a human being drafted them.

This is what I strive for in legal writing and legal drafting: to sound like a human being.

Lawyers should sound like other professional writers. We should strive to communicate, not to impress or intimidate or baffle. We should not talk down to people--especially those who aren't' lawyers.

Let's write in standard English, as members of the Legal Writing Institute resolved in 1992:

"The language used by lawyers should agree with the common speech, unless there are reasons for a difference."

And the reasons for a difference are few. Almost none.

Read the entire resolution here:

Resolution on Plain Language by the 1992 Conference of the Legal Writing Institute

Friday, July 15, 2005

A better plain rewrite

Yesterday's rewrite prompted some comments. When I wrote "you can sue us only in Texas" I excluded consent to be sued in Texas. Careful reader Mark Burge pointed this out.

Also, must I use the words "jurisdiction" and "venue"? I'm willing to bet there are ways around them, but a careful lawyer may want to use them and then clarify them.

So how about this?
  • You consent to exclusive jurisdiction and venue in Texas. This means you can sue us only in Texas, and you consent to being sued in Texas. If you sue us, you must pay all the legal fees and costs of the litigation.
There's still room for improvement, no doubt. There always is with writing. But let me make a point about that.

Any effort to convert legal text into plain English will require input from others. Whenever I do a project to convert legal text into plain English, I always ask others to read and comment on the work. They will balance my zealousness, they will catch mistakes, and they will notice substantive gaps.

Never let a naysayer dismiss your plain-language efforts by pointing out that you made a mistake. This happened to Professor Joe Kimble in a Michigan Bar Journal article a few years ago. Remember, and remind naysayers: all first drafts are highly imperfect, and even final versions are rarely error-free.

Get candid input, make changes, and keep trying.

Thursday, July 14, 2005

We can do better, right?

I ran across this sentence in a document one of my students found on the Internet:
  • IF YOU INITIATE SUCH LITIGATION, YOU AGREE TO PAY ALL LEGAL FEES AND COSTS IN CONNECTION WITH SAID LEGAL MATTER, AND FURTHER AGREE THAT THE STATE OF TEXAS WILL HAVE EXCLUSIVE JURISDICTION AND VENUE OF ALL LEGAL MATTERS.
Granted, it's not worth much time and energy to make your website disclaimer a model of plain English. Any old language will do, right? But come on . . . "initiate such litigation"?

Breathe, Wayne.

How about this?
  • You agree that you can sue us only in Texas, and if you sue us, you must pay all the legal fees and costs of the litigation.
Aah. That feels better.

"said legal matter"?

Breathe . . .

Monday, July 11, 2005

Too informal?

I want your comments.

As you may know, I have been asked to revise parts of the Texas Pattern Jury Charges into plain English for a pilot program. I submitted a draft of the introductory instructions last week, and I was told they were "too informal."

Please read part of them, below, and tell me what you think. Remember, the judge will be reading these aloud to the potential jurors.
________

Instructions to the panel before jury selection

Ladies and Gentlemen: We're about to begin selecting a jury. Right now, you are members of what we call a panel. After the lawyers ask you some questions, 12 of you will be chosen for the jury. But before we start asking questions and choosing jurors, I'll give you some information and then go over the rules.

First of all, we thank you for being here. Even if you are not chosen for the jury, you are performing a valuable service that is your right and duty as a citizen of a free country.

Now I'll give you some background about the jury process. This is a civil trial. A civil trial is a lawsuit that is not a criminal case. This means no one has been accused of a crime and no one will be going to jail.

The name of this case is _____, plaintiff versus _____, defendant. The plaintiff and the defendant are called the parties.

If you're chosen for the jury, you will listen to the evidence and decide the facts of the case. I, as the judge, will make sure that the law is applied correctly and that the everyone follows the rules. I assure you we will handle this case as fast as we can, but we can't rush things. We have to do it fairly and we have to follow the rules.

Everyone must obey the rules: the judge, the lawyers, the witnesses, the jurors, and the parties.

If you break any of the rules, I will have to investigate it, and I may have to put you on the stand and require you to tell me about it. If you break these rules, I may also have to order a new trial. That means we would have to do this over again and waste everyone's time. Of course, that costs a lot of money, too. So please listen carefully to these rules and follow them.

These are the rules for the panel:
  1. Don't lie or withhold any information when the lawyers ask you questions. They are not meddling in your affairs; they are just being thorough. Give complete answers to their questions. Sometimes a lawyer will ask a question of the whole panel instead of just one person. If the question applies to you, raise your hand.
  2. Don't mingle or talk with the lawyers, the witnesses, the parties, or anyone involved in the case. Of course, you can exchange casual greetings like "hello" and "good morning." Other than that, don't chat with them. They have to follow these rules too, so they won't be offended.
  3. Don't accept any favors from the lawyers, the witnesses, the parties, or anyone involved in the case, and don't do any favors for them. This includes favors such as giving rides, food, and refreshments.
  4. Don't discuss this case with anyone, even your spouse, partner, or friend. And don't allow anyone to discuss the case with you or in front of you. If anyone tries to discuss the case with you, tell me.
Do you understand these rules? If you don't, please tell me now.

The lawyers will now begin asking questions.
________

Before I defend my revision, please tell me what you think.

Friday, July 08, 2005

Minor writing errors

On a recent trip, I saw this sign:

"authentic Amish made furniture"

What does this mean? That authentic Amish made furniture, but fake Amish didn't?

Of course it needs a hyphen:

"authentic Amish-made furniture"

I also saw this sign:

"No pet's in office."


And on a personal note, my son asked, as we drove from Texas into Arkansas, "Do they speak the same language in Arkansas?" And my other son answered "Yes. They even speak the same language in San Antonio."