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ClarityNumber 57 May 2007

Journal of theinternational associationpromoting plain legal language

Editor in chief:Julie Clement

Guest editors for this issue:Christopher Balmford andGeorgina Frampton

In this issueDuncan SarkiesOpening speech at the conference for the launch ofNew Zealand’s WriteMark plain English awards 5

Kathryn O’BrienJudicial attitudes to plain language and the law 9

Clarity member receives the Burton Award 13

Martin CuttsLord David Renton 24

On usage and clarity: a seminar in print

Georgina FramptonIntroductory editorial for the seminar in print 14

Sarah Carr and Martin CuttsLinguistic nasties and niceties:Who should we pander to? Or to whom should wepander? 15

Chris PetersA rant in favour of empathy and against relativism:the impact of grammar, punctuation andusage on clarity 18

Suellen ThompsonHouse style—whose style is it? 25

Naida HaxtonEditing judgments: lessons learned in law reporting 28

Clive JamesThe continuing insult to the language 32

Alec SamuelsPunctuation 36

Letter to the editor 39

Other articles

Susan BellImproving our writing by understanding howpeople read personally addressed household mail 40

Justin Vaughan, Ryan Thorne and Ben ZhangA redrafting exercise 43

Book Review

Marco StellaClarity for Lawyers—Effective Legal Writing 53

Clarity and general news 55–60

2 Clarity 57 May 2007

Patrons The Rt Hon Sir Christopher Staughton, The Hon Justice Michael Kirby, andH E Judge Kenneth Keith

Founder John WaltonCommittee

President: Christopher Balmford ([email protected])Members: Country Representatives plus Simon Adamyk, Mark Adler, Michèle Asprey, Peter Butt,

Sir Edward Caldwell, Richard Castle, Annetta Cheek, Julie Clement, Robert Eagleson,Jenny Gracie, Philip Knight, Robert Lowe, John Pare, Daphne Perry, John Walton,Richard Woof.

Country representatives

(Continued on page 54)

AustraliaChristopher BalmfordCleardocs.comPO Box 2225Hawthorn VIC 312203 9818 0211 (fax 03 9818 0599)[email protected]

BangladeshA.K. Mohammad Hossain1188/1 E Shewrapara, Kafrul Dhaka02 7162881 (fax 02 7171536)[email protected]

BrazilDominic MinettLex English Language Services LtdaRua Humberto I, 298Bloco B, Sala 2, 2o andar, Vila MarianaSao Paulo, SP 04018-030011 5084 4613 (phone & fax)[email protected]

CanadaNicole FernbachCentre International de Lisibilité5171 Decarie Blvd.Montreal, Quebec H3W 3C2514 845 4834 (fax 514 845 2055)[email protected]

ChileClaudia PobleteSenado de la RepublicaAvenida Pedro Montt sin N°Valparaiso032 [email protected]

FinlandAnu SajavaaraMinna Canthin katu 2400250 Helsinki09 42022280 (cell 40 7050939)[email protected]

FranceAnne WagnerDépartement DroitUniversité du Littoral Côte d’Opale21, rue Saint-Louis, BP 77462327 Boulogne sur Mer Cédex03 21 99 41 22 (fax 21 99 41 57)[email protected]

Hong KongJonathan Hugo9B Shan Kwong Court32 Shan Kwong RoadHappy Valley, Hong KongHong Kong SAR852 [email protected]

IndiaDr. K.R. Chandratre308 Commerce Avenue, 3rd Floor24 Mahaganesh ColonyPaud Road, Pune 411038020 [email protected]

IsraelMyla Kaplan054 3132010 (fax 04 8110020)[email protected]

ItalyChristopher WilliamsVia Taranto 3370031 Andria (BA)0883 [email protected]

JapanKyal HillApartment 706, Presle Tamaishi4-15-28 Toshima, Kita-kuTokyo 114-000303 5390 1700 (phone & fax)[email protected]

LesothoRetsepile Gladwin NtsihleleP.O. Box 131Botha-Bothe 4000027 [email protected]

MalaysiaJuprin Wong-AdamalDepartment of Human Resources Development1st Floor, Block A, Wisma MUIS88999 Kota Kinabalu, Sabah088 218722 ext. 199 (fax 088 211 554)[email protected]

MexicoSalomé Flores Sierra FranzoniSecretaria de la Funcion PublicaInsurgentes Sur 1971 Torre III Piso 5Col. Guadalupe InnDeleg. Álvaro Obregón01020 Mexico, D.F.1454-3000 ext. [email protected]

New ZealandLynda HarrisWrite Group Limited—Home of the WriteMark®

Level 6, 186 Willis StreetPO Box 9840Marion SquareWellington 614104 384 6447 (fax 04 384 6450)[email protected]

NigeriaDr. Tunde OpeibiDepartment of EnglishUniversity of LagosAkoka, Lagos01 5454891 3/[email protected]

PhilippinesVictor Eleazar4/F Unit C-2 Marvin Plaza Building2153 Chino Roces AvenueMakati City 120002 816 7673 (fax 02 816 7740)[email protected]

PortugalSandra Ramalhosa MartinsRua Escola do Exército 70 3°E1150-145 Lisbon93 [email protected]

SingaporeLei-Theng LimFaculty of LawNational University of SingaporeEu Tong Sen Building469G Bukit Timah Road, 2597766516 [email protected]

SlovakiaIng. Ján RendekDonnerova 29/3Bratislava 841 04905 356 [email protected]

South AfricaCandice BurtSimplifiedBox 1362Bedfordview 2008083 3806893 (fax 450 1585)[email protected]

Clarity 57 May 2007 3

This issue

An international associationpromoting plain legal languagewww.clarity-international.netPresidentChristopher [email protected]

Clarity … the journalPublished in May and November

Editor in chiefJulie ClementPO Box 13038Lansing, Michigan 48901Fax: 1 517 334 [email protected]

Guest editor for next issueSarah CarrCarr Consultancy67 Common LaneCulcheth, Warrington WA3 4HB [email protected]

Advertising ratesFull page: £150Smaller area: pro rataMinimum charge: £20Contact Joe Kimble, [email protected]

Copyright policyAuthors retain copyright in their articles. Anyonewanting to reproduce an article in whole or in partshould first obtain the author’s permission andshould acknowledge Clarity as the source.

If the Revised Rent payable on and from anyReview Date ha e relevant ReviewDate rent R payable at therate prev eed RevisedRent pa forthwithpay to differencebetwee f Rent inrespect e relevantReview ceeding theRent Date attainmentand rent pa spect ofsuch period tog latedRate on each installment of such diffe e

ClarityUsage, certainty, and clarity

Why was the international media so excitedlate last year by the Canadian court case in-volving the “million dollar comma”? The storyabout this—presumably, humble—speck of inkmade it into Canada’s The Globe and Mail, it madeThe New York Times, it even made it into Clarity.

The case involved a dispute over a phonecompany’s attempt to cancel a contract withCanada’s largest cable television provider. AsThe New York Times put it, in “The Comma ThatCosts 1 Million Dollars (Canadian)” (25 Oct-ober 2006), “... the argument turns on a singlecomma in the 14-page contract. The answeris worth 1 million Canadian dollars ...”

But why the media interest? The case is merelya sharp example of the simple but terrifyingfact that every court case involving the inter-pretation of a document—whether contract,letter, legislation ... whatever—is evidence of afailure in drafting. What an enormous pile ofdrafting failures there would be if all the casesand disputes involving “interpretation” weregathered from every court in every country.

The “million dollar comma” case surely con-firms for all time that traditional legal draftingis inaccurate, uncertain, and imprecise.

In that light, traditional legal drafting can beabandoned in favour of an ongoing quest fora clearer more reader-focussed style. (Thoughto be sure, even the clearest, most reader-focussed document may have usage errors—or other issues—that lead to inaccuracy, impre-cision, or uncertainty; or, horrors, all three.Has the perfect legal document been written? Isit capable of being written? Oh to write it! Sigh.)

Usage—The theme for this issue of Clarity

In this issue of Clarity, we focus on usage—inhonour of the “million dollar comma” and ofits ancestor that led to Sir Roger Casementbeing “hanged on a comma” (see Lynne Truss,Eats, Shoots & Leaves) and Alec Samuels’sarticle in this issue of Clarity.

Just as proponents of plain language focus onlanguage, structure, and design, usage deservesour attention. With that in mind, we have gath-ered 6 articles and put them together as a“Seminar in Print”. The seminar has its ownintroductory editorial on page 14.


Beyond the theme

Before the seminar in print on usage, this issueof Clarity begins with the text of the openingaddress at New Zealand’s inaugural “PlainEnglish Conference and Awards 2006”presented by WriteMark and The Write Group(www.write.co.nz).

The opening address by writer and comedianDuncan Sarkies was delivered at a pre-conference breakfast. It was the perfect startto the day, linking our work and our cause toalmost every aspect of most people’s lives. Ifsometimes you feel you may be “getting a bitbored with the whole plain-language thing”,then read Duncan’s brilliant address to remindyourself of why plain language matters.

Then read on as Justice Michael Kirby of theHigh Court of Australia (and one of Clarity’sco-patrons) reviews judicial attitudes to plainlanguage in an interview by Sydney lawStudent Kathryn O’Brien.

Then comes the Seminar in Print on usage.

The Seminar is followed by an article fromSue Bell summarising the learning from herdocument-testing projects. Sue helps us under-stand how we can write in a way thatencourages people to read the business mailthey receive at home.

Then to show us just how clear plain languagecan be, 3 Sydney law students, Justin Vaughan,Ryan Thorne, and Ben Zhang, present high-lights of their rewrite of a contract.

Marco Stella then reviews the second editionof Mark Adler’s book Clarity for Lawyers—Effective Legal Writing. Then Mark himselfcomments on split infinitives.

To almost conclude this issue, Lynda Harrisfrom New Zealand’s The Write Group reportson the NZ conference and award day—thebreakfast address of which began this issue ofClarity.

Then at the back, there are the regular sectionson member news and new members. And a mes-sage from the president about Clarity’s plans.

Please read and comment on Clarity’s plans.The Committee welcomes your thoughts.

Enjoy

Christopher Balmford, Melbourne AustraliaGeorgina Frampton, Sydney Australia

New Zealand’s first plainEnglish conference and awardsday—the opening address

2006 and 2007 New ZealandPlain English awards

Lynda HarrisFounder and CEO of WriteMark Limited

[The article beginning on page 5 was the break-fast welcome at New Zealand’s first plain Englishawards. It is a joy. … as is the plain-languagenews from New Zealand …Ed.]

New Zealanders baffled by gobbledygookand impenetrable legal documents can takeheart—change is afoot. Some of the country’stop government organisations and businesseswere honoured last October in New Zealand’sfirst plain English awards. And it was a lawfirm that took the premier award!

The WriteMark Plain English Awards 2006 wereheld as the grand finale to New Zealand’sfirst plain English conference.

Sponsored by Write Group Limited, the awardsattracted strong competition from organisationsall over New Zealand. More than 130 guestsgathered for the black tie event at Wellington’sTe Papa Museum to hear the finalists and win-ners announced in the seven award categories.

Look out for the 2007 conference and awards

This year’s conference and awards will be heldin Wellington, New Zealand on 16 Novemberand will feature a number of internationalplain-language experts including AnnettaCheek (USA). Annetta has been the chair of theinteragency plain-language advocacy groupplainlanguage.gov, since it was founded over10 years ago. She is also vice-chair of the boardof the private sector Center for Plain Language.

A report on the 2006 awards appears onpage 57.

More details about the 2007 awards will bepublished at www.writemark.co.nz verysoon. Overseas delegates most welcome.

Write Group is a New Zealand firm that has specialisedin plain English training, campaigning and consultancyfor the past 17 years. Write Group’s sister organisation,WriteMark Limited, launched New Zealand’s plainEnglish quality mark in March 2005.


Duncan Sarkies

[For the first few minutes of Mr Sarkies’s speech,a translator assisted. Translations are in bold.

For more information about the WriteMarkawards, see page 57 and www.writemark.co.nz.

By the way, as you read, try to “read it as aspeech”. It’s worth it. Ed.]

The name of the speaker is Duncan Sarkies.

My name is Duncan Sarkies.

A creative instigator of fictional works is,primarily at least, the occupation of thespeaker before you.

I am a fiction writer.

Cinema and theatre are amongst the mediathat I, the speaker, have had the pleasure offacilitating in my chosen area of expertise inthe field of creative instigation.

I have written for film and theatre

Furthermore, I have also been lucky enoughto be solely responsible for the penning of acollection of anecdotal prose pieces, all ofwhich could be categorised as of the briefvariety, which were collated together andprinted in book form.

and I have written a book of short stories.

Business documentation, including strategicand marketing—encompassing both adver-tising in visual mediums and in hard copycorrespondence formats—not to mention in-house communications and communicationsto colleagues off-site in connection with avariety of commercially sensitive materialsincluding procedural audits, reports andmethodology assessments have not beenwritten to any great degree by the speaker.

I have not written many business documents.

However many of these documents andcommunications have undergone carefulexamination.

But I have read them.

Upon commencement of examination, andperhaps it could be said as a result of muchof the documentation, the addresser who isbefore you today has had multiple occasionsof complete bafflement as to the meanings ofsome, but not all, of said documentation.

And I have often been bamboozled by them.

[At this point, Mr Sarkies found his true voice,and the interpreter left the stage. Ed.]

We are living in the information age. It’s awonderful time to be alive. Information isalways at our fingertips. Everywhere you look… helpful words, sentences, sound bytes,slogans, e-mails, jingles, questionnaires, virtualbirthday cards, infomercials, computer-generated reminder messages of overdueaccounts, people on television giving youadvice on how to eat better, people convincingyou to buy things you need and things youdon’t need, people trying to convince you todrive a fast car, and people trying to scareyou so you won’t drive fast,

people rescheduling meetings with predictivetexting, people emailing you on how to in-crease your brain power, how to sleep betterat night, how to improve your immunity,how to hook the plasma screen up to the dvdrecorder, how to make the toaster complywith electricity regulations, how to dispose ofyour hamburger remnants using the handyrecycling trays:

remember to put food in the food baskets andwaste in the waste baskets and recycling inthe green bin and rubbish out on a Tuesdayand yoga classes on a Wednesday and don’tbe late for the PowerPoint presentation on

Opening speech at the conference for the launch of

New Zealand’s WriteMark plain English awards


Thursday and leave a key out for the plumberon Friday and remember to reset your clockfor daylight savings and don’t forget to brushyour tongue as well as your teeth and youranti-virus software has just been installed, doyou want to register now or register later

and don’t forget to give flowers this Valentine’sDay—you can order them online, and whenyou cross the road look right, then left thenright again unless you are in a right-handdrive country where you look left then rightthen left again and remember that eventhough broccoli used to be good for youscientists have now decided that broccoli isbad for you and if your printer isn’t workingit might be because your USB cable iscurrently connected to your USB vibratinghand-massager,

and if you are going to download anattachment check the size first becauseif it is too big the system will crash and whenthe system crashes, whatever you do, don’tturn the computer off without shutting itdown first, and to learn to do that you’ll needto book an appointment with Rhonda atResource Management

and if you really want to park in the suburbof Mount Victoria you’ll need a resident’spermit and to get a residents permit you’llneed to prove you live in the suburb of MtVictoria and to prove you live in the suburbof Mount Victoria you’ll need to bring a bankstatement if you pay rent, or a homeowner’scertificate if you’re a homeowner, and somemail addressed to you and two forms ofidentification to prove that you are who yousay you are because this is the age of identity-theft and spyware and motion capture andsudoku and extra fat newspapers on theweekend

and wheat grass is the latest health fad andugg boots are in fashion inside, and out offashion outside, and to tune the televisionyou’ll need to read the instruction manualwhich is in five different languages and you’llneed to find the remote which is under thecouch and while you’re under it, could youhave a look for that missing power billbecause I wrote the telephone number of theinsurance company on it and I must havetemporary amnesia because I’ve forgotten myphone account number and I’ve forgotten thepin number on my EFTPOS card and I’ve

forgotten my e-mail password and I have noidea what my video store password is andI’ve forgotten my own cellphone number andI need it because I’ve lost my cellphone andwithout that I’m really stuffed

and is it any wonder that there are morepeople than ever falling over from stressbecause we are all suffering from TOOMUCH INFORMATION, and nobodywarned us, they said the information agewas going to be a good thing but its quicklyturning into a nightmare...

Okay, take a breath.

It’s not that bad...

We’re all coping...

There’s too much information, but we’recoping...

How do we cope?

We block out what we don’t need to see. Aletter arrives in the mail and if it doesn’t hookus in three seconds we chuck it in the bin andwe block it out. An e-mail pings into our inbox,but if it doesn’t get to the point, we click tothe next one and block it out. All unnecessaryinformation is blocked out. If you don’t makeit easy for me I will block it out and it’s notbecause I’m dumb, and believe me, I don’twant to be treated like a dummy—it’s becauseI feel harassed and I feel busy. And guesswhat? I can block out nine-tenths of theworld and still function like nine-tenths of ahuman being. How come no-one notices?Because everyone else is doing it. I’m just onein the crowd...

Whose at fault here?

Should we blame society? Computers? Is itOsama’s Bin Laden’s fault? The United Statesof America? Shall we blame the Government?What about God? Lawyers—people alwaysblame lawyers—let’s blame lawyers. Orteachers. They should have taught us better.Is it astronauts’ fault? What kind of messagesare astronauts sending to our kids? Whosefault is it that I can’t be bothered readingyour important document?

All of us are the problem. We all have needs,and we all need to communicate. A lot of thiscommunication is well-meaning—we justwant to help people by keeping them betterinformed. The trouble is there is so much of


it. If all of us in this room were to hand eachother one important document to look over,we would all be kept busy for a week. Ourin-trays are filling faster than our out-trays.So we block each other out. Report spam—noproblem. Do you want to save this messageor delete this message? Delete. Shall we filethis or shred it? Shred it. Shall we dispose ofthis hard-to-understand information, or shallwe store it somewhere in our clogged upbrains? Hmmm... Dispose.

Here’s a fun game…

Let’s all fax each other. Actually if we reallywant each other’s attention we should e-mailthat we are about to fax, we should follow upthe fax with a phone call—hopefully whenno-one is in so we can leave an answer-phone message, then e-mail a reminder withthe time and date we sent the fax. Then faxagain to check the fax was working, a follow-up cellphone message, e-mail to check thecellphone answer phone is working, andthen finally after a few rounds of phone tag,we text each other to find a good time to calland then we get hold of each other and saywhat we wanted to say, “Do you want tohave lunch?” “Why?” “There’s something Iwant to discuss.” “What is it?” “I’d rather notsay over the phone.” “Why not?” “Actually,I’d rather not say what it is at all. I’d ratherjust babble and play this stupid game of com-municating without actually communicating.”“Oh, well I’m actually a bit busy.” “Me too.”“Okay, when shall we meet?” “Um, I haven’tgot my diary with me. I’ll e-mail you, okay?”

Too much information. .... What can we do?

Autism might be an answer.

Shall we close our ears and eyes and hope forthe best?

We need to give each other information. Afterall, this is the information age.

Without information we won’t know how toturn off the computer. We won’t know howto make an insurance claim. We won’t knowwhat to do in an earthquake—that’s an issuehere in Wellington. We won’t know how toget out of bed.

We won’t know how to do anything, so...

So we need to keep talking. This is, after all,the information age.

So how’s this as a compromise?

I understand that the information you needto give me is important. I just want to get theinformation quickly and easily. I want to getthe information and get out. I want the infor-mation to be pleasant and pain free. I don’twant to read the document twice becausethese days, I get dizzy easily.

* * *

Plain English does not mean stupid English.Plain English does not mean it is written onlyto be understood by Teletubbies. Otherwise,they would have asked a Teletubbie to givethis speech. Plain English is not English fordummies.

It just means taking your time to be clear andconcise. It means having respect for yourreader. Plain English is written for the reader.

“Who’s that?”

“The reader.”

“Why would you write for the reader?”

“Because they’re gunna read it.”

“Yeah but... I mean... Naa… because... Imean... Thanks for the tip but...

I don’t even know the reader, I mean...Who is the reader anyway?”

Excellent question. Perhaps you should havea think about that...

* * *

Writing is harder than talking.

Why? Because the expectation is that moretime and care has been taken.

With talking off the cuff, we are often formu-lating as we are speaking.

I might say the same sentence twice but indifferent words, when I’m figuring out whatI think.

Or to put it another way, when I am clarifyinga thought in my head, I will often say it againbut use a different collection of words.

I will say the same sentence several times withdifferent words as a way of forming my ownopinion.

It’s called thinking aloud.

You shouldn’t think aloud on paper and thenshow it to people. By all means do it as a pro-


cess if it helps you. But the reader doesn’tcare about the long and winding road youtook to form your opinion.

As readers, we expect more care to be takenwith the written word. If I am having a con-versation with you, then I don’t point out thegrammatical flaws in your sentence structure.Compare that to the glee I feel when I canshow you a typo in a menu. And if there areseveral mistakes in a brochure, it makes mequestion how competent the company is.

Yet for some reason, people spew out lettersand e-mails and all sorts of documents andprint them off and send them out as fast asthey can. These documents represent you. Ifthey are sloppy, you will appear sloppy. Mostof us would tuck our shirts in before going toa meeting, so why would you not take thesame care with what you write and send?

* * *

I stole this story from a WriteGroup manual.Winston Churchill had written a ten-pageletter to a friend. The friend wrote back saying,“Your letter was extremely informative, but Idon’t know what to make of it,” to whichChurchill replied, “I’m sorry, but I didn’t havethe time to write a shorter letter”.

The great paradox is that it is harder to writea simple document than it is a complex docu-ment. It takes a writer time to save a readertime, but believe me when I say this: it is timewell invested.

Writing in plain English is curious becausewe think it should be easy. It’s easy to read.So it should be easy to write. Well, the goodnews is that it can be easy to write clearly—ifyou can pick up some simple techniques andre-train yourself to treat the act of writingwith the respect it deserves.

If it all seems a bit intimidating, rest easy—it’snot as hard as it sounds. And we’re luckybeing here, because there are people in thisroom who have the skills to help us.

* * *

I want to finish off with a sideways thought.Because I’m a sideways sort of person. A lotof us probably think we’re terrific communi-cators. Be warned. People who think they aregood communicators are more likely to sufferfrom verbal diarrhoea.

I thought I was a good communicator becauseI was good at talking and pretending to listen.To improve my ability as a communicator Ihad to stop faking and start listening again.And while I was listening to people, I discov-ered this: Some people speak in questions,and some people speak in statements. Somepeople are willing to change their minds,some people can never be budged. Somepeople like the sound of their own voices.Some people like the sound of other people’svoices. Some people engage. Some peoplenever leave their own headspace.

And this one’s the biggie. It is easy, whentalking to someone, to tell if they are wise orif they simply act wise. Anyone can tell thedifference. There is one distinguishing charac-teristic that separates these two groups:

Wise people never stop learning. People whoact wise are far too proud to learn.

I hope you’re not too proud to learn.

Cheers.

© DSarkies [email protected]

In New Zealand, Duncan Sarkies is most known forwriting Scarfies, which is New Zealand’s sixth highestgrossing film. He is a novelist, play-write, short-storywriter and performer. His novel Two Little Boys, TwoLittle Boys is due to be published by Penguin in 2008.He has recently started working for a plain Englishcompany in New Zealand, Write-Group.


Kathryn O’BrienLaw student at the University of Sydney

Interview of Justice Michael Kirby,High Court of Australia

Research project supervised by former ClarityPresident Professor Peter Butt.

Wednesday, 1 November 2006

KOB: Thank you very much for agreeing tosee me, and for forwarding me a copy ofyour review of Professor Kimble’s book,Lifting the Fog of Legalese.1 I am delighted tohave the opportunity to speak with you.

You mentioned that you are a judge with anunorthodox opinion, in that you support theplain-language movement. In the course of myresearch, I have found that very few judgeswill say they are against plain language, butit will sometimes emerge that they neverthe-less have some strong reservations about it.

Justice Michael Kirby: Some lawyers havegot a lot of issues on this topic I’m afraid. I’veseen this in the courts over the years. Thereare some judges—indeed I would say many,and even possibly most—who are psycholog-ically resistant to any talk of “plain language”,or “plain English”, or “new language”, orchanging things long established. They loveto mock so-called plain-English drafts and topoint to their defects. Now, some of thosedrafts do have defects. Indeed, virtually everydraft of anything ever written by a humanbeing has defects. But nothing gives antagon-istic lawyers greater pleasure than pointingto suggested defects in plain-language drafts.This seems to vindicate, for them, the priestlycast of the legal profession and their ownpsychological and emotional resistance to theplain-language movement. I always distancemyself from such remarks.

KOB: In the book review, you note that youare a patron of Clarity, an international

organisation devoted to improving legalwriting. What sparked your interest in plainlanguage to begin with?

Justice Kirby: I think it goes back to my timein the Law Reform Commission. I wasappointed Chairman, as the title was thennamed, of the Australian Law ReformCommission in 1975. In 1976, the first full-time Commissioner was appointed—thatwas Professor David St L Kelly. He was alsoappointed the Commissioner in charge of theinsurance contracts reference. That led to avery careful scrutiny of all the insurancepolicies then in force in Australia. That led,in turn, to his realisation of the obscurities,antiquities and misleading, complicated anduncommunicative features of many insurancecontracts. That led to him becoming veryinterested in the plain-language movement.That, in turn, led to his making contact withProfessor Vernon Countryman, an AmericanProfessor who was very much involved at thetime in the plain-language movement in thatcountry. I’m talking about the early 1980s. Indue course, that led to my becoming interestedin it, because I was Chairman of the Com-mission, and a member of the division of theCommission which was working on theproject. So I just became interested in thisissue. I began to read about it. I began to seeexamples of plain English. And from that,and later contacts with Professor Peter Buttand other distinguished Australian writerswho were involved, most particularly inVictoria—there was a whole cabal of themin Victoria—I became quite committed to theefforts to introduce plain language in legalwriting.

So that’s how it came about historically. Isuppose my emotional predilection for plainEnglish went back long before Professor Kellyand Professor Countryman. Probably it goesback to my earliest upbringing, and my earlyteaching, and my love of clear and simpleEnglish, which is my native language. It is, ofcourse, a language which is inherently disput-able. That’s because English, unlike manylanguages, is the combination of two powerfullinguistic streams: the language of the originalAnglo Saxons, the Germanic base, which isthe language we speak in the kitchen, andthe language of professions, scholarly work,and complex specialised writing, which wasinfused with the French language of William

Judicial attitudes toplain language andthe law


the Conqueror. This is the language we tendto speak and write in courts and in legal prose.So we have this combination of languages inthe one tongue. It makes English a languagevery rich for literature and poetry, but some-what ambiguous and therefore needing ofattempts to adopt simple expression in mattersof important legal obligations as a matter ofconscious strategy.

KOB: You note in the book review that legalargument is often so complex that it can’talways be simplified in the manner thatProfessor Kimble suggests. I was wonderingif you could elaborate on the reasons whyyou have some hesitations about ProfessorKimble’s suggestions?

Justice Kirby: If you have a look at theCommonwealth Places (Application of Laws) Act1970 (Cth), for example. Just have a look atthat statute. It was drafted by Mr JohnEwens, QC, who was the first parliamentarycounsel of the Commonwealth.

He was a brilliant man, basically a mathe-matician. His son became a Professor ofMathematics at Monash University and at,I think, Chicago University. So that was thesort of mind John Ewens had. He was giftedwith great skills in legal drafting. He draftedthe Insurance Contracts Act 1984 (Cth) arisingout of the work of the Australian Law ReformCommission. Earlier, he had drafted theCommonwealth Places Act. If you read that Act,or if you read, for example, some of the Limi-tation statutes that have been considered in thelast year by the High Court of Australia,2 youwill see how complicated are the concepts. Asa consequence, the expression is also compli-cated. Some concepts in law are quitecomplicated. The more the judges don’t giveeffect to the legislative purposes, the moredetermined the legislators become to spellthem out in great detail. This leads tolegislative expressions which are verydetailed and complicated. Sometimes it isdifficult to reduce the concepts to simpleexpression. On the other hand, as ProfessorJoseph Kimble points out in his book, and as Ipointed out in my review,3 there are somesimple rules that you can adopt which willhelp you to speak and write more clearly inEnglish. Short sentences; more direct expres-sion; avoidance of clichés; writing more closelyto the way we speak—these and other simplerules are ways in which lawyers can makelegal expression clearer and simpler.

The sad thing is that this subject and its tech-niques are not really taught in Australian lawschools. There was an attempt at Sydney LawSchool to introduce such teaching, but it didnot endure. Professor Butt was involved in it.There is a need to introduce this subject at theearly stages of legal education, because other-wise, once people have fallen in love with the“wheretofores”, and the “whereupons”, it isalmost impossible to rescue them and to cap-ture their hearts as well as their minds, andbring them back to expressing things simplyas they basically do in the kitchen. Prefer theAnglo Saxon word to the French, and youhave another rule for simpler expression,because that is the language in our genes,our basic language, the Germanic language,before the Conqueror came along and com-plicated things.

KOB: Some of the judges I have spoken tohave commented that judges have writtenincreasingly longer judgments over the lastone hundred years or so. Why do you thinkjudgments have become longer?

Justice Kirby: That is because many contem-porary judges no longer believe that legalmatters can be simply solved by taking outa magnifying glass and looking at words—words in the Constitution, words in the statute,words in the common law decisions. For me, asan example, context in the law is everything.4Therefore, it’s necessary, in my mode of reason-ing, to explain the context, including the socialcontext of the problem in hand, in order toexplain how I come at my decision. That maymake the reasons longer. But I think my reasonsare simpler and clearer. Many students tell methat that is so. Of course, they might just beflatterers, and perhaps I shouldn’t pay anyheed whatsoever to students. But I often needto know a lot about a particular branch of lawin order to explain to myself why I come to aconclusion. Especially so if my conclusion isdifferent from that of my colleagues. I need tohave a clear view of the facts; a clear statementof the applicable law; a clear explanation ofthe issues that emerge; and I do feel an obli-gation to explain, acknowledge and answerthe principal arguments of the parties. I dothis out of a sense of natural justice, to makeit plain that I have considered, addressed andreached a conclusion on the main arguments.Not everybody feels that that is necessary.Some don’t even think it’s appropriate. I mustrespect their way of doing things. But that is


the way I do things. It’s very largely connectedwith a contextual view of legal problems.Psychologists say that women are generallymore contextual, and that men tend to bemore linear and verbally logical. Maybe it ismy female genes that are having this effect inme. However, if I go down that path, we won’tknow where we might end up. So I don’tthink I will explore that further! But therewould be lots of explanations. They’re themain ones.

KOB: At the end of your book review, youargue that “Lawyers are often quite good inoral communication. What we need is to getthem to write in the simple way in which thebest of them speak.”5 Does this mean that youfind, for example, that barristers’ oral submis-sions are often clearer and simpler than theirwritten submissions?

Justice Kirby: Written submissions tend to betighter. Lawyers have got to put it down andview it, and study it, think about what they’vewritten. That, therefore, tends to make writtensubmissions more precise and better thoughtout. On the other hand, persuasion isn’t alwaysabout logical communication. Persuasionincludes sending signals through electronicmessages in the brain to other parts of thebrain, but also to the heart, and to feelings ofempathy, intuition, emotion. Therefore, writtencommunication has perhaps a different role,supplementary to oral communication. Whatwe are now seeing in the world, the Anglocommon-law world, is a gradual increase inwritten communication, to the cost of timespent hearing oral communication. One aspectof that move is that you do get more formal-ised writing. It is more precise. But it is moreformal. That means it’s going to have moreFrench words in it. And to be more complicated,and to include references often necessary to thecomplexities, the exceptions, the qualifications,the analogies, the cross-references and all ofthe variations that go into a complex legalargument. Oral communication, on the otherhand, has to speak more clearly and directlyto the recipient. It therefore tends to have moreGermanic words, and to be simpler. This isbecause that’s the way we talk when we’retrying directly to persuade.

KOB: You note that word processors “riskembalming current errors for regurgitation byfuture generations, even future centuries.”6

Some of the judges that I have spoken to have

commented on the rise of what they call “cutand paste judgments”. This is a reference toa perceived tendency among some judges towrite judgments that are peppered with largeslabs of submissions, or slabs of other judgments,that have been “cut and pasted” into a Worddocument without being carefully thoughtthrough. Do you agree that the word processorcan facilitate sloppy writing in this way?

Justice Kirby: I don’t know about that, thoughthat very point was put to me only yesterdayby a colleague in the High Court. He expressedthe same concern. He expressed the anxietythat the problem with “cut and paste”, or thecomputerized equivalent, is that slabs will beincluded without properly digesting what isincluded, and without it actually going intothe writer’s brain.

I’m not a great one in my reasons for quotingslabs in the opinions of other people. I didlearn in my time in the Law Reform Commis-sion the great importance of synthesising andconceptualising. Therefore, you won’t see lotsof slabs of quotations in my reasoning. Yetincluding them is not an uncommon way ofwriting reasons. It varies between judges. Itisn’t a judgment-writing style that I like myself,because I think it’s important for the judge tosay what he or she thinks, rather than whatother judges or authors, in earlier times, havewritten about problems that can never be quitethe same problem that is before the courtwhere the decision is being made.

Having said that, there are two qualifications.First of all, I am now a justice of the High Court.Therefore, it isn’t perhaps as important forme to have slabs of other people’s writing as itis if you are in a court under the High Court.There, it may on occasions be important to seta passage out, a critical passage out of a deci-sion of the High Court or perhaps a Court ofAppeal, because it expresses part of the bindingrule that governs the legal determination of thecase. Secondly, judges of trial, and to someextent judges of intermediate courts whenthey’re conducting an appeal by way of re-hearing, often have to include critical passagesof the evidence. They must do so at some lengthin order to explain the factual determinationsthat they reach. Once you get to the High Court,at the second level (or sometimes third level) ofappeal, you are really dealing usually withissues that are more conceptual and havealready been refined. So it isn’t necessary, in my


view, to have large passages of detailed judicialor textual elaborations or factual evidence. Atleast, it isn’t normally necessary or useful. Thetask is different once you get to the High Court.

But that’s just my opinion. Every judge isindependent, not only from outsiders, butfrom other judges, including other judges inhis or her own court. Other judges will havedifferent writing styes, consider differentthings important and write in different ways.Furthermore, different generations tend towitness different styles of writing. If we nowread Oliver Wendell Holmes, Jr, in the UnitedStates Supreme Court it seems very flowery.Yet he was undoubtedly a great judge, andvery influential. The way things are writtenby judges does tend to follow fashions ofwriting. That is just going to vary from timeto time. Style is just a feature of changingtimes.

KOB: In terms of changing writing styles,one judge I spoke to mentioned that in olderjudgments, you tend to come across a lot ofbiblical allusions—for example, ‘Who is myneighbour?’ in Lord Atkin’s speech inDonoghue v Stevenson. The judge mentionedthat you do not tend to see biblical allusionsin more recent judgments; there is no longeran assumed knowledge of the Bible. Haveyou noticed that sort of change in judgmentwriting?

Justice Kirby: We are a less religious societythan we once were. We are also a multiculturaland multi-religious society. Insofar as religionis still important, we all know that we have torespect a variety of religions, and not simplythe Christian religion. That has probably ledto people being less inclined to quote from theholy book of particular religions. When I wasyoung, as was normal, natural, and in anycase, it was what happened in my case, I wassent to Sunday school, then to church.

Then I was confirmed. I still count myself asa member of the Anglican Church, and of theChristian religion. It is just part of me. I love theliturgy of the Anglican Church in the Book ofCommon Prayer. It is most marvellous language,very spiritual in my opinion. It was writtenby Archbishop Cranmer and his colleagues. Ifind it intensely moving. Yet I believe that manyyounger people today find that language a bigturn-off. Therefore, there are moves to simplifythe liturgy.

Of course, there are some things that are not soeasily simplified, because they have a mysticalor spiritual content in the language that ischosen. Perhaps it was chosen precisely becauseit is not everyday language. “O God, who artthe author of peace and lover of concord, inknowledge of whom standeth our eternal life,whose service is perfect freedom.” How wouldone translate that into plain language? “God.You invented peace. Believing in you is not aburden, it’s freedom7.” You see—it wouldn’tbe quite the same. So it’s a matter of horses forcourses. Nevertheless, there’s a big differencebetween an insurance contract, a bill of sale,or an Act of the Parliament and a prayer-book. So what is appropriate to the mysticallanguage that lifts the mind into a differentand other-worldly realm, and reminds theparticipant of spiritual and non-worldly values,is not necessarily what is appropriate to acommercial contract, or a judicial decisionon a negligence action. Horses for coursesshould be our guiding rule.

KOB: On the first page of your book review,you note that the use of the second person—the pronoun “you”—can make writing moreapproachable to the ordinary reader. Judges Ihave spoken to have noted that some legislation—the A New Tax System (Goods and Services Tax)Act 1999, for example—is written in the secondperson. A provision will say that “you mustnot” do something, instead of “a person mustnot” do something. Do you approve of the useof the second person as a drafting techniqueto make legislation seem “friendlier” andeasier to understand?

Justice Kirby: That is particularly hated bymany judges. They hate it. And they reactvery adversely to it. And I suspect that some,though I won’t name names, then try to showhow foolish and stupid it is. I must admit Idon’t like a statute written in the secondperson. I like a statute to be in the languageof a command from Parliament, which isgoing to be in the third person. However,maybe I will get used to statutes in the secondperson. So far, there aren’t many of them. Ithink we should be open-minded to the factthat there may sometimes be a place for differentways of expressing parliamentary commands, as,for example, in consumer legislation, which anordinary person can pick up and understandmore easily if it is expressed in the secondperson. The passive voice is the most horrible


enemy of clear expression. Justice McHughalways used to denounce it and try to avoidit, and I try to avoid it.

It would actually be interesting to me to havesomeone go through one of my opinions andto critique it from a plain-language point ofview. No doubt I could learn lessons from that.True, it is getting a little late in the day, giventhat I only have a bit more than two years togo in judicial office. However, one is alwayslearning. I would be quite happy to continueto learn. Keep an open mind, I say.

On the other hand, I would not sacrifice thingsthat seem important to me, such as the obliga-tion to answer the submissions of parties. Tome that’s not negotiable because I regard it aspart of the judicial function. By my argumentsI cannot always persuade a party whose causeI reject. But I hope I can persuade them thatI’ve given serious and thoughtful attention totheir submissions about those questions. Maybemy attitude in this respect comes from the factthat I don’t regard myself as a true memberof an elite. I came from ordinary citizens. Mymind is still there with ordinary citizens. Itherefore feel an obligation to explain to ordi-nary citizens and so far as it is possible to speakin their language. This is a mighty well springfor plain language.

KOB: Thank you very much for your time andconsideration, I am delighted to have had thisopportunity to speak with you.

© KO’Brien 2007kathryn.o’[email protected]

Endnotes1 (2006) 80 Australian Law Journal 623.2 See, for example, Queensland v Stephenson (2006)

80 ALJR 923.3 J Kimble, Lifting the Fog of Legalese: Essays on Plain

Language (2006), reviewed (2006) 80 ALJ 623.4 R (Daly) v Secretary of State for the Home Department

[2001] 2 AC 532 at 548 [28], applied in Siemens Ltdv Schenker International (Australia) Pty Ltd (2004)216 CLR 418 at 460 [128]; Al-Kateb v Godwin (2004)219 CLR 562 at 624 [174]; Re Minister forImmigration and Multicultural and IndigenousAffairs; Ex parte Palme (2003) 216 CLR 212 at 229[64]; Maroney v The Queen (2003) 216 CLR 31 at 51[63].

5 (2006) 80 ALJ 623 at 624.6 (2006) 80 ALJ 623 at 624.7 Book of Common Prayer, Second Collect for Peace.

Kathryn O’Brien interviewed 20 of Australia’s mostsenior judges in 2006 for a project on judicial attitudesto plain language. She conducted the research as a finalyear law student of Professor Peter Butt at the Universityof Sydney. She hopes to publish the results of the surveylater this year. Kathryn is now a Law Graduate in theSydney office of Mallesons Stephen Jaques, a leadingAustralian law firm.

Clarity member receives the Burton Award

On June 4, former Clarity President Joseph Kimble was honored with the prestigious“Reform in Law” Burton Award, an award established through the United StatesLibrary of Congress and the Law Library of Congress. Joe was recognized for his workas drafting consultant for the newly revised Federal Rules of Civil Procedure. Theoriginal rules—more than 300 pages—were drafted in 1937; they have never beencompletely rewritten until now. The United States Supreme Court approved the newrules and sent them to the United States Congress in April. They are scheduled to takeeffect on December 1, 2007. A recent news release sums up Joe’s work:

“The new rules will help put to rest the mistaken notion that laws and rules must bewritten in the archaic, inflated, verbose, and convoluted style that has come to beknown as legalese. . . . On the practical side, judges, lawyers, and law students will findthem much easier to learn and use; they are shorter, clearer, plainer, more internallyconsistent, and much better organized and formatted.” Ingham County Legal News, 31May 2007.

Congratulations, Joe, on a job well done!



Introductory editorial for the seminar in print on usageGeorgina FramptonSydney, New South Wales, Australia

With wars on terror and with global warnings about global warming dominating most media, consid-erations of grammar, punctuation and usage might just precipitate an existential crisis in an averagewriter or reader. Or these considerations might be just the comfort fraught writers and readersneed—a hot toddy for the weary.

But the reality is that considerations of grammar, punctuation and usage can’t offer comfort becausethey elicit passion, self-righteousness and a heightened sense of virtue in every writer or readerwith an opinion. Cheeks glow flushed and brows grow furrowed over changes in usage and overtheir impact on clarity.

Those who care join the clash of computer cursors defending the merits of either a descriptive or aprescriptive approach to language.

The drafts of this seminar-in-print are stained with ink as passions rise concerning adherence to,or abandonment of, language conventions.

In Linguistic Nasties and Niceties, Sarah Carr and Martin Cutts canvass the merits of going with oragainst linguistic convention. Electing to obey conventions until they are widely discredited, theyopt for roles as clear communicators, rather than as “agents of change.” The battle to challengesticklers is apparently not fitting in the forum of plain-English writing and editing.

Chris Peters sees the process of change as “inevitable” but “invariably very ugly”. In his Rant infavour of empathy and against relativism, he suggests that “we should look at change in the language inthe same way we regard underwear—it’s probably a good thing but it’s best kept out of sight,mostly.” Peters joins the Carr and Cutts trench defending linguistic conventions, agreeing to acceptchanges “only when they have a decent pedigree”.

In Suellen Thompson we have a brave warrior who saw blood and suffered wounding whilearranging a style guide for an international law firm. She describes her brave stance betweenstakeholders who “were prepared to do anything to protect their tower of stylistic penchants”. Ohhow high can a hackle rise over the placement of a second “e” in judgment? Thompson’s focus is lesson linguistic conventions and more on the impact of a chosen language register on the client-friendliness of a large law firm.

Naida Haxton is another courageous combatant who, in a hypothetical letter to her successor as editorof the New South Wales Law Reports, describes the hurdles of the role: not your measly split infinitiveor starting with a conjunction stoush but the judicial ego up against the insertion of a footnote noless. As with child welfare, Haxton advocates early intervention if the editor is to succeed inchanging the judicial headspace to foster the writing of judgments in plain English.

Clive James would empathise with her views as he bemoans the fact that “the school system itself[has become] a potent incubator for the semi-literate scribbler”. He describes recording grammarand spelling blunders as they flooded by in 2001: “I expected the flood to abate. But by now I amsitting on top of the house, and my notes for that crucial year are in my trembling hand.” For James,an appropriate sense of desperation has been far too slow to set in.

Alec Samuels considers the potency of a little comma on the battlefield of legislative drafting andjudgment writing. The million-dollar Canadian comma was long predated by the issue of a commain an English treason trial of 1917 based on the Treason Act of 1351. One could say that a capitaloffence swung on the matter of a comma. Groan. Richard Oerton, in a letter to the editor, alsolaments the imperfect use of punctuation, but tolerantly acknowledges that “in the real worldpeople don’t punctuate perfectly”.

Perhaps, in these torrid times, tolerance is what we need.

Wars on terror will surely pass and global warming will wane, but the battlefields of linguisticconvention will remain . . . for as long as there are readers and writers, you and I [not me], whoremain and who care whether our gerunds are served with possessives, whether our infinitivesare split and who may care not that “whom” serves to make us sound like butlers.


Sarah CarrCarr Consultancy and Plain Language Commission

Martin CuttsPlain Language Commission

This article looks at certain linguistic conventionsin English which our readers may think of as‘rules’. We discuss whether it is clearer to go:

• with convention—to avoid distracting ‘sticklers’by making them think we have broken therules; or

• against convention—to meet other plain-language guidelines more effectively.

All the examples used are real, taken from UKnewspapers and public and business documents.

Who should we pander to? For a plain-language practitioner, the answer may seemobvious: we should pander to the mass ofour readers, making our meaning as clear aspossible to them. Grammar in its true sense—where there is a definite right and wrong wayof writing—is vital to achieving this. Incorrectgrammar can make language mean somethingdifferent from what the reader intended, ormake it ambiguous. It also gives a poor impres-sion of the writer and their organization. Let’slook at 4 examples of common grammaticalmistakes. We would expect most people whoknow about grammar to agree that these areindeed wrong, though the final example (themisplaced ‘only’) is less clear cut and widelyseen in newspapers and literature.

• Dangling participle: Conceived and organisedby the British Council, 4 British and 4 Chinesewriters will travel the length and breadth of China.(Many organizations may like to be thoughtof as fertile, but probably not in this way.)

• Incomplete sentence: With regard to yourletter of 15 September.

• Run-on sentence: The ball was normally thehighlight of the social season, however 30 ofthe guests were later taken ill with foodpoisoning.

• Word order: You can only appeal against aCouncil Tax banding in certain circumstances.(We assume this means that you can appealonly in certain circumstances. But as it stands,it could mean that you can do nothingexcept appeal in these circumstances.)

But what about all those other ‘rules’—thosethat the sticklers among our readers may regardas gospel (having been taught them at schoolperhaps) but that we may more accuratelydescribe as conventions or even myths ofwriting? Here are some of the areas we arethinking of, with examples that go againstconvention. We suggest one possible way torephrase each, though in most cases there areother ways too.

Some of these conventions have never reallymattered. For example, there are manyinstances of respected (and long-dead) writerssplitting infinitives and using ‘they’ as a third-person singular pronoun. Others (such asusing a gerund without a possessive) may bemore recent developments, part of the naturalevolution of language. But whatever the historyof each convention, going against them maymake the sticklers think we have made a mis-take. This damages both our credibility andthe document’s clarity—as the broken ‘rule’will distract some readers from the messagewe wish to convey. Given that we are usuallyworking on written language, we will rarelyget a chance to explain our thinking to them.What should we do?

Our answer is that we should follow conven-tion so long as this does not make the documentharder to read. Although it may be temptingto challenge sticklers’ belief in myths of writing,the place for doing this is not, we believe, inour day-to-day plain-English writing andediting. This question—of whether to followthe linguistic status quo or seek to overturn it—is a common theme on the email discussiongroup run by the Plain Language AssociationInternational (PLAIN). Robert Eaglesonraised the same question in his article Numbers:

Linguistic nasties and niceties:Who should we pander to?Or to whom should we pander?



figures or words. A convention under the spotlight,in Clarity No 50. The experiment (in ClarityNo 49) to present (most) numbers as figures ledto several readers’ letters saying the practicewas distracting.

In obeying conventions until they are widelydiscredited, our role is as clear communicators,not as agents of change. Of course we can tryto bring about change in other ways, outsideour usual work. For example, in our ownwriting, we at the Plain Language Commissionhave begun to use figures for all numbers intext unless the number appears at the start ofa sentence or is ‘one’. But we have to respect

Controversial area

Ending sentences withprepositions

Starting sentences withconjunctions

Splitting infinitives

Using a gerund withoutthe possessive

Leaving outapostrophes when themeaning is ‘for’ ratherthan ‘of’

Using ‘who’ instead of‘whom’

Using ‘which’ withrestrictive clauses

Using sentenceadverbials

Using ‘they’ as a third-person singularpronoun

Example that goes against the‘rule’

Write your National Insurancenumber—this helps us to help youclaim all the benefits you areentitled to.

But for some exceptional peoplethere is a need for something more, apermanent and more publicrecognition.

The region covered is dischargingice so heavily that concerns havebeen raised about the stability of theice sheet and its potential to rapidlyand significantly raise global meansea level.

Our investigation will usually befinished within 10 working days ofus receiving your appeal form.

Parents Guide to the Teaching ofEnglish in School

Who should I contact for moredetails?

HIV is the virus which can lead toAIDS. The body’s defence systembreaks down and leaves the patientopen to infections and cancerswhich eventually prove fatal.

The first of 5 lectures hopefullyincludes a live broadcast fromMars—courtesy of the Beagle 2mission.

Your child has been chosen to takepart in a class to support andconsolidate their writing skills.

Example rephrased to conformwith the ‘rule’

Write your National Insurancenumber—this helps us to help youclaim all the benefits to which you areentitled.

However, for some exceptional peoplethere is a need for something more, apermanent and more publicrecognition.

The region covered is discharging iceso heavily that concerns have beenraised about the stability of the icesheet and its potential to raise globalmean sea level rapidly andsignificantly.

Our investigation will usually befinished within 10 working days ofour receiving your appeal form.

Parents’ Guide to the Teaching ofEnglish in School

Whom should I contact for moredetails?

HIV is the virus that can lead toAIDS. The body’s defence systembreaks down and leaves the patientopen to infections and cancers thateventually prove fatal.

We hope that the first of 5 lecturesincludes a live broadcast from Mars—courtesy of the Beagle 2 mission.

Your child has been chosen to takepart in a class to support andconsolidate his or her writing skills.

customers’ preferences when editing theirdocuments and training their staff. Similarly,we use the older English ‘z’ form in wordswith a Greek zeta root, like ‘organization’.The Oxford dictionaries do this too, but mostcustomers prefer to use ‘s’ (‘organisation’).

Other ways of trying to bring about linguisticchange include:

• writing and implementing style guides

• (for individuals) joining or starting pressuregroups

• (for governments) setting up bodies such asthe Académie française.



A detailed discussion of these and other waysof trying to change language could be aninteresting topic for another article.

If we can achieve clarity in both senses—beingeasy to read and not distracting readers fromthe message—then that seems the sensiblesolution. But what if we cannot? What if fol-lowing the ‘rules’ makes the document harderto read? Should we go with convention

(making the document less easy to read) oragainst it (risking distracting readers whothink we have made a mistake)? In this case,we must either decide which we think compro-mises overall clarity less or, ideally, test the 2possibilities on some typical readers. Asalways, what we decide may vary dependingon the audience for our document.

Do you stickle? And if so, where? A survey of plain-language practitioners

At PLAIN’s conference in Washington DC last November, we asked a group of 24 delegates tocomplete a survey asking whether (without the chance to consult their readers) they would behappy to break various linguistic conventions (a) in their own writing, (b) in a leaflet aboutwelfare benefits for a mass audience, and (c) in a company’s annual report to shareholders.The table shows the results for the 9 conventions listed earlier.

OK in OK in OK inControversial area own writing benefits leaflet company report

Ending sentences with prepositions 71% 71% 58%Starting sentences with conjunctions 100% 96% 63%Splitting infinitives 92% 83% 58%Using a gerund without the possessive 29% 38% 29%Leaving out apostrophes when the meaningis ‘for’ rather than ‘of’ 38% 33% 33%Using ‘who’ instead of ‘whom’ 29% 46% 33%Using ‘which’ with restrictive clauses 25% 29% 38%Using sentence adverbials 58% 50% 46%Using ‘they’ as a third-person singular pronoun 50% 58% 21%

These results show that delegates would usually feel free to break the 5 italicized conventionsmore readily when writing for the public than when writing for shareholders, but most free todo so in their own writing. Of these 5 conventions, leaving out apostrophes when the meaningis not strictly possessive was the one that delegates felt unhappiest about breaking. This may bebecause missing or misplaced apostrophes are often a hot topic among sticklers (think LynneTruss). All, however, were happy to start sentences with conjunctions.

Delegates were generally more likely to use a gerund without the possessive, ‘who’ instead of‘whom’, and ‘which’ with restrictive clauses when writing for others rather than for themselves.Perhaps they felt able to stickle in their own writing but accepted that these conventions weredisappearing elsewhere. But delegates seemed to think that an audience of shareholders wouldbe much less likely to accept their use of ‘they’ as a third-person singular pronoun than wouldthe public.

Both this survey and our analysis are obviously rudimentary. The survey was designed as athought-provoking workshop exercise, not as watertight research. It would be interesting tolook at this topic on a larger scale and using more scientific methods. The delegates were froma range of countries; perhaps such a study could throw light on international differences inplain-English writing.

© SCarr and MCutts [email protected]@clearest.co.uk

Sarah Carr runs Carr Consultancy, specializing inplain-English writing and editing. Sarah is also anassociate of Plain Language Commission. Herpublications include Tackling NHS Jargon: getting themessage across (Radcliffe Medical Press, 2002).

Martin Cutts is research director of Plain LanguageCommission and author of the Oxford Guide to PlainEnglish. His books on legal English include Lucid Lawand Clarifying Eurolaw, both available on freedownload from www.clearest.co.uk’.



Chris PetersRetired lawyer and public servant

I often have difficulty working out whatpeople are saying and writing—people whoapparently no longer feel the need to followthe rules. I constantly wonder how thesepeople expect others to understand them.They treat the rules that I grew up with asmere optional guidelines, and sometimes noteven that. It’s bad enough in everyday life butin areas in which words can actually make adifference, such as business, law and politics,the lack of clarity can be frightening. This isnot going to be a thinly disguised attack onyour favourite politician or a bitter exposé ofthe evil that lurks in the hearts of lawyers, butI’m not going to hide where I’m coming from.I’m a grumpy old man, and I’d prefer not totake it any more.

Are there any objective rules?

Is there any such thing as ‘correct’ grammar,punctuation and usage? If the purpose oflanguage is to communicate ideas, are the rulesthat set language standards merely a bluffperpetrated by anal-retentive obsessive-compulsives, or is it all a conspiracy aimed athomogenising the way we think? Should therebe any objective standards, or is language justa matter of opinion? Can ‘correct’ grammar,punctuation and usage enhance the clarityof the messages we send, and can ‘incorrect’language reduce clarity?

Our language is constantly changing, and‘correct’ grammar, punctuation and usage willalways change with time and across continents.Although change is inevitable, the process isinvariably very ugly. That infuriates me becauseit doesn’t have to be that way. I say we canhave change without the ugliness, assumingof course, that it’s not just me who sees it. Iknow that most people don’t see it or don’tcare about it. Adherence to the rules drummed

into some of us at school may be seen by oneperson as accuracy to the point of pedantry,by another as outstanding scholarship, by yetanother as reasonable accuracy, by many asbasic knowledge and by everyone else as pig-ignorance. The purpose of this discussion isto suggest that we should not use the constantshifts in our language as an excuse to stopthinking or communicating clearly.

Nor should we rely on the fact that schoolshave recently stopped teaching grammar,punctuation and usage to justify the violencewe inflict on the language. I believe that apply-ing at least some objective standards in grammar,punctuation and usage can only make ourwriting easier to understand.

Empathy

I’m not saying these things merely because, inmy middle-aged grumpiness, things are nolonger the way they used to be—as we all know,they never were. (Actually, I have a seriouslysunny disposition, and ranting is not in myusual kitbag of techniques.) But it concernsme that so many people are prepared to adoptversions of the English language that inhibitclarity. It seems to me that the main villain isthe writer’s lack of empathy for the reader.Even when people actually know what they’retrying to say (this is much less common thanyou’d think), they don’t consider their writtenwork from the reader’s point of view. And ifwe don’t consider the reader’s point of view,it’s the same as writing in a foreign language.I can confirm that much of what is said to bewritten in the English language these days is,in effect, not written in the language that Iwas taught.

The trouble is that there’s often a discrepancybetween what people want to say, what theythink they’re saying and what they actuallysay. It’s not enough to simply write down thegood idea that’s been drifting through yourmind—despite your best intentions, that idea

A rant in favour of empathy and against relativism:the impact of grammar, punctuation and usage on clarity



often fails to appear on the page. Sometimeswe end up writing things we don’t mean,sometimes we write things that contradictour original idea and all too often we writenothing sensible at all. There are many waysin which an idea will change as it’s written,mostly arising out of the writer’s communi-cation limitations. I suffer from many of thoselimitations and I find it absolutely essential tore-read my work, preferably at least a dayafter I write it, to check whether the wordsstill express my ideas as I intended. Not thatthe words are likely to change overnight, butby separating the words from the ideas intime, I can stop myself becoming committedto the words rather than to the ideas.

Most people just don’t get the words right thefirst time. I certainly don’t. People who haveno empathy for their readers don’t care aboutthis, or can’t acknowledge it. The capacity toruthlessly edit your own work is thereforecrucial. Re-read your work as if you don’t knowwhat you were trying to say when you wroteit. Put yourself in the readers’ place. Don’t takethe position that if you knew what you meantwhen you wrote it, so should everyone else.Don’t make the reader responsible for compre-hending what you write. Let’s face it, veryfew of us are as good at expressing ourselvesas we like to think we are.

Should our language have rules?

It has been fashionable for several decades tosay there is no such thing as incorrect use oflanguage, there is only legitimate variation.Whatever gets the message across is correct,they say. That’s why punctuation and grammarare no longer taught in schools, although Ipersonally believe it has more to do with edu-cation funding, but I digress.

According to this view, clarity of communicationhas nothing to do with adherence to the rules.Abandoning language rules reduces elitismand gives everyone better access to informationbecause it will no longer be hidden by obscureand arbitrary language.

Following absolute standards of correctnessin language also leads to a logical problem. Ifyou insist on using the same rules that youlearned as a child, you have to make a difficultdecision for each new usage. You must decidewhether to adopt it, thus denying any absolutestandards, or you can ignore it and stick toyour rules. If you adopt the second option, it

won’t be long before the rules of languagedescribe a language that no-one speaks.

Are rules elitist?

So what’s wrong with allowing everyone touse words, grammar and punctuation in anyway that suits them, as long as they ‘get theirmessage across’? Do the rules of languagereally stifle creativity, especially in schoolchildren? Is it demeaning or patronising topoint out errors, even to school children? Dorigid rules discourage people from exercisingtheir natural and free-spirited inclination towrite? Is it snobbish or pompous to use language‘correctly’? Do only highly educated peoplespeak and write correctly? When someonetries to comply with rules learned at school, ishe or she impliedly criticising those who won’tor can’t apply the same standards? Since thelanguage is always changing anyway, is itpointless to teach standards?

I don’t want to tackle these post-modernrelativist propositions other than to say theydon’t convince me. Even though our language—happily—continues to shift beneath our feet,I think there are still good reasons to observerules of grammar, punctuation and usage.First, it’s self-evident that nothing crystallisesa person’s capacity for logical and well-orderedthought better than the process of explaininghis or her ideas to others. Second, it wouldlead to chaos if we all decided to use languagein any way we liked, and it would be impossibleto tailor our language to meet the requirementsof every listener and reader.

I’m not saying that we should resist changesin the language on principle, but I’m suggestingthat we can stop the process being so ugly.Perhaps we should look at change in the lan-guage in the same way we regard underwear—it’s probably a good thing but it’s best keptout of sight, mostly.

Clarity in thinking

Lack of clarity in writing is often a symptomof lack of clarity in a writer’s thinking. In hisessay Politics and the English Language (1946),George Orwell demonstrated the close relation-ship between the quality of our thinking andour use of language. He showed how lazy,mindless writing leads to lazy, mindlessthinking, which in turns leads to more lazy,mindless writing.



It’s therefore probably true to say that peoplewho don’t follow the rules when trying to gettheir message across often don’t really knowwhat their message is. It’s not only that they’reunable to accurately translate their thoughtsinto words: part of the problem is that theirthoughts aren’t very clear. If what we say isnot the same as what we mean, others areunlikely to distinguish between them. Is notthe failure to comply with the rules of lan-guage a sign that many of us really don’t knowwhat message we’re trying to get across? Oris ‘getting the message across’ merely an excusefor people to hide their message in unclearlanguage? Too often a writer either has ameaning and cannot express it, or inadvertentlysays something else, or doesn’t seem to carewhether or not the words mean anything.

Examples of lazy, mindless thinking

The lazy, mindless thinking and writing towhich I’m referring includes tired metaphorsand mindless clichés, slavish copying of thelatest fads, pretentious words and expressions,meaningless words and expressions and wordsthat the writer doesn’t really understand.Often the purpose is to sound posh or educatedor important. If we add thoughtless punctu-ation and embarrassing grammar, the resultis pre-fab writing that consists of strings ofwords that have already been set in order bysomeone else and merely tacked into place bythe writer. The writer then hopes that thereader doesn’t ask too many questions. Legaland business letters often consist solely of suchmindless borrowing in which the words arechosen for the way they sound rather thanfor their meaning.

It is too easy to sneer at the excesses of lawyersand bureaucrats because they often use lazy,mindless forms of expression as instrumentsof policy, so I won’t do it here. There is nobetter example of the phenomenon, however,than in the world of professional sport. Werecently celebrated the two-hundredth anni-versary of the last time a football player saidanything interesting in an interview. That is,something that wasn’t a cliché or some dull,superannuated metaphor that our sports herochose because it meant nothing or because hecouldn’t tell the difference between meaningand meaninglessness. Interestingly, it’s beennearly as long since a sports journalist askeda sportsman a sensible question. Maybe it’s asports thing.

And I’m not just talking about sports expres-sions such as ‘step up to the plate’, ‘out of leftfield’ (often bizarrely rendered as ‘from left offield’), ‘down to the wire’, ‘behind the eight-ball’ and ‘push the envelope’, which havepassed into general use (not that general usejustifies them). People borrow expressionslike this because they sound good, althoughthis must be a meaning of the word ‘good’with which I have until now been unfamiliar.What bothers me most is that people oftenuse these kinds of vague metaphors even thoughthey have no idea what they mean. This is whythey often sound so strange. Those who knowthat ‘step up to the plate’ is a baseball metaphor,for example, know that it means nothing incountries where baseball isn’t played.

Relativism inhibits clarity

In fact, after decades of reluctance to imposelanguage rules or standards, of freeing schoolchildren from the tyranny of grammar andpunctuation (and sensible usage), there is nosign that society has benefited or that peopleare better able to get their messages across.Quite the contrary. With nothing to guidethem (and that includes the teachers who nolonger seem to know that there used to berules), the average person’s vocabulary hasbeen decreasing, and his or her knowledge ofgrammar, punctuation and usage can (andregularly does) make some grown men cringe.Newspapers, television programs and theinternet perpetuate the problems. Don’t getme started. Meanwhile, the people who getahead in almost all areas of endeavour areinvariably those with good language skillsand the capacity to get their message acrossthe old-fashioned way, rules and all.

Mistakes drive change

Despite the suggestion that only educatedpeople speak and write correctly, mostchanges to the language are driven frombelow. This is because changes arise mostlyout of mistakes made by the worst educatedand the least interested. These mistakes arerepeated and drift up the socio-economicscale until they eventually crystallise intoeveryday language. Until a mistake is absorbedinto the mainstream, however, chunks of thelanguage are ambiguous. It’s impossible to tell,without making inquiries of the writer, whethersomething means what it used to mean or whatit will soon mean. The development of the



English language is therefore in the hands ofpeople who don’t give a damn about it:people who use clichés and platitudes andmeaningless phrases to avoid thinking aboutwhat they’re saying. Before you know it, thelanguage has changed, and what used to bewrong is right. We are all drawn into perpet-uating mistakes because everyone else does.And what does the pedantic grumpy old manthink about being forced to choose betweenrepeating newfangled things he knows to bewrong, and using words and usage correctlybut anachronistically? It’s the main reasonthat some grumpy old men become so grumpy.

So it’s not helpful to assert that anythingshould be allowed as long as we get the mes-sage across. Because chances are that we willnot be across the message got, . . . well, noteasily anyway. Encouraging people to write inthis way has done more to impair the exchangeof ideas than any other factor. Language ispower, and the clearer your ideas and the betteryou can fit them into language, the more poweryou will have.

Getting the message across

If we’re truly interested in getting the messageacross, it would certainly help if we were surethat our grammar, punctuation and usage wasunderstandable to those with whom we weretrying to communicate. The speed at whichour language is changing shouldn’t be usedas an excuse to stop thinking or communicatingclearly.

Don’t let this happen to you

I often read ambiguous words that force me toinvestigate whether the writer was employingthe grammar, punctuation and usage that Iwas taught, or some new, modern version that,by traditional standards, can only be wrong.Here are a few of the things that really annoyme about current usage. Most of them areexamples of the mistakes to which I’ve beenreferring.

Neologisms

In the opinion of some people, ‘hopefully’ is afoul neologism and worth avoiding for thatreason alone. Its main defect, however, is itsambiguity. Many people would have no diffi-culty in working out the message that is meantto be conveyed by:

They hopefully went to the movies.

Others would apply language standardsremembered from their school days andwonder if it was supposed to mean either:

They went to the movies in hope.

or

We hope they went to the movies.

And just whose conduct is being controlledby the following instruction?

PEDESTRIANS GIVE WAY

Proper punctuation might give a clue to mys-teries such as these, but people who use theword ‘hopefully’ generally don’t worry toomuch about punctuation. In my view, they’rehopeless, but I’m trying to influence adherenceto language rules from the top down, ratherthan in the traditional manner.

Have you ever walked past a building that is,according to a sign out the front, ‘alarmed’?What about cars that are described as themost ‘awarded’ in their class? Did the authorsof these atrocities really believe they weregetting their message across? It seems to methat if you have to read the sentence two orthree times before working out what wasintended, the message isn’t really getting across.And since when did the singular of ‘pants’become ‘pant’? Every time I see an advertisementfor a ‘pant’, I see visions of a heavy-breathingdog. I’ve seen ads for ‘a trouser’, a ‘short’ andeven a ‘knicker’. Are we supposed to startcalling a pair of glasses a ‘spectacle’ or a pairof scissors a ‘scissor’?

Pompous and pretentious language

The constant need to find a posh or importantway to say something is a real stumbling blockto clarity. Using a complex way of sayingsomething is at best an attempt to obfuscateand at worst a sign that the writer doesn’t knowwhat he or she wants to say, but complexwords and expressions sound so much moreauthoritative.

An obvious example is the word ‘refute’. It’ssupposed to mean ‘prove beyond argumentthat something is incorrect’. Dictionaries stilldefine it that way. It’s a useful word. Lawyerstry to refute their opponents’ allegations andarguments in court. ‘Deny’ is a different wordand describes a different concept. As anyonewho’s ever listened to Monty Python’s ‘Haveyou come for an argument’ sketch will know,



‘deny’ merely means ‘contradict’, ‘refuse toaccept’ and ‘declare untrue’, with no connotationof proof or conclusiveness. The words havetwo distinct and necessary meanings.

For no discernible reason, however, manypeople these days seem to press ‘refute’ intodoing the work of ‘deny’. Why they do this isdeeply mysterious. It’s not as if there was needfor a new way to describe the concept of ‘deny’.As a result, when someone uses the word‘refute’ these days, I’m forced to wonder whetherhe or she actually means it or whether he or shemeans ‘deny’. Even newspapers and televisionnewsreaders can’t seem to distinguish the twoconcepts. When I hear on the nightly news that‘the Prime Minister refuted allegations of incom-petence’, what am I to think? Did he prove hiscompetence or did he merely say somethinglike ‘no way dude’, which would at least havehad the advantage of being clearer? Mostlywe’ll never know, and clarity goes out thewindow.

Our language is awash with these examplesof words that are in the process of changingtheir meaning at the expense of clarity. ‘Antic-ipate’ and ‘expect’ have totally different meaningsbut ‘anticipate’ is now used almost exclusivelyto cover both meanings. ‘Anticipate’ means to‘take action to prepare for an expected event’,to take advance action. Some of us anticipategoing on a date by dropping in to a pharmacy.‘Expect’, on the other hand, merely means topassively await or look forward to something.‘Refute’ and ‘anticipate’ sound more posh andimportant than ‘deny’ and ‘expect’, but in fact,they are almost always pompous and pretentious.What on earth does ‘point in time’ mean thatcan’t be expressed just as well by the word‘time’? And since ‘period’ means ‘length oftime’, ‘period of time’ is just plain tautological.

We have all lived through the rise and rise ofthe expression ‘in terms of’, which is generallya sign that the person using it has started asentence without knowing how it’s going tofinish. Next time you hear ‘in terms of’, askyourself, would it change the meaning of thesentence if that expression was removed orreplaced with a simple conjunction? ‘Forensic’simply means ‘pertaining to advocacy’ but itwill continue to be used as a synonym for‘scientific’. By now, it may even actually have

that meaning. ‘Advise’ does not mean ‘inform’but ‘offer an opinion as to future action’. Wedon’t advise people of our intentions, weinform them.

I also get annoyed when I see how often ‘begthe question’ is being misused. When I was 10years old, I learned that ‘begging the question’did not mean ‘evading the issue’ or ‘raising aquestion that’s begging to be answered’. Itmeans using an argument that assumes thetruth of what is being argued, or makingunfounded assumptions, but I can’t rememberseeing it used properly since then. I suspectthat since no-one knows or cares what itoriginally meant and no-one uses it properly,its meaning has probably already changed—but I can’t be sure. I’m left guessing andgrumpy.

Ignorance

Other errors arise out of plain ignorance.Although there is a huge and significantdifference between ‘imply’ and ‘infer’ (likethe difference between ‘throw’ and ‘catch’),many people never get it right.

Hyphens

Misuse of hyphens can also affect clarity. Themain function of a hyphen is to indicate whentwo or more words should be read togetheras a single word with a meaning independentof its constituent words. Hyphens are an aid tounderstanding these composite words whenthe lack of a hyphen would lead to confusionor ambiguity.

Confusion might arise, for example, betweenthe expression ‘a little used car’ and ‘a little-used car’. If one wrote ‘the car was little used’,there would be no difficulty. There is a worldof difference between ‘a hard-working man’and ‘a hard working man’. It’s all very wellto say ‘he was attacked by two men, one armedwith a baseball bat’ but if ‘he was attacked bytwo men, one-armed with a baseball bat’, youmight see things differently. When a solicitordecides to file a ‘cross claim’, I immediatelywonder what made the claim angry. Would itbe libelous to say that a judge had engaged inextra judicial activities or extra-judicial activ-ities? Incidentally, some of these examplesillustrate one of the main reasons to avoidpassive language.



Longstanding usage

The difference between a bad haircut and agood haircut is about three weeks, while thedifference between illiterate garbage and cut-ting edge English language usage tends to besomewhat longer. My views on the uglinessof change arise out of the ‘bad haircut’ portionof the process. Soon, my complaints will beseen as quaint and precious. The changes andmistakes to which the language is being subjectedwill be of historical value only, just as thegrotesqueries of the past have evolved intogood English. To illustrate that this is the processby which English has come to be in its currentform, let me examine some concepts that havealready made the transition. Not even I wouldargue that since the word ‘dilapidated’ is derivedfrom the Latin for ‘stone’, only structures madeof stone can be ‘dilapidated’. That word hasbeen used to mean ‘in a state of decay, disrepairor partial ruin by neglect or misuse’ for so longthat it is pointless to disagree. In the same vein,it is incontrovertible that the word ‘whence’means ‘from where’. To say ‘from whence’ istherefore tautological, equivalent to saying‘from from where’. The problem is that thesame mistake has been made for hundreds ofyears. Shakespeare, Milton, Mark Twain andthe King James Bible all use the expression‘from whence’. So while it’s clearly wrong,it has a long pedigree that can’t be ignored,because the language has changed. As I say,it’s an ugly process.

Living and dead mistakes

Should we therefore accept changes but onlywhen they have a decent pedigree? Will thiswatered-down relativism meet my complaints?Maybe the solution is to distinguish betweenliving and dead mistakes, just as we distinguishbetween living and dead metaphors. Whenwe use a live metaphor, we are conscious ofthe fact that we have chosen to use an expressionthat is a substitute for the intended literalmeaning. When we say ‘full steam ahead’, weknow it is a metaphor because we can stilldimly see at the back of our minds a train ora ship. Dead metaphors, on the other hand,are no longer distinguishable from literalmeaning. Dead metaphors are not generallyrecognised because they have actually beentransformed into literal meaning. Havingsomething ‘in hand’ no longer brings a horseto mind and is therefore a dead metaphor.

Why don’t we adopt some sort of dead errorprocedure, whereby any error that has beenin constant use for two centuries, or 20 years,is deemed to be a dead error and thereforepart of correct language, at least in an honour-ary capacity? If you watch people being inter-viewed 50 or 60 years ago or read their prose,it’s possible to get a feel for the change in theway language is used. Many things lookstrange, from the comma minefield to thedifferent meanings of words. In a documentaryfilm, I heard several sailors describe the explo-sion that sunk their ship in 1941 as ‘terrific’.Apparently, that word used to mean ‘big’,while now it means ‘wonderful’. Of course,‘wonderful’ used to mean ‘full of wonder’,not necessarily a good thing, while ‘awful’used to mean ‘full of awe’ and ‘vicious’ usedto mean ‘having vices’. There were, no doubt,times when these words created the samedoubt that ‘refute’ does today.

What’s it all mean?

No, I don’t think half-baked relativism is anybetter than the full strength stuff, even thoughit might tend to hide the most obvious howlersuntil they are well and truly part of the language.Even if the rules of grammar, punctuation andusage are subtly shifting, some ways of com-municating are going to be more effective thanothers. If more parts of language are sharedbetween the people who write and those whoread, it means that more of the communicationwill be clear. Rules of language are meant toset guidelines for clarity so we don’t have tochange our manner of communication tomeet the needs of those with whom we haveto communicate. We shouldn’t be requiredto tailor our language to suit the person whowe believe is reading. How could we commu-nicate effectively if we have no idea withwhom we’re communicating, or when we’recommunicating with many people at thesame time? I suggest that the best way ofensuring that we continue to communicateclearly is to accept the need for ‘correct’ lan-guage, and to teach it in schools. Relativismjust doesn’t work in the context of languagebecause the last thing we need is every personto have his or her own langwidge.

When confronted with one of their punctuationor grammar atrocities, many people react bysaying they were never taught punctuation orgrammar at school. Although that is probablytrue these days, it’s no excuse. If ‘getting the



message across’ is what communication is allabout, it seems to me that empathy with thereader is more important than the rules. Natu-rally, whatever rules there are were born outof that empathy, the realisation that communi-cation depends as much on receiving informationas giving it. If we always consider our readersand listeners, the rules will take care of them-selves.

© CPeters 2007

Chris Peters is a former lawyer, former public servantand former promising schoolboy athlete. He is now semi-retired, which gives him plenty of time for ranting.Originally Dutch, he came to Australia in 1960. Likemany converts to a cause, his commitment to the Englishlanguage is perhaps a little obsessive.

Chris learned how to write ‘formally’ at MonashUniversity Law School and it took him a number of yearsto unlearn it. In 1974 he joined the Australian PublicService, where he worked in the Trade Practices Commis-sion, the Department of Foreign Affairs, the CrownSolicitor’s Office and the Australian Law ReformCommission, unfortunately after the departure of JusticeMichael Kirby. By that time, however, Justice Kirby hadensured that plain English would be used for allCommission publications.


Lord David Renton

Martin Cutts

Lord Renton, Britain’s longest-serving parliamentarian, has died at the age of 98.Believing that the rarefied air breathed by legislators and parliamentary counsel couldsometimes be exhaled as fog in the written law they produced, Lord Renton did muchto advance the cause of clearer language in statutes. In 1979 he wrote, ‘In Britain thedrafting of legislation remains an arcane subject. Those responsible do not admit thatany problem of obscurity exists. They resolutely reject any dialogue with statute lawusers. There is resistance to change, and to the adoption (or even investigation) of newmethods. The economic cost of statute law is enormous, yet official interest has beenlacking.’ Lord Renton lived long enough to see some of the resistance crumbling.

A lawyer by training, David Renton was a junior minister in Conservative governmentsfrom 1955-62. In 1973 he became chairman of the Committee on Preparation of Legis-lation, which produced a widely admired report, The Preparation of Legislation (1975),aka the Renton Report. It criticized ‘the tendency of all governments to rush too muchweighty legislation through Parliament in too short a time’ (a thing not unknown eventoday). The report included 10 pages of cases from the 1950s and 1960s in which judgeshad found the statutes on which they were supposed to base their decisions too difficultto understand. In later life Lord Renton wryly noted that admired reports were notalways those of which the greatest heed was taken.

He was generous in his public and private comments about my rewrite of the UK Time-share Act 1992 (published in Lucid Law), noting that it began with a clear purposestatement, a device he had long championed.

He remained a stalwart of the Statute Law Society and a member of the Statute LawReview’s editorial board.

A memorial service for Lord Renton is to be held at St Margaret’s, Westminster, at noonon Thursday, 18 October 2007. Tickets may be obtained by writing, with a stamped,self-addressed envelope, to Room 18, The Chapter Office, 20 Dean’s Yard, LondonSW1P 3PA.

[Sources: The Times, 25 May 2007; Lucid Law, Plain Language Commission 2000; andPikestaff (Plain Language Commission newsletter, www.clearest.co.uk.]

[Lord Renton was a Clarity member for 5 years and presented at a Clarity function. Ed.]


Suellen ThompsonClear writing consultant

[Suellen was recently involved in launching anew style guide for an international law firm.She discovered that many people were stronglyattached to particular aspects of language. In thisarticle she talks about the journey of creating astyle guide for an organisation and about thingsto consider if you are undertaking this process.She also considers the purpose of the style guide.]

I’d like to take you on a journey, a somewhatperilous journey. You will need to fight manybattles, and you will need strong armour. Youhave to navigate dangerous mountains ofsyntax and forge pathways through a fog ofgrammatical principles. You will have manyon your side helping you along the way—those who share your beliefs. But there willbe an equal if not greater number who wishto cling to beliefs that were promulgated andembedded by their year-4 English teacher.

And all, my friend, in the name of clarity.

If someone had asked me to name some of themost challenging things I’ve ever had to do,one of them would have to be introducing anew style guide to an organisation. At firstblush it would seem a fairly rudimentaryprocess: insert a bit on grammar and punctu-ation and a little bit on the particular nuancesof the organisation. The trouble is that everyorganisation is made up of a number of dif-ferent ‘sections’. Sections vary significantly inthe way they conduct their everyday business.They all speak the voice of the organisation;they wish to conform to the ‘brand’. But theirexpectations and needs may be quite different.And the bigger the organisation, the morestakeholders to ensure the guide is used effec-tively. More stakeholders, more different views.

Picture this. A room full of representativesfrom different parts of the organisation.Intelligent, thoughtful people who graspedtheir pens as if they were daggers. They were

prepared to do anything, anything to protecttheir tower of stylistic penchants. (Well, almostanything!) Even the question of whether weshould use double or single quote marks couldcause a stir.

The idea of a style guide

Let’s start at the beginning. Most organisationshave some form of ‘house style guide’. If not,they probably need one. A style guide is auseful tool to help staff communicate moreclearly and in a way that should reflect theimage the organisation wants to promote.

What should a style guide contain? Howshould it feel?

A style guide may vary in its contents. Somestyle guides contain technical specificationsrelating to design. Some contain rules ongrammar. Some are didactic. Some are breezy.

Who decides what goes into the style guide(and who cares)?

Believe me, a lot of people care about whatgoes into the style guide.

A large number of people become very attachedto a particular grammatical principle. What Ifound especially surprising was just howattached they were.

Now I know there are many of us who lovelanguage. We love its rhythm, its nuances andthe way it teases us and confuses us with itsidiosyncratic ways. English is a particularlywayward child in the way it turns its back onrules and breaks them constantly. It is for thisreason of course that we love it. However, thefact (and it is a fact) that language changesand is constantly evolving seems to haveescaped the notice of some.

In striving to communicate more clearly withour reader, we chose to do away with archaiclanguage. This was a battle, hard fought andwon.

It seems the theory of the evolution of languageis also a battle. And yes, there are good argu-ments on both sides. We must adhere to certainprinciples to maintain structure and integrityin our sentences. Otherwise, we risk clarity.

Or do we?

If I start my sentence with ‘and’, does thereader understand my sentence meaning?Or does the reader cringe because the readerwas taught once that we should never start a

House style—whose style is it?



sentence with the conjunction ‘and’ or ‘but’?It is very hard to disobey a strict primaryschool teacher, even 20 years after he or shelast wagged a finger in your direction.

What do people care about?

It is important to ensure you capture theopinions of all relevant stakeholders in yourorganisation. That way you will be more likelyto establish the most contentious issues earlyon. But beware of latecomers with a passion-ate conviction about a particular grammaticalconstruction—they can throw the wholeprocess back by weeks.

Punctuation

I remember a time when it was ‘cool’ not tocare about punctuation and grammar. Nowpunctuation seems like an obsession. Recently,I visited my 9-year-old daughter’s school andedited some of her classmates’ creative writingpieces. Their thoughts and ideas were free-flowing but had little or no punctuation. Yes,it conveyed a very different message to theaudience when punctuation and grammarwere introduced. It made the writers start tothink whether this was actually what theywanted to say. It was a very interesting exercise!It is called ‘conferencing’. I think this is becauseit is meant to be a collaborative approach toediting. What was interesting was this. Aswriters, they did not really need much punctu-ation because they knew what they meant tosay. But as a reader, I needed the punctuationto ensure I correctly understood the meaningof the story. I needed punctuation for clarity.

People care especially about some aspects ofpunctuation—for example, bullet points. Doyou end a bullet point with a semi colon or afull stop? Do you need any punctuation at all?Does it depend on whether the bullet pointcontains a full sentence or is only part of asentence? How many examples of the variationsshould you include in the guide?

Should you use double quote marks or singlequote marks? Single have come into fashion,yet they can be confused with an apostrophe.Does this affect the reader? Does it impact onclarity?

Do you need to distinguish between a hyphen,an em dash and an en dash? Will the readerunderstand the difference between them?

Once again, canvassing the opinions of majorstakeholders helps you recommend a stylethat people will use.

Grammar

Grammar can influence the writer’s meaningand tone. You can create a more formal toneby using a higher language register. We wouldnot normally encourage this at our organisationas we want to be more client-friendly. But—guess what—there would be occasions whenyou might need to vary your tone dependingon your audience.

So if you are going to include information ongrammar and various grammatical principles,be sensitive to whether the different factionsin the organisation prefer a more formal tone.Also consider how the organisation wants topresent itself.

For example, will staff be reluctant to end asentence with a preposition?

Will staff feel comfortable starting a sentencewith a conjunction? Or is this level of informalitynot appropriate for the organisation or itsaudience? Should you use contractions inyour business writing? Or do ‘don’t’ and‘won’t’ sound too familiar to your clients?

Do you need to mention sentence length andsentence construction in the style guide? Howmuch detail do the staff need? Do they needsome tips on grammar? Remember, a largenumber of generation Y did not study grammarat school. They may only have picked it up ifthey studied a foreign language. A few guide-lines and tips on some grammatical principlesmay, therefore, be useful.

Spelling

People get used to spelling certain words in acertain way. Is there, or is there not, an ‘e’ inlodgment and judgment? When asked to conformto a new style, some people may resist unlessthey see a strong reason to change. Conformingto the style guide is not enough reason forsome. Canvassing the opinions of major stake-holders helps ensure preferences are met withless resistance. Otherwise you may receivefeedback such as, ‘Well, this is just wrong,and whoever wrote this is wrong.’



The journey (or the process)

Audience

There may be very different sections withinthe organisation with very different needs.We found that it was important that the mainsections were represented on a style committeeto ensure different points of view were raisedand considered. Otherwise, we’d have endedup with a style guide that was unworkableand never used by certain parts of the organ-isation.

In preparing a style guide, you also have asecondary audience—the clients of theorganisation. Whatever house style decisionsyou make will impact on them. We hadreceived some good feedback from our clientsabout what they wanted from us in our advices.This helped us to put some useful guidelinesinto our style guide.

Purpose

What exactly are you trying to achieve? Whatdo the people in the organisation need to knowto communicate more clearly and in the housestyle? This can actually be quite an extensiveexercise because some parts of the organisationmay need more guidance and more technicaldetail than others.

But how much is too much? How much doyou need to promote a uniform voice withoutrestricting a writer’s style? What will aid thewriter and what will constrain the writer?What will aid the reader and what will impedereadability? These are important questions toask continually during the process.

Structure

What should come first? The technical infor-mation? The grammatical principles? A noteon spelling? Working out the structure of theguide is important to ensure the guide will beused and not left sitting on the shelf becausepeople did not know where to locate information.

Language

What tone should you use? Should it be formalor informal? Once again, this will depend onyour organisation and the various stakeholders.Some areas of the organisation would prefera more formal tone, others less so. People feelvery strongly about the tone of the style guide.It’s a bit like mandating what people should

wear to work. Some would prefer there wereno contractions in a sentence. Is ‘it’s’ appropriatein a style guide?

Design

Finally, breathe; all you need to do now isconsider the design of the style guide. Howshould the information be presented? Shouldit be in colour? The design will depend on theorganisation, budget and how much you wantto encourage people to use it. And if you thinkthis is the easy part, think again. The designcan bring out even more emotion. It can belike picking a paint colour for your bedroom.You have to live with it for a while. So makesure you consider the design early in the process.

How does the journey end?

The ‘style guide’ journey ends well.

A style guide will help an organisation todeliver a consistent and recognisable image tothe world. It will help staff to communicatemore clearly by giving them some tips to helpthe reader understand their message morequickly and easily.

A style guide will aid clarity. Even if the journeyis a little muddy!

© SThompson 2007

Suellen Thompson is the former National Clear LegalWriting Consultant for a major Australian law firm. Sheis a lawyer with a Masters in English Language who hasbeen involved in precedents and plain language since theearly 1990s.

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If you’re willing, would you pleasesend your e-mail address to MarkAdler <[email protected]>so that he can add you to his e-maillist of Clarity members. We promisenot to bombard you with e-mails, butfrom time to time Mark sends outinformation that should be of interestto members. You will also receive aPDF version of the journal as soon asit’s available.



Naida HaxtonLegal editor and barrister

[This article is in the form of a letter to someonewho has just been appointed to the role of editorof authorised law reports. Its author has justretired from that position. Ed.]

Dear editorial colleague,

Again, congratulations on your new role aseditor of the authorised law reports. I hopeyou enjoy the work as much as I did duringthe past 30 odd years.

As you so rightly pointed out over coffee,almost in the words of Sir Robert Megarry inA New Miscellany at Law: “Though justlyesteemed, simplicity is not a universal judicialachievement.” You will, no doubt, find it veryfrustrating at times as the constraints of themedium become more and more obvious toyou. You have asked me about some of thoseconstraints. You have asked me to give yousome ideas in applying the use of plain Englishto your editing role and particularly in relationto the reported judgments. I have spent a lotof time thinking about what you said.

The short and simple answer is, “you cannotapply plain English to editing the judgments”,but perhaps after you read this you may thinkup and implement ways of getting into thejudicial mind. There are a multitude of reasonswhy you cannot simplify the judgments. I willtry to explain—hopefully in plain English—bylooking at the many hurdles and the perceivedeffects of such intervention. I will make somesuggestions about getting into the judicialheadspace, which you might like to take onboard.

The hurdles

There are a number of hurdles.

Who owns the copyright?

The major hurdle lies in the concept of copy-right. There has long been argument for andagainst the court, the judge, or both holdingthe copyright in a judgment. Whichever it isis not a topic for discussion here. However thejudgment is created, it is copyright material.When a judgment is reported and hencereprinted in law reports; a considerable amountof editorial work is performed on it. This pro-duces a new work based on a compilation.Each volume of the reports is comprised ofthe judgments and their additional material,including catchwords and headnote (what thelayman would call a summary and an index).There seems little doubt that this compiledwork is the subject of a separate copyright.The editorial licence in relation to judgmentsfor this purpose may extend to checking andcorrecting citations and quotations but doesnot include otherwise altering or interferingwith the text.

The purposes served by a judgment

The next restriction lies in the purpose thatthe writing of judgments serves. Judgmentsare written to satisfy the requirements ofjustice in resolving a dispute between parties.The legal meaning and effect of judgments isgoverned by:

a. The Orders

b. The reasons and the reliance thereinand thereon of quoted and (mis)quotedmaterial from a variety of sources:

i. Statutes

ii. Precedents (previous cases)

iii. Text books

iv. Research documented by thirdparties, such as associates andresearch assistants

v. Evidence given by the parties andtranscribed by third parties.

A judgment is a compilation of all or some ofthese. One has only to look at the contents ofa judgment to realize how little might be ori-ginal material and therefore how difficult itmight be to edit. In the process of checking orverifying the quoted material for reportingpurposes, you will discover that material isoften incorrectly quoted. What do you do aboutit? If it is a significant misquote, you contactthe judge.

EditinEditinEditinEditinEditing judg judg judg judg judgments:gments:gments:gments:gments:lessons learned inlessons learned inlessons learned inlessons learned inlessons learned inlalalalalaw rw rw rw rw reporeporeporeporeportintintintintinggggg



Judicial infallibility

During my time as Editor, I contacted judgeson many occasions about all sorts of things.Whilst they are very approachable and convivialthey are a little inclined to adhere to the viewespoused by a Court of Appeal judge in 2001:“We appreciate that we’re all human, exceptus up here of course. We never make mistakes.”One of the most alarming mistakes I encoun-tered was in relation to a judgment thatinterpreted a provision of a statute that hadbeen repealed at the relevant time. This errorwas found in the verifying process. Whenapproached about the matter the judge pointedout that the judgment had been delivered andacted upon by the parties without anyoneelse having alluded to the error in the premiseupon which it was based and that, in thecircumstances, it should stand. He did addthat he thought that the principles enunciatedmight be useful in other cases. This might wellbe so.

What this example does is draw attention tothe need for accuracy and attention to detailin drafting judgments, orders and reasons. Italso highlights the reliance placed upon thecontent of judgments. If the content is notexpressed clearly and accurately, there is aloss of clarity, meaning and usefulness.

Evolving language

On another occasion, I contacted JusticeMichael Kirby [Clarity’s co-patron, see page 2and the interview with Justice Kirby that beginson page 9. Eds.] on what I thought was a mostunusual use of the word “elided”. Whilst heagreed that the word was used in a mannerdifferent to the norm, he nevertheless thoughtit appropriate and justified “because English isa growing language”. I am glad I asked.

Old language

Most people are aware that judges rely onprevious cases in coming to decisions. Youand I are aware of the uses to which theseprecedents are put. Material from previousjudgments is used as direct authority and tosupport argument. Often decisions are basedon living but rather obscure law, a great dealof which was written before plain English wasconceived. Often that law uses a word in ahighly specific way so that it cannot be “broughtup to date”.

Many words used in a legal context havemultiple meanings that make clarity rather

elusive. Legal textbooks and articles rely heavilyon quotes from judgments. Often the skills inproducing a textbook lie in the ability to para-phrase or summarise the meaning in plainEnglish. But this may backfire and you will finda judge drawing attention to a misconception ormisconstruction in the textbook at some laterdate. The same arguments apply to the use ofresearch materials and evidence.

Misquoting misquotes or Chinese whispers

There is, as you might appreciate, a real riskof complete distortion as happens in that oldgame of Chinese Whispers. If you went to aschool that taught grammar, you may wellhave learned about the difference between,“A said B was there” and “A, said B, wasthere”. Judges, as you well know from yourcourt work, quite often get it wrong. JusticeMichael Kirby, sitting in the Court of Appealin 1993 in a case of Clarke v Bailey (1993) 30NSWLR 556 at 571, referred to “one judge’sconstruction” as being “another’s ‘mangling’”.If this is so, what might be the result of a plain-English edit? Even one who understands thelaw and the processes can mistranslate withdisastrous effect.

One of my last instructions to the law reporters(those who produce the material for the head-notes) was in the following terms:

Some of you have been forgetting toproduce the paragraph that describes thenature of the case before the court undersuch headings as APPEAL, SUMMONS,APPLICATION. This should contain asmuch information as to the nature of thecase, the prior proceedings and the partiesas an informed reader would require asan introduction to the reported case.

This was translated, without consultation,by a legal editor and self-professed expert inplain English into:

[W]hen preparing headnotes, pleaseensure that these contain sufficientinformation as to the nature of the caseand the background of the case as toenable readers to understand andappreciate the context of the holding/s.

This sent triggers of alarm to the reporterswho had been well trained in producing head-notes with a minimal factual background andwho took it to mean, as it does, that they werenow required to produce “facts” as part of theheadnote. Be warned!



The impact of computer cut and paste facilities

There are a couple of other matters that mightnot necessarily occur to you. The first is com-puters. The advent of computers has meantthat the use of a judicial pen has been consid-erably reduced. The judges, together with therest of us, live in a world of cut and paste. Thisprovides expediency, a degree of accuracy,verbosity and often-unnecessary complexity.The more judgments you read the more youwill see the changes in style and use of lan-guage within a single judgment created bythis process. The more you will recognize in-stances of plagiarism. Does this computerfacility enhance lucidity or clarity? It probablycontributes to obfuscation and ambiguity. Askyourself how often you cut and paste in yourhaste to get a document out of the door.

The judicial ego

Finally the most elusive aspect is the judicialego. Twice in my career judges have threat-ened to sue for defamation. Both instancesrelated to the insertion of footnotes into thetext to accord with the adopted style of theparticular reports. Both judges thought that thiseditorial intervention in some way lessenedthe reputation of their judgment-writingskills. There are many more judicial officersproducing judgments than ever. The warningis clear.

The possible effect of changing a judgment

Should editors try to simplify and clarify thewritten judgment? I think you will gatherfrom the above that I do not think we can,desirable as we might think it is to do so.Should editors try to improve on grammar,punctuation or word choice? Quite clearlyone cannot afford to risk changing meaningand effect. In addition, the possible effect ofsuch editing would be a clear breach ofcopyright, a yet-to-be-tested publication ofdefamatory matter and perhaps a possiblecontempt of court.

Overcoming the hurdles

Can we change the judicial approach? If so,how? I have a few ideas. I hope you havesome as well.

In the area of Child Welfare, there is constantemphasis on early intervention. In the area oflegal writing generally and judgment writingin particular, we need to think about earlyintervention also. In an ideal world, grammar,

punctuation, simplicity and clarity of writtenand oral expression would be part of our earlychildhood training. But we do not live in anideal world and are not likely to.

I know that the Law Schools of today areencouraging and teaching in every waypossible the rewards of using plain English.Hopefully the impact of this will come whenthose who have gone through those earlytraining processes are elevated to the Bench.

Contrary to popular belief, I have found alljudges to be very human beings and havehad some interesting correspondences andaltercations with them over the years.

When you have read and analysed as manyjudgments as an editor of law reports does, itis assumed you know something about them.For that reason, I was once asked by the JudicialCommission to give a talk to the Judges of theLand and Environment Court on the topic,“Judgment Writing”. What I think impressedthe Judges of that Court most was that I turnedup with a power point production and a two-page “Check List for Judgment Writing”. Mostinstruction on the art of judgment writing isoverly verbose—perhaps in the interests ofobfuscation. A very interesting experience!The Judicial Commission of NSW rejected awritten version containing 620 words of theclearest language for publication in the JudicialOfficer’s Bulletin as not according with theBulletin’s scope and purpose.

When Dennis Mahoney JA, retired in 1996,he penned a note to me in which he said, “Ihave been thinking about the form of judg-ments. At a rough approximation, the writingof a judgment takes 100–150% of the timetaken in the hearing of an appeal. I suspectthere must be a better way of performing thefunctions, which the preparation of judgmentsserves. What are your ideas? Can we set anew trend?’ to which I responded:

Your note has prompted me to put someof what I call my “kitchen sink” file onpaper. (When one has one’s hands inwarm water, the mind is free to roam.)

On writing judgments:

1. Issue quill pens;

2. Add to the oath of office taken to ad-minister justice without fear or failure“in judgments of fewer than 20 pagesand without academic aspirations”;



3. Employ a judicial editor;

4. Set a paradigm for judgment writing.

From where I sit judgments need to beshortened and to be less repetitive. Ienvisage an appeal judgments/processin a format akin to the following:

By the COURT:

1. Where the appeal is from

2. What the appeal is about in principle

3. What the appeal is relevantly aboutfactually

4. What statutory or other provisionsare relevant and should be quoted

5. Any other material agreed upon asrelevant

6. Summary of submissions ofappellants

7. Summary of submissions ofrespondents

By the COURT/JUDGE OF APPEAL:

8. Summary of conclusions

9. Reasons for decision

By the COURT

10. Orders.

In the paradigm above I would like tothink that 1–7 could be produced by ajudicial assistant (assistant judges? Trialwith acting judges?) for approval by thecourt. These are the areas where thegreatest repetition and, often-differingperspectives on factual findings, occur.Matters numbered 8–10 should beproduced for publication in the orderspecified. My feeling is that if (afterresearch and rumination) one had toclarify one’s conclusions, then justify them,a lot of material that is less pertinentmight disappear.

Many of the Industrial Court judgmentswhich appear in the Industrial Reportstend to follow a format which is very easyto read because one tends to read themknowing they are heading in a reasonablylogical direction and will arrive at aconclusion. With the sheer volume ofjudgments being delivered and publishedto all and sundry in so many differentformats, I tend to think that a greater

degree of clarity of purpose might bedesirable.

I have no idea what training and/orwhat guidance is given in relation towriting judgments but perhaps thereought to be “meetings” (dare I say“classes”) on the matter. Sir Harry Gibbs(and no doubt others) has written onjudgment writing. No doubt he or otherscould give direction on the “judging”aspects and others perhaps give morepractical direction on form, style, methodsof citing material, editing, etc, with a viewto greater uniformity and less idiosyncraticproduction in these matters.

We never took it further, BUT there havebeen many changes since then and manycourses in judgment writing and in usingplain English, and all for the better.

I still believe that there may be some merit inCourts employing judicial editors as a furthermeans of early intervention. Perhaps this is aplace for former Editors of law reports.

Judges on editors like us?

Editors were, I found, perceived to be overlypedantic “fuddy-duddies” (unlike somejudicial officers who believe they have movedwith the times). Getting judges to maintain aconsistent style in the use of such things asabbreviations and citations has been aconstant theme in my 35-year-long editoriallife. It has felt like bashing my head against abrick wall. With time some inroads weremade and some converts achieved. Unlessyou have a magic piece of software in yourportfolio, I hope you are prepared and willingto keep bashing away. With persistence somemore inroads will be made and some moreconverts achieved. Hopefully in your timethere might be “simplicity” as a “universaljudicial achievement”.

Welcome to the club.

© NHaxton 2007

Naida Haxton, AM, BA/LLB, Grad Dip in ProfessionalEthics, described by Justice Heydon of the High Court ofAustralia as ranking “very high in the first class of legaleditors across the common law world”, practisingbarrister in Queensland and New South Wales 1966-2006, was from 1971 variously, Editor of the PNGLR;Editor of LGERA; Assistant Editor and Editor ofNSWLR.



Clive JamesAustralian born, UK-based TV critic, essayist, poet,author

Reprinted with permission from The Monthly, June2006, p50.

See www.themonthly.com.au/

In which English-speaking country is theEnglish language falling apart most quickly?Britain. Are things as bad in Australia? I hopenot. In Britain, in 2006, the Labour governmentis still trying to fix the education system, butsurely one of the reasons it’s so hard to fix isthat most of the people who should knowhow are themselves the system’s victims, andoften don’t even seem to realise it. They needless confidence. Even when they are ready toadmit there might be a problem, few of themrealise that they lack the language to describeit.

An appropriate sense of desperation has beenfar too slow to set in. As recently as 2001, oneof Britain’s higher-educational journals car-ried a letter signed by more than five hundreduniversity professors, lecturers and teachersof English. They all concurred in a single opin-ion “The teaching of grammar and spelling isnot all that important.” But every signatoryof that letter must have been well aware thata depressing number of his or her studentswould have written the sentence anotherway: “The teaching of grammar and spellingare not all that important.” We can only hopethat the number has since decreased. Thegovernment would like us to think it has. Butthe evidence from the media and everydaylife suggest that most people would be at aloss to find anything wrong with the firstclause of the sentence I am writing now,except, perhaps, the whining irascibility ofits tone.

Unless taught better, even a quite brightstudent will not realise that “the evidence” isthe subject, and takes the singular. The “and”linking “media” and “everyday life” makes

the noun phrase look like a plural, and so, byattraction, the plural verb is put in automat-ically. People who have learned English asa second language rarely make the error,because they were taught some grammaralong with the vocabulary. But people whohave learned English as a first language areincreasingly likely to be driven to a pluralverb by a plural-sounding singular subject,and precisely because they have learned thelanguage by ear, instead of by prescription. Inan infinite variety of forms, the same mistakecan be seen in the feature pages of the Britishquality press every week. (The trash papers,oddly enough, are still relatively immune:perhaps because some of the old, unionisedsub-editors are still on the case.)

Even the most intellectually up-market pub-lications are not exempt. Before Fleet Street’snecessary but regrettable disintegration, theeditors and sub-editors of the quality broad-sheets knew how to fix the solecisms ofambitious young journalists who had some-how dodged the school system.

But at the very time when the school systemitself became a potent incubator for the semi-literate scribbler, the sudden multiplication ofculture-page outlets meant that there wereno longer enough cultivated editors and sub-editors to go round, and by now some of theeditors and sub-editors are themselves pro-ducts of the anti-educational orthodoxy bywhich expressiveness counts above precision.It would, if the two terms were separable.But they aren’t. Beyond a certain point—andthe point is reached early—precision is whatexpressiveness depends on.

Startled by the high-level declaration in 2001that grammar and spelling were not very im-portant, I began keeping a record, for the firsttime, of the blunders as they flooded by. I ex-pected the flood to abate. But by now I amsitting on top of the house, and my notes forthat crucial year are in my trembling hand.Things had gone haywire a long time beforethat, of course, but that was the year whenthe people in charge had the hide to tell usthat it didn’t matter. They could hardly havepicked up even the most posh of newspaperswithout encountering evidence that it matteredlike mad. On 12 May 2001, someone on theGuardian’s literary page asked, “What wouldPhilip Larkin make of a new collection of hiswork, Further Requirements?” Reasonably allright so far, although the unspecific “a” would

TTTTThe continuinhe continuinhe continuinhe continuinhe continuing insultg insultg insultg insultg insultto the lanto the lanto the lanto the lanto the languaguaguaguaguagggggeeeee



have been better as a “the” or a “this”. Butthen the literary someone answered his ownquestion: “Having selected all the material forRequired Writing, in 1983, and then died a meretwo years later, one might regard a secondvolume as de trop ...”

The French tag is a claim to clerical expertisethat the dangling participle scarcely supports.In 2001, the literary someone has failed tonotice that he has composed a sentence inwhich he himself, and not Larkin, dies in 1985.It would be asking too much to expect theliterary someone to realise that he is not qual-ified to read Beatrix Potter, let alone PhilipLarkin: but he might at least read his own stuffwith his ears open. Evelyn Waugh occasionallydangled a modifier, and Anthony Powelldangled them like a boat fishing for tuna; buta less-gifted writer would do best to avoid thepractice. All too often, such blunders of mis-matched apposition drive the reader tore-work the sentence himself before he canfigure out what the writer must mean. Whenthe writer is getting all of the fee, and thereader is doing at least half of the labour, thediscrepancy can cause resentment.

In the Observer of 13 May 2001, the aviationcorrespondent drew on his reserves of meta-phor to recreate the Concorde crash nearParis the previous year. The historical presentis a bad tense in which to evoke anything,but worse than that is on offer. “Alreadymortally wounded, flame bleeds uncontrol-lably from beneath the left wing.” The bleedingflame has everything wrong with it apartfrom the mixed metaphor: for the aircraft tobleed flame, it would have had to have flamein its veins and arteries, whereas what it hadwas aviation gasoline. But what really screwsthe sentence is the dangler, which makes thebleeding flame mortally wounded. He meansthat the aircraft was mortally wounded.Luckily you know he must mean that, becausehe has been talking about the aircraft in theprevious sentence. So this sentence counts asa mild case. In thousands of more severe cases,from hundreds of other writers, mismatchedapposition introduces genuine confusion. “Atthe age of eight, his father died in an accident”can be construed on its own, after a briefpause for thought. “At the age of eighteen,his father died in an accident” gets you intothe area of needing to look elsewhere in thepiece to find out what’s going on.

In its best years, Private Eye was written byprivately educated junior mandarins whocould make a stylistic analysis of yob-speak inorder to score satirical points. But in June 2001,issue 1029 carried the following sentence asstraight reportage. “Unheard of before theTories plucked them from obscurity, cynicssuggested that Smith Square couldn’t afforda more established agency...” After lookingback, you can deduce that an advertisingagency called Yellow M was plucked fromobscurity, and not the cynics. A thousandissues before, you would never have had tobother. For a long time, Private Eye’s literarypage was free of illiteracy, but now the dis-ease is rampant even there. In issue 1042, for30 November 2001, Andrew Morton’s catch-penny biography of Madonna was given whatwas obviously meant to be an exemplarywigging, but the reviewer calamitouslyproved that his grip on the language was nomore firm than that of his lumbering victim.“With countless newspaper serialisations andthe most fortuitously timed royal death in thehistory of publishing behind him, any celebritybum-chum knows that the phone call fromMorton is akin to Judas’s 30 pieces of silver.”In whatever way something is timed, it can’tbe timed fortuitously: the reviewer means“fortunately”. But the real damage is done bythe muffed apposition. It can’t be the celebritybum-chum that has all that stuff behind him,so it must be Morton. Or so we presume, ifwe are still reading. But why would we bedoing that?

The internet magazines are a rich source oftangled connections. Their contributors arecomputer-literate but that doesn’t make themliterate, and indeed seems to ensure the oppo-site. Here is a sentence from the July 2001 issueof one of the glossiest internet magazines, thenet. (The preference for lower case, inciden-tally, is already a bad sign about the standardof literacy in the wired world: the illustrativeuse of upper case amounts to an informationsystem, and to abandon it means being lesscommunicative, not more.) But let’s try again:here is the sentence. “Once up and runningthe guardians of copyright are really going tohave their work cut out to close it down.”

Sad experience has already taught the readerthat “it” is more likely than “the guardians ofcopyright” to be the noun element that willsoon be “up and running”. Previous sentencesreveal that “it” is the Freenet filesharing system



for pirated feature movies; and that the Freenetsystem is still in development, and is thereforea likely candidate for being described as notyet up and running. Armed with that infor-mation, you can put the meaning of the sentencetogether. But the saddest thing about the sadexperience is your hard-won knowledge thatif the author had meant the guardians ofcopyright to be the subject of description, hewould have put the adjectival element in thewrong place by about the same distance:“The guardians of copyright are really goingto have their work cut out to close it down,once up and running.”

On the web itself, the standard of English iseven worse than in the magazines. The char-acteristic sentence on the web is transmittedin a nanosecond across the world and thenslows to a crawl within the reader’s brain,almost always because the grammar is out ofwhack: vocabulary is abundant, but its ana-lytical deployment is an approximate mess.Efficiency of expression is in inverse propor-tion to the precision of the machines. It ispossible to predict a future in which anybodywill be able to transmit any message at anyspeed but nobody will be able to say anythingintelligible.

Especially in those American glossy magazineswith pretensions to being investigative, thereis a brand of lumpen prose that perpetratesno real howlers but still weighs like lead be-cause the reader continually has to join in thewriting. In Vanity Fair for May 2001, an inform-ative article about Bill Clinton’s abandonedcolleague Webb Hubbell evoked the scenewhen Hubbell was taken back to Little Rockto testify. “He arrived in the city where he hadonce been mayor handcuffed and shackled.”Unless he was handcuffed and shackledwhile he was mayor, this sentence is just amass of raw material waiting for the readerto make something of it. Ostensibly there isnothing much wrong with the grammar, butthe word order is out of control; and in Englishcomposition, because the language is relativelyuninflected, word order and grammar areseldom without connection. The sentencecould be mended at the price of one comma:“Handcuffed and shackled, he arrived in thecity where he had once been mayor.” TheNew Yorker’s style police would probablywant two commas (“He arrived, handcuffedand shackled, in the city where he had oncebeen mayor”) because the New Yorker likes

the noun stated in front of any qualification,in case the reader cancels his subscriptionwhile being kept in suspense.

But faulty word order, when it does not intro-duce confusion, is a secondary issue comparedwith faulty grammar when it does. You canwrite charmlessly without insulting the reader.But to write ungrammatically, and not realiseit, is to insult the English language. It alsoremoves the possibility of being ungrammaticalon purpose: a real impoverishment when itcomes to special effects. And in this respectthe British are a long way ahead of the Amer-icans: a long way ahead, that is, on the roadto perdition.

“Even as Congress was voting,” wroteAnthony Holden in his New York Diary forthe Observer, 18 November 2001, “one roguesecurity-dodger in Atlanta was enough togrind the world’s busiest airport to a prolongedhalt ...” Anthony Holden once gave me somecrucial help on a Washington assignment, soto quote one of his less-polished sentencesmight seem a harsh way to reward him, but Ilike to think he would do the same for me. Thelanguage, as Keats said after being repelledby Milton, should be kept up. Holden is along-serving professional whose prose is nor-mally as well calculated as his poker playing,and the Observer section editors were oncethe best in Fleet Street. But on this occasionboth the writer and his editor must have nod-ded off at once. The original metaphor dependsfor its effect on evoking the sound of somemechanism grinding to a halt. The metaphoris fatally diluted when something grindssomething else to a halt: for one thing, itwould be a slow way of stopping an airport.

Usually, when a metaphor slithers into impre-cision, it is because the activity from which itwas drawn is no longer current practice.Nobody gets the picture, because there is nolonger a picture to be got. The expression“loose cannon”, for example, grew from theactuality of an untethered cannon, throughits enormous weight, working havoc on thegun-deck of a wooden warship rolling andpitching in heavy weather. For a long timethere have been no wooden warships, but themetaphor stayed accurate while everybodywho could read was still reading CS Forester.Finally some journalist who hadn’t, but wholiked the ring of the expression, falsely deducedthat the loose cannon caused damage because



its barrel was too big for the shot, and so westarted hearing about the damage the loosecannon might do when fired.

Similarly, “he shot himself in the foot” origi-nally referred to a soldier in the Great Warwho hoped that a self-inflicted wound wouldbuy him a ticket out of the trenches. Perhapsbecause of the irresistible mental image of aWestern gunslinger pulling the trigger whilegetting his revolver out if its holster, the meta-phor is nowadays almost universally used toevoke clumsiness rather than cowardice.Sometimes the words within the metaphorchange. “Home in” is now often written as“hone in” because the writer thinks “hone”sounds rather grand without knowing whatit means: the age has passed when knivesneeded to be re-ground. Now they can justbe replaced.

Examples of deteriorating metaphors couldbe multiplied. There is seldom any stoppingthe process after it begins to affect goodwriters. Bad writers can be mocked, but goodwriters inexorably spread the word: and ifthe word is the wrong one, the languagechanges. As I put the finishing touches to thispiece in May 2006, AA Gill, the excellenttelevision critic on the Sunday Times, has justused the word “solipsisms” where he obvi-ously meant “solecisms”. Gill is dyslexic, andhe phones in his column to copy takers whoaren’t always accurate, so he had a good

excuse. But his editor had no excuse at all.The chances are that the editor simply didn’tknow the difference, and that on the SundayTimes the number of solecisms will inexorablyincrease, and that they will be called solip-sisms if they are noticed at all.

The language has always changed, so toprotest looks reactionary. If there were noreactionaries, however, deterioration wouldbecome galloping decay. In reality, decay doesnot gallop, but we all know what a horse iseven if we have not ridden one, so everyonerealises, so far, that “galloping” is being usedmetaphorically. When all the horses have gone,“galloping” will just mean “rapid”. After agalloping shave that spattered the bathroommirror like a loose cannon, he honed in on hiscar, but when he could not find his keys hewas ground to a halt by the awful realisationthat he had shot himself in the foot.

You know what I mean, even though everycomponent of the sentence has lost touch withits own history. The typical prose of thepresent has no past. Whether it has a futureremains to be seen.

© CJames 2007

For a bio and links to profiles, seehttp://www.clivejames.com/author/bio

Sixth International PLAIN ConferenceSixth International PLAIN ConferenceSixth International PLAIN ConferenceSixth International PLAIN ConferenceSixth International PLAIN ConferenceAmsterdam, 11-14 October 2007Amsterdam, 11-14 October 2007Amsterdam, 11-14 October 2007Amsterdam, 11-14 October 2007Amsterdam, 11-14 October 2007

The Plain Language Association International (PLAIN) is holding its sixth conferencein Amsterdam on 11-14 October 2007. The conference brings together plain-languageexperts from around the world to present the latest research and techniques.

The hosts will be Wessel Visser and his colleagues at Bureautaal, a communicationsconsultancy specialising in plain language. The historic venue, the Beurs van Berlage, isin central Amsterdam, at walking distance from the canals, several hotels, and theRoyal Palace.

Registration is now open, and PLAIN members get a discount. Proposals are invited topresent over 100 papers in more than 50 workshops, with a deadline of 15 June 2007.

Please visit the conference website, http://www.plain2007.com, for full information.You can find out more about PLAIN at http://www.plainlanguagenetwork.org.



PunctuationPunctuationPunctuationPunctuationPunctuation

Alec SamuelsBarrister

We all know and appreciate the richness ofthe English language, especially in vocabulary.However, this very richness may compromiseclarity of communication. Lack of syntax andgender and structure tempt writers to prolix-ity. to the use of descriptive and subordinateclauses, and to excessive punctuation. Theadvent of the language of technology, incomputers and mobile phones, has createda need for new punctuation rules. In the olddays as a young lawyer I was taught to bevery careful with punctuation and to use itsparsely—indeed to dispense with or to avoidpunctuation where possible. Apparently byusing punctuation the drafter might:

• be tempted to use unnecessarily long andunclear sentences

• inadvertently alter the meaning of wordsand phrases

• risk the typist or editor or printer or pub-lisher overlooking or excising or misplacingor misunderstanding the punctuation andso inadvertently alter the meaning.

Worst of all, in a somewhat slovenly age, thedrafter might not draft as thoughtfully andcarefully as they could and should. Althoughthe absence of punctuation might make apoorly drafted document even more difficultto construe—Steel (1979) Chancery 218.

Punctuation can be of some assistance in con-structing the meaning of a document—R vSchildkamp (1971) Appeal Cases 1, 10E, LordReid; and Hanlon v Law Society (1981) AppealCases 124, 197.

Latin has no punctuation, so drafting alwayshad to be meticulous to avoid any ambiguity.

Try drafting today without using punctuationapart from full stops. If there is any ambiguity,redraft. See what it looks like on the page orscreen. Try composing to produce a pleasant

visual effect. If punctuation is used, how canits use be justified? Is punctuation necessaryfor the style?

The Statute Law Society is devoted to clarityin legislation. The “bible” of its members is theReport of the Renton Committee. In it LordRenton, the doyen of the movement, urgedthe use of full stops and shorter sentences.However he recognised that where the thoughtsin two sentences are closely linked it may beappropriate to join the sentences by a co-ordinating conjunctive preceded by asemi-colon. This would emphasise the linkand, in some cases, also avoid repetition.

Any punctuation in the text forms part of thestatutory text, although this has not alwaysbeen the case. In Marshall v Cottingham (1982)Chancery 82, 88A, (1981) 3 All EnglandReports 8, at 12a , Megarry VC said thatpunctuation is normally an aid, and no morethan an aid, towards revealing the meaningof the phrases used and the sense that theyare to convey when put in their setting.Punctuation is the servant and not the masterof substance and meaning. Punctuate thefollowing in order to make sense of it:

Every lady in this land

Hath twenty nails upon each hand

Five and twenty on hands and feet

And this is true without deceit.

And compare “X said Y is a thief” with “X,said Y, is a thief”, says R. E. Megarry in A NewMiscellany—at-Law: Yet Another Diversion forLawyers and Others, The Lawbook Exchange,Ltd, 2005, p 203. The leading legislativedrafting commentators naturally considerpunctuation. G C Thornton, in LegislativeDrafting, Butterworths, 4th edition, 1996,provides a detailed survey. He says punctua-tion makes the relationship of parts of asentence more meaningful and apparent tothe reader—that it is a device of syntax sug-gesting groupings, revealing structure, andthe quality of connection. Thornton suggestsfour rules:

1. Punctuate sparingly and with purpose.

2. Punctuate for structure and not forsound.

3. Be conventional, there is no place for thevirtuoso comma.

4. Be consistent.



The comma separates items, e.g. (a), (b) and(c). It breaks up long sentences. The semi-colon indicates related, but not necessarilyconjoined, words and phrases, such as aseries or list of items set out in a section.

“The following shall qualify:

(a) ;(b) ;(c) ;(d) .”

The style of statutory drafting has changeddramatically since the mid-nineteenthcentury. Long Victorian sentences, heavilypunctuated, directed principally at legalprofessionals, have given way to visuallycomposed and more readily comprehendedpages directed at “users” and “consumers”.Text is itemised and broken up whereverpossible into sections, sub-sections, sub-sub-sections, using lists, tables, numbering and soon.

The late Lord Denning was a master of theshort sentence—he had a most distinctivestaccato style. This may be appropriate fortelling a story but may not be so satisfactoryfor legal exposition in judgments.

In R v Casement (1917) 1 King’s Bench 98,(1917) 12 Cr App R 99, (1917) 25 Cox CC 480,503, the accused, Casement, whilst in Germany,sought to persuade British prisoners of war inGermany to join the German forces. Casementcame to Britain and was arrested and indictedfor treason under the Treason Act of 1351. Thecharge was that he levied war against the Kingin the realm or was adherent to the King’senemies in the realm, giving them aid andcomfort in the realm, or elsewhere. The defenceargued that either limb of the offence couldonly take place in the realm and not outsidethe realm. On the evidence the first limb didnot apply. Aid and comfort could be receivedanywhere, but the adherence, that is to saythe attempted persuasion, could only takeplace in the realm. The historical explanationfor the statutory language was alleged to bethat in 1351 many barons owed allegiance toboth the English king and the French king.They therefore could not commit treasonagainst the English king when they were inFrance—the realm of the French king and notof the English king.

English criminal law has traditionally beenterritorial in scope and effective only withinthe jurisdiction. The Court of Criminal Appealheld that on a proper construction of thestatute the words “giving them aid and com-fort” were parenthetical. The Court also heldthat the words “or elsewhere” were notconfined to the parenthetical comment, butapplied to the whole of the sentence andtherefore “adherence to the king’s enemies”could constitute an offence wherever com-mitted. Thus liability was determined under acapital offence in the English criminal calendar,in a sense all turning on a comma. See Injustice:State Trials from Socrates to Nuremberg, BrianHarris, Sutton, 2006.

If an agreement or statute contains the wrongword or the wrong spelling, or if the word isin the wrong place or the grammar is wrong,then the error is usually obvious and can beaddressed. If a comma is in the wrong placethe error may not be so obvious and may bedifficult to overcome. The presence or absenceof a comma between the words lamp and postcan make a lot of difference to meaning—Statutory Interpretation, F.A.R. Bennion, 4thedition, 2005, pp 640-647.

A problem frequently arises where a sentencecontains two limbs with a following qualifi-cation and the issue is whether the qualificationapplies to both limbs or only to the second.See “The importance of punctuation” byProfessor Butt (2006) 56 Clarity 54. In Boddenv Metropolitan Police Commissioner (1990) 2Queen’s Bench 397 CA, D was charged with“wilfully interrupting the proceedings in courtor otherwise misbehaving in court”. D used aloud hailer outside the court that drownedthe evidence being given in court. D did notmisbehave in court (second limb); but did hewilfully interrupt the proceedings in court(first limb)? Perhaps a redrafted sentence,without any punctuation, could have pre-vented the problem. Perhaps a comma after“in court” might have covered conduct bothin and out of court. The mischief aimed at inthe statute and the intention of the legislaturecan be helpful in construction of a statute.

In Sydall v Castings Ltd (1967) 1 Queen’sBench 303, Lord Denning MR seeking“justice” in the interpretation of a will ineffect accused Russell L J of pedantry. RussellL J took this as a compliment, pointing out



that in The Merchant of Venice, Portia won hercase on pedantry.

The lay recent classic on punctuation is Eats,Shoots & Leaves, The Zero Tolerance Approachto Punctuation by Lynne Truss, Profile Books,2003. (Note the punctuation in the title.) Thebook is dedicated “To the memory of thestriking Bolshevik printers of St Petersburgwho, in 1905, demanded to be paid the samerate for punctuation marks as for letters, andthereby directly precipitated the first Russianrevolution.”

Amongst many compelling examples Trussgives the following:

A woman, without her man, is nothing.A woman: without her, man is nothing.


Comfort ye my people.Comfort ye, my people.

The prisoner said the judge was mad.The prisoner, said the judge, was mad.

Conclusion

Drafters seeking and achieving clarity usepunctuation sparingly, cautiously andcarefully, but effectively, as a means or as atool to promote clarity, style and certainty.

© ASamuels 2007

Alec Samuels is a JP, Barrister, and councillor who hasserved in the Law Faculty in the University ofSouthampton for 50 years. He is a lecturer and writer onlegal subjects, a contributor to many journals, and alongstanding member of the Statute Law Society andClarity.


the two alternative interpretations but also (itseems to me) with the second. It explains whythe drafter specified an initial 5 year period,but it doesn’t by itself explain why he or shespecified successive ones. If the contract wasmeant to endure for 5 years and then to beterminable at any time by one year’s notice,these successive periods are meaningless.

My guess would be that the drafter intendedneither interpretation. When he or she refers toone year’s “prior” notice, one has to ask, “priorto what?” The word “prior” is unnecessary ifit simply means “prior to the date when it ends”:the notice could hardly be given after it hadended. No, my guess is that the drafter meant“prior to the start of the next 5 year period”.This result gives due weight to all the wordswhich appear in the extract and produces aperfectly sensible result: that the contract en-dures for successive periods of 5 years certainunless and until a 5 year period is preventedfrom starting by a notice given one year beforethe start date.

If readers’ patience allow, I would add somebrief comments. First, whichever of thesethree interpretations is the correct one, theagreement is self-evidently not clear enoughto achieve it with certainty.

Second, I am very conscious that the agreement(which must, as we all know, be construed aswhole) may contain something else that makesone or other of these interpretations more orless likely than I realise.

And third, what lessons about punctuationcan one draw from all this? That punctuation,if used, should be perfect—yes, certainly. Butin the real world people don’t punctuate per-fectly. At the risk of sounding like the old fogeythat I am, it seems to me that they are nolonger taught properly how to do it. I haveto confess that when I was in practice andproducing legal precedents for my firm andfor publication, I didn’t punctuate any of them.(I remember Joe Kimble’s kind but sad reactionwhen I confessed this to him.) I had severalreasons for rejecting punctuation, but amongstthem was my feeling that other people couldn’tbe relied upon to reproduce it accurately, norto punctuate accurately any changes theymade, nor to punctuate accurately any otherdocuments of their own devising.

As, perhaps, this particular case confirms.

Yours faithfully,Richard Oerton


Letter to the editorThe Granary Park Lane Cannington

Bridgwater Somerset TA5 2LUTelephone 01278 653455

28 December 2006

The Editor of Clarity

Dear Sir,

I was interested in Peter Butt’s contribution(“The importance of punctuation”) to theNovember issue. He refers to an agreementcontaining a provision that it

shall continue in force for a period of five(5) years from the date it is made, andthereafter for successive five (5) year terms,unless and until terminated by one [year’s]prior notice in writing by either party.

Peter Butt says:Notice the second comma. Did it have theeffect of permitting the contract to be term-inated by one year’s notice at any time, oronly after the initial period of 5 years hadexpired?

The task of interpretation evidently fell to theCanadian Radio-television and Telecommu-nications Commission which, because of thepresence of this second comma, opted for thefirst of these two alternatives.

This seems odd. It looks a bit as if the Commis-sion was so hypnotised by the comma that itfailed to consider the context in which it ap-peared. If the contract really was meant to beterminable at any time, why were the 5 yearperiods mentioned at all? Why did the drafternot say simply that it

shall continue in force unless and untilterminated by one [year’s] notice ...?

Surely, in specifying these 5 year periods, thedrafter intended the contract to endure forthe first one at least: otherwise why mentionthem? If this was indeed the drafter’s intention,the second comma is by no means incompatiblewith it: the placing of this comma might thenbe irritating to a purist, but one sees commasin worse places than this nearly every day.Furthermore it seems odd that a contract ofthe kind which this one seems to be shoulddeliberately be made terminable after only ayear by notice given the moment it is made.

But the argument which I have just put for-ward is inconsistent not only with the first of


Susan BellSusan Bell Research

Some readers “pole vault” into the middle ofa document; others take a “hop-step-and-bail-out” approach. The better we understandwhat readers do and what motivates them,the better we are likely to write.

The challenge of household mail

One of our daily challenges of modern life isto manage the increasing quantity of domesticmail—and all the various documents thatarrive as enclosures. Many people read onlya fraction of the mail they receive at home—even though in some cases the writers haveclearly followed traditional plain-languageguidelines. In this article, I argue that writersof public documents need to understand theirreaders much better. If they don’t, then it isunlikely their documents will cut through theclutter of domestic mail. Specifically, I suggestthat writers need to know more about howtheir readers actually read.

The focus of this article is on how people readthe personally addressed mail and its enclo-sures they receive at home from commercialand government organisations. Examplesinclude customer letters, pamphlets and bro-chures. Banks, telcos, government departmentsand utilities all write to their customers, share-holders or stakeholders, as do many otherorganisations. Broadly speaking these are“public documents”.

I have based the article on the results ofresearch that I have conducted over the lastdecade on documents like these, and theexploratory usability research that I conductedspecifically for this article. I have become anexpert at watching the way people read, andhow they navigate around documents.

Different ways to read—“reading” becomes“athletics”

There are four different ways people “read”:

1. Word for word, sentence by sentence.This is very rare for public documentslonger than two pages.

2. Headline skimming: going from headlineto headline in an orderly manner from thebeginning. While a common approach,this strategy is not without its flaws,described below.

3. Pole-vaulting. To find out whether abrochure or magazine is worth reading,some people simply “pole-vault” rightinto the middle of it, usually landing ona headline or diagram.

4. The hop, skip and jump technique. Somereaders hop and skip through documents,in a state of serial distraction, hoppingfrom one distraction to the next, and skip-ping large chunks of text. By “distraction”I mean:

• words in a different font from themain font;

• any bulleted list;

• a table, diagram or picture.

People who hop, skip and jump read whatcatches their eye. The things that catch theireye include: some headings, but not neces-sarily all; short bulleted lists, but not longones; and parts of tables.

In summary, writers should anticipate thatthe intended audience might not actually readtheir document word for word from the begin-ning, especially if the document is longerthan two pages. Instead, they might pole-vault into the middle of it—and potentiallystraight out again. Alternatively, they mighthop, skip and jump their way through it.

Improving our writing by understanding how

people read personally addressed household mail


The reader’s assumption: public documentscontain relevant information

Most people expect the mail they receive athome from commercial and governmentorganisations to be important or relevant tothem, to a degree at least. They know thatthis type of mail usually includes informationabout the products or services they use—forexample, whether prices have gone up, orwhether certain services have been withdrawn.The consequences of not knowing these factscan be annoying or expensive.

However, because time pressures make itimpossible for anyone to thoroughly readeverything that seems important to them inone sitting, people use the least possible effortto gain the most information that they can atthe time.

How readers try to get the most informationwith the least effort

When people sort through their householdmail, the overriding principle is to get themost relevant information from it in a shorttime. This means not reading anything twice,and not starting something that cannot befinished there and then:

1. They “Never read anything twice”

Householders do not want to waste theirlimited time reading something they havealready read, or already know. They there-fore are likely to throw a document awayunopened or to give it the barest of glancesif it seems to be a duplicate, or to containinformation they already possess.

The “never read anything twice” rule there-fore states that “if a document looks too similarto something received previously, then thehouseholder will believe that they have readthis already, so don’t need to look at it now.”

Many organisations put considerable effortinto protecting their brand image by makingall their documents conform to a design tem-plate. The danger is if it seems no differentfrom previous mail, it may never be opened,however important it is.

2. They “Don’t start what they can’t finish”

When people do read a document, they liketo finish it. People typically do not like leavinga job half-done; they do not like to start some-thing they cannot finish.

When people scan through their householdmail, some documents will appear importantenough to read, but too long to finish. Theytypically put this kind of important mail ontop of a pile of other important mail that istoo long to finish. If a document is still on thepile after a few weeks, then many people willthen file it unread, or discard it. There’s aparadox—some readers are more likely to readunimportant documents, than important ones.The lesson is: if you want people to read them,make your documents look easy to finish,and different from mail they have receivedbefore.

Writing for the athletic reader

If you expect your document might receivethe “pole-vaulting” or “hop, skip and jump”treatment, there are two things to keep inmind:

1. They “Read below (they never go backup)”. So assume your reader will neverreverse

When we write headlines, we want ourreaders to keep reading the text below theheading; if they are interested in the topic,they will do.

When readers use the “hop skip and jump”technique, they follow the same pattern. Ifthey have hopped to a nice short bulleted listand the topics in the list interest them, thenthey will keep reading the text below the bul-leted list until distracted by the next list, orheading or whatever.

What don’t they do? They don’t go back upthe page from this point of distraction. So, ifpage 1 of your document contains 3 longparagraphs followed by a bulleted list at thebottom, then many readers will start at thebulleted list and proceed straight to page 2.They never read the introductoryparagraphs.

It is a good idea for writers:

• to include any bulleted list near the top of asection, rather than precede it with severalblocks of text which some readers will skipover; and

• in the sentence after the bulleted list, torestate the topic of the section, for thosereaders who missed the opening para-graphs.


2. They reckon “You are only as good asyour last headline”. So use effective andinteresting headlines

Readers jump from headline to headline untilthey encounter a headline that does not inter-est them. What do they do then? Do they hopto the next headline? No, they don’t. They stopreading the entire document. So as a writeryou are only as good as your last headline.Readers assume that writers put their inter-esting and relevant information early in adocument, so a boring headline is a signal that“it’s OK, you don’t have to read any more”.

Summary: watch people read.

In this article, I have tried to show that theact of reading a public document is inextri-cably caught up with the process of managingthe quantity of mail received at home. Peopledo not so much read public documents asnavigate their way through them.

Many people know that they should read thepublic documents they receive. They believethe documents contain information which isrelevant to them, or which they need to know.However, time pressures mean that manypeople deliberately use the least effort to gainthe most information they can from these

documents. They avoid anything which lookslike they have read it before. They put docu-ments aside which are too long or complex tofinish at the time they were opened, sometimesforever. Some people only read the headlines,until they get bored and then stop readingaltogether. Others read only what catchestheir eye and in doing so skip over largechunks of text.

We have become accustomed to being toldthat readers read headlines, almost implyingthat it does not matter what the headlinesays. It turns out that some people read onlythe interesting headlines, and worse, that thefirst boring headline is the last headline theyare prepared to read.

The public document paradox is that—sometimes—the more important information is,the less likely the public is to read it.

To write in plain language requires thinkingabout the way that readers will navigatethrough the document. To learn how readersnavigate, watch how readers read.

© SBell 2007

Susan Bell is a highly respected market and socialresearcher who combines considerable research expertisewith a special interest in the clarity of messages.

Australia 121Austria 1Bahamas 2Bangladesh 6Belgium 5Bermuda 1Brazil 1British Virgin Islands 1British West Indies 3Canada 75Chile 1China 1Cote d’Ivore 1Denmark 2Malaysia 1England 322Finland 6

France 1Germany 3Gran Canaria 1Hong Kong 18India 6Ireland 5Isle of Man 1Israel 4Italy 3Jamaica 1Japan 7Jersey 3Lesotho 1Mexico 7Netherlands 6New Zealand 14Nigeria 9

Philippines 1Portugal 1Scotland 11Singapore 8Slovakia 1South Africa 144Spain 3St. Lucia 2Sweden 16Switzerland 1Thailand 1Trinidad and Tobago 3USA 200Wales 6Zimbabwe 1

Members by country

Total 1039


Justin Vaughan, Ryan Thorne andBen Zhang

Editorial introduction from Peter Butt—former Clarity President and occasionalClarity Guest Editor

[Each year I run a short course on legal draftingfor final year law students at the University ofSydney. As part of the assessment for the course,students are asked to take a gobbledygook documentand redraft it in plain language. The studentsmay be as inventive as they like, but they mustensure that the redraft retains the legal nuancesof the original.

The following is a rewrite offered by three out-standing students. I hope that you will agreewith me that they did a superb job. Key sectionsfrom the original clauses 5 (confidentiality) and6 (exclusivity/non competition) are printed at theend of the redraft. Ed.]

Consulting Agreement

Contents

DETAILS 41. CONSULTING SERVICES 51.1. Services you must provide 51.2. You must comply with applicable laws 5

2. PRICE 52.1. What we must pay—your base fee 52.2. What we must pay—your expenses 52.3. When we will pay you 52.4. Stock options 6

2.4.1. Your bonus is subject to our Board’s approval 62.4.2. Options are over ordinary shares 62.4.3. What the exercise price will be 62.4.4. When we will give you the options 62.4.5. When the options will expire 62.4.6. Conditions of the options 7

3. DURATION 73.1. When this Agreement starts 73.2. When this Agreement ends 7

4. CONFIDENTIALITY 74.1. You must protect our confidential information 74.2. We own the confidential information 7

A redrafting exercise

4.3. You must return our property 74.4. What you may disclose 84.5. What is confidential information? 8

5. RESTRAINT 85.1. You must not be involved with our competitors 85.2. You must not interfere with our business 85.3. What is being involved with our competitors? 85.4. Who are our competitors? 95.5. What is interference? 9

6. DISPUTE RESOLUTION AND REMEDIES 96.1. How disputes will be resolved 96.2. Arbitration 9

6.2.1. What rules apply to the arbitration? 96.2.2. The place of the arbitration 96.2.3. The time of the arbitration 106.2.4. The language of the arbitration 106.2.5. The tribunal must give reasons 106.2.6. How will the award be enforced? 106.2.7. Who will pay the enforcement costs? 10

6.3. Equitable remedies 106.3.1. You submit to jurisdiction 106.3.2. We may suspend payments 106.3.3. What are proceedings in equity? 11

6.4. Remedies are cumulative 11

7. ENDING THE AGREEMENT 117.1. How the Agreement ends—your breach 117.2. How the Agreement ends—your death or inabilityto perform 117.3. How the Agreement ends—by Notice 117.4. Consequences of ending the Agreement 117.5. What clauses survive the end of this Agreement? 11

8. NOTICES 128.1. What form must notice take? 128.2. What is the method of delivery? 128.3. When does notice takes effect? 128.4. How a Party can change its address 12

9. RELEASE 129.1. You release these persons from liability 129.2. Who are the protected parties? 129.3. What is a legal action? 13

10. GENERAL 1310.1. This is the entire agreement 1310.2. What if there are counterparts? 1310.3. What is the governing law? 1310.4. How to interpret headings 1310.5. Further steps 1410.6. You must have no conflicts 1410.7. How to amend this Agreement 1410.8. Waiver of rights 1410.9. Assigning the Agreement 1410.10. Successors are bound by this Agreement 1410.11. What happens if a clause is severed? 1410.12. You are an independent contractor 15

11. DEFINITIONS 1611.1. Who are the parties? 1611.2. Other terms used in this agreement 16

SCHEDULE 1—CONSULTING SERVICES 17

SIGNING PAGE 18


1. Consulting Services1

1.1. Services you must provideYou agree2 to perform the ConsultingServices described in Schedule 1.3

1.2. You must comply with applicablelaws

When performing the Consulting Services,you agree to comply with applicable federal,state, local and foreign laws.

2. Price4

2.1. What we must pay—your base fee5

We agree to pay the Price described in theDetails.Payments are calculated monthly and aresubject to applicable statutory deductions orwithholdings.

2.2. What we must pay—your expenses6

We agree to reimburse you for any reasonableexpenses you incur while performing theConsulting Services. You must provide uswith an itemised account of the expenses andreasonable supporting data.Reimbursement is subject to our policy onbusiness related expenses. We will give youNotice of any changes to our policy.7

2.3. When we will pay you8

We agree to pay any amount we owe underthis Agreement on the 1st and 15th of everymonth.

Stock options9

2.3.1. Your bonus is subject to our Board’sapproval

If our Board of Directors approves, we willgive you the Bonus Options described in theDetails.

2.3.2. Options are over ordinary sharesThe options give you a right to buy ourordinary shares at the exercise price.

2.3.3. What the exercise price will beThe exercise price of the options is the closingprice on the End Date described in theDetails.10

2.3.4. When we will give you the optionsWe will give you:

(a) 1/3 of the options on the day theBoard of Directors gives its approval(“approval date”); and

(b) 1/12 of the options every 3 monthsafter the approval date (until you havereceived all of the Bonus Optionsdescribed in the details).

Details

Parties Company and Consultant

Company Name Company Pty Ltd(“We”, “our”) Address 123 Main St, Sydney, NSW, 2000

Telephone (02) 9123 4567

Consultant Name Consultant(“You”, “your”) Address 1 Accidenture Pl, Sydney, NSW, 2000

Telephone (02) 9876 5432

Consulting Services Described in Schedule 1

Price $100 000

Bonus Options 12 000

Start Date 1 January 2005

End Date 1 January 2010

Governing Law New South Wales


2.3.5. When the options will expireThe options will expire 10 years after theapproval date.

2.3.6. Conditions of the optionsThe options are subject to our Stock Optionand Restricted Stock Plan.

3. Duration11

3.1. When this Agreement startsThis Agreement commences on the Start Datedescribed in the Details.

3.2. When this Agreement endsThis Agreement ends on the End Datedescribed in the Details, unless it ends earlierbecause of Clause 7 (“Ending theAgreement”).

4. Confidentiality

4.1. You must protect our confidentialinformation

You must not disclose our confidentialinformation.

4.2. We own the confidentialinformation12

We own all documents that contain13

confidential information.We own all work14 you produce based onconfidential information. You must inform uspromptly when you produce this work. Youmust transfer to us any rights you have inthis work.

4.3. You must return our property15

When this Agreement ends, or at our request,you must promptly deliver to us allmaterials16 within your custody, possession orpower17:

(a) that contain confidential information;or

(b) we have provided to you.

4.4. What you may disclose18

You may disclose any confidentialinformation that:

(a) we require you to disclose for ourbusiness purposes; or

(b) we authorise you, by Notice, todisclose.

4.5. What is confidential information?Confidential information is information that:

(a) we provide to you; or(b) you discover19

while you perform the Consulting Services.Confidential information includes informationabout us, our products, suppliers or custom-ers.20 It may take any form and is not limitedto information marked “confidential”.Confidential information does not includeinformation that becomes public through nofault of your own.21

Example:

If the Board of Directors agrees on 1 January 2010 to give you 12 000 options,you will receive the options on the following days:

Day Number of Options

1 January 2010 (“approval date”) 4 000

1 April 2010 1 000

1 July 2010 1 000

1 October 2010 1 000

1 January 2011 1 000

1 April 2011 1 000

1 July 2011 1 000

1 October 2011 1 000

1 January 2012 1 000


5. Restraint

5.1. You must not be involved with ourcompetitors22

You must not be involved with ourcompetitors for the duration of theAgreement.

5.2. You must not interfere with ourbusiness23

You must not interfere with our clients oremployees for the duration of the Agreement.

5.3. What is being involved with ourcompetitors?

You must not, directly or indirectly:

(a) own an interest in; or(b) manage; or(c) operate; or(d) join; or(e) control; or(f) perform services for; or

(g) lend money to; or(h) render financial or other assistance to

our competitors.However, you or your immediate family mayown up to 5% of any of our competitors.24

5.4. Who are our competitors?Our competitors include any:

(a) individual; or(b) partnership; or(c) corporation; or(d) other entity25

that is engaged in a similar business to us inone of our markets.26

5.5. What is interference?Interference includes if you, directly orindirectly, recruit or solicit persons who:

(a) are our employees; or(b) were our employees within the last l2

months; or(c) are our clients; or(d) were our clients within the last 12

months.

6. Dispute resolution and remedies

6.1. How disputes will be resolvedUnless this Agreement says otherwise, anydisputes about this Agreement (including tortand product liability claims) must be finallysettled by arbitration.

6.2. Arbitration27

6.2.1. What rules apply to the arbitration?The arbitration will be governed by theCommercial Arbitration Rules of theAmerican Arbitration Association, unlessmodified by this Agreement.

6.2.2. The place of the arbitrationThe seat28 of arbitration will be Maryland,USA.

6.2.3. The time of the arbitrationThe arbitration tribunal will determine thetime of the arbitration.

6.2.4. The language of the arbitrationThe arbitration will be in English.

6.2.5. The tribunal must give reasonsThe arbitration tribunal must give reasons forits award29.

6.2.6. How will the award be enforced?Either Party may apply to a court ofcompetent jurisdiction30 to:

(a) enter the award as a judgment; or(b) obtain judicial acceptance of the

award and an order for enforcement.

6.2.7. Who will pay the enforcement costs?Unless the arbitration tribunal decidesotherwise, the unsuccessful party must paythe successful party’s reasonable costs.Reasonable costs include legal fees,investigation costs, litigation costs andarbitration costs.

6.3. Equitable remedies31

We remain able to take proceedings in equityabout any actual or anticipated breach byyou of Clause 4 (“Confidentiality”) or Clause5 (“Restraint”).

6.3.1. You submit to jurisdictionYou submit to the jurisdiction of any court inwhich we take proceedings in equity.32


6.3.2. We may suspend paymentsWe may suspend any payments we owe youduring the proceedings in equity.33

6.3.3. What are proceedings in equity?Proceedings in equity include proceedings forinjunctions, specific performance or otherequitable remedies.

6.4. Remedies are cumulative34

Any remedy provided by this Agreement is inaddition to any other remedy available to us.

7. Ending the Agreement35

7.1. How the Agreement ends—yourbreach

We may end36 this Agreement if you breachany of its provisions.

7.2. How the Agreement ends—yourdeath or inability to perform

This Agreement will end if you:

(a) die; or(b) are unable to perform your obligations

for a continuous period of 60 days.

7.3. How the Agreement ends—by NoticeEither Party may end this Agreement bygiving 60 days’ Notice to the other Party.

7.4. Consequences of ending theAgreement

We must pay any amounts you have earnedup to the date the Agreement ends.37

Other than this, we are not obliged to makefurther payments to you.

7.5. What clauses survive the end of thisAgreement?38

If this Agreement ends, the following clausessurvive:

(a) Clause 4 (“Confidentiality”)(b) Clause 5 (“Dispute resolution and

remedies”).

8. Notices39

8.1. What form must notice take?Any notice required by this Agreement mustbe in writing and sent to the other Party’saddress. That address is the Addressdescribed in the Details, unless a Party haschanged its address under Clause 8.4 (“Howa Party can change its address”).

8.2. What is the method of delivery?Any notice must be delivered:

(a) personally; or(b) by fax; or(c) by registered or certified mail (with

return receipt requested).

8.3. When does notice takes effect?A notice delivered under Clause 8.2(“Method of delivery”) is effective from thetime it is received.

8.4. How a Party can change its addressA Party may change its address by givingNotice to the other Party.

9. Release40

9.1 You release these persons fromliability

You release the protected parties from anylegal action you may take against them,except in relation to this Agreement.

9.2 Who are the protected parties?41

The protected parties include:(a) us; and(b) our predecessors; and(c) our Associates; and(d) our Associates’ predecessors;42

and persons who participate in the above.Persons who participate include:

(a) employees; and(b) contractors; and(c) consultants; and(d) officers; and

(e) directors; and(f) shareholders; and(g) limited partners; and(h) general partners; and(i) members; and(j) managers.

9.3 What is a legal action?Legal action includes, but is not limited to:

(a) litigation; or(b) arbitration; or(c) any other legal proceedings.

A legal action may occur in any jurisdiction.43


10. General44

10.1. This is the entire agreement45

This Agreement is the final and entireagreement. It supersedes anything previouslysaid or written about its subject matter.

10.2. What if there are counterparts?46

If there is more than one signed copy of thisAgreement, together those copies are treatedas the one document.

10.3. What is the governing law?47

This Agreement is governed by the GoverningLaw described in the Details, without regardto the principles of conflicts of laws.

10.4. How to interpret headings48

Headings are for convenience only. They doaffect how a clause is interpreted.

10.5. Further steps49

Each Party agrees to do any acts necessary togive effect to this Agreement.

10.6. You must have no conflicts50

You guarantee51 that you do not have anyother obligations that restrict your ability toperform this Agreement.

10.7. How to amend this Agreement52

Any amendment to this Agreement must bein writing and signed by both Parties.

10.8. Waiver of rights53

If a Party waives a right in this Agreement,that does not affect any other rights the Partymay have.A Party must give Notice to waive any rightgiven by this Agreement.

10.9. Assigning the Agreement54

You must not assign or deal with55 yourrights under this Agreement.We must not assign or deal with our rightsunder this Agreement, except in favour ofour Associates.56

10.10. Successors are bound by thisAgreement57

The rights and obligations in this Agreementare binding and enforceable against theParties and the Parties’ agents andsuccessors.

10.11. What happens if a clause issevered?58

If a clause in this Agreement is held to beunenforceable:

(a) it is automatically replaced by anenforceable clause with the closestmeaning; and

(b) the other clauses in the Agreementremain unaffected.

10.12. You are an independent contractor59

You are an independent contractor, not anemployee. You are solely responsible for yourown insurance (including workerscompensation), tax payments andsuperannuation.

DELETED:

Rights of third parties [Old 11.4]60

This Agreement does not give rights to non-parties.

11. Definitions

11.1. Who are the parties?“Associates” includes persons controlling us,

controlled by us or undercommon control with us.

“You” includes the Consultant, yoursuccessors and your assigns.

“We” includes the Company, oursuccessors and our assigns.

11.2. Other terms used in this agreement$ All dollar amounts are in US

dollars.

“Agreement” means this entire agreement, asdescribed in Clause 10.1 (“Thisis the entire agreement”).

“Consulting Services”means the services described inClause 1 (“ConsultingServices”).

“Details” means the summary on thefirst page of this Agreement.

“Notice” means a notice that is given inaccordance with Clause 8(“Notices”).

“Party” and “Parties”means the Company andConsultant described in theDetails.


Schedule 1—Consulting ServicesYou agree to perform the following services for us and our Associates:61

(a) details of the services

(b) …

(c) …

You will perform these services as requested by the management of the Company.62

You agree to be available for a minimum of 8 hours per working day to perform theseservices.63

[Insert signing clause.]

Endnotes1 We moved Article II “Consulting Duties and

Responsibilities” to the first clause. We believethat it is most logical that the services appear firstbecause they are the reason for the contract andthe payments.

2 To emphasise the exchange of consideration, wehave used the phrase “agrees to” rather than“must” in the first two clauses.

3 We moved Section 2.3 “Availability” to Schedule1. As this is a standard form contract, we wantedto ensure that all “variables” are either on theDetails page or in a Schedule (for more complexinformation).

4 We moved Article IV “Compensation” to thesecond clause because it is the consideration forthe services provided in Clause 1. Therefore, theyshould appear together.

5 Formerly section 4.1 “Base Compensation”.6 We deleted Section 4.2 because (1) it was an

unnecessary preamble to Section 4.3 “Expenses”and Section 4.4 “Stock Option”; and (2) we believethat people would not think that“reimbursements for expenses” are “bonuses”.

7 The original agreement did not provide for anychanges in company policy on business-relatedexpenses. To avoid potential disputes, weintroduced a “Notice” provision.

8 The original agreement sets out preconditions forthe payment of expenses, but not the time ofpayment. To fix this problem, we moved this partof Section 4.1 to a separate clause – thus coveringboth the payment of expenses and the base fee.

9 For ease of reading, we split Section 4.4 “StockOptions” into several subclauses.

10 As an aside, it would be more sensible for thecompany to make the exercise price an average ofthe closing price over a number of days. This isbecause the price might be artificially low on theexercise day.

11 Previously Article III “Term of Agreement”.12 This condenses the majority of Section 5.2 and 5.3

(relating to ownership of information, inventions,etc).

13 We considered using the phrase “contain or referto” instead of “refer to”. However, we decidedthat “contain or refer to” was too broad. For

example, this might capture memoranda that onlysay “bring me a copy of the Company’s businessplan to the next meeting”.

14 Section 5.3. Work includes all inventions,improvements, discoveries and ideas.

15 Section 5.2.16 All materials includes copies.17 “Custody, possession and power” are distinct

legal concepts which refer to different degrees ofcontrol of documents – see Palmdale Insurance Ltd(In Liq) v L Grollo & Co Pty Ltd [1987] VR 113; Rouxv ABC [1992] 2 VR 577. We wish to encompassthem all.

18 We made the last sentence of Section 5.1 aseparate clause.

19 Trying to tie into the Inventions, Rights toImprovements section (5.3).

20 This encompasses: (a) business practices; (b)technology; (c) business plans; (d) marketing; (e)financial information and plans; or (f) researchactivities.

21 This encompasses the “without his fault” conceptin the final sentence of Section 5.1.

22 Formerly Section 6.1 “Exclusivity / NoCompeting Consulting”.

23 Formerly Section 6.2 “No Interference”.24 Formerly Section 6.3 “Stock Ownership”.25 We removed “firm” from this list because it did

not belong with the other terms – it is not atrading structure in the legal sense. We changed“business entity” to “entity” to ensure that wecapture all manner of trusts, unincorporatedassociations, cooperatives, etc.

26 We consolidated the territorial clause in Section6.4 “Territorial Scope”.

27 The original Section 7.1 “Arbitration” containeddifferent concepts in no logical order. Therefore,we have split this section into many concisesubclauses.

28 We have used the word “seat” instead of “place”,for legal reasons. In arbitration law, a “seat” ofarbitration is specified in an agreement to give aparticular State jurisdiction and to activate localarbitration rules and procedures. The actual“place” or “site” of arbitration is irrelevant.


29 We kept “award”, as opposed to “decision”,because it is a term of art in arbitration law. An“award” incorporates the idea that an arbitrationruling is capable of being enforced in a foreignjurisdiction.

30 We are not defining court of competentjurisdiction, because a court will declare for itselfwhether it will accept jurisdiction.

31 Formerly Section 7.2 “Equitable Remedies”.32 We have removed the phrase “in personam”

because equity acts in personam.33 We have moved Section 7.3 into the equitable

remedies section, because: (1) it refers to breachesof Articles V “Confidentiality” and VI“Exclusivity / Non-Competition”; (2) it refers tolitigation; and (3) it refers to injunctive relief.

34 Formerly Section 7.4 “Remedies not Exclusive”.However, we preferred to use active, positivewords.

35 Formerly Article VIII “Termination of Agreement”.36 We used “end” because it encompasses termin-

ation and rescission.37 We used “earned” because the only rights that

survive termination are those that have accruedunconditionally, and the enforcement of which isnot inconsistent with the election to terminate:McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457at 477 per Dixon J. If the contract is rescinded,then no payments have been earned “under” theagreement.

38 We moved the survival clauses from the individ-ual articles to this single clause. It is more logicalto group them within the clause that deals withending the agreement.

39 Formerly Article IX “Notices”.40 Formerly Article X “Release”. We consolidated

Section 10.1 “Released Parties” and Section 10.2“Further Action” into this clause.

41 We defined “protected parties” before “legalaction” because, logically, a party would firstwant to know who the protected parties are. Mostparties will already have a basic idea of what alegal action is.

42 Probably need Associate’s predecessors, if anAssociate is an actual person.

43 See the former Section 10.1 “Released Parties”.44 Formerly Article XI “Miscellaneous”.45 Formerly 11.12 “Entire Agreement”.

46 Formerly 11.8 “Counterparts”.47 Formerly 11.6 “Governing Law”.48 Formerly 11.11 “Headings”.49 Formerly 11.3 “Further Assurance”.50 Formerly 11.10 “No Conflicts”.51 We replaced “represents and warrants” with

“guarantee”.52 Formerly 11.7 “Amendments”.53 Formerly 11.5 “Effect of Waiver”.54 Formerly 11.1 “Agreement is Non-Assignable”.

Note that the essence of a personal servicecontract is that the rights are not able to beassigned: Tolhurst v Associated Portland CementManufacturer (1900) Ltd [1903] AC 414.

55 We have added the phrase “otherwise deal with”to stop assignments or the creation of lesserinterests (eg charges).

56 “Us” includes our successors.57 Formerly 11.2 “Binding Effect”.58 Formerly 11.9 “Severability”. We moved subclause

(a) before (b), as this arrangement is more logical.59 Formerly 11.13 “Declaration by Independent

Contractor”.60 This clause may not be necessary because privity

of contract and common sense both imply thatthird parties are not privy to the contract, unlessexpressly mentioned.

61 Contains the technical details which would havebeen included in Section 2.1.

62 Also see Section 2.1.63 Formerly Section 2.3 “Availability”.64 In Australia, two officers are required to sign on

behalf of the company under section 127 of theCorporations Act 2001 (Cth).

Justin Vaughan is a solicitor in the property group ofthe Sydney office of Mallesons Stephen Jaques.

Ryan Thorne and Ben Zhang are solicitors qualified topractice law in Australia. Justin and Ryan practice aslawyers in Sydney, and Ben is pursuing businessinterests in China.

This [piece] is based on work that the authors preparedfor an an assessment for the Bachelor of Laws degree atthe University of Sydney.


CONSULTING AGREEMENT

THIS CONSULTING AGREEMENT (the “Agreement”) is entered into as of the______ day of ___________, 2000 by and between [insert] Inc., and [name] (“Consultant”),resiging at [_____________]. Company and Consultant are sometimes referred to herin as thePartes, and individually as a Party.

WITNESSETH

WHEREAS, Consultant desires to provide [nature of services] to the Company, and theCompany desires to retain Consultant to provide such consulting services;

NOW, THEREFORE, in consideration of the promises and mutual covenants hereincontained, and other good and valuable consideration, the receipt and sufficiency of whichare hereby acknowledged, Consultant and the Company, intending to be and being legallybound hereby, Agree as follows:

Article V. CONFIDENTIALITY

Section 5.1 Confidentiality. Consultant acknowledges that during the course of theperiod in which he provides services to the Company, he will be, from time to time, vestedwith confidential information (including without limitation) trade secrets relating to, interalia, the business practices, technology, products, business plans, marketing, financialinformation and plans, and research activities of the Company, Associated Companies, andcustomers and suppliers of the foregoing. Consultant hereby agrees to keep all suchinformation confidential, regardless of whether documents containing such information aremarked as confidential, if he has been told, or should reasonably know or expect, that suchinformation is confidential. Consultant also agrees that he will not, except as required in theconduct of Company business, or as authorized in writing by the Company, publish, discloseor make use of any such information or knowledge unless and until such information orknowledge shall have ceased to be secret or confidential without his fault.

Section 5.2 Exclusive Property. Consultant confirms that all confidentialinformation is the exclusive property of the Company. All business records, papers and otherdocuments kept or made by Consultant relating to the business of the Company or anAssociated Company shall be and remain the property of the Company or the AssociatedCompany. Upon the termination of this Agreement or upon the request of the Company atany time, Consultant shall promptly deliver to the Company, and shall retain no copies of,any written materials, records and documents made by Consultant or coming into hispossession concerning the business or affairs of the Company or an Associated Companyother than personal notes or correspondence of Consultant not containing proprietaryinformation relating to such business or affairs.

Section 5.3 Inventions, Rights to Improvements. Consultant hereby sells, transfersand assigns to the Company any right, title and interest in any and all inventions,improvements, discoveries, and ideas (whether or not patentable or copyrightable)(collectively the “Inventions”) which he may make or conceive while acting in his capacity asa consultant of the Company during the term of this Agreement, and which relate to or areapplicable to any phase of the Company’s and the Associated Companies’ businesses.Consultant hereby agrees to communicate promptly and disclose to the Company allinformation, details and data pertaining to the aforementioned Inventions and to execute anydocuments and do any act reasonably necessary to perform his duties under this Section.Consultant also affirms that if any such Inventions shall be deemed confidential by the


Company, he will not disclose any such Inventions without prior written authorization of theCompany.

Section 5.4 Survival of Article. The provisions of this Article 5 shall survive thetermination of this Agreement for any reason whatsoever.

Article VI. EXCLUSIVITY/NON-COMPETITION

Section 6.1 Exclusivity / No Competing Consulting. For the term of this Agreement,Consultant shall not directly or indirectly, compete with the Company or any AssociatedCompany, and he shall not directly or indirectly own an interest in, manage, operate, join,control, perform services for, lend money to, render financial or other assistance to, participatein, or be connected with, as an officer, employee, partner, stockholder, consultant orotherwise, any individual, partnership, firm, corporation or other business organization orentity that at such time is engaged in a business similar to that of the Company.

Section 6.2 No Interference. During the term of this Agreement, Consultant shallnot, whether for his own account or for the account of any other individual, partnership,firm, corporation or other business organization, intentionally solicit, endeavor to entice awayfrom the Company or an Associated Company, or otherwise interfere with the relationship ofthe Company or an Associated Company with any person who is employed by the Companyor an Associated Company, or any person or entity who is, or was within the 12 month periodimmediately preceding, a customer or client of the Company or an Associated Company.

Section 6.3 Stock Ownership. Nothing in this Agreement shall prohibit Consultantfrom acquiring or holding any securities of any public company listed, provided that at anytime during the term of this Agreement, Consultant and any members of his immediate familydo not own more than five percent (5%) of any voting securities of any company engaged in abusiness similar to that of the Company.

Section 6.4 Territorial Scope. The prohibitions in Section 6.1 and Section 6.2 shallapply to any place where the Company or any Associated Company is doing business duringthe term of this Agreement.


Marco StellaSpecial Counsel (Know How)Mallesons Stephen Jaques

Overall impressions

Clarity for Lawyers is a practical book, writtenfor lawyers by a lawyer. As you would expect,it’s well written and easy to understand. Asyou might not expect, it’s also entertaining.(More than once I was caught laughing outloud while reading it.) I think it will appeal topractising lawyers of all backgrounds andexperience levels.

About the author

Mark is a solicitor who practises in the UK.This gives him the advantage of betterunderstanding his readers and the sorts ofproblems they face on a daily basis. It alsoallows him to use materials that otherauthors may not have access to, for exampleactual correspondence between lawyers andtheir clients and between lawyers and otherlawyers.

The other relevant thing about Mark is thathe is a sole practitioner, which means that heruns his legal practice by himself. It alsomeans that he can say whatever he likeswithout having to worry about upsetting hisemployer or his partners. In his book, Marktakes full advantage of this freedom by admit-ting previous mistakes and offering refreshinglycandid views on everything from lawyers’work practices to points of punctuation.

About the book

The first thing I noticed about Mark’s book isthat it’s a second edition; the first appearedin 1990. So I was immediately interested inMark’s assessment of whether legal writinghas improved in the last 17 years. Unfortu-nately, the news is mixed. While significantnumbers of government and industry lawyershave abandoned legalese, the same cannot be

said of those in private practice. Or, as Markputs it, “Most lawyers now consider plainlanguage acceptable, so long as no oneexpects them to write it …”. Ever theoptimist, Mark expects that lawyers willadopt plain language “with increasingspeed”. This is deliciously (if not deliberately)vague. Although it suggests an improvement,it is a relative one. If the current speed ofadoption is glacial (that is, the rate at whichglaciers move, not the rate at which they aremelting), then even doubling the speed won’tmake much difference.

Clarity for Lawyers is divided into 5 parts. Inthe first part, Mark convincingly argues whyplain language should be preferred over tradi-tional legal language. This leads to a criticalquestion: if the case for writing plainly is socompelling, why don’t more practising lawyersdo it? According to Mark’s research, there are anumber of reasons. The most popular is thatlawyers think using plain language may resultin “error, ambiguity or unpredictable effect”.And so it might, if not used properly. But Ithink that you have to go further down Mark’slist to get to the real reasons. Implementingplain language in a law firm requires a signif-icant initial effort which, it seems, manylawyers are not prepared to make. Markobserves that they would prefer to rely ontheir existing precedents, even though theymight not understand them and, in somecases, without even bothering to read themproperly. An example of this was reported inthe Australian Financial Review recently(22.01.07, p42). On landing his first job, anewly admitted lawyer was given a copy ofthe proposed employment contract and wasasked to read it carefully before signing it.This was in fact a test for the new recruit; thecontract contained a clause requiring theemployee to repay all their earnings if theyleft the company. The young lawyer agreedto sign the contract without mentioning thisclause. Although the clause was removedbefore signing, the unfortunate lawyer was

Book review:Mark Adler, Clarity for Lawyers—Effective Legal Writing,2nd ed (2007: The Law Society, London)


told that if he’d spotted it, his starting salarywould have been increased by $10,000! Thepoint the employer was trying to make wasthat it pays to read and understand everyclause in a contract.

The second part is about alternative ways tocommunicate. That is, alternatives to sendinga letter by ordinary post. I was surprised bythe implication that legal business is usuallydone this way in the UK. In Australia, at leastamong the large firms, email has long been themost common method of written communi-cation. I suspect it is the same for large firmsin the UK. So, although Mark briefly outlinessome of the special problems associated withemail, I thought this topic could have beendealt with in more detail. That said, Markmakes some excellent points in this part, includ-ing my favourite: don’t write at all! Sometimesusing the telephone is the most effective wayof communicating. And, as Mark points out,most lawyers only seem to use legalese whenthey write, not when they speak.

In the third part, Mark tells us how to makeour writing more effective. It contains all theusual topics (use short sentences, use familiarwords, use active verbs, etc) plus a few unusualones. Personally, I found the unusual onesthe most interesting. There is one called “Behuman” which deals mainly with the tone oflawyers’ communications. Many lawyers don’trealise that legalese can make them sound un-caring and inhuman. There are also chapterson “The need for thought” and “Persuadingyour readers” which, in my experience, areoften not given the prominence they deserve.And I also enjoyed Mark’s thoughts on “fash-

ionable expressions”. Lawyers have more thanenough of their own meaningless expressionswithout having to import more from otherdisciplines like business management.

One minor criticism is that I was a bit confusedby the order of the chapters in this part. Ini-tially I thought they were in order of importancebecause the first one, “Be human”, is a themethat underlies the entire book. However, I’mnot sure that “Format” and “Punctuation”necessarily deserve third and fourth place onthis basis. Perhaps Mark is suggesting thatthey are all equally important (like a lecturerI had once, who started each new topic bysaying that it was the most important topic inthe whole subject).

Part four is a short one about the common lawrules of interpretation. These rules are a bit likethe life jackets on an aeroplane. You should knowwhere to find them and how to use them, butyou’re in real trouble if you ever have to rely onthem. Avoid reading this part at your own peril!

The last part is a plain language workshop. Itcontains examples and exercises for teachingplain language techniques and some precedentsfor practising lawyers to use. The examplesand exercises are like a bag of mixed lollies;there’s something for everyone, includingcorrespondence, contracts, legislation andcourt documents. All come with suggestedsolutions and explanatory notes. Not beinga UK lawyer, I can’t comment on the legalaspects of Mark’s precedents. But I can saythat they are quite unlike the precedents youwill find in traditional precedent books.

© MStella 2007

(Country Representatives continued from page 2)

SpainCristina GelpiUniversitat Pompeu FabraLa Rambla, 30-3208002 Barcelona935 421 464 (fax 935 421 617)[email protected]

SwedenBarbro Ehrenberg-SundinNorrstigen 39SE-181 31 Lidingö08 765 [email protected]

Trinidad & TobagoVijay LuthraPO Box 50Port of Spain868 785 6212 (phone & fax)[email protected]

ZimbabweWalter ZureCorporate Governance &Compliance Dept.CBZ Bank Limited, Sapphire HouseCnr Speke Ave/Angwa StreetHarare263 [email protected]

Other European countries:Catherine [email protected]

All other countries:Please contact the USArepresentative

UKPaul ClarkCripps Harries Hall LLPWallside House12 Mt Ephraim RoadTunbridge WellsKent TN1 1EG01892 515121 (fax 01892 544878)[email protected]

USAProf Joseph KimbleThomas Cooley Law SchoolPO Box 13038Lansing, Michigan 48901-30381 517 371 5140 (fax 1 517 334 5781)[email protected]


From the President

Clarity plans 2007–09Christopher Balmford

Melbourne, Victoria, Australia

Thank you to Joe—and to Cindy

My thanks—and I’m certain, your thanks—toour previous President Joe Kimble for the out-standing achievements in his term, namely: atremendous conference in France; a reviewand rationalisation of our membership list andsubscription timetable; an upgrade of our web-site and journal; and reps in 10 new countries.

But Joe’s contribution to Clarity has beenmuch more than as President. He has been along-term editor of the Journal and even anoccasional “short-term guarantor of funds”to pay for the Journal’s printing and mailing.In all, Joe’s contribution has been enormous.Thank you, Joe. Also our deep thanks to Joe’ssecretary Cindy Hurst for maintaining—and,with Joe, agreeing to go on maintaining—theaddress list, etc.

Anything Clarity achieves in the next fewyears will build on Joe’s work.

What should Clarity do?

Just what Clarity should aim to achieve inthe next few years is worth contemplating.Indeed, your committee has been giving thisidea much thought over the last few months.We have had three rounds of discussiondocuments which have led to the positionsummarised below.

Now we would like to share our plans withyou. And to seek your involvement.

Clarity’s current—and broadening—purpose

1. Currently, Clarity is: a journal twice ayear, a conference every few years, and afairly static website. Clarity is interestedin exploring a range of other activities—mainly online—set out below.

Existence as an entity

2. Clarity is an informal organisation. It isnot incorporated—or anything else—anywhere. We plan to leave things asthey are for now. (By the way, the factthat PLAIN <www.plainlanguagenetwork.org> is not a formal legal

organisation has been something of anissue for it in relation to the revenue fromits conference. I believe this is not anissue at Clarity as our conference wouldbe organised by another entity—withClarity lending its name and support, etcto organise the conference.)

Democracy—electing the President

3. For the appointment of presidents,Clarity will call for nominations at leastevery 3 years in the May issue of thejournal with a closing date of 31 July.The Committee will then make theappointment by vote. This may becomean issue in the future if more than oneperson wants to be President. But thatseems unlikely for some time given thatthe role takes at least half-a-day a week,is unpaid, and lasts for 3 years.

Online payment system, etc

4. Clarity will develop an online system formembers to register, renew, pay andupdate their contact details, etc. Amember in any country will be able topay by credit card in one currency, intoone account: perhaps, US$25. It is likelythat the system will be developed by theIT people at my internet businessCleardocs—for a heavily discounted costof about AUD$2,000. I will donate mytime.

Clarity can barely afford this. But the systemseems important and worthwhile—given thatan increasing number of members no longerhave cheque books; that people prefer to payonline; that the bank fees for transferringmoney from one country to another eat intoClarity’s meagre revenue.

If you were willing to contribute to the costof developing this online system, then thatwould be greatly appreciated. A sponsorshipwould be ideal. For more information, pleasecontact me or Joe Kimble<[email protected]>. Payment would bemade into the US account Joe uses to pay forthe journal.

Using Clarity’s name

5. Do you carry out any activities inClarity’s name? Some people do. TheCommittee is concerned to understandwho is doing what and to set a policyaround these activities. Please let me


know if you do anything in Clarity’sname.

Conference 2008

6. We are starting to organise a conferencefor 2008. Clarity’s previous conferenceshave been in the UK and France. So weare looking to hold the next conferencesomewhere in the Americas. We have amajor partner interested. I will report toyou as plans become clearer.

Website

7. Clarity is keen to broaden its role anddevelop other activities. Whether we cando that depends on everyone’scommitment (Clarity is a voluntaryorganisation). Likely activities includeadding facilities to the website for:

1. country reps and committee mem-bers to post news and humour

2. regular emails with news, humouretc.

3. a calendar of plain-language events

4. a FAQ and Help feature

5. hosting webinars

6. a mini-conferencing capability

7. a precedents bank

8. a general blog or forum capabilityencouraging discussion

9. educational capabilities and featuresdemonstrating the methods of clearwriting.

Do let me know if you are interested incontributing to these activities. They aredependent on people like you volunteering.

Budget

8. Clarity’s only real cost is the journal. Oureditor, Julie Clement, will monitor pagelength to ensure we stay on budget.

If we plan other activities, then they will becosted and budgeted for before we commit toimplementing them.

Expansion—new members

9. We all need to redouble our efforts toattract new members. Could you get oneperson to sign up in the next week?Maybe give Clarity as a gift to someone.

We are updating the Clarity brochure. Pleaselet us know if you would like copies.

Your involvement

10. How much of this would you like to beinvolved in? If you volunteer, thenmaybe we can achieve some of the newideas discussed above.

If you have any concerns or comments aboutthese plans, then please let me know.

Thank you—it is exciting

These are exciting times for plain-languageeverywhere. Certainly, in the UK, the USAand Australia our work is receiving greaterlegislative and regulator support. In turn,consumers at all levels are increasinglydemanding clarity from their lawyers, frombusiness, and from government. As demandgrows, we can further research and developour learning about how to make documentswork for their readers. And that has benefitsfor all.

Thank you for “appointing” me.

Lastly, welcome to our new representatives innew countries: in India, Dr K R Chandratre;in Lesotho, Retsepile G Ntsihlele; in Zimbabwe,Walter N. Zure. And welcome to Lynda Harrisin New Zealand who replaces Richard Castlewho has returned to the UK. Welcome homeRichard, and thank you for your efforts forClarity in New Zealand.

Upwards & onwards

Christopher

PS A donation—sponsorship—for theonline membership system?

If you—or your organisation—would like tocontribute to the cost of the online member-ship and payment system, then please contactme or Joe Kimble <[email protected]>.

Kindest regards

Christopher

[email protected] BalmfordPresident of ClarityClarity—An international associationpromoting plain legal language


Clarity meeting inWellington, New Zealand

Close on forty people attended a lunchtimeseminar in Wellington on 23 February 2007jointly hosted by Clarity and the ParliamentaryCounsel Office. The speaker was Claritymember and former Law Commissioner forEngland and Wales Trevor Aldridge whosetopic was ‘Who’s leading the way in drafting?’.Trevor illustrated his talk with a number ofUK examples drawn from statutes and busi-ness documents, including repairing obligations,formulas, indexes of defined terms, the labellingof participants (eg ‘If the expenditure is borneby P for D…’ ) and ‘full outs’ (called ‘sand-wiching’ in New Zealand). A useful discussionfollowed and the meeting concluded with ashort address from Deputy Chief ParliamentaryCounsel Geoff Lawn.

The audience included a Supreme Courtjudge, the president of the New Zealand LawCommission and the author of the definitivetext on statute law in New Zealand. Sadly,there was not one representative from privatepractice. Generally the meeting was felt to beextremely worthwhile, and a possible patternfor the future. Particular thanks are due tothe PCO for providing the facilities, and toCatherine Yates for much of the organising.

As reported by Richard Castle our former NewZealand representative who organised themeeting. Our thanks to Richard who hasreturned to the UK. Lynda Harris has replacedRichard. Welcome Lynda.

A wonderful success!

The WriteMark Plain English Conference andAwards event held at Wellington’s Museumof New Zealand Te Papa Tongarewa on 6October 2006 was an outstanding success!

Thanks to all those who made it such a worth-while and memorable day—delegates, speakers,workshop leaders, our two MCs, those whoentered the plain-English awards, and theaward judges. Special thanks too to all thosewho worked behind the scenes to make ithappen.

This event was a first for New Zealand. Over100 delegates heard from four internationalplain-English experts who shared their suc-cesses and brought us up to date with the bestof overseas practice and research. Plus weheard from several New Zealanders who aremaking a plain-English difference in theirown public and private sector organisations.

Delegates came from the banking, insurance,academic, legal, government, medical,accounting, and publishing sectors.

We squeezed as much into 1 day as we could—a sit-down conference breakfast with enter-taining keynote speaker Duncan Sarkies, 4keynote addresses and 12 workshops duringthe day, and a glamorous awards dinnerfeaturing Kevin Milne (MC) and keynotespeaker Amanda Millar.

Conference objectives

Plain English is good for business andessential for democracy—and plain Englishmakes sound economic sense.

The objectives of the conference were to:

• raise public awareness of plain English

• create public demand for organisationsthat communicate clearly

• help delegates to work towards plainEnglish in their own organisations

• promote the importance of writing to anagreed plain-English standard—either theWriteMark or an organisation’s ownstandard.

New Zealand 2006WriteMark conference andawards 2006

Does Clarity haveyour email address?

If you’re willing, would you please sendyour email address to Mark Adler<[email protected]> so that hecan add you to his email list of Claritymembers. We promise not to bombardyou with emails, but from time to timeMark sends out information that shouldbe of interest to members. You will alsoreceive a PDF version of the journal assoon as it’s available.


Award winners

The premier award for Plain EnglishChampion—best organisation went to A J Park,a patent attorney firm of over 200 partnersand staff. The prize of $10,000 was awardedto the firm for ‘outstanding progress increating a plain English culture throughout afirm steeped in tradition and legalese’. The$10,000 prize is to be spent on a specific plain-English project designed to bring tangible,measurable results for the firm. AJ Park, whoare also Clarity members, will report on theirproject at the 2007 WriteMark Plain EnglishAwards ceremony.

In accepting the award, John Lamb, ChiefExecutive, said, ‘A J Park set out on thisjourney to improve our service quality toclients through clear, concise communication.We knew the change to our culture wouldnot happen overnight, so it is exciting andmotivating to see the success we haveachieved in a short time. It’s great the firm’sdecision to do things differently has beenrecognised in this way’.

Tanya Piejus, Communications Officer for theDepartment of Building and Housing, wonthe Plain English Champion — best individualaward. This award recognised Tanya’soutstanding personal contribution to theintroduction of a plain English culture in anarea of government known for its complexforms and regulations. Speaking of Tanya,the judges commented that ‘plain Englishwas in her heart and soul’.

Other winners included: Greater WellingtonRegional Council for People’s choice — Bestplain English document; Ministry of Fisheriesfor Best public sector document; PharmacyGuild of New Zealand for Best private sectordocument; and Wellington City Council forBest plain English website.

An award for gobbledygook too

And, in a good-humoured poke at the all-too-familiar gobbledygook that still confounds us,the Brainstrain award went to the Ministry ofSocial Development for their StudyLink LoanSchedule. Dubbed by the judges as ‘appalling’and ‘a shocker’, this document was a perfectexample of text that created confusion,mystery, and frustration for the reader.Rather than the stunning bronze awardshanded out to the other winners, the prize

for this category was a stainless steel rubbishbin filled with sour worm lollies.

Although not present to collect their prize,the Ministry of Social Development took theaward on the chin and issued a statementfrom Chief Executive Peter Hughes saying,‘Fair cop. We can do a lot better and we willfix it’. The loan schedule is now being redraftedin plain English—something that should bringa sigh of relief to the country’s several thou-sand students who apply each year for theStudyLink loan.

Other finalists in the Brainstrain categoryincluded the Sky Television Service Agreement,and the Australian New Zealand TherapeuticProducts Authority Joint Agency Establish-ment Group’s Description of the Joint RegulatoryScheme for the Advertising of TherapeuticProducts.

Keen media support

Kevin Milne from the consumer advocatetelevision programme Fair Go was rightbehind the plain-English cause as MC for theevening. Likewise, keynote speaker AmandaMillar of 60 Minutes entertained with herown tales of the ghastly and impenetrabletext she so often encounters in herprogramme research.

Highly credible judging

The awards entries were judged by DavidRussell, retiring CEO of New Zealand’sConsumers’ Institute; Rachel McAlpine, webcontent specialist; Jacquie Harrison, Head ofSchool, School of Communication Head,Unitec (University); and Lynda Harris, CEOof Write Group Limited and WriteMarkLimited.

See page 4 about the 2007 conference andawards.


New membersCanadaJacqueline DesorcyWinnipeg, ManitobaRobert EnnsCalgary, AlbertaAlison FraserToronto, OntarioPhilippe HalléeOttawa, OntarioNicola ItenVancouver, British ColumbiaPamela MuirWhitehorse, YukonCathy RayOttawa, OntarioAndrew SimsEdmonton, AlbertaJohn SpotilaVirginiaSusan SwayzeToronto, OntarioCôte d’IvoireNadia Virginie N’guessan BodoAbidjanEnglandAblewisp Limited[Stuart Miller]Brixham, DevonElizabeth Childs-ClarkeDartford, KentJerome CurranStaplehurst, Tonbridge KentNeville HunningsLeicesterIan McLeodKelloe, DurhamPractical Law Company[Catherine Soave]LondonSimona TimminsLondonTinyquest Limited[Dr. Ron Jones]Penrith, Cumbria

IsraelRachel DayanRamat Gan

ItalyJerome TessutoAfragola, Naples

JapanMichael HamalainenMihama-ku, Chiba-shi

LesothoRetsepile Gladwin NtsihleleBotha-Bothe

MexicoSalvador VegaMexico, D.F.

NigeriaOlubukola OlugasaYaba, Lagos

ScotlandAndy BeattieVictoria Quay, Edinburgh

South AfricaLucinda BoydCape Town

USARobert LinskyMassachusettsWilliam WalkowiakNew York

ZimbabweWalter ZureBorrowdale, Harare

Member newsA message from Clarity toAnnetta Cheek.

Read at Annetta’s retirement-farewell by Melodee Mercer, BoardMember, Center for Plain Language,see www.centerforplainlanguage.org

Dear Annetta

Thank you for editing issue 55,May 2006, of our journal, Clarity.In a sense, your editing rolesymbolises what you have donefor clear-communication every-where: and what you’ve done foreach of us.

An editor of a not-for-profitjournal like Clarity keeps an eyeopen for good ideas and inter-esting people. She gently—yetirresistibly—inquires of someonewhether they might like to contrib-ute an article. Then she helps thatperson develop, shape, and polishboth their article and their ideas.

The journal brings useful andstimulating ideas forward andgives them space. By doing allthis, the editor and the journalhelp to make things happen. Inour case, they help to cause clear-communication change. Theyhelp to deliver the manifold andabundant benefits of plain-language for everyone.

Thank you Annetta for editingour journal. And thank you foryour similar—but oh so muchgreater—contribution to plainlanguage and to us all.

Christopher BalmfordPresident of Clarity—theinternational associationpromoting plain legal language

PS If any of you would like tojoin Clarity (it’s cheap and thejournal is great), then pleasecontact our US rep Joe Kimble.Forgive me.


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Complete the applicationform and send it with yoursubscription to your countryrepresentative listed on pages3-4. If you are in Europe andthere is no representative foryour country, send it to theEuropean representative.Otherwise, if there is norepresentative for yourcountry, send it to the USArepresentative.

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