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ClarityNumber 58 November 2007

Journal of theinternational associationpromoting plain legal language

Editor in chief:Julie Clement

Guest editor for this issue:Sarah Carr

In this issueJohn HinzeMeasuring plain language at theBritish Columbia Securities Commission 5

Chris LentzPlain language in financial correspondence:bridging the consumer-to-customer gap 8

Francesca QuintLord Renton 1908–2007 10

Richard CastleWhat makes a document readable? 12

Audrey Gardner and Janet PringleLearning about plain language througha community development projecton adult literacy 17

Martin CuttsKeeping errors in Czech 20

Dr Robert EaglesonDrafting matters—letters of advice 23

Tania McAnearneyTips from a unique provider ofSouth African legal research 28

Book reviews & Linguistic lingo for lawyers

Neil JamesBook review—Informed choices with a capital ‘G’ 33

Nigel GrantBook review—Indlish 35

Dr Robert Eagleson and Sarah CarrLinguistic lingo for lawyers—personal pronouns and gender: a dialogue 37

Clarity and general news 40–44

2 Clarity 58 November 2007

Country representatives

SlovakiaIng. Ján [email protected]

South AfricaCandice [email protected]

SpainCristina [email protected]

SwedenBarbro Ehrenberg-Sundinbarbro@

effektiv-kommunikation.se

UKSarah [email protected]

USAProf Joseph [email protected]

ZimbabweWalter [email protected]

Other European countries:Catherine [email protected]

All other countries:Please contact the USArepresentative

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

Founder John Walton

CommitteePresident: 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.

ArgentinaMaximiliano Marzettimaximiliano.marzetti@

erasmusmundus-alumni.eu

AustraliaChristopher [email protected]

BangladeshA.K. Mohammad [email protected]

BrazilDominic [email protected]

CanadaNicole [email protected]

ChileClaudia Poblete [email protected]

FinlandAnu [email protected]

Hong KongJonathan [email protected]

IndiaDr. K.R. [email protected]

IsraelMyla [email protected]

ItalyChristopher [email protected]

JapanKyal [email protected]

LesothoRetsepile Gladwin [email protected]

MalaysiaJuprin [email protected]

MexicoSalomé Flores Sierra [email protected]

New ZealandLynda [email protected]

NigeriaDr. Tunde [email protected]

PhilippinesVictor [email protected]

PortugalSandra Ramalhosa [email protected]

SingaporeLei-Theng [email protected]

Clarity 58 November 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 issueChristine MowatWordsmith AssociatesCommunications Consultants Ltd10935-85 AvenueEdmonton, Alberta, Canada T6G0W3Phone & Fax: 780 439 [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

ClarityEvidence-based practice

When I worked as a research manager in theUK’s National Health Service in the 1990s,‘evidence-based practice’ was the latest thing.My job was to encourage health professionalsto keep up to date with the latest research,and apply it to their daily work.

All over the world, professionals in differentfields are increasingly expected to do the same.And evidence-based practice is vital to thefield of plain language, which requires practi-cal skills underpinned by sound theoreticalknowledge: a blend of intellectual rigour andpragmatism. Amsterdam, a first-of-its-kindplenary session saw representatives of Clarity,PLAIN and the US Center for Plain Languagepresent their views on standards, accreditationand a plain-language institute. More on thisin Clarity 58...

A role for Clarity

Plain-language lawyers and other profes-sionals—like doctors and other clinicians—are busy people. So it’s important to presentresearch findings to them in a manageableformat. In British healthcare, an importantjournal is Bandolier—so called because it findsinformation about what works (and whatdoesn’t) and puts the results forward assimple bullet points. In the worldwide practiceof plain language in law, Clarity is the only(and an indispensible) journal—so called, itseems to me, because it finds clear articlesabout clear language that can clarify ourthinking and so our practice.

Getting research into practice

So the theme of Clarity 58 is: getting researchinto practice. And by ‘research’, I meanresearch in its broadest sense—not justformal, academic studies but, just asimportantly, practical tips from experiencedplain-language practitioners. In this issue,you will find a wide range of articles thatrelate to this theme in a number of differentways, including:

• plain-language projects applying researchto practice—with John Hinze describing theBritish Columbia Securities Commission’splain-language measurement methodologyand results, and Chris Lentz his experienceof bridging the consumer-to-customer gap


• studies and other work producing resultsrelevant to plain-language practice—asRichard Castle contrasts readability withlegibility, quoting a range of research, andAudrey Garner and Janet Pringle describetheir community development project,Connecting Literacy to Community

• practical tips based on experts’ ownexperiences—on proofreading from MartinCutts, and drafting letters of advice fromRobert Eagleson

• hints for doing and keeping up to date withlegal research—as Tania McAnearneydescribes her work as a specialistindependent researcher and the methodsshe uses

• reviews of useful books relevant to thistheme—with Neil James reviewing PamPeters’ addictive, corpus-based CambridgeGuide to English Usage, while Nigel Grantreports on Indlish, written by Jyoti Sanyal,who has 40 years’ experience bothpractising and teaching journalism.

Also included in this issue are:

• Francesca Quint’s obituary for LordRenton—Britain’s longest-servingparliamentarian and a strong supporter ofplainer language in law—who died in June,aged 98

• our regular column, Linguistic lingo forlawyers, which I am most grateful toRobert Eagleson for writing this time. Thepiece is based on a dialogue between Robertand me on personal pronouns and gender.

New ‘Ideas for articles or research’ box

This issue of Clarity tries out an idea thatsupports its theme. Each author has beengiven the opportunity to include a small box

at the end of their article with any ideas forfurther articles or research relating to whatthey have written. I hope this will catch onand be useful:

• to potential authors, giving them ideas forarticles to write

• to Clarity’s editor in chief and future guesteditors, helping them to compile a list ofpossible articles to ask people to write

• to those interested in plain-languageresearch, giving them ideas for possiblestudies

• to the plain-language field as a whole,encouraging people to advance and shareknowledge in this field.

Thank you

I would like to thank the authors—all busypeople with plenty else to spend their timeon—who have supported Clarity (and me) bycontributing to this issue. Special thanks tooto Mark Adler, Julie Clement, RobertEagleson and Joe Kimble, for generouslysharing their experience of what works andwhat doesn’t in guest-editing Clarity. I hopethe result is a useful and enjoyable issue.

Sarah Carr has a first degree inFrench and Scandinavian withTeaching English as a ForeignLanguage, and a master’s inbusiness administration (MBA).Sarah worked as a manager inthe National Health Service(NHS) for seven years. She nowruns Carr Consultancy, special-ising in plain English writing,editing and consultancy for theNHS. Sarah is also an associateof Plain Language Commission. Her publications includeTackling NHS Jargon: getting the message across(Radcliffe Medical Press, 2002).


John HinzeDirector of human resources and chief financial officer,British Columbia Securities Commission (Canada)

Clarity 54 included an article entitled “PlainLanguage at the Regulator.” In that article, RobinFord mentioned the British Columbia SecuritiesCommission’s (BCSC’s) use of plain languageaudits to measure their progress. John Hinze nowfollows up, with an article describing the BCSC’splain language measurement methodology andresults in detail.

Committing to use plain language is the easypart. Delivering on that commitment requirescareful management. This article explainshow the BCSC is using a plain language auditprocess to test our performance and maintainemployees’ commitment to plain language.

Clear, understandable rules and guidanceare central to achieving our mission

The BCSC is the provincial government agencyresponsible for regulating trading in securitiesin BC, and the third largest of Canada’sprovincial securities regulators. As the seniorregulator in the BC securities market, ouractions, including our communications, set thetone for public issuers and securities dealers.

We believe securities regulation should be clearand understandable to all market participants—from sophisticated securities professionalsto unsophisticated investors. Unfortunately,the opposite is still too often true for manymarket participants.

Securities markets are complex and fast-changing, and we need a lot of sophisticatedrules to govern them. However, too many ofour rules are needlessly complex and confusing,making them accessible only to a narrow“priesthood” of securities lawyers. Despiteour efforts to streamline and simplify ourrules, few business people or investors candecipher them without professional advice.

As we continue to pursue simplicity, plainlanguage is one of our key tools. We use it tochallenge ourselves, and our regulatory col-leagues, when fuzzy or unnecessary languagecreeps into our regulatory documents.

Growing pains

We formally adopted an objective to use plainlanguage in 2000. We contracted with Word-smith Associates Communication ConsultantsLtd to train our employees. Wordsmithdeveloped two two-day workshops: one forlawyers and other professional staff and onefor general administration staff. Staff mentorsthen received additional training. Wordsmithalso helped us write our Plain Language StyleGuide.

Some of our employees, like those who workedon the drafting of the 2004 Securities Act andRules, embraced plain language wholeheartedly.Others resisted. There are many sources ofresistance. For example, the professionalservices firms that first employed many ofthese professionals still often teach that com-plexity equals precision. The holdouts feltthat writing plainly was either not relevantto, or would undermine, their work. To helpto address employee concerns, in 2002, weasked Wordsmith to audit our work to identifythe gaps in employees’ plain language skills.

Conducting the 2002 plain language auditwas useful. Employee awareness and accept-ance of plain language increased becausethey saw specific changes they could maketo improve their writing. With a better under-standing of our plain language gaps, we werebetter able to justify the value of improvingour skills and to provide specific training toclose those skill gaps. Measuring success andidentifying areas for improvement throughplain language audits was exactly what weneeded to increase employee awareness of,and commitment to, plain language.

Measuring plain language at theBritish Columbia Securities Commission


After the 2002 audit, we decided that tyingincentive pay to plain language audit resultswould further motivate employees to improve.We used the 2005 audit to help establish base-line performance. Then, in 2006, we settled ona more formal audit methodology and includedplain language targets in our incentive plan.

Plain language audit methodology

Our audit methodology is as follows:

• We call for documents—division heads leadthe process of selecting samples. We ask themto be as objective as possible. Our 2007 moveto an electronic document managementsystem will allow us to reduce or eliminatethe risk of bias in the self-selection process.

• We encourage submissions that reflect thevariety of internal and external documentswe produce, including e-mail, intranet andpublic website postings, memos, letters, andreports. A typical total sample size for eachyear audited is 400–600 pages.

• We send the sample to Wordsmith to performthe audit. Our current Wordsmith auditteam includes an MA in English, an MA incomparative literature, and a law graduate.The auditors score all documents againstthe guidelines in our plain language style

guide. Auditors explain their scores andgive examples of better drafting. The auditteam members check each other’s reviewsto ensure consistency in scoring.

• We return the annotated documents andcomment sheets to division heads anddocument authors. The feedback, whilesometimes humbling—like being back inhigh school English class—is productive.We have seen significant improvements,and we expect additional gains.

• We allow authors to appeal. They mustdemonstrate that their use was appropriatein the circumstances. We receive few appeals.

• We share summarized results, includingcommon errors and areas for improvement,with all employees.

The process works well.

Other plain language supports

Our plain language audit is one of manytools we use to maintain our plain languagefocus. Other tools include regular training,extensive resource materials, and ongoingcommunication about plain language, asfollows:

Chronology of the BCSC plain language initiative

2000 Identify effective communication as a key organizational behaviour2001 Recognize plain language as a strategic initiative2001 Write BCSC public statements in plain language2001 Send all employees to a two-day plain language course2002 Identify and train plain language employee mentors2002 Develop plain language style guide2002 Conduct first plain language audit2003 Write all multi-jurisdictional exemption decision documents in plain language2003 Send all employees to a one-day plain language “refresher” training course2001–2004 Write the Securities Act and Rules, in plain language—the 2004 Act passed but its

implementation is on hold while we work with other provincial jurisdictions toput in place a more advanced mutual reliance system (passport)

2004 Introduce divisional plain language targets2005 Conduct second audit2005 Send all employees to a one-day plain language “refresher” training course2006 Tie a portion of divisional incentives to plain language targets2006 Conduct third audit—we score 87%, or “good to very good”2006 Increase divisional plain language targets from 75% to 85%2007 Conduct fourth audit— we score 86%, or “good to very good”


• We send all new employees to a two-dayin-depth plain language course.

• We periodically send all employees to aone-day refresher course that focuses onthe gaps identified by the most recent audit.

• We recruit about 10% of employees as plainlanguage mentors. We offer additionaltraining through Wordsmith for willing butuntrained mentors.

• We have extensive plain language resourceson our corporate intranet and post our styleguide on our public website so it is alsoaccessible to industry.

• We post regular plain language tips andtricks on the “today’s news” section of ourintranet.

• We reserve space in our monthly employeenewsletter for plain language articles.

You get what you measure (and pay for)

This year, we conducted our fourth audit.Our target score was 85% (the mid-point of“good to very good” on Wordsmith’s auditscale). No documents failed (below 60%), alldivisions averaged over 80%, and weachieved an 86% overall score. Grammarremains our weakest area, at 77%, so wehave room to improve. Tailoring our messageto be audience-appropriate is our strongestarea, at 95%, so we have reason to be proud.

Plain language audits bring two mainbenefits for us. They help maintain employeefocus on effective communication, one of ourcore behaviours. Audits also test ourprogress, giving us the feedback we need tomanage our plain language initiative. Thetime and money we invest to test our plainlanguage skills are well worth it—communicating more clearly helps marketparticipants understand their rights andobligations.

© John Hinze [email protected]

John Hinze is theDirector of HumanResources andAdministration and theChief Financial Officerat the BCSC. He has aBachelor of Commercedegree (IndustrialRelations Managementspecialization) from theUniversity of BritishColumbia. Aftercompleting university,John spent six years atKPMG Vancouver’soffice, becoming aChartered Accountant and Audit Manager. He joined theBCSC in 2000 as Controller. In 2003, John accepted aone-year secondment to the BCSC’s Corporate Financedivision, where he was the Manager, Financial andInsider Reporting. He returned to administration in2004 and was promoted to his current position in 2005.


Chris LentzSenior business communications editor (US)

So you’ve decided to entrust your financialfuture with a company. You were charmed bythe marketing pieces. (They were clear andeasy to understand.) You have a nice relation-ship with your agent. (You believe he or she’sworking in your best interest.) You apply fora product and send in the paperwork. “Con-gratulations and welcome to a bright financialfuture!” states a clear, engaging welcome pack-age. Then, a month later, you open up yourfirst piece of correspondence and read this:

Pursuant to the conditions outlined inyour policy contract, payment in theamount of $35.00 must be remitted to ouroffice to cover the costs of insurability, asindicated, on the monthiversary of yourpolicy start date. If payment is notreceived, your policy may be subject tofees and/or enter a lapse pending state.See your policy contract for details.

That kind of copy can erase the warm, trust-ing sentiments you felt when applying for theproduct. What happened? You’re no longerbeing courted. You’ve gone from consumer tocustomer. And the change can be dramatic.

The consumer-to-customer gap

Marketing departments target consumersbecause consumers have the potential to pur-chase products. When a consumer purchasesa product, sales increase. And sales are con-sidered the lifeblood of many companies.

Marketing departments create pieces designedto be charming, interesting, and engaging.Companies fill marketing departments withstaff writers who are experts on word choice,white space, copy length, action verbs, andreadability. Research divisions conduct surveysand generate reports to analyze competitors,to measure the effectiveness of campaigns

and strategies, and to identify how best toappeal to the consumer. The end goal is toconvince the consumer to purchase a product.

But once the consumer purchases the product,he or she becomes a customer, and the marketingdepartment’s job is finished. It shifts its focusback to the ever-populated pool of consumers,leaving the new customers to a customerservice department.

Customer service departments are designedto listen and respond to customer inquiries,effect customer-requested changes, andservice products. There are often few, if any,writers assigned to these departments towrite correspondence. Instead, correspond-ence may be written by lawyers, customerservice representatives, programmers, compli-ance analysts, or managers. Some may becompetent writers; some may not. But for all,writing correspondence is not a primaryfocus.

Aside from a potential lack of writers, customerservice departments differ in another wayfrom marketing departments. Marketingdepartments are continually updating, revising,and developing strategies for reaching theconsumer. Customer service departments,however, often use the same correspondenceover and over, perhaps with occasionalchanges, for many years. Correspondencecan quickly become stale, outdated, andoverlooked.

Bridging the gap

The financial services industry is heavilyregulated, and companies must be cautiousabout the information they release. Therefore,correspondence may consist of contractlanguage already blessed by the legal andcompliance teams. In essence, then, corre-spondence is written to regulators instead ofcustomers.

To move forward and improve financialcustomer correspondence, it takes a dedicated

Plain language in financial correspondence: bridging the consumer-to-customer gap


and forward-thinking team of lawyers,analysts, and writers.

The purpose of this team is to keep the cus-tomer as the primary focus of correspondence.For many customers, finances can be compli-cated, serious, and emotional, and correspond-ence should respond to those traits. Jargonand legalese won’t accomplish this. Customersgenerally don’t trust correspondence that readslike a contract. At best, the customer maysimply discard the piece. At worst, he or shemay feel that a company is hiding something.

In a highly competitive market, financialcompanies need any edge that they can find.Customer correspondence can be that edge.Customers want direct, clear, and engagingcommunication. Why not give it to them?Show customers that the friendly, interesting,clever image the company presented to themas consumers was not a façade.

Real-life bridge building

Rewriting customer correspondence from amarketing and plain language perspectivecan yield encouraging results.

I am fortunate to work in a marketing divisionas a writer of customer correspondence. I getto see both sides, and I strive to incorporateas much of the marketing style and tone as Ican into the letters. My goal is to create a seam-less transition from the marketing pieces tothe correspondence. It’s a work in progress,but work that I feel is important.

When I first started to work on correspondence,my goal was to create a common voice andstyle using plain language. This meant goingthrough the existing 2,000 letters that wereused to service life insurance policies. Manyserved the same purpose but were writtendifferently; many conveyed legal and compli-ance information but were outdated. Step one:wade through the morass, identify whichletters were needed, consolidate where wecould, and rewrite them all in plain language.

It took about a year to complete, and we wereable to reduce the number of letters from 2,000to 341—a reduction of 83%. The letters arenow clearer, they support the marketingbranding strategy, and they have begun toclose the consumer-customer gap. In additionto the content change, the dramatic reductionof the volume of letters has made it easier togenerate, manage, and track correspondence.

Our work has begun to yield fruit. An in-housecustomer-service-employee survey revealedthat 57% agreed that the new letters are animprovement to the previous letters, 59% feelthat the new letters are easier for customers tounderstand, and 25% have noticed a decreasein calls to the service center due to confusingletters.

Our own little bridge here isn’t quite complete—and I’m not sure that it ever should be—butwe’re working at it. Changing the look andfeel of customer correspondence is like whit-tling a piece of wood. It takes time, and mustbe completed in small steps.

Maintaining and supporting the bridge

I keep pictures of my wife, parents, kids, andfriends all around my desk to remind me ofthe people I’m writing to and the reason I’mwriting to them. When I write correspondence,I may be writing to a new father in his early30s, terrified of the financial responsibility henow “enjoys.” Or perhaps I’m writing to aretiree who spends his day working on hissailboat and playing with his grandkids. I maybe writing to a teacher, a college professor, aCEO, a senator, or even you.

All are different. All come from differentplaces. But one thing is true: I’m not writingto a computer, a robot, or a machine. I’mwriting to people who invest in our companyand deserve honesty, clarity, and, if possible,a little charm.

More than 500 of our letters go out each day.They may carry simple messages asking forpayment or complex explanations of US taxlaws. Most of them will be read, reviewed,accepted, and set aside; few will elicit anemotional response. But they all represent thecompany and help shape the company’s image.If they are easy to understand, then they areeffective. If they are complicated, poorly con-structed, and difficult, then they fail. And thecompany’s image fails.

Customer correspondence directly reflects acompany’s image, but can be easily overlooked.Correspondence is the customer’s mosthands-on and regular experience with acompany. Pay attention to it. Invest in it. Ithink your customers will notice.

© Chris Lentz [email protected]


Chris Lentz is a seniorbusiness communi-cations editor in thefinancial servicesindustry. He primarilywrites and edits corre-spondence but alsoprovides plain languageconsulting on variousbusiness documents.During the past eightyears, he has worked ondocuments in the cus-tomer service, education,and technology fields,in addition to financial services. He holds a bachelor ofarts degree from Boston University.

ObituaryLord Renton PC QC

1908–2007

Francesca Quint

The late Lord Renton, who died in June, wasborn David Lockhart-Mure Renton inDartford, Kent, on 12 August 1908, the onlyson of a Scottish doctor. He attended OundleSchool and then went on to UniversityCollege Oxford, where he read Jurisprudencein preference to Medicine. He was elected anHonorary Fellow of University College in1997.

At Oxford he was President of the UniversityLiberal Club and engaged enthusiastically invarious sports. He continued to play tennisinto his nineties and remained involved andinfluential in both law and politics until hislate nineties.

David Renton led a very busy and variedprofessional life, being called to the Bar byLincoln’s Inn in 1933. He enjoyed a mixedcivil and criminal practice at the Bar, servedin the Army during the Second World War,was MP for Huntingdon from 1945 (initiallyas a National Liberal), and held variousGovernment posts (as a Conservative) from1956 onwards. After becoming a PrivyCouncillor in 1962 and being knighted in 1964,he capped his career with long, devoted, andenthusiastic service in the House of Lords,after being appointed a Life Peer in 1979.

His personal life had its sadnesses. Hisyoungest daughter (who died in 2006) wasseverely handicapped, both mentally andphysically, throughout her life, and his wifeof over 40 years died of cancer in 1986. Onthe other hand, he had the pleasure of seeinganother daughter establish herself as a suc-cessful practitioner at the Family Law Bar andmarry a fellow barrister, now an eminent QC.

David Renton’s achievements wereimpressive. He continued in practice at theBar after becoming an MP, taking silk in1954, after which he was elected a Bencherof his Inn in 1962 and Treasurer in 1979. Hisactivities in Government were worthwhile.Among other legislation which he pilotedthrough the House of Commons were theClean Air Act, the Street Offences Act, and


Whilst not a lover of plain language, whoseprinciples emerged too late to be absorbed inthe Renton Report, Lord Renton welcomedthe stimulation provided by speakers on plainlanguage and plain drafting at the Society’sevening seminars, and was happy to attendthose occasions and argue spiritedly for hispoint of view.

Lord Renton’s innate character played a veryconsiderable role in his success in life. He wasable to secure co-operation and support bymeans of his charm, his encouragement ofothers, his refreshing openness to theexpression of ideas, and his energy, including(on occasion) in disputing the proposals putforward by others. He would readily adopt acolleague’s phrase or idea if it served his ownargument, and gladly acknowledged it. Hecould be vehement but was always positiveand never arrogant. It is not surprising thathe had many friends, by whom he was heldin great affection.

© Francesca Quint [email protected]

the Commonwealth Immigrants Act. He alsoserved on the Kilbrandon Commission,which recommended devolution for Scotlandand Wales, and as a minister in the HomeOffice helped to promote legislation whichassisted handicapped people to integrate intosociety.

Outside the Law and Parliament, he wasactively involved in charitable work in thefield of mental handicap, including beingChairman and then President of Mencapbetween 1978 and 1988. As chairman he wasinstrumental in establishing a specialisedtraining course for special needs teachers andin persuading the popular comedian, BrianRix, to succeed him.

Lord and Lady Renton had a flat in Lincoln’sInn, from where Lord Renton used to drive tothe House of Lords. He had learned to drivebefore the driving test was introduced, andtook and passed the test for the first time in2003, at the age of 94, a feat which gained himan entry in the Guinness Book of Records.

What turned out to be one of Lord Renton’smost abiding interests and valuable legacies,however, was the improvement of the qualityof legislation. As Sir David Renton he waschairman of the Renton Committee, whichreported in 1974 on ‘The Preparation ofLegislation’, and whose forward-lookingrecommendations remain highly relevant inthe drafting of statutes and statutoryinstruments today. The recommendation thatstatutes contain a statement of purpose, forexample, chimed well with the newlydeveloping European legislation andforeshadowed the increasingly ‘purposive’approach which the courts have sinceadopted towards interpretation, even thoughthere was stiff opposition to them fromtraditionalists at the time.

Not long after publication of the report, LordRenton became closely involved with theStatute Law Society, an educational charitywhose aims are to work for improvement inthe drafting of legislation and to which heremained loyal for the rest of his life. He wassuccessively chairman, President, andPresident Emeritus of the Society and forsome years presided at meetings of itsCouncil held at the House of Lords or in hisflat.


Richard CastleSolicitor, Cambridge City Council (UK)

The vast majority of authors want their documentsto be read. Sadly, only a small minority of the legalprofession try to make their documents readable.For that small minority, readability is a constantchallenge. They will use whatever devices theycan to get their message across.

In this article, adapted from a report to theInland Revenue Department of New Zealand inSeptember 2006 on the readability of theirIncome Tax Act 2004, Richard Castle contrastsreadability with legibility. He points out thatmost legal documents would fail the customarytests for readability, on account of long sentencesdivided into ‘sense-bites’. Writing from anEnglish perspective, he considers who legaldocuments are or should be addressed to, as wellas structure and format. In conclusion, he makesa plea for greater use of a technique widely usedin statutes but mostly ignored in privatedocuments: the ‘condition technique’.

Readability contrasted with legibility

Readability measures how comfortably a textcan be read.1 More specifically, readability hasbeen defined as the quality that makes possiblethe recognition of the information in words,sentences or continuous text. To some extent,readability depends on the features of indi-vidual characters, but it relies more heavilyon the spacing of characters and groups ofcharacters, their combination into sentencesor other forms, the spacing between lines,and on margins.2

Readability must be distinguished from legibility,which itself is of two types: legibility of char-acters and legibility of text. It is legibility of textwhich most concerns the reader of legal instru-ments. Legal documents are reader-intensive.The reader needs to be able to identify groupsof characters quickly as words, and thus tosee meaningful groups of words. Conspicuity

(or visibility) is relevant where some items arein bold type, some in italics and some in asmaller type.

Readability formulas and ‘sense-bites’

Readability formulas usually count syllables,sentence-length, passives, personal wordsand the like. But a high score on one of thesetests does not by itself indicate easy readability.Rudolph Flesch, the well-known guru of read-ability formulas, himself cautioned againstregarding them as the be-all-and-end-all.3

Legal texts often contain extraordinarily longsentences which are broken down into shorter‘sense-bites’.4 A ‘sense-bite’ is a discrete passageof text (usually not a full sentence) which incontext can be understood on its own. Shortsense-bites have been accurately defined as‘easily comprehensible, bite-sized amalgamsof sense and structure’.5 Both statutes andprivate documents score badly according tomany readability formulas on account of thelong sentences. Yet through sense-bites theycan still be readable.

Personal reading levels

Document users have reading levels6 influ-enced by:

• their degree of interest—if readers areinterested in the subject-matter they willread at a higher level than normal7

• the legibility of the type—a user’s readinglevel decreases when type is too small, toodense or too indistinct8

• sentence length—short sentences (perhapsshort ‘sense-bites’ for most formal legaltexts) help people to read at higher levelsthan they are used to

• conceptual density—too many new conceptsor excessive condensation in a givennumber of words tend to deter readers

• format—white space and pertinentillustrations provide visual breaks thatencourage the reader to keep going.

Other influences

None of this should minimise the importanceof word choice, word order, meaningfulvariation, rhythm and flow. No discussionof readability, however, can be completewithout considering the potential reader. Sowho are legal instruments intended to beread by?

What makes adocument readable?


The audience

We need to make a distinction between publicand private documents because differentconsiderations apply to each group. On theface of it, a public instrument like an Act ofParliament affects citizens as a whole, at leastpotentially. In contrast, a private documentaffects a much smaller group, perhaps onlyone or two individuals directly. Naturally theprincipal person addressed in each case maydiffer.

New Zealand tax statutes

In some instances, readers of statutesenvisaged by drafters are not the citizensaffected, but their advisers. For the IncomeTax Act 2004 in New Zealand it was stated:9

The primary audience for the Act itself willcomprise groups such as:

• the courts;

• lawyers and accountants (particularly taxspecialists);

• authors of secondary sources that explain theapplication of tax laws;

• Members of Parliament;

• tax policy analysts and people who want tomake submissions on proposed legislation;

• Inland Revenue staff.

Not everyone would agree. Tax complianceshould improve if the tax office has a goodrelationship with the public. So directing taxlegislation to the taxpayer would promotecompliance.10

Many taxpayers simply do not want to knowwhat the legislation itself says.11 Even so, it iscontemptuous to ignore the person who is pay-ing the money—or if not to ignore the taxpayer,then to make an express decision not to addressthat person in the legislation. Moreover if theprimary audience were the taxpayer, a dualpurpose might be served: first to simplify themessages in the legislation so that they couldbe understood by the interested, educatedlayman; and second to serve the needs of thebusy general practitioner who might not havethe involvement or expertise of a specialist.

Australian tax statutes

The contrast with the Australian Income TaxAssessment Act 1997 could not be greater.The Australian text speaks directly to the tax-payer: ‘You must pay income tax for each year

ending on 30 June …’ (section 4–10) and so onthroughout the statute. This approach is con-sistent: the taxpayer is the person affected andit is the taxpayer for whom the Act is written.So much so, that at times the Act reads morelike a guidebook than an Act of Parliament—especially in the more general material at thebeginning.

UK tax statutes

Unlike New Zealand and Australia, the UnitedKingdom in its Income Tax (Earnings andPensions) Act 2003 gives no clues about theintended audience. But the post-implemen-tation review12 was conducted amongst taxprofessionals only, thus implying that the Actwas not intended for the layman. The researchresults, however, challenged this assumption.

It is mentioned that tax legislation – and inparticular ITEPA – is unusual as it affects themajority of the British population; most people,at some point, will be subject to the clausesstated in it. Given that it does affect so manypeople and, moreover, affects them in the mostfundamental manner – taking a substantialamount of their paycheck – the Government hasa responsibility to ensure that the legislationthat enables this is clear, accessible andunderstandable.

Furthermore, this is seen to be now ofparamount importance in light of the driver onself-assessment. Given that so many people whoare self-employed now undertake this for theirtax returns it is essential that, should they needto, the legislation is easy to understand and canbe used as a point of reference by anyone.13

Does it matter?

Self-assessment of tax is the norm in manycountries. And in a democracy, legislatorsignore the voter at their peril. They ought notto write deliberately over the head of the inter-ested, educated taxpayer. Remember too thatmany professionals asked to advise about taxare generalists; and some readers will be lookingat the Act for the one and only time in theirlives.

As for the question of whether openly addressingthe taxpayer would make any difference tolegislation as drafted, the answer might wellbe; ‘Not much’. But a change in attitude, a mereannouncement, can have an effect on writerand reader. Consideration of the taxpayer bythe drafter is bound to have some beneficialeffect.


Private documents

Private legal documents are likewiseaddressed to a number of audiences. Theprimary reader is nowadays assumed to bethe person who signs the document, namelythe client. As Anthony Parker said in hisnotes to the 1964 ‘Modern ConveyancingPrecedents’:

Conveyancing documents are signed by clientsand it seems wrong that people should berequired to sign a document which isincomprehensible to them.

Secondary audiences abound. In a will, forinstance, the executors and beneficiaries canhardly be far behind the testator in the mindof the drafter. Nor should successors in titleto original parties be disregarded. Who cantell what might be the levels of under-standing of assignees of a lease throughout a100-year term? So it pays to ‘write down’ notin any patronising way but to ensure that asfar as possible the document is understood byall those whose rights and privileges dependon it.14

Other lawyers and the courts cannot beignored. David Mellinkoff has written:15

Some day someone will read what you havewritten, trying to find something wrong with it.This is the special burden of legal writing, andthe special incentive to be as precise as you can.

Yet it is possible to overstress this point. Thesedays, thank goodness, the purposiveapproach to interpretation prevails. Thejudge who disregarded everything excepttechnicalities was always a myth anyway.16

Structure

The structure of a document influencesreadability too. Structure is the building of adocument (including a statute) so that itstands solidly and (at risk of extending themetaphor too far) so that it is both readilyuseable by the people who are intended tomake use of it and robust against thebuffetings of later amendment.17

Any structure is better than no structure.Opinions will always differ on the logicalsequence of an instrument.18 Ultimately it isthe users of a document who can saydefinitively if the structure is one they findhelpful under the pressure of day-to-daydecision-making. Users do not customarily

read the document from beginning to end, soit should not be assumed that they will. But ifthe document has a logical structure,unfolding sensibly as the reader leafs throughits pages, it will seem friendly andunderstandable.

For long documents, a table of contents at thebeginning is helpful. We never see generalindexes, however. Why not?

Format

Format embraces everything associated withthe look of a document: page size, type size,type style, line length, line spacing (‘leading’),general margins, indentations and headings.Reed Dickerson has pointed out that specificslike typeface, ink-to-paper contrast,paragraphing and cross-referencing areusually ignored or played down in thestandard texts on legal writing or legaldrafting. Attempts to list the full range ofprofessionally useful devices that improveclarity or readability would be impossible.19

Suffice it to say here a range of devices canpromote readability, among them:

• the judicious use of running heads

• distinctive headings to both main clausesand subclauses

• indenting subsubclauses so that they aredistinguishable from subclauses.

Moreover the consistent use of indentationsand spacing helps to create a user-friendlypage and encourages readers to delve aroundfor their required information. Both draftsand engrossments are still typed with doubleline-spacing. If language and layout wereclearer, the main text might be set out single-spaced. That would save a lot of paper.

The look and feel of a document

Most documents are produced on white A4paper with a weight of at least 100gsm forthe engrossment. 120gsm induces a moreprofessional feel. Type size is customarily 12-point though at a pinch anything down to10-point can be acceptable.20 As for typestyle, passions run high. Some authors areprepared to die in a ditch for their favourite.All we can say from the evidence about us isthat seriffed typefaces promote readability(newspapers, novels, and this journal)whereas sans-serif fonts promote legibility(road warnings, hospital directions, and exit


signs). Beyond that, the choice is subjective,and committees will never agree. When theform of UK statutes was under considerationsome years ago, the Lords wanted Times NewRoman but the Commons preferred Palatino.Neither prevailed, and they compromisedwith Book Antiqua.21

As for right-hand margins, the consensus forprivate documents seems to be against justifi-cation, for fear of stretching words unnaturallyon short lines. The practice for statutes differsfrom one jurisdiction to another.

Punctuation

Private documents would take a great leapforward if they were punctuated normally,albeit lightly. The change would be akin toreplacing ‘shall’ in the days when ‘shall’ wassprinkled unthinkingly throughout all legaldocuments. For some reason, the privatedrafter seems to find punctuation alien. Butwhy make life difficult for the reader byleaving it out?

The condition technique

Plenty has been written elsewhere about thedesirability of standard language, shortsentences and logical flow. One device whichhas possibly not received the attention itdeserves, however, is the condition technique,widely used in United Kingdom statutes. Thecondition technique is a drafting tool forshortening sentences and making the passagemore easily understood. The drafter firstshortly states in a subsection that the generalrule is expressly subject to conditions. Thoseconditions (sometimes called cases) are thenset out in following subsections. Thistechnique is illustrated (in this instance byusing ‘cases’) in section 191 of the IncomeTax (Earnings and Pensions) Act 2003 (UK)which is set out below.

191 Claim for relief to take account of eventafter assessment

(1) A claim may be made for relief in thefollowing cases.

(2) The first case is where—(a) the tax payable by an employee for a

tax year in respect of a loan has beendecided on the basis that, for thepurposes of section 175 (benefit oftaxable cheap loan treated as

earnings), the whole or part of theinterest payable on the loan for thatyear was not paid, and

(b) it is subsequently paid.

(3) The second case is where—

(a) the tax payable by an employee for atax year in respect of a loan has beendecided on that basis that, for thepurposes of section 188 (loan releasedor written off: amount treated asearnings), the loan has been releasedor written off in that year, and

(b) the whole or part of the loan issubsequently repaid.

(4) The third case is where—

(a) the tax payable by an employee for atax year in respect of a loan has beendecided on the basis that—(i) section 288 (limited exemption

of certain bridging loansconnected with employmentmoves), and

(ii) section 289 (relief for certainbridging loans not qualifyingfor exemption under section288),

will not apply because the conditionin section 288(1)(b) (which requiresthat the limit on the exemption undersection 287(1) has not been reached)will not be met, and

(b) that condition is met.

(5) Where a claim is made under this section thetax payable is to be adjusted accordingly.

The Australian Income Tax Assessment Act1997 uses the condition technique sparinglybut to telling effect, as in section 165-13:

165-13 Alternatively, company must carry onsame business

(1) If the company fails to meet acondition in section 165-12 (which isabout the company maintaining thesame owners), it must instead meet theconditions in this section.

(2) There must be some period (thecontinuity period) that satisfies theseconditions:

(a) it must start at the start of the *lossyear (and end before, at or after theend of the loss year);


(b) if the period were the loss year,each of the conditions in section165-12 about the loss year wouldbe satisfied.

(3) The company must satisfy the *samebusiness test for the income year (thesame business test period). Apply thetest to the *business that the companycarried on immediately before the time(the test time) when the continuityperiod ends.

Readers will be aware that the conditiontechnique is an extension of the methodsrecommended by English barrister GeorgeCoode in the middle of the nineteenthcentury.22 It ought to be more widely used.Alienation and forfeiture clauses in leases (forinstance) could then be made much moredigestible.

© Richard Castle [email protected]

Endnotes1 Elizabeth Gregory ‘Power in Print: developing

effective newsletters and documents’ (2001) at<agcomwww.tamu.edu>.

2 Mark S Sanders and Ernest J McCormick HumanFactors in Engineering and Design 7th edition 1993(New York: McGraw-Hill) p 102.

3 Rudolph Flesch The Art of Readable Writing 1949(New York: Harper & Brothers) p (xi).

4 Peter Butt and Richard Castle Modern LegalDrafting 2nd edition 2006 (Cambridge: CambridgeUniversity Press) pp 142, 181.

5 Edwin Tanner Clear, Simple, and Precise LegislativeDrafting: how does a European Community Directivefare? (2006) Statute Law Review Vol 27 No 3 p150at p152.

6 See <www.caslon.com.au/readabilityprofile1.htm>,and Elizabeth Gregory ‘Power in Print’ cited above.

7 See John Downing and Che Kan Leong The Psy-chology of Reading 1982 (New York: Macmillan)p 252; and Elizabeth K Knutson ‘Reading with aPurpose: communicative reading tasks for theforeign language classroom’ (1998) at <www.cal.org/resources/digest/reading_digest.html>.

8 Miles A Tinker Legibility of Print 1963 (Ames, Iowa:Iowa State University Press) chapters 5 (size), 7(leading) and 9 (colour).

9 Rewriting the Income Tax Act: objectives, process,guidelines 1994 (Wellington: Inland RevenueDepartment) para 3.4.

10 David Smith and Grant Richardson ‘The Readabilityof Australia’s Taxation Laws and SupplementaryMaterials: an empirical investigation’ Fiscal Studies(1999) Vol 20 No 3 p 321 at p 325.

11 See eg the taxpayer response to a questionnaireabout tax legislation cited in Ian G Wallschutzky‘TLIP: Stage 1—benchmarking’ (1995) 12 AustralianTax Forum p115 at p121.

12 MORI The Income Tax (Earnings and Pensions) Act2003—Post-implementation review February 2006,available at <hmrc.gov.uk/rewrite>.

13 MORI report p 18.14 See Reed Dickerson The Fundamentals of Legal Drafting

2nd edition 1986 (Boston: Little, Brown and Co) p 27.15 David Mellinkoff Legal Writing: sense and nonsense

1982 (St Paul, Minnesota: West Publishing Co) p 15.16 Rudolph Flesch How to Write Plain English 1981

(New York: Barnes and Noble) p36.17 See Reed Dickerson The Fundamentals of Legal Drafting

chapter V ‘The Architecture of Legal Instruments’.18 See Piesse The Elements of Drafting 7th edition 1987

by J K Aitken (Sydney: The Law Book Co) p 11.19 Reed Dickerson The Fundamentals of Legal Drafting

p 176.20 For a comparison with USA paper sizes and

weights, see www.colorcraft.com.ht/en/resources/paper-specs.

21 House of Commons Research Paper 01/04 TaxLaw Rewrite: the Capital Allowances Bill 2001p 31.

22 On Legislative Expression 2nd edition 1852 (London:Thomas Turpin) reproduced in Stanley RobinsonDrafting 1980 (London: Butterworths) p 331.

Ideas for further articles or research

• Drafting techniques

• Definitions and labels—what’s thedifference?

• The psychology of typefaces

• Job satisfaction in document production

• Line-spacing, paper weight and papercolour in drafts and engrossments

• The indifference of the legal profession towriting well

Richard Castle is asolicitor withCambridge CityCouncil, England. Hewas a founder-memberof Clarity and is along-standingcommittee member.With Peter Butt, he isco-author of ModernLegal Drafting (CUP,2nd edition 2006). Heworked in New Zealand(where he was Clarity’srepresentative) for sevenyears before returningto his native UK in March 2007.


Audrey Gardner and Janet PringleAudrey Gardner is the literacy programs coordinator atBow Valley College (Canada).Janet Pringle is a plain-language consultant (Canada).

Low-literacy plain language is central to ourwork as adult-literacy practitioners. We talkabout it all the time, facilitate plain-languageworkshops, and offer feedback to community-based organizations wanting to write theirprint materials in plain language.

The project

In 2001–2003, we worked on a communitydevelopment project in Calgary, Alberta. The‘Connecting Literacy to Community’ (CLC)project worked in six communities, both urbanand rural. The project aimed to reduce barriersto community services and to programs foradults with limited literacy. These includeschool drop-outs, people in crisis or living onthe streets, people with developmental disa-bilities or mental illnesses, and people for whomEnglish is a new language. The key approachin the CLC was using literacy specialists aschange catalysts in agencies, groups, and organ-izations, to increase staff and volunteerawareness about adult literacy. The originalproject has led to similar projects, including aliteracy specialist training course and a com-munity development health literacy project.

In our role as literacy specialists, we providedliteracy audits in organizations doing commu-nity programming and services. We helpedthese organizations see where they mightimprove their ‘literacy-friendliness,’ from thereception area to all the other aspects of theirwork and workplace. These audits includedstaff and volunteers in consensus-buildingdiscussions and activities, rather than havingus create a ‘top-down’ model for change.

Literacy specialist role

We offered workshops on low-literacy plain-language writing, literacy sensitivity andawareness, and verbal communication. Staffand volunteers were often not fully aware ofthe problems faced by many people who lackliteracy skills, or, if they were aware, felt theylacked skills themselves to create easier-to-readmaterials. Similarly, many were not usingalternative communication techniques, suchas videos. What is more, the stigma attachedto low reading skills is so acute, many peoplehesitated even to ask clients if they neededhelp, in case of causing offence.

Of several workshops we offered, our mostpopular ones were writing in plain languageand developing literacy sensitivity and aware-ness. As literacy specialists, we gatheredinformation and developed a low-literacyplain-language workshop that could becustomized to meet each agency’s or group’sneed. Our main tool in the project was theLiteracy Audit Kit (1997), from Literacy Alberta(a provincial coalition on adult literacy). Wechanged the audit kit from a survey design toone in which workshop participants coulddiscuss what worked well and what neededimprovement. Consensus was a prime objective,so that the learning would be carried on afterwe had gone. We wanted to leave staff andvolunteers eager to continue working togetherfor improved literacy awareness. For the plain-language workshop, we built upon the ‘PrintMaterial’ section of the kit.

Partnerships

We developed partnerships with these organ-izations so that they understood their rolewas to be more than just as recipients of ourinformation. We hoped in this way to encouragecontinuing planning around the literacy needsof their clients. This always included havinga list of literacy services available for anyonewho wanted them.

Learning about plain languagethrough a community developmentproject on adult literacy


We focused on helping agency staff and volun-teers to challenge their knowledge about eachreader and their own assumptions aboutprinted text. This produced lively discussionsthat touched upon the following:

• examining assumptions about agency clients,particularly their reading and writing skills

• developing a deeper understanding of theconnection between privilege (class, income,education) and the power of language in print

• uncovering professional jargon

• exploring our tendency to have more text(and more complicated text) than neces-sary, in order to sound ‘professional,’ and

• linking personal histories about being a ‘goodwriter’ to writing with the reader in mind.

The significance of reader-based writing

The more plain-language workshops we did, themore we saw a pattern developing. People’spreference was to get caught up in the writingof the text, rather than letting the writing beguided by paying attention to the reader. Inmany of the workshops, the participants ad-mitted that although they knew their clients,they had not considered them as readers ofagency documents. The irony of this is thatall community services and programs involvedin the CLC project required clients to read andrespond to printed text.

The significance of building awareness aboutthe reader, and challenging assumptions aboutadults as readers cannot be understated. AsSally McBeth, of Clear Language and Design(CLAD) in Toronto, Canada, writes inLiteracies #6 Fall 2005 (page 5):

When messages get ‘lost in transmission’it’s often not because the reader has aliteracy problem. It is because the writer,through lack of awareness and skill, hascreated illiteracy. Helping people developthat awareness and skill is really whatplain language is about.

To write successfully, using plain-languagetechniques, the writer must constantly ask,‘How much do I know about the readers?What does the reader expect from the text?What do I know about adult literacy?’ Wefound that integrating awareness about adultliteracy in all the workshops helped agencystaff and volunteers find the switch to thelight, to an ‘aha’ moment. This is when they

made the link between feeling intimidated byprinted text, and finding that poorly writtentext is the fault of the writer, not of the reader.

As a community development project, the CLCassisted people to write for marginalizedreaders, using plain-language techniques andconcentrating on how the reader would likelyuse the printed text. We were more focusedon the actions that the reader would take inrelation to the text, rather than the small detailsof the structure of the text. We started discus-sions about this before looking at grammar.

Some of the things we learned from the CLCproject were that:

• everyone can write using plain language

• the context that the print material is used inis as important as the text. Keeping the spot-light on how people were using the text helpedagency staff and volunteers improve howthey verbally communicated and interactedwith clients (improved client service)

• learning how to write in plain languageimproved staff’s writing (and communication)skills

• staff and volunteers felt they could articulatetheir programs and services better.

Talking-to-writing

Interestingly, the more time we spent talkingabout writing in plain language, the easier itwas to write. Natalie Goldberg in WritingDown the Bones (1986) states on page 77:

It is good to talk….Talk is the exerciseground for writing. It is the way we learnabout communication.

We talked with agency staff and volunteers,who then talked with their clients about printedmaterial. Many agencies asked clients for thefirst time about agencies’ written documents,and found that what the clients (readers) hadto say about the forms, brochures, and otherprogram materials were things they hadn’tconsidered before. One comment highlightedthe redundancy of asking people to write theirbirth-date as well as their age. Another signif-icant impact of the CLC is that rather thansending their printed material to a plain-language consultant to re-write, agenciesbegan to do it themselves. This learning-while-doing approach was a tremendousopportunity to assimilate the knowledge thatwriting demands talking. Agencies had to talk


among themselves and with clients to ask, ‘Arewe getting it right?’ They also had to learn thatwriting in plain language is a cyclical processthat involves revisiting who the readers are,incorporating program and service changes,and looking at what people are doing withthe text.

Our plain-language workshops would rangefrom approximately two hours to a full day.We worked with non-profit organizations,government services, and community volunteergroups. Below is a typical workshop outline.Agency staff were required to bring one or twoclient documents to the workshop so they couldstart re-writing them.

Plain-language workshop (three hours)

• What do you know about adult literacy?Discussion, and video from Literacy Audit Kit

• What do you know about plain language?

• What do you think plain language is? Whydo we use complicated language?

• Benefits of plain language

• Components of plain language

Considers the audienceOrganizes information logically and simplySpeaks directly to the readerEmphasizes the positiveUses concise words and phrasesAvoids clichés and explains jargon ortechnical termsUses clear and effective sentencesUses inviting layout and design

• Practice with print material: group decideshow to divide up a brochure and work onsections.

At least half of the workshop time was desig-nated to rewriting one of the agency documents.This involved small-group work and presen-tation of their work-in-progress to the rest ofthe group. They had to describe the purposeof the text, details of the readers, and changesthey made to make it easier to read. Literacyspecialists were ‘on hand’ but encouragedparticipants to discover for themselves.

Conclusion

There has been a noticeable move towardscreating print materials for marginalizedpeople. They are easier to read and have beendesigned with care and attention to servethose who are excluded from general printinformation. Some agencies continue to explorefor themselves what they can do to create aliteracy-friendly environment and produceplain-language materials. Requests for literacyspecialists have continued beyond the end ofthe project, and several literacy specialists areinvolved in further projects now. Non-govern-ment health organizations, seniors’ groups,Aboriginal groups, parenting groups, and atleast some municipal organizations arerecognising the need and working to fulfill it.

© Audrey Gardner and Janet Pringle [email protected][email protected]


How to reach marginalized groups withinformation useful to them. These groupsmight include people with:

• English as a new language

• learning disabilities such as ADHD

• developmental disabilities (called‘learning disabilities’ in the UK and inthe USA)

• mental illnesses

• high-risk lifestyles.

Audrey Gardner hadover 10 years ofexperience in the non-profit sector beforebringing her experienceof community buildingto the adult literacyfield in 2001. She is theLiteracy ProgramsCoordinator at BowValley College, Calgary,Canada. Audrey hasworked with manycommunity-basedorganizations to helpimprove staff andvolunteer knowledge and skills to better serve adults withliteracy challenges. She developed and facilitated atraining program on community capacity building foradult literacy for practitioners in adult and familyliteracy.


Martin CuttsResearch director, Plain Language Commission (UK)

A reader’s letter to the Daily Mail on 9 Augusturges: ‘There is one way to rescue realityTV—make it educational. The Big Brotherhouse members should have to give a ten-minute talk on their job and life, followed bya quiz. There could be awards for the housemember who makes the fewest grammaticalerrors and uses the most coherent sentences.’

This must rank high among wishes least likelyto be realized. And I’m beginning to wonder ifone of my own pipe dreams is just as unattain-able, namely to convince lawyers to proofreadtheir letters and emails before sending themto clients.

Clarity is rightly concerned with clarity. Butas an occasional client of a few law firms anda provider of writing-skills courses to rathermore, I’ve noticed that lawyers’ letters andemails are often error strewn. In one legalexecutive’s 2-page advice letter, I countedmore than 70 errors of spelling, punctuationand grammar, including several missing words.This meant some of the sentences were indeci-pherable. The whole letter looked like a hoax.I asked the author, who didn’t seem particularlyaghast, how he’d managed to produce thislamentable offering. He replied that he’d writtenit hurriedly, late at night, and had typed ithimself. Had the client complained or evenmentioned its failings, I mused? Apparentlynot. The same author had many foreign clients.If they thought his writing odd, perhaps theyblamed their own lack of English. After all,their expensive London lawyer must be right.

I’m not saying that people in other professionsnecessarily check their writing more carefully.Last week I received this email from an allegedproofreader in the medical field: ‘do you everrecruit staff? I ahave been a medical profes-sional for 21 years and do vast amopunts ofwritten work on almedical issues for a varietyof audiences .for many years I have been the

Keeping errorsin Czech

Janet Pringle was bornand raised in Scotlandbut now lives inCanada. She has been aresearcher and writer inCalgary for thirteenyears, mainly workingwith people who havedevelopmentaldisabilities. From them,and from immigrantswith English as a newlanguage, she firstlearned how to writeplain language. Shealso teaches plain-language writing to audiences whoneed to communicate with readers at many differenteducational levels. She enjoys crossing the gap betweenliteracy work and plain-language writing and teaching.

Clarity seminarson clear legal writing

conducted by Mark Adler

Mark Adler uses many before-and-afterexamples to teach the theory andpractice of clear, modern legal writing,covering style, layout, typography, andstructure. One handout gives an outlineof the lecture, which is interspersedwith exercises and discussion; the othergives model answers to the exercises.

The seminars are held on your premises,and you may include as many delegatesas you wish, including guests fromoutside your organisation. The normalsize ranges between 4 and 25 delegates.

The length of the seminars can betailored to your convenience but theyusually run for 3 hours, 5 hours, or 1.5days.

Individual tuition is also available (inperson or by email) to combine trainingwith the improvement of your owndocuments.

Contact Mark Adler [email protected]


recognised proof reader in our dept .Iamlooking for additional part time work’. So far,I’ve managed to resist her offer.

Partners at one of the firms I work for seek toimpress on new starters the importance ofproofreading the drafts they submit for ap-proval. A frequent comment is: ‘Traineesolicitors don’t seem to realize I’m not their£350-an-hour proofreader. They should checktheir stuff themselves.’ In that firm, carelessproofreading can even make the differencebetween the trainees (all graduates) survivingtheir probationary period and having to lookfor a new job.

One of our commercial services is to accreditdocuments with the Clear English Standardlogo, and as part of the process we give themsome plain-language editing. So when Inoticed that a major insurer (I’ll call themXYZ) was printing our logo on its brochureswithout troubling to ask us first, it seemedreasonable to protest, especially as the docu-ments were full of unclear English and errors—eg, many of the apostrophes were wrong. ButXYZ told me to go away and get stuffed. So Ishopped around for an intellectual-propertylawyer and hired what seemed to be a stellarfirm in Manchester. Their customer-servicebrochure made all the right noises about atten-tion to detail, supervision of juniors’ work bypartners and first-rate performance, and Iagreed to pay them about £300 an hour. Theirfirst letter had me biting the desk with regret.It begins:

I enclose letter which I have received fromXYZ along with their two brochures.

Er, that would be better as ‘a letter dated 10June 2005’, just for certainty. And I’d expectthe sentence to be followed by the names ofthe 2 brochures, plus some clarity on whetherthe author is enclosing them now or whethershe’s holding on to them. The letter goes on:

Looking at point 1 in the letter, it does not sayafter the change the logo was used or not.

This makes no sense because ‘whether’ hasbeen omitted after ‘change’. Also, the authorhas not explained what ‘change’ is beingdiscussed. Compared to these horrors, herhanging participle ‘Looking’ is a minorconcern.

Although I left a message with Mr Boltonon Friday, he has not come back to me. Iwill go back to him and ask for these docu-

ments, but perhaps it would be better if Iwait until you have had an opportunityof looking at his comments first? Perhapsyou could telephone me to discuss?

As ‘documents’ haven’t been mentioned before,I’m left to guess what they are and who MrBolton is. Moreover, ‘opportunity of looking’is not really English. And the successivequestions leave me wondering what actionsthe author is really planning to take.

While that letter calls into question the qualityof supervision by the author’s principal, it’snot just the junior staff who don’t care to checktheir stuff. On a relative’s behalf, I was recentlycorresponding with a law firm’s senior partnerabout the way one of his team had been using(or perhaps misusing) a power of attorney.His letters usually included several typos, andone had the following statement (both nameschanged):

I am able to confirm to you that Mr Pillionretired from my firm and was not in anyway connected with Mrs Smith’s matter.

When I queried this, since Mr Pillion hadundoubtedly been dealing with Mrs Smith’saffairs for many years, the senior partnerreplied:

I am not in any way saying that Mr Pilliondid not act in respect of the affairs of MrsSmith as it [sic] is apparent of [sic] all thathe did. I do not therefore understand whyyou have read this interpretation into myletter.

In full pedant mode I asked him to re-checkhis original letter, and he at last respondedmore graciously:

I now fully understand the issue you areraising…the word ‘this’ was omitted…Iapologise for not properly proofreadingthe letter before signing it. As you willnow appreciate I meant to say that MrPillion had retired from the firm, as hadbeen agreed for some time, and this retire-ment was not in any way connected withthe matter you have raised with me.

My feeling is that few clients are likely to beas persistent as me or the average Claritymember, so lawyers get away with a lot.Moreover, most clients imagine that theirlawyers are good at putting the right wordsin the right places—that’s after all whatthey’re paid for. Just as clients are reluctant


to challenge obscure wording in their wills,they’re not confident enough in their ownknowledge of English to demand letters andemails that meet a high professional standard.Or perhaps they just don’t care, as long asthey think they’ve got the gist of it. The troubleis, clients sometimes think they’ve understooda legal letter and act on it, only to find they’vegot the wrong end of the stick.

Error-strewn letters give an impression of in-competence and detract from the professionalimage law firms want to display. If lawyersblunder so badly in their letters, readers areentitled to wonder about the quality of theirdecision-making and advice.

So how can authors do better? Proofreadingon screen seems to be less effective than onpaper, partly because the characters are lesslegible. However, the size of the image onscreen can usually be enlarged, which mayhelp. When checking on paper, though, authorscan more easily bring into play one of theirmost potent weapons, of which most peoplehave several—their fingers. If you run yourfinger beneath the line of text, the eye tendsto examine each word more closely. This isreading for errors, not skim-reading. It’s alsohelpful to make several passes at a document,reading in turn for such things as headings,paragraph numbers, sense, spelling, andfootnotes.

Other things authors can do include leavinga document overnight and proofreading it withfresh eyes next morning; getting a colleagueto read it; reading it from the last word to thefirst (for spelling); and using a spellchecker.But unless they’re lucky enough to have recourseto a professional proofreader, they’ll be doingall these things for themselves—which coststime and the client money.

Well, the odd mistake will always slip throughbecause we all tend to read what we think isthere, not what really is. In haste, I once madesome last-minute amendments to a book ofmine that included a chapter extolling plainlanguage in legal writing. A kindly reviewernoted that it included the following sentence:‘Similarly, organizations that want to win theconfidence of customers should give themincomprehensible legal agreements to sign.’

© Martin Cutts [email protected]

Martin Cutts isresearch director ofPlain LanguageCommission (http://www.clearest.co.uk),based in northwestEngland. A highlyexperienced editor andtrainer, Martin hasworked in the plainEnglish movementsince the mid-1970s. Heis author of TheOxford Guide toPlain English(published by Oxford University Press), ClarifyingEurolaw and Lucid Law, and is co-author (with EmmaWagner) of Clarifying EC Regulations. He is alsoeditor of Indlish by Jyoti Sanyal (Viva Books) andconsultant editor to the Adult Learners’ Writing Guideby Ruth Thornton (Chambers). (See Nigel Grant’s reviewof Indlish on page 35.)


Dr Robert EaglesonPlain-language consultant (Australia)

This article on drafting considers letters of advicethat arise in those situations where the client hasapproached the lawyer for a solution to a problem.

The content of the letters is not at issue. No matterwhich approach they adopt to drafting—traditionalor plain language—all lawyers endeavour to supplytheir clients with all the information they requireto receive satisfactory and satisfying advice. Theirletters cover the same range of items and containvirtually the same blocks of information. There isno essential difference in the material covered byboth approaches, and cannot be if the lawyers areto fulfil their duty of care to their clients. Notwith-standing this similarity, there are critical variationsin where and how the content is organised andpresented in a letter of advice. It is the reasonsunderlying these variations that we are concernedto explore, and where the advantages lie.

The 2 approaches

Here are common arrangements of the blocksof material that appear in traditional and plain

language approaches to letters of advice. (T1,P1, etc are added to aid cross-referencing inthe following discussion.)

The major divergence

T2-3 versus P2-4

Immediately after an opening sentenceacknowledging receipt of the client’s request,traditional letters of advice move to confirmthe nature and extent of the instructionsreceived. The initial sentences launching thisactivity ordinarily proceed along the lines of:

You have instructed us to …

Although this segment amounts largely to arepetition of the instructions which the clienthad given previously, possibly orally at ameeting or conference, it is reasoned that thisstep is essential to avoid misunderstandingbetween the lawyer and the client.

On the heels of this opening gambit clarifyingthe instructions comes, where necessary, astatement of relevant background informationon the client’s business. Initiating sentenceshere take the form of:

We understand that …

We note that …

Again, most if not all of the material in thissection would have been communicated tothe lawyer by the client earlier. The purposeof the repetition is to compel clients to checkany details they had given for accuracy and foromissions and to clear up any misconceptionsthe lawyer might have formed.

Drafting matters—letters of advice

Plain language approach

addresseeP1 Subject title of letterP2 IssueP3 Findings/RecommendationsP4 Important considerations/Scope/

AssumptionsP5 Explanations/Reasons for findingsP6 Applicable legislation and court

rulingsP7 Further action/What you need to

do/How we can help yousign off by lawyer

Traditional approach

addresseeT1 Subject title of letterT2 Confirmation of instructionsT3 Relevant background informationT4 Assumptions of lawyer in arriving

at solutionT5 Evidence forming the basis for a

solutionT6 Findings/Recommendations

sign off by lawyer


It is proper and prudent for lawyers to beclear about instructions and backgroundinformation and to assemble evidence beforethey develop solutions to problems. But this isfrom their perspective and how they shouldtackle problems. But well before the time theypost off their letters of advice, events havemoved on as far as the clients are concerned.

Clients go to lawyers with the assumption thatthey are reasonably intelligent and capable ofunderstanding ordinary conversation, andconsequently they do not expect to have toconfirm that the lawyers have understoodtheir instructions accurately. Nor for the samereasons are they looking for a repetition of allthe details that they had given to the lawyerand that are familiar to them. What they wantto learn first and foremost is whether the law-yer has been able to come up with a solutionto their problem—even if it turns out to be anunfavourable one. In short, they want sectionT6 (=P3) as near to first in the letter as possible.

Traditional letters of advice rarely ask clientsexplicitly to check and confirm details. At thesame time it is naïve to imagine that clientswould conceive that their instructions hadbeen unclear or incomplete. Who of us—including lawyers—ever entertain the possibilitythat what we have said or written might beobscure or deficient? It just does not occur tous, as some of our past endeavours testify. Asa result, clients often do not see the repetitionin sections T2 and T3 as sagacious but onlytiresomely overcautious, unnecessary andtime-wasting.

Several consequences follow from this predom-inant desire of clients. First, will they readsections T1–5 carefully, as their lawyers hope,or just skim them? Are they in a calm enoughstate to pay proper attention to the details inthese sections until they have the satisfactionof knowing that there is a solution?

Secondly, will clients go back to read sectionsT1–5 more carefully once they come acrossthe solution? And if they do, will they be lulledinto thinking that they have already readthese sections, when all they did on the firstreading when they opened the letter was toskim them? The result could be that they quicklyslip into skimming again and so overlooksalient facts and crucial assumptions. This isespecially likely to happen if the recommendationsuits them. If it goes against their interests,

they might scrutinise the earlier materiallooking for possible loopholes or errors on thepart of the lawyer, but this means that onlythe disappointed part of the audience willengage in this careful reading.

Wise as the traditional arrangement and validas the arguments used to bolster it might seemto lawyers, it does not avoid the dangers it aimsto elude.

Resolving the conflict

The organisation adopted by the plain languageapproach relieves the conflicting tensionsflowing from the arrangement of the materialin the traditional approach and in the processoffers a rounded solution—not a compromisethat encompasses the legitimate interests andconsiderations of both clients and lawyers andthat goes a long way to counteracting feareddangers of inattention to details.

P2 The issue

The plain style letter starts with a concise state-ment of the matter at issue in the advice, whichprovides a context for the information thatfollows. It is necessarily brief because the objec-tive is to get to the recommendations or findingsas quickly as possible for the benefit of theclients. 1 sentence is usually sufficient—or atmost, 2. There is no need for a heading, suchas Issue, as the section comes under the um-brella of the subject title of the letter and is anelaboration of it.

Sample sentences take the form of:

• We have considered whether the FinancialTransaction Reports Act 1998 requiresOutback Bank to carry out identificationprocedures, as requested in your letterdated 15 March 2007.

• We have examined the constitution of CHTto determine whether it can undertake arenounceable rights issue rather than aninstitutional placement.

P3 Findings/Recommendations

In a plain language letter, an announcementof the findings or recommendations followsimmediately on the statement of the issue.This is the core of the advice which clientsare eager to discover. They are hard-pressedby a problem; they are anxious to learn iftheir lawyers have unlocked a solution for


them. At the first instant they are happy toentrust the details to their lawyers’ professionalexpertise: it is the answer that they desire atonce. Only then can they relax to turn theirattention to the accuracy of what seems tothem secondary matters of detail.

Once more, unless the problem has severalbranches, this section is not ordinarilylengthy. 1 or 2 succinct sentences regularlyare sufficient. For example:

• We recommend that you …

• You will need to review the structure of …

• We consider that the replacement of therefrigeration pipes is a deductible repair forincome tax purposes.

Appropriate headings are Findings or Recom-mendations. In some instances Implicationsmight be applicable, or some other term thatmore nearly matches the character of theadvice being given.

P4 Important considerations/Scope/Assumptions

Some sample sentences from actual letters ofadvice give the flavour of the content in thissection.

• Our proposal is only valid if ….

• Our finding is based on … (details frominstructions)

• In making this recommendation we haveonly examined ABC, as you directed. Wehave not examined XYZ.

• We have assumed that DEF does not hold15% or more of the shareholding of anAustralian company.

The material in P4 is essentially the same asthat in T3, but the clients are being asked toengage with it in a vastly different manner.Rather than being involved in a more super-ficial activity of confirming whether they hadgiven their lawyers the necessary informationand whether the lawyers had understood them,now the clients are tackling a challenging taskof problem solving with vital consequences forthem. In the context of P4 they are assessingwhether there is a congruence between thecharacteristics of the solution proposed bythe lawyers and the characteristics of theircircumstances. The comparative assessment

involved forces to the surface any contradictionsor mismatches. It promotes meticulous reading.

Locating the background material and assump-tions at P4 after the statement of the solutionthen is a far more effective strategy for theintegrity and success of a letter of advice. Withthe material at P4, clients are scrutinising itagainst the backdrop of the proposed solution,a more productive and interesting task, whereaswith the material at T3 (the traditional ap-proach) they are only assessing it against theinstructions previously given. The solution,the real core of a letter of advice, receives moresearching attention in the plain languageapproach.

If we are worried that clients may not givedue attention to this section, then headingssuch as Important Considerations or even Whenthis solution will work may be apposite.

P5 Explanations/Reasons for Findings

As everywhere else, be as brief as possible inthis section. Do not overload it with minusculeitems that do not add to what has alreadybeen stated.

Arrange the evidence or reasons in order ofimportance, starting with the most significant.Clients will expect such an arrangement, willbe puzzled if you begin with a minor point,and may have their confidence in your judge-ment unsettled.

Do not quote large slabs of legislation or courtrulings. Instead show clients how a piece oflegislation or a court ruling applies to theirsituation. They have come to you as the expertin law. They want you to unravel the law forthem, and not just locate it. If lawyers havetrouble at times comprehending laws andrulings, how much more do clients?

Introductory sentences could be general:

• Federal law requires you to submit 2 addi-tional reports each quarter if the mine isopen cut.

• Several recent court cases have establishedthat the conversion of an asbestos tile roofis tax deductible.

or more specific:

• Under section 10 of the Financial ServicesAct you must hold a current fiscal traderlicence from the Finance Commission.


However, do not let citations even of a sectionas well the title tempt you into quoting thesection or portion of a court ruling. Concentrateon its implications and applications, using yourown words.

Although lawyers put the evidence (P5) afterthe solution (P3) in composing plain languageletters, nevertheless they still tackle the concernsraised with them by their clients in the acceptedsequence for problem solving. First they identifythe issues, then assemble relevant evidence,and finally—and only then—develop the solu-tion. It is just that when they come to writetheir letters of advice, they do not record thematerial in the chronological sequence in whichthey handled it and through which theyreached their decision. Instead, they changethe order to put the solution earlier to meetthe expectations of their clients and for theirbenefit.

But this action of re-arrangement is not onlyfor the benefit of clients: there are advantagesfor lawyers also. With the solution already setdown in front of them, they have a yardstickwith which to check whether any piece ofevidence they are proposing to include is actu-ally relevant and telling. At the same time thereis a curb on them to avoid inconsequentialand unrelated material. Equally important,they are induced to make explicit how a factapplies so that clients do not have to workout the connections for themselves and arenot left mystified.

P6 Applicable legislation and court rulings

This section appears only in those letters ofadvice which address situations that requirewider consultation of legislative and judicialsources. It lists the legislation and court rulingsthat inform the findings or recommendationsin section P5. Some of these may have beenalluded to directly in P5.

The intention is not to impress clients withhow much material their lawyers have cov-ered but to give them essential information ifthey want to follow up a matter. It sometimeshappens that clients have separately becomeaware of the likely impact of a particular Actor court ruling on their affairs and it is con-venient for them if they can confirm from theletter of advice that their lawyer has taken itinto account.

Introductions to the lists can take the form of:

• In arriving at these findings we considered:

The Credit Act 1984 (Victoria)

The Income Assessment Act sections 89-95.

• We also examined the rulings in thefollowing court cases:

Halwood Corp v Road Corp, No. 6596(Victoria Supreme Court 30 June 1997)

GM & AM Pearce and Co v RGM AustraliaPty, 26 ACSR (1998).

The entries for each item can provide precisereferences to sections or parts of an Act wheresuitable. Annotations on special items, but notall, can also be in order. It may be, too, thatwe could improve the details in the citationsof court cases to make it easier for clients totrack down the rulings.

To reduce disturbing the flow of the letter,there is a good case for putting this section P6into an appendix, especially if it is lengthy.

P7 Further action

This is another optional component whichhas a place only in some letters. If in scatteredparts of a letter of advice you have pointedout obligations that the client must complywith to implement your recommendations,then it is a constructive practice to gatherthem together in a checklist at the end of theletter. For example:

• You will need to:

1. lodge an application with theSecurities Commission by 10 May

2. file a VAT return by 30 June

3. notify your customers of the changesby 31 July.

Clients do not regard these final checklists aspatronising. On the contrary, they see themas further proof of a quality of genuine help-fulness on your part.

The checklist could lead to a further positiveending:

• We would be pleased to help you with anyof these matters.

The wording of the heading could be varieddepending on the types of actions listed inthe section.


Are lawyers so different?

So different from clients, that is.

To the point here is the behaviour of lawyers.Many have confessed to me that, when facedwith letters of advice written in the traditionalformat by other lawyers, they immediately goto the end (the recommendation) and then worktheir way back to the beginning. In handlingexercises in redrafting traditional letters ofadvice during workshops I have run on plainlanguage, I have regularly noticed many ofthe lawyers starting by reading the first coupleof paragraphs then quickly switching to thelast page to examine the recommendationbefore taking up the beginning again. Whenchallenged about their practice, they openlyconfessed that knowing the recommendationmade it easier for them to follow the letterbecause it provided a context in which to makesense of the facts and information the lawyer-writer was presenting in the earlier sections.

Again, the in-house lawyers (numbering 10–12) of a large commercial company in Australiatook up with their external lawyers whetherthey could present their letters of advice in amore readily accessible form. The in-houselawyers wanted to be able to adapt the letterseasily, mainly by extracting specific componentsof the advice, for distribution to differentdivisions within the company. Using a letterthat was in preparation at the time, we presenteda version in the traditional style, which theexternal lawyers had normally been following,and another version in the plain languageapproach to provide a concrete and comparativebase for discussion on how we might proceedto develop a solution. The in-house lawyersinstantaneously voted for the plain languageversion. To some divisions within the company,they could simply send off sections P1–4; withothers they might include P5 as well. Theirpreference was to move section P6 (Applicablelegislation and court rulings) to an appendix,because they would rarely distribute it outsidetheir own legal division.

Because of the confusion in the communityover the implications of the Mabo ruling onAboriginal land rights of the High Court ofAustralia, in 1993 Peter Butt asked me tocollaborate with him in preparing a plainlanguage version of the ruling, which appearedas Mabo: What the High Court Said (Sydney:Federation Press). The first edition was widely

reviewed in legal journals in Australia. Perti-nently for our present interest, many reviewerswent out of their way to comment favourablyon our approach of starting with a statementof the issue giving rise to the case, followedimmediately by the ruling, and only thereafterprogressing to set out the evidence amassedby the judges. The reviewers found it a mucheasier way to come to grips with a long andintricate ruling, which is after all similar innature to a letter of advice. All the reviewerswere lawyers!

We can safely jettison past myths, traditionsand methods of drafting letters of advice infavour of the plain language approach. Itsappeal is comprehensive and well nighuniversal.

© Robert Eagleson [email protected]

Dr Robert Eagleson isa plain-languageconsultant in Sydney,Australia. He received 3awards in each of thecompetitions Clarityconducted for plainlanguage documents in1996, 1999 and 2000.While Professor ofEnglish Language atthe University ofSydney, he researchedusage, sociolinguistics,grammar, lexicology,plain language andwriting.


Tania McAnearneyTMc Legal Research (South Africa)

Introduction

It’s been a hard day’s night, and I’ve beenworking like a dog.

It’s been a hard day’s night, I should besleeping like a log.

The lyrics of the Beatles’ 1960s classic, ‘AHard Day’s Night’, swam through my mindon too many occasions when I was servingmy articles of clerkship in a prestigious SouthAfrican law firm. I soon discovered that Iwasn’t a court ‘adrenaline junkie’, and thatmy forté clearly lay in the research side of thelaw—getting into the ‘nitty gritty’ of the legalitiesof a client’s case. But what was I, as a newlyqualified attorney, to do with my researchpassion, other than work as an in-house legaladviser?

My inspiration to create my business, TMcLegal Research, came directly from my exper-ience as an articled clerk. I found that therewas a niche for a specialist independentresearcher in the legal market, especially forsmaller law firms (larger South African firmsgenerally having their own in-house legalresearchers). Many attorneys have neither thetime to conduct their own thorough researchnor adequate research material on hand. In anutshell, my research service includes draftingopinions, researching precedents and legislation,postgraduate (LLM/LLD) research and writingfreelance legal articles.

Over time, I began to realise that legal researchis a skill that should be acquired at universitylevel and nurtured by legal practitioners, tocreate their own methodology of research thatworks for them. However, in reality, law studentsin South Africa are taught very little aboutresearch. (Please note that I am generalising—I’m sure that there are some fantastic lecturersand law departments in the country, where

research is prioritised, but my experience hasshown that this is rare).

So what are law students taught aboutresearch?

South African law students are taught onlythe bare skeleton of legal research. They areshown where to find journal articles, case law,reference books and textbooks in the university’slibrary and what online research databasesare available, but aren’t taught any practicalresearch skills. Let’s take online legal databasesas an example of this shortcoming—studentsare, by and large, left to navigate the databasesthemselves and, without being equipped withthe necessary product ‘know-how’, will oftenget frustrated that they can’t find what they’relooking for or not even bother trying to use thedatabase in the first place. During my finalyear at university, I had to write a dissertationas part of my LLB degree and, as I had possiblythe most demanding promoter in the faculty,I had some real incentive to learn how to navi-gate all of the library’s facilities to the best ofmy ability. (I did manage to achieve an LLBcum laude for all my efforts!) Sadly, some localuniversities don’t require LLB students to writedissertations anymore, which simply exacerbatesthis general lack of research skills.

What are the consequences of this limitedresearch training?

The outcome of this limited research training,in practice, is that many attorneys have noidea how to research cases and other authorityfor their matters. Through my court exposureas an articled clerk, I discovered that a numberof sole practitioners often rely on authorityfrom outdated textbooks to argue their clients’cases in court, only to be condemned by themagistrate for failure to properly prepare fortheir cases! Other attorneys instruct their clerksto conduct research for them, which may endup being wholly inadequate, depending on theclerk’s skills and knowledge of the law. Thisoften leads to attorneys spending a fortuneon briefing counsel, when they could havedone the research themselves, if they had thetime and good research methodology. Not onlythat, but I have found that some attorneysstruggle to formulate both opinions to clientsand arguments to be raised in court; theyaren’t sure how to link the key elements incases and legislation and how to allow onetrain of thought to flow to the next (so failing

Tips from a uniqueprovider of SouthAfrican legal research


to ‘connect the dots’). On top of that, to bebrutally honest, many attorneys simply don’thave the inclination to conduct thoroughresearch themselves.

How do I assist legal practitioners?

That’s where my business comes into the pic-ture: as my legal research business is a uniqueconcept in South Africa, I have taught myselfa number of research skills that have assistedme in drafting legal opinions and attending toother research-related mandates for attorneys.Since starting my business, I have spent numer-ous hours harnessing my research skills, begin-ning at grassroots level. This article is far froman in-depth analysis of my research skills, butis meant simply to lend an idea of the method-ology that I have acquired over the past fewyears.

What is my research methodology?

Where do I start and what sources do I use?

What is the main topic?

The first step that I take for any type of research,whether an in-depth study of a topic for athesis or research on current case law for acertain standpoint, is to consider the biggerpicture and decide the main area of law thatthe topic falls under. Let’s say that I’m con-ducting research on ‘reverse engineering’. I knowthat ‘reverse engineering’ is an exception to copy-right infringement in terms of the CopyrightAct, so it falls under the subject of copyrightlaw, which is a category of the main area ofintellectual property law. This might seem likequite a simple exercise and certainly is in mostcases. However, when I am briefed to draftan opinion on various co-existing legal matters,deciding what the main area of law is cansometimes be quite time-consuming. I havefound that attorneys have a penchant for over-complicating what is, in fact, quite a simplelegal scenario!

What possible key terms are there?

The next step is to consider possible key termsthat I can use when researching the topic.Using the ‘reverse engineering’ example, keyterms would be ‘copyright’, ‘reverse engineering’,‘utilitarian objects’ or ‘reproduction of three-dimensional utilitarian objects’. I also think ofsynonyms for the key terms. Synonyms areespecially important when researching foreignlaw, as foreign countries often use different

terminology to the South African legal system,for example ‘delict’ versus ‘tort’.

I then head off to the University of SouthAfrica’s (UNISA’s) library to conduct myresearch. I usually begin my research in thecomputer room using Lexis Nexis Butterworthsonline. This database contains a wide varietyof information, from textbooks by learnedlocal authors, which are searchable undersubject headings, to reported local case lawand reference works, such as The Law ofSouth Africa (LAWSA). I have found thatLAWSA, together with its yearly updates(The Law of South Africa Current Law), is agood starting point. LAWSA gives a good over-view of the topic, and the updates list the mostrecent journal articles and case law. Unfortu-nately, the LAWSA Current Law isn’t availableonline and is available in hard copy only inthe library’s reference section. (I find electronicversions of products far more user-friendlythan the hard-copy versions!)

As I peruse the research material, I often findthat a number of more key terms arise—I makea note of these, always being careful not tolose sight of the original topic in my client’smandate.

How do I research case law and legislation?

If I’m researching case law or legislation, I willusually start my research on Jutastat. This isthe CD-ROM or on-line version of SouthAfrican legislation and Juta’s law reportsdating back to 1946. These are the local lawreports most often cited in legal proceedings.Jutastat is quite simple to use, but does take abit of time to get used to. Legislation is easilysearched by using the number and year ofthe statute or its name, or by searching underthe legislation subject index if I’m unsurewhich legislation may be relevant.

When searching for case law, I often start withthe subject index (using the key terms thatI’ve considered) and search for any relevantcase law. Then I’ll search for a phrase (againusing my key terms) under the ‘advancedsearch’ facility. I’ll read through the cases andsee what further relevant cases the courtsreferred to. Admittedly, I usually read a case’sheadnote (editor’s summary of the judgment)to decide whether or not it will be relevant.As a law student, I was always taught not torely on the headnote and I am in no wayimplying that the headnote is the ‘be all andend all’, but I have found that it usually gives


a true and good indication of the crux of thejudgment. Often, the facts of the case aren’tvital to my research, and the headnote containsenough information about the facts to enableme to make an informed judgment as towhether the ratio decidendi (reasons for thecourt’s findings), or dissenting judgment, willbe of use to my research. This enables me to‘skim over’ the first couple of pages of thejudgment dealing with the case facts. I am waryof doing this in complex factual situationsthough, as I have encountered cases wherethe summary of the facts in the headnoteoversimplifies the facts to such an extent thatthey are almost incongruous with the actualfacts. Most case headnotes refer to the variousimportant paragraphs of the judgment’s ratiodecidendi. I often find that the paragraphsleading up to or after the paragraph referredto are also important in correctly understandingthe judgment. Wherever possible, I use thesereferences to the judgment’s paragraphs as myplatform in examining the case. In this way, Iam able to limit my time in reading throughunnecessary case information. Sometimes I goright down to the order of the court to findout what aspects the court has ruled on andthen work my way back up.

I also check for any ‘Annotations’ to the caselaw I’ve found—these are an index of subse-quent decisions in which reference was madeto a particular case. Juta’s index indicateswhether that particular case was followed,criticised or distinguished in a later case. Thisis most important in ensuring that the case lawI’ve researched is still applicable—if there is arecent Supreme Court of Appeal or Constitu-tional Court decision that differs from a HighCourt’s decision in a particular case, then theHigh Court’s decision is probably no longerthe applicable law.

I’ll also often search for case law on LexisNexisButterworths. I find Juta’s database simplerto use for case research, but Butterworth’scase ‘Noter-up’ (similar to Juta’s ‘Annotations’)is very comprehensive and worth readingthrough.

How do I research journal articles?

If I don’t find enough case law, or if my clientrequires more in-depth research (for theses,articles for publication, assignments etc), I thensearch for journal articles. Again, the key termsthat I thought about (and any further key terms

that I’ve found researching the case law) areused. UNISA has its own database of localjournal articles called ‘UNISA Law Index’,where journals such as ‘De Rebus’, ‘The SouthAfrican Law Journal’ and ‘The MercantileLaw Journal’ are indexed.

If I need to locate foreign journal articles, forexample, for comparative law purposes, I usea different database called the ‘Index to LegalPeriodicals’ and then search for hardcopies ofthe articles in the library. If I’m lucky, aftersearching UNISA’s Law Index, I sometimesfind references to local journal articles, whichcontain information regarding comparisonswith foreign law. Depending on the scope ofmy mandate (and research time), this maylimit my need to research foreign articles.

What about foreign case law?

Locating foreign case law can get a littletrickier. If an in-depth analysis of foreign caselaw isn’t required, but more of a broad over-view or idea of what the foreign position on acertain legal topic is required, I often find thatthe journal articles themselves have enoughinformation about the cases. Unfortunately,most universities in South Africa don’t sub-scribe to international databases such asLexisNexis or Westlaw, due to the exorbitantcosts. If I know the exact citation of the foreigncase that I’m looking for (for example, I mayhave found reference to a certain case in ajournal article) and if the case is recent, then Itry to search for the case on the internet, usingsearch engines such as www.austlii.edu.au orwww.worldlii.org. Sometimes I’ll find whatI’m looking for, but other times, only part ofthe judgment will be posted. If I’m really desper-ate, then I try a general search on Google.

And newspaper reports?

There is a fantastic local online daily legalnews service that I subscribe to called ‘Legal-brief’ (www.legalbrief.co.za). Using the keyterms regarding my topic, I often use their‘advanced search facility’ to find relevantnewspaper reports.

Last, but certainly not least…

I search for relevant information in hardcopytextbooks. UNISA’s online catalogue of books,OASIS, is quite extensive. Again, I use mytopic’s key terms to search in books’ indexesand contents pages.


How do I elicit required information fromvarious texts?

When it comes to actually reading througharticles or extracts from books, I always lookat the introduction, conclusion and subheadingsfirst. The concluding paragraph, or few para-graphs of a well-written article, should containall the main points covered in the main body.I often find that if the conclusion is poorlydrafted, then it means that the rest of the articlehas also been poorly structured or drafted!Such articles then take longer to read throughand to extract the relevant information from.The same goes for the introduction of thearticle. I have a look at that first and thenread through the conclusion. I find that thisgives me a good idea of what the article isabout. When it comes to reading through thebulk of the text, a good trick that I’ve learnt isto read the first sentence of every paragraph.Again, if the article has been reasonably well-written, I should be able to glean a good ideaof the contents of the paragraph from the firstsentence. This trick comes in very handy forlonger articles where I may not need the bulkof the information and I’m only focusing on aspecific aspect. Admittedly, years of experiencein reading and writing has taught me tospeed-read, which helps a great deal! If I’mlooking for information that is quite uncommonor the article doesn’t directly refer to mytopic, I browse through the footnotes, whichare often invaluable keys in assisting me tofind further relevant articles.

Let’s not forget the internationally infamousMurphy’s Law: in my experience, I have foundthat one of the worst mistakes in researchinginformation is disregarding certain materialas being unimportant and then later discoveringthat it’s actually vital and having to searchthrough all the documents again to find therelevant extract! It’s a time-consuming and an-noying exercise. I am a huge fan of highlighterpens and sticky notes. If I know first-off thatsomething is important (whether in a judgmentor article), I flag the page with a sticky noteand highlight the relevant information. I usea different coloured sticky note for materialthat I’m unsure of, so that I can come back toit at a later stage. The sticky notes come invery handy—for example, I use a numericalor alphabetical system to mark the pages thatI flag with a list of sub-topics. This simplifiesmy task of the actual drafting of the researchdocument.

How do I present my research to clients?

Once all the background research has beenattended to, I revert to my client’s mandate todecide how my research should be presented.

If, for example, I am assisting my client withpostgraduate degree research, I place theresearch material into a lever-arch file anddivide the copies into the following sections:reference works, legislation, local case law,foreign case law (if applicable), local journalarticles, foreign journal articles (if applicable),newspaper reports and extracts from textbooks.I ensure that the cases appear in order frommost recent to oldest and that the articlesappear in order from most to least relevant.

If, on the other hand, my mandate is to draftan opinion on a certain aspect of law, then Iformulate an opinion based on all the relevantinformation that I research. In drafting myopinion, I try to ensure that it is as succinct aspossible. I usually separate the body of mydocument into main sections such as instruc-tion, legislation, relevant case law, learnedauthors’ opinions (from journal articles andtextbooks, etc) and conclusion. The intro-duction gives a summary of my client’sinstruction, and the conclusion is a wrap-upof all the main points referred to in the bodyof the document. I use sub-headings as oftenas I can, to make the opinion as ‘user-friendly’ as possible. If simply giving the gistof a case or citing an extract from a judgmentor legislation doesn’t seem to be enoughinformation for my client’s purposes, Ialways attach the full text of the judgment orlegislation as an annex to my final document.I find that a contents page is a necessity, evenfor smaller mandates. On this page, all thelegislation is listed and all the case law iscited, together with their relevant pagenumbers, for my client’s ease of reference.Whenever possible, I email the finaldocument and any attachments to my client,so that it is in an easily workable format.

Has my methodology been successful inpractice?

I take a huge amount of pride in my business,and my aim, when completing my mandatesand delivering my clients their work, is thatthey are completely satisfied with the end-result. Research leading to a winning courtcase is always an ego-boost (for both my


client and me!) Even a seemingly negativeopinion (where, for example, I have foundthat my client’s prospects in court are minimal)can also often be positive in the sense that itsaves my client time and money in the long run.

The results of my research methodology inassisting attorneys with their post-graduatedegree research speak for themselves: a numberof my clients have obtained distinctions fortheir dissertations or theses.

I hope that this article has given you at leasta brief insight into a possible manner of re-searching South African law. I have found thatmy methodology works well for me and enablesme to assist my clients in a successful manner.However, as with all things in life, I have foundthat what’s good for the goose isn’t alwaysgood for the gander: as an individual, withyour own set of strengths and weaknesses, Isuggest it wise to take time to develop a researchmethodology that bests suits you and yourclients’ needs.

© Tania McAnearney [email protected]

Tania McAnearney isa qualified attorney(LLB cum laude) andthe sole proprietor ofTMc Legal Research(http://www.legalresearch.co.za), aspecialised research andlegal advisory servicefor legal professionalsthroughout SouthAfrica. Apart from herresearch services, shewrites freelance featurearticles, whichregularly appear in thecorporate legal magazine, Without Prejudice, as well asco-writing articles for publications such as BusinessDay. In her spare time, she enjoys dancing, reading,spending time with her husband, son and cats and, fromtime to time, indulging in the Cape’s fine wines!


1. If you are a lecturer, how do you trainlaw students to:

• draft opinions to clients

• make proper use of research tools

• formulate legal arguments so thatone idea flows into the next?

2. Do law graduates feel equipped todraft opinions and legal arguments inplain language?


Informed choices with a capital ‘G’The Cambridge Guide to English Usage(by Pam Peters, Cambridge University Press 2004,ISBN: 0 521 62181 X)

Neil JamesExecutive director, Plain English Foundation (Australia)

Not long after Tom McArthur agreed to editthe Oxford Companion to the English Language,he realised that ‘going to sea in a sieve’ wouldbe safer. Integrating thousands of entries frommyriad contributors was the least of his worries.His biggest challenge was the impossibility ofreconciling the competing passions the Englishlanguage attracts. The pedants would bringout their magnifiers, the plain English cam-paigners leap on every passive verb, the linguistscondemn the merest hint of the prescriptive.It was rather like ‘being asked to write the Bible’.

How much braver then is the publisher whooffers an ‘international’ guide to Englishusage, and bills it as ‘the new reference Guidefor the 21st century’—with a definite articleand a capital ‘G’. For as English has diver-sified around the globe, so too have the theoriesand methods we use to write, analyse, teach,edit and publish it.

When Fowler compiled his first usage guidealmost a hundred years ago, there was at leastsome consensus about the fundamentals ofgrammar. Since then, grammar has gone inand out of fashion in the school system andsplit into traditional and transformational sub-factions. The British–American divide overpunctuation is best captured by the NewYorker’s recent critique of Lynne Truss: thatthe British lecturing Americans on punctuation‘is a little like an American lecturing the Frenchon sauces.’ Then there is the plethora of profes-sional style guides and national dictionaries,each tailored to local circumstance. The serialcomma alone has been known to sundermarriages, so how feasible is a definitive,

international, capital-G, ‘Guide to EnglishUsage’?

Pam Peters has trudged a cheerful yet carefulpath through this maze and has emerged witha reference of both local relevance and universalappeal. What sets this Guide above all othersis simple: evidence. It is ‘the first of its kind tomake regular use of large databases (corpora)of computerised text as primary sources ofcurrent English’. It sounds mundane but accu-mulates great authority. A typical entry willbegin with some grammatical context, thengive the current positions of the dictionariesbefore finishing with the varying rulings ofstyle guides on three continents. South Africa,New Zealand and Australia get a look in aswell as the United Kingdom, Canada and theUnited States. Then Peters turns to the 100million word British National Corpus, andthe 140 million word Cambridge InternationalCorpus, each brimming with written andspoken texts in various contexts. This allowsher to look ‘more neutrally at the distributionsof words and constructions … [and] see whatis really “standard”’ (p vii).

Take, for example, the case of ‘less’ versus‘fewer.’ Hard-core sticklers fume every timethey enter a supermarket to buy a few groceriesbecause the express lane reads ‘12 items orless’ instead of ‘12 items or fewer’. Peters’entry begins with the traditional explanationfor this distinction: that ‘fewer’ should be usedwith count nouns and ‘less’ with collective ormass nouns. Then she shows that we do notactually make this distinction with other com-parable words. The ‘rule’, it seems, is relativelyrecent, born in Baker’s Reflections on the EnglishLanguage (1770) before spreading among pre-scriptivists throughout the world. By contrast,the use of ‘less’ with count nouns actuallygoes back a thousand years. Even today, ‘less’tends to outnumber ‘fewer’ by as much as 7:1in the corpora, and even the dictionaries noteits popularity despite its ‘being regarded asincorrect’. Peters concludes sensibly that thecase for ‘fewer’ seems ‘to have developed outof all proportion to the ambiguity it maycreate’ (p 205).

No doubt this is too wanton for some, and tooindecisive for others. Thus it will ever be. Therest of us can simply put it to work in makinginformed choices. Peters empowers readers ‘tochoose and develop their own style, for their

Book reviewsBook reviewsBook reviewsBook reviewsBook reviews


particular purpose’. While this might soundlike a recipe for linguistic anarchy, I suspect itwill do more to unify English usage than anyguide has done since Fowler. Too many of thecurrent guides reflect regional practice or thepersonal preferences of their authors. Debateson usage quickly descend into unproductivelobbing of one authority against another. Bydrawing together evidence from so manysources, Peters gives us a more rational basisto resolve disputes. In some of the most con-tentious cases, she distils an ‘internationalEnglish selection’ from the competing prejudices.

Let’s trial her approach with a few of thechestnuts of English usage. Peters is in linewith Fowler on split infinitives—don’t fear tosplit them to remove ambiguity, avoid awk-wardness or preserve the rhythm (p 513).Conjunctions generally join phrases andclauses, but can also ‘conjunct’ sentences (p38). Regional prejudice rather than grammarseem to dictate the alternating use of ‘differentto/from/than’, and ‘the etymological argu-ments used to support “different from” nolonger seem so powerful’ (p 153). While thechoice between ‘that’ and ‘which’ as relativepronouns is partly influenced by the restrictionsin the clauses these introduce, it is also‘stylistic, a matter of their relative weight,and the need to vary one’s pronouns’ (p 577).

The Guide is also comprehensive and up-to-date on spelling. Peters makes a practicalcase to standardize ‘-ize’ endings ‘on distri-butional and phonological grounds’ (p 299).She is convincing on the likely winner of theInternet/internet battle, arguing that thelower case is inevitable despite its currentminority status (p 298). She is less committedto the result of e-mail/email, but notes that‘email’ is the preferred form on Google by aratio of 14:1 (p 178). She safely concludesthat although ‘amongst’ is more popular inBritain than the US, it is still the minorityusage in both countries when compared with‘among’ (p 35).

Each entry is concise, informed, balancedand alive. Founded on sound scholarship, theGuide has an underlying dry humour thatsaves it from the stiffness of too many languagereferences. When discussing, for example, thetrend toward less capitalization, Peters notesthat corporations ‘may nevertheless capitalizeall references to their executives’ (p 91). It’shard to imagine her writing with an entirely

straight face as she laments ‘the scant evidence’of ‘shit’ in the past tense, and the difficulty ofruling between ‘shat’ and ‘shitted’ (p 498).

The Cambridge Guide to English Usage doesindeed live up to the definite article and thecapital ‘G’ of its cover. In the face of the impos-sibility of pleasing everyone, it should at leastwin universal respect. It may even becomethe new Fowler.

© Neil James [email protected]

Dr Neil James is executivedirector of the Plain EnglishFoundation in Australia, whichcombines plain English training,editing and evaluation with apublic campaign for clearerlanguage in the professions. Neilhas a doctorate in English fromSydney University, and haspublished over 50 essays andarticles on language andliterature. The latest of his threebooks is Writing at Work: How to write clearlyeffectively and professionally (Allen and Unwin,2007).


Indlish(by Jyoti Sanyal, Viva Books 2006, ISBN: 81-309-0281-8)

Nigel GrantNigel Grant Training (UK)

As this is a review of a book about the problemsof Indian English, their causes, and how tocure them, it may help to look to the BBC’sformer India correspondent, Mark Tully, forsome context. Tully was born in India, edu-cated in England and worked in India for theBBC for 22 years. He loves India and presentsits issues lucidly and honestly.

In No Full Stops in India (Viking, 1991), Tullysays “The British…degraded Indian languagesby installing a new language of the elite—English.” He continues: “Because the teachingof English is so bad in most schools, less than3 per cent of Indians are reasonably competentin the language.”

Tully relates his meeting with Father Kunnankal,one of India’s leading educationists, who hadchanged the main language of instruction ina prestigious school from English to Hindi,“because he believed very strongly that theinfluence of English as the language of theelite was harming his country”.

A similar perception of English as an agent ofelitist control informs Indlish. Pre-independenceEnglish, the language of official control, wasold-fashioned in contemporary England sixtyyears ago, but formed the standard for decadesto come in India. Over-formality and the curseof East India Company commercialese, inher-ited from generations of Indian clerks andtheir ill-educated English masters, still charac-terise much official Indian English.

Sanyal’s reaction to this perception is verydifferent to Father Kunnankal’s. Sanyal is afine writer of English, knows a lot about itand wants Indians to use it well. If Indianscan write effectively and efficiently, their internaland international communication will flourish.Not to do this would be to restrict develop-ment in all important areas.

This reviewer, like Tully, was born in India.My parents grew up in the later days andways of the Raj. Their spoken English, moregrammatically consistent and lexically variedthan that of the east Londoners whom theysettled among in the 1950s, was to western

ears a little archaic. My father’s absencenotes to my teachers were models of punctil-iousness: thorough, lengthy, wrapped incomplex sentences, divided into main andsubordinate clauses, and never willing to prefersimple diction to an ornate alternative. Thisformality and complexity stemmed from hiseducation and professional training, not adesire to impress beyond the wish to lookcorrect.

The impulse to write in what looks to nativeEnglish speakers like a pastiche of florid Vic-torian verbosity still, Sanyal argues, runs deepin much Indian English. He ascribes this totwo main influences: the inheritance of theempire, and the natural tendency of Hindiand Bengali to use noun-dependent languagestructures.

Sanyal fires polemical shafts at particularmembers of India’s elite: journalists, lawyers,companies and government officials. All thosepeople wield a range of power through theiruse of language, which, he argues, often runscounter to clear, effective communication.

Jyoti Sanyal is well fitted to write this book.He wrote for The Statesman, Calcutta, for 30years before becoming Dean of the AsianCollege of Journalism. He now heads ClearEnglish India, a training and editing firm. Hisexperience, interest in good writing and perse-verance in fighting for high standards ofprofessional English are evident throughoutIndlish.

Indlish is not a disinterested appraisal of theEnglish language in India. What Sanyal doesvery well is expose difficulties, and show,simply and vigorously, how to deal withthem. Every chapter is practical and helpful,with bags of examples taken from realdocuments.

Sanyal’s humour, learning and enthusiasmcarry the reader into rich new fields of lan-guage resource. Take ‘Wanted a piano for alady with mahogany legs’ (pp 259–260),where Sanyal breaks fresh ground with thiswell-known type of absurdity. He deals withit swiftly, but then explains the particularproblem for the native Indian writer ofEnglish, the dissimilarity between Indian andEnglish syntax. It’s this attention to detailthat will be so helpful for the Indian writer.The point—keep related words together—iswell-known; what’s especially helpful for the


Indian reader is the reference to the differentsyntax. Information is always supported inthis book by explanation and reason, withsuccinct, relevant examples often taken fromliterature.

Chapters 48 and 49 (the chapters are short)tackle one of the main difficulties for Indianwriters and speakers, when and how to usearticles. The discussion is crisp and, thoughbrief, packed with useful tips and explanation.Sometimes, the going gets tough for the gram-matically uninformed reader: “The indefinitearticle should not be used with the comparativedegree in such expressions as ‘India has hadno better a batsman than Sachin’”. Sanyalrescues both reader and sentence with asuitable example, swift and apposite.

Indlish deserves a place on the shelves of any-one interested in good written English. In time,it may become a standard reference work,along the lines of Gowers’ Plain Words. It isnot an academic study (though much of itcould find its way into academic study), butis a fine, readable, well-researched and well-informed handbook for all writers, Indianand others, who aspire to the best standardsof current usage.

One small quibble, from a reviewer who hasbeen fascinated by Victorian writers for manyyears: Sanyal refers frequently to thecorrupting influence of Victorian creativewriters on the language habits of his

countrymen. This is simply not the case.Nineteenth-century official English at homeand abroad is a legitimate target, but it iswrong to confuse it with some of the bestwriting in the history of the language.

There. Quibble over. Indlish is a fine book thatwill gain a wide following. Buy it, read it, referto it and recommend it. It is a welcome, re-freshing addition to the world of Englishmanuals, and reaches far beyond the needsof the uncertain writer. Experienced writerswhose first language is English will gain fromand enjoy this insight into the linguistic worldof their Indian colleagues.

© Nigel Grant [email protected]

Nigel Grant has twoEnglish degrees andtaught to A level for 23years in Britishgrammar, compre-hensive and privateschools. While ateacher, Nigel wroteliterature study guidesfor Pan and producedplays. Someone oncewalked out of hisproduction of ArthurMiller’s The Crucible,saying, “Theatmosphere of evil istoo convincing.” After a year with Plain EnglishCampaign Limited, he set up Nigel Grant Training inFebruary 2005. Nigel has led over 250 plain-Englishtraining events.


of language and so restrict the candidates foraddresser to beings (human or spiritual) whoare persons? In normal everyday circumstancesother animate beings, such as animals, andinanimate objects do not speak or write andso never feature in the role of addresser. Inthe light of these realities the first personpronouns can only refer to male and femalepersons, and never indicate neuter gendercreatures or things.

It is true that in fiction, such as children’sstories, other creatures can be given the powerof language and other attributes of persons,and have first person pronouns apply to them.But it is equally to the point that in thesestories these nonpersons are treated as if theywere persons: they are ‘personified’. Perti-nently, sketches that often accompany thestories, for example Alice in Wonderland, havethem dressed in human clothes and evenstanding upright. In short, whereas personscan exercise the role of addresser because oftheir intrinsic characteristics, animals canappear in the role of addresser only if theyhave attributes that are not natural to themadded. In effect the creatures have to bemoved out of the domain of ‘neuter gender’into, or towards, the domain of ‘person gender’,and it is in this new status as quasi personsthat first person pronouns can be applied tothem. As a result, the principle that firstperson pronouns refer only to persons stilleffectively continues to operate.

On the face of it, the table in its current formgives no hint of this critical transformationthat must take place but instead gives the im-pression that the neuter gender creatures andobjects can occupy the role of addresser on thesame footing as persons. It is not the norm inthe language but a special variation, requiringexceptional conditions to apply. The table needsto reflect these levels of use.

The same principle operates with the secondperson pronoun you: the listener or reader

Linguistic lingo for lawyers— personal pronouns and gender: a dialogue

Dr Robert Eagleson and Sarah Carr

In response to Sarah Carr’s article on personalpronouns and gender, published in Clarity 56,Robert Eagleson entered into a dialogue withSarah on this topic.

The starting point for the dialogue was theoriginal table Sarah produced to set out theoperation of the personal pronouns in English(Clarity 56:53). The relevant part of the tableconcerning gender in the pronouns is:

Person Grammatical gender

First (I, we) masculine, feminineand neuter

Second (you) masculine, feminine andneuter

Third (he) masculine

(she) feminine

(it) neuter

(they) masculine, feminine andneuter

First and second person pronouns

Robert Eagleson

I admire your valiant efforts in recent issuesof Clarity to set out aspects of English grammarin clear tables. But sometimes the symmetrywe feel driven to achieve in tables can imposegrammatical classifications that are alien to alanguage, although appropriate to other lan-guages, and conceal distinctions that usersmake in practice. For example the table onpage 53 in Clarity 56 specifies that all 3 personsof the personal pronoun express masculine,feminine and neuter gender.

Is the table accurate in presenting the firstperson pronouns, I and we, as signalling neutergender? You describe—correctly—‘first person’as applying to the speaker or writer. But doesn’tbeing a speaker or writer imply knowledge


can only be a person, with the result that thepronoun can only refer to male or femalepersons.

As well, because I, we and you cannot refer toanimals and things in and as themselves, theonly grammatical gender (as opposed to naturalor biological gender) these pronouns can sig-nal is the gender of ‘person’. While we arerestricting ourselves to the domain of grammar,we cannot go beyond this to specify, as thetable does, masculine or feminine. The thirdsingular pronoun in English varies its formfrom he to she or it to signal a different gram-matical gender, but the first and second personpronouns do not share this facility. As theyhave only 1 undifferentiated grammaticalform, we can only decide whether I, we andyou refer to male or female persons by goingoutside the grammatical context to look atother information.

Sarah Carr

There is a range of personification forms, ofwhich your examples from fairy tales presentpossibly the most complete. In devising thetable originally, I had in mind not animals butmore inanimate examples, such as the mirrorin Snow White and the wall in Shirley Valentine.While they may be weaker forms of personifi-cation, their stories assign to these objectsattributes, such as the powers to judge, andto speak or listen, that are not typically asso-ciated with objects. They have been elevatedto a higher status, and their ability to speakor listen would not be considered the normoutside the universe of their stories or plays.

A parallel example from daily life rather thanfiction might be diaries. Some seem to addresstheir diaries directly, ‘Dear Diary,’ and treatthem as if they were live addressees. On theother hand, the vast majority of people whokeep diaries and journals simply regard themas insensible objects in which they can recordevents and impressions. Those who insert theaddress ‘Dear Diary’ are not following thenormal pattern and are looking on the diaryas something more, as a kind of confidant, aperson with whom they can safely share inti-mate feelings. Again, they are taking the diarybeyond the normal realm of inanimate objectand moving it in the direction of person.

Then there are the moments when we turnour computers into addressees, pleading withthem not to crash or abusing them as if they

acted autonomously. We would be horrified ifothers really thought we considered them tobe independent, thinking creatures. Our behav-iour is atypical and momentary, not serious,intended to relieve tension and frustration.

There is validity in your argument that thesesituations are not fully normal or natural. Theyall involve a degree of ‘willing suspension ofdisbelief’. We are really dealing with itemsthat have a mixture of human and nonhumancharacteristics, with hybrids, and no longerwith pure neuter-gender items.

I tend to agree that all this means that thetable needs to have either a more elaboratestructure, which separates these conditionedvariants from the norms in the language, or aseries of footnotes offering explanations. Forthe moment, the footnote seems to be the easiersolution. The table then might appear as:

Person Grammatical gender

First (I, we) Person1

Second (You) Person1

1 Explanation of the role of personification, etc inenabling animals and objects to become addressersand addressees.

Third person pronouns

Robert Eagleson

The criterion of person also dominates in theuses of the third person singular pronouns.While English distinguishes in the third personsingular the 3 genders of masculine, feminineand neuter grammatically, that is, by havinga separate form for each gender—he, she, it—in normal practice he and she are only usedwith persons, and it is used with all nonpersons,even when they are animate creatures withsexual characteristics. In short we differentiatebetween persons and nonpersons, not animateand inanimate. For example:

The man (The woman) is in the barn. He(She) has a broken leg.

The kangaroo (The chair) is in the barn. It(It) has a broken leg.

Even when the sex of the animal is clear fromthe word used, the regular practice is to useit:

The bull (The cow) is in the barn. It (It)has a broken leg.


relationships. The animal has been elevatedabove its normal status to something closer toa personal friend, as is evidenced by the prac-tice of many owners even talking to their pet.

Robert Eagleson

There is a revealing illustration of this usagein the novel by Hazel Holt ironically entitledThe Only Good Lawyer. Sheila, the narrator, isvisiting a famous actor for the first time. Sheis being entertained by the actor’s dresserPenrose while waiting for the actor to come in.

He [Penrose] turned and saw me strokingthe cat. ‘Turf Trinculo off that chair—healways chooses the best one.’

I [Sheila] picked up the cat, sat down andsettled it on my lap, stroking its large,handsome head.

Why does Hazel Holt have Penrose refer tothe cat as ‘he’ and have Sheila adopt ‘it’ forthe same cat? Even after she had just heardPenrose refer to the cat as he, Sheila uses it inthe very next sentence.

For Penrose over time the cat had acquired apersona as it were—human attributes.Penrose’s use of he for the cat is valid grammat-ically but only on the grounds that he investedthe cat with other qualities which took thecat beyond the category of nonperson andled him to see it more akin to people. Hisusage is determined by psychological ratherthan purely logical factors.

In contrast, Sheila has had none of theseexperiences with the cat and regards it in itsbasic state as an animal, a nonhuman. Sherestores it to its proper lower-order status. Itis not that she hates animals—her actionsbelie this—but she sees the situation in termsof the accepted order of things: humans versuseverything else. She adheres to the textbookrules of grammar. Hazel Holt has perceptivelycaught the subtleties of pronoun use in English.

The availability of switching pronouns in thelanguage enables us to make vital discrim-inations and introduce nuances in meaning.He, she and it are not in free variation in thecontext of the third singular. It is the base orunmarked form for nonpersons, while he andshe are conditioned variants, available forspecial circumstances. We must take switchingand other devices into account when describingthe operation of the language.

Animals and other animate creatures aregrouped with inanimate objects, not withhumans.

Again, there are special circumstances in whichwe can vary these rules, so that he and she mayappear in the context of an animal or an object,but these are not the norm.

Sarah Carr

It is interesting, as you demonstrate, how ourEnglish culture divides the universe into the 2categories of people (for example humans) andnon-people (other animate beings and inani-mate objects), and how our language reflectsthis division by restricting he and she in normalpractice to people. To show this practice inthe language more transparently, we shouldadjust the original table to:

Person Number Grammatical Gender

Third singular person masculine (he)1

feminine (she)1

nonperson neuter (it)1

1 Explanations of exceptions

This tabulation certainly parallels the rulesfor personal pronouns that we were taughtat school and that appear in grammar texts.The footnotes would show when and howusers depart from the norm.

For example, she turns up in the context ofsome inanimate objects, notably ships andcars (although writers on equality in languageadvise against this usage to avoid associatingthe feminine with men’s possessions). Butthese are rare instances and the majority ofobjects never seem to attract the feminineform of the pronoun. Significantly, car buffsmay reserve she for their own cars but willprobably refer to all other cars as it. For thosewho do this, there is a special bond or relation-ship with the personal car: for them it is morethan an object. And so we are dealing with aspecial situation and not the usual. The switchin pronoun from it to she reflects this new status.

Something akin to this is also true with animals.As your illustrations show, the usual practiceis to use it in reference to an animal. But oncean animal has become a pet, owners will regu-larly refer to it as he or she depending on itsbiological sex. Again though, we are dealingwith a change in circumstances and different


From the PresidentStandards? Accreditation? a plain-language Institute? ... the formaldiscussion begins

Christopher BalmfordMelbourne, Victoria, Australia

We plain-language practitioners, advocates,and change-agents often grapple with thepossibilities of:

• setting standards for plain-languagedocuments

• establishing a profession with accreditationfor plain-language practitioners

• founding a well-funded institute in ourfield.

Good news: the discussion became moreformal in a panel session at the recentconference in Amsterdam organised byPLAIN—The Plain Language AssociationInterNational, seewww.plainlanguagenetwork.org/ withBureauTaal, see www.bureautaal.nl.

The session was the heart of the theme of theconference—“The Amsterdam challenge:building a plain-language profession”. It wasa fine conference. Congratulations to allinvolved.

Clarity participated in the session:

• former Clarity President Joe Kimble chairedthe session

• on behalf of the Clarity Committee Ipresented a paper (approved by theCommittee) setting out Clarity’s position.

Clarity’s position can be summarised in 3short sentences: “Strong, cautious support.That’s strong support. That’s strong caution”.Those 3 sentences catch the diversity of viewson the Clarity Committee and reflect thecombined position of those diverse views.

Other speakers at the session were:

• Christine Mowat, then Acting Chair ofPLAIN

• Annetta Cheek, Chair of the U.S. Centerfor Plain Language, seewww.centerforplainlanguage.org.Annette’s paper was presented by AllenRotz

This brings us back to the point on which ourdiscussion began: the limitations and dangersof tables in representing the structural patternsof a language. They can cope reasonably wellwith the basic rules but they exert pressure tofit every type of use that occurs into the sameorderly columns, which suggests greater uni-formity than exists and which disguises thesubtleties practised by users. Tables need someform of elaboration, such as the proposed foot-notes, to capture and explain the intriguinglyrich variations in the language.

© Robert Eagleson and Sarah Carr 2006and [email protected]@btconnect.com

Please see page 27 for Robert Eagleson’s photo andbiographical information.

Please see page 4 for Sarah Carr’s photo andbiographical information.


• Neil James on behalf of the Plain EnglishFoundation, Australia.

The next issue of Clarity will publish thepapers from the session and some relatedpapers that have evolved out of discussion atthe conference.

It promises to be a long, interesting, andprobably passionate discussion.

The topics of standards and accreditationalways attract a wide range of views—notjust on the Clarity committee. The topics areoften a major theme of the “off-program”discussions at conferences and they areregularly mentioned in the email discussiongroup at PLAIN. Similarly, in the ClarityCommittee’s email discussions preparing,and then approving Clarity’s position paper,discussion was full and frank and diverse.

The next steps in the ongoing discussion arefor an international working group todevelop an options paper. Neil James is tocoordinate that group. The plan is for:

• the options to be discussed at [waiting forconfirmation Clarity’s 2008 conferenceSalomè]

• a model to be approved at PLAIN’s 2009conference in Australia.

If you would like to put your name forwardto be considered to be involved, please [email protected].

A correction and a clarification

We need to correct a typo—which slipped induring the editing process for the last issue ofClarity. An “s” disappeared from “allows” inRichard Oerton’s letter. Our apologies toRichard.

Also, in the previous message from thePresident, I mentioned that—like Clarity—PLAIN was not a legal entity. PLAIN’scommittee has—quite reasonably—asked meto point out that when PLAIN has organisedconferences, it has partnered with other hostorganisations, which enter into contracts andcollect revenue etc. This is the same modelClarity has used for its conferences.

Growing Clarity

We are updating the Clarity brochure. Wehope it will help us, and you, to attract newmembers. Please let me know if you wouldlike copies of the brochure.

Would you like to be more involved inClarity? We need active people.

In my piece in the previous issue of Clarity,I raised various topics about Clarity’s future.And I asked members to express anyconcerns or comments. Very few memberscommented. No one was against the plans.So the Committee will continue as planned.

Upward & onward

Christopher

PS A donation—sponsorship—for an onlinemembership system?

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

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.


ArgentinaMaximiliano MarzettiCapital Federal

AustraliaAnnette CorriganHolland ParkKathryn O’BrienMallesons Stephen JaquesSydney

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Bar association lauds state’s chief justice

The American Bar Association (ABA) has honoured California’s chief justice, Ronald George,with its John Marshall Award, given annually to a judge or lawyer for contributions to theadministration of justice.

George, a judge since 1972, was appointed to the state Supreme Court by Governor PeteWilson in 1991 and promoted to chief justice by Wilson in 1996. His nomination by a LosAngeles judge for the ABA award cited his role in:

• winning state funding for California trial courts, legal aid for the poor, and an increase incourt interpreters

• sponsoring plainEnglish jury instructions and limits on individuals’ jury obligations

• improving relations between the courts and the governor and legislature.

This news was published in the San Francisco Chronicle, 10 August 2007; we thank Mark Adlerfor bringing it to our attention.

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