IICLARITY

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A movement to simpli$ legal language

Patron: Inrd Justice Staughton

No 30: March 1994

Recruiting in Ganada

We are grateful to the now closed Plain knguageOffice for letting us use their database to send a

copy of this journal to their large Canadian audi-

ence. We hope those receiving it will excuse thisone-off intrusion and use the application form on

the back page to join CLARITY.

Professor John Adams and Trevor Aldridge QCto give CLARITY seminars

CLARITY to publish precedent book(volunteers soughD

Chairman to stand down

New treasurer sought

CLARITY at Solicitors'Conference: 7th Oct

Annual supper: 28th October

Details on pages 37 and 38

Computerised plain English legal forms

I-aserform is a computer program which enablesyou to produce legal forms on plain paper by typingin only the variable information. It has 4,000 users,including solicitors, accountants, banks, andbuilding societies. About 400 precribed forms arecurrently available.

I-aserform is keen to add non-prescribed andpractice forms to its library, and invites CLARITYmembers to supply plain English forms andprecedents.

Documents and enquiries should be sent to S.A.Honey, Honeylaw, Top floor, Bradley House, ParkFive Executive Business Centre, Harrier Way,Exeter, Devon EXz 1HU. Mr Honey is a specialistlaw stationer and computer expert (who was behindW.H.Smith's plain Fnglish gurdes).

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Clarity 30

Canada

BC's Plain LanguageOffice closes

The goverament of BritishColumbia is closing the PlainLanguage Office, its only plainlanguage initiative, on March 31st.

The PLO was formed when the

Plain Language Institute closedexactly a year eadier.

The ClearerTimeshare Act

Martin Cutts has almostcompleted his project putting the1992 Tiresharc Act into plainerlanguage and improving its design.The sequel to his discussion paper

Unspeakable Acts? will bepublished by June. Entitled l*cidLaw,theprqect report will includethe final version of the ClearerTimeshare Act t993 and the resultsof testing the two Acts with about

90 student lawyers and 45non-lawyers. Sir Thomas BinghamMR is conhibuting a foreword.

The draftsman of the originalTimeshare Act, Euan Sutherland,has defended his work in a longarticle in the latest issue of theStdute l-aw Review (Vol 14, No 3).

Martin Cbfis says:'The ufrole idea ofthediscussion pryerwas to provoke

debate. Many of the draftsman'spoints, which he sent me last year,

clarified obscurities in his orm Actand have been incorporated inlomy final rewrite of the revisedversion. The testing shows that therevised version is clearer and betterunderstood than the original. It isalso 25 per cent shorter and Ibelieve it says the ssae fhing."

Martin Cutts thanks CLARITYmembers who have offeredcomments and criticisms of thediscussion paper. All will beacknowledged in the final re,port.

Lucid l-aw will be available fromWords at Work, 69 Bings Road,Whaley Bridge, Stockport SK127ND, price f,10 (UK), L12 (EC),f,14 (elsewhere).

High Court forms

There was an overwhelminglypositive response to the draft plainlanguage rnreva and anton pillerinjunctions circulated around theprofession and the financialinstitutions.

Mr Bill Heeler reported in Marchthet Mr Justice Millett and MrJustice Cresswell had reconsideredthe documents in the light of thezuggestions made, and that theyshould come into use soon afterEaster.

"Without deduction"

The com provision '\at a

t€nmt mst pet rErt \rithout anyde&ctim' ffied in tte Court ofAppcrlr€ctdy.

I-ords lustices Neill, SimonBrocm, ed Write held thrt theword 'deductiol' wts notzufficiently cler to erclude thetenmt's ef"o* riilr of d-off.

@lttuwtLtdv.fuIzinoeltd

lblrscir/s Cnge(l6th F&rry 1994, prgp 33)

Ihe Crystal mark

The "crystal mark" of approval sold to chco of,fu Phir F rglidrCaryaign is ambiguous.

The slogan Clarity approved by Plain Et3Edt Ctglu.ikd.dto mean that PEC approves the clrity of tbe&o br-i= fu logo,not that CLARITY is approvd nor (es sm hrr tlcll q 1 c*nlreading), that CLARITY app,roved he dom.

Wehave our own mark of ap'provel"tbCUruTYd,daplydifferent standards. For instance, we wcld d.ooqa fu phc 'Ihereby ..." which appears pronineatly in c cryrrrFd doFnF4r.

The CIARITY mart

Enquiries about the CLARITY mf,t Sflld bc d b RiLd Cesd€

at the address on theinside bact pge. IIc hr vohccred tocosdinate the scheme.

The fee for vetting a docum€nt (unl€ss its l€adtitrc r3olidmof a higher charge) is €100 + VAT, pryrblc lo fu ve. lOt k Fidto CLARITY. If the documt frils, CIIRITY rill rmd thesei:rrices of a conzultant to rednft iB tb coolrdr fre rrill ilEa benegotiated as a private cmtract, brt rgrin fOf vill go b CIIRITY.

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0€ Alre|c

Legal drafting - a scottish perspective: David Seilar

The solicitors' profession now talksernestlyabout iryroving the stand-ards of legal service, often usingsuch marketing jargon as totalEnlity and, adding value. he woaldhave thought that a basic aspect ofalegal service would be to produce adocument which is as comprehen-sible to a client as is practical. Insteadthe l-aw Society's standard formofferfor sak continues to taft of theexclusion of the actio quantiminoris,vvha. the provision could beexpressed quite easily in Fnglish.

It is, therefore, hardly surprisingthat clients of all kinds cynicallyconsider that lawyers are paid bythe word. In company transactions"the legals', as they are oftentermed, are seen by clients andtheir financial advisers as, at best,boring and costly.

The form of documents is partic-ularly relevant to Scottish practition-ers, especially in company worlc, themarket fo'r which is an increasinglyBritish one. If their documentscontinue to look old fashioned, sowill the Scottish fimsincoryrisonwith the London firms who haveadopted more modern drafting tech-niques. This is material when someScottish companies, and even mo're

their merchant banks, are notor-iously reluctant to use Scottish firmsfor their largest hansactions.

As Mr Adler noted briefly, trad-itiond drafting also increases diffi-culties for lawyers in drafting andrevising documents. Undue depend-ence m styles makes ithrdertodraftoriginal provisions, particulady onunfamiliar subjects. Computercontracts are only the most obviousexample. Equally, haditional draft-ing makes it far more difficultpropedy to revise documents. Thetraditional form of a disposition,puticulaly the use of the first personand the absence of definitions,makes it very difficult to dealprecisely and consistently withcomplicated subjects. The writerrecalls a litigation arising out of thesale of a commercial property inwhich the disposition contained

virtually unintelligible provisionson the calculation of a very largedeferred consideration.

It is worth adding here that thelawyer's ability to draft and reviselargely depends in practice on theability of the client mdotberadvisensto understand documtsindnft oras revised for the other party. Acllent who does not rmderstandcannot give proper instroctims.

Having confirmed rhrt Mr Adledscriticisms apply at leaS as nrlch toScottish as to English drafting, it isuseful to consider furtter ttereasons for traditional dnfting.

As Mr Adler points ort,ltc iE-mediatereason for traditionj dnft-ing is a very understen&blereluctance to alter an acceptedmethod and accepted wording.Traditional drafting and its uudingin turn demonshate the cmtimingdominant influence on Scots kw ofconveyancing of heritage. Untilfaidy recently commercial hw *rseven seen as essentially part ofconveyancing. Professor llallide/sConveyancing Law and Practicc tsthe last great illustraliol 6f tftisapproach, dealing with eryloyrrsrtand even construction contracb spad ofhis general subject.

The influenceof cmveyancing cabe seen particularly in the rmdneemphasis on the formal validity ofdocuments on which London solic-itors so often remark. The moslobvious recent example was thevirtual panic about the higbly rgrable defects in the first section 3,68of the Companies Act 1985 (esadded by the Companias Act 1989)on the law of execution by comprnies (see the remarkable series ofarticles in 190 SLT (Neva) 241ilt369, 1990 35 JI-SS 353 rd {$[, nd1991 SLT (News) 283 and 487).It bironic that in all the scholarSip mancient legislation no-Gle pril 6edifficulties into perspective bypointing out that corymies cmsafely sign most agrements withdcomplying with the rcquirengts fuformal validity (see, for exaqlle,the clear words of LordJrrsticeCk*

Alness in kardmore v. Barry QV)OSC 101) on the width of documentsof a commercial nature (or, in thetraditional term of Scots law, doc-uments in re mercaoria\

Against this backgouod it is under-standable that the basic techniquesfor drafting a disposition have bee,n

largely used to draft commercial mdcorymy agreemeirts. Ultimately, anEnglish document is used if there isno Scofrish style to adopt. ProfessorHalliday uses 6 Fnglisfu xssignnentof a nade mat (see above, vol 1, pma7.47). This ryproach is far fromnew,ascmbe seen frontheEnglish fonnsefessignetion of patents and copy-dght in the Scors Srylc hok (vol 1.,

w.454457).

Thc cmveymcing background is,dm, m fu only reasm for thecdired ne of tnditional drafting.C-qnics' erticles of associationrc EErlt $ill dreft€d by the had-;rirrl do4 prinrily becausetby rc bleod m Tables A in the*n+r.n ceruylqislation and onthc pocodents drafted by SirFncis Prh d fte hrn of theoet. Tb cmveyacing back-

Stdis h ay event changing as

fu edicilorj becomesnc eopli*icrte4 even down totlc er;ence of specialisedbd-dpsim lawyers.

Ihc ry be e forfter and moreffi rryectto6ereluctanceo girc p diti<nel wording. Thatrchrc ny iryly that Scotshwycrrrcr rufule so rmsure ofbdc piaciplcs tt* they cannotialari& & hgrl tufiology.

T*iE Tdn lfu example of thers*iSn*im of e book debt, it isquiE fu thr the words a.rsignd twfu ae tantologous (see,

fur ereqrlc, tte express statementby Lord Justice Clerk Inglis inCetq v. Llcbnosh (1862 24 D9E)). The assignation alsocmtrins 6e firnili*r pbrase igltt,titb and tutaat It is very difficultto smy diftrencebetwee,n theset€rm in relrrtion to the sale of a

book d€bt es opposed to a revenuestatute. It should be zufficient to

rphrse srch as all rights. T}rem€pt of a right is sufficientlydle to include ev€n a sWS succes-sionk (or, in English terminology,m expectancy) (see, for example,Wriglr v. Bryron (1935 SC [HL]49, by Lord Alness at p.54). IfItere were a reasonable doubt over&e rnaning in this conten of suchbesic concepts as a right and anint€rest, that would be rather moreelrning for Scots law.

Traditional legal education inScotland may also have conkibutedto that reluctance to change anestablished approach, which zustainstaditional drafting. There may stillbe too much emphasis on the lawas expressed in disputed case lawand too little on the use of the lawto achieve particular objects withoutdispute. The latter is more con-structive but also more difficult. Itrequires a clear knowledge of boththe relevant law and the ways inwhich it can be most clearly set out.konically, the only course whichhas traditionally required suchpositive drafting is conveyancing.

There is an interesting contrasthere with legal education in theUnited States, in which far greateremphasis is given to drafting. Aslong ago as 1951 Cook's LegalDrafiing provided a very detailedtreatise for student readers. Thatbook contained drafting exerciseswith excerpts from relevant caselaw and previous literature.

A further irony is that the basicprinciples of more modern draftingare not difficult. Mr Adler hasmade certain very usefirl commentson the purpose of a definition.There is space here to add onlybriefly to his basic point thatsirylicity is clarity.

Definitions materially assist indrafting substantive provisionswhich satisff the criteria of gooddrafting. The docume,nt should beunderstandable and concise as wellas comprehensive, precise, andconsistent. The most convenientway to deal with a complicatedagreement seems, therefore, to

increase the;umber of definitions,so as to limit the nsubstantive

provisions'. These provisions arethen set out in short, simplesentences in the active mood. Eachreference should ideally containonly one obligation. The provisionsshould also cleady follow somelogical order.

The resulting agreement willadmittedly not be elegant but itshould be as short, clear, precise,and consistent as possible, evenwhere it deals with highly technicalmatters. Equally, it should be fareasier for a lawyer and client torevise than an agreement draftedusing the haditional method.

The result of the use of this morenod€rn method can be seen by againtaking the example of theassignation of the book debt. Thetext of the assignation, includingrecitals in English form, would read:

WHEREAS:

A X [defined in heading] isowed t200,000 by A Ltd,the price of goods sotd byXtoA.

B. A has granted X a ftoatingcharge dated il and regis-tered il to secure the debt

C. Y [definect in heading] is robuy the debt from X forc190,000.

THEREFORE:

1. X assigns to Y wift imme-diate effect all its righb in(r) the debt and (z) thelloating charge.

2. X acknowledges receipt ofthe price from Y.

3 X warranB that the debt ispayable by A.

The form is shorter and, it ishoped, clearer than the traditionalform. The familiar first person hasnot been used because it is notreally consistent with definitions.In a short document the recitals

Clarity 3O

replace a clrnrse of defnitions. Asalready not€d, the edvntage of adocument being succinct is seenbetter in a more coryliceleddocument than the assigmtio-

The modern drafting methodderives from that used by theUnited Kingdom Parliamentarycounsel. This point is developed indetail in the excellent, andessentially practical, DraftingCommercial Agreements written bya distinguished l-ondon p,ractitioner,A.J. Berg. That book is basedclosely on an internal guide usedby his former firm.

There is, however, one majslpractical difficulty in revisingexisting standard form documentsusing the modern method. It wouldinevitably require time and therefmemoney. It would, however, be avery useful investment, as mostCity of London firms haveaccepted, and the very largestScottish firms ate alsoappreciating. Solicitors seemwilling enough to spend lavishlyon ever more ostentatiousnotepaper and advertisements.

This article merely touches on thesubject. Its rgurnent can, howev&,be summarised briefly. Mr Adler'scriticisms of kaditional draftingclearly apply to Scottish drafting.Traditional drafting leads toverbose and too often uncleardrafting, which in turn bewildersclients and increases the risk ofserious mistakes. Clear and concisedrafting should therefore be anessential part of a lawyer's service.More generally, traditional draftingarises directly from the continuinginfluence on Scots conveyancinglaw. It probably arises alsoindirectly from an empasis in legaleducation on the law as shown inlitigation. The main reason whyvery few solicitors in Scotlandhave not adopted the modernmethod of drafting is ironically notany difficulty with that method buta failure to appreciate fully theimportance of drafting.

Clarity 30

Preface

In Walters v. Scholarship Consultants of Nonh America (anunreported 1993 decision of the Provincial Court of BritishColumbia), an investment company's "very well educated"agent presented "trusting and only modestly educated" clientswith a set of conffact documents. The judge described them ashaving wording so "absurdly complex" that the clients couldnot understand that the investment was "sfuctured in a mannerthat presents a very significant pitfall for the unwary".Nevertheless, the court upheld the contract because there wasnothing legally wrong with it.

This discussion paper is the culmination of three yearsconsideration by the Plain I-anguage Institute. It proposes ananswer to the question, "Should British Columbia pass a lawrequiring the use of plain language in legal writing?".

Several people conducted studies to support this, and wrotetheir own papers. Four of them are included in Volume 2 asfollows:

1. Why we can't leavelanguage to the courts

Vancouver law graduate Rachel

Hutton reviews the state ofcommon law on the subjea, IIerarticle is based on research

conducted for the Institute byVancouver lawyer Mark Hiclcen

2. More than just consumerprotection: The Americanexperience

Vancouver lawyer GrahamBowbrick reviews the longArnerican experience with plainlanguage law, and canvasses

the major issues addressed int he pr ofe s s i on al lit er at ur e.

3. Closer to home

Alberta lavvyer David Elliottexplains the background to theplain language seaiorc of the

Financial Consumers Act 1990,

describes the United States'

experience with similar laws,and suggests some ways ofcomplying with plain language

seclions.

4. But does it work?

This part is compikd by Jeannc

Pasmantier of Ndw Jersey's

Department of Law ard PublicSafcty. It was originallypublished in Clarity 26(December 1992, p.12).

Volume 3 sets out the dataon which the report is based.It contains the results ofresearch into the views of BCcitizens and support agenciesabout "public documents" (ofwhich legal documents wereone category); it includes a70-page summary of plainlanguage legislation in theUS, broken down into detailsas in the example in the boxbelow; and an annotatedbibliography on the subjectof plain language laws.

Criminal justice

Arrest, charges & indictments

Grand iury

Golorado 16-5-201 requires anyaccusdion or indictment written by aGrand jury and directed toindvidrals and the court to state theo{fuice in th€ terms and language ofthe s{atute cbfining it, or so dainlythd the ndure of the offence may beeasily understood by the jury. Thisimposes a subjective languag€ test,and may be enforced by uniqueremedies set out in the Act.

Georgia 17-7-54(e) requires anyaccusdion or indictment written by aGrand jury and directed toindividuals and the court to stde theoffence in the terms and language ofthis Code, or so plainly that thenature of the offence charged maybe easily understood by the jury.This imposes a subjective languagg

test, and may be enlorced by unique

remeclies set out in the Act.

The preface continues

I begen my work with PLI three

F{s ego with a strong belief thathngu4ge ought not to be legislatedfot -y reason. I believed then, andI sfill believe, that to remain vitalod alive language should be freeto evolve x1d shange. But I havecme to understand that the issuebas less to do with regulating legalhguage than with regulating legaldocuments so they are effective.

Irgal language is peculiar, and thepeculiarity is socially entrenched;not by evil will or ill motive, but byhabit, attitude, neglect, established

Itooe.ss, and the routine and caes ofdrily business. Butthatisndcagse fmlegislation.However, thepeculiarity oflegallmguageresults indocuments whichcreale misunder-tuding,andareadirect cause ofinjusice, and that iscause forgovenunent tointeryene. So Ihavemtoagreewithhof Mellinkoff, inIzgal Innguage:9.tlrce and Nonsense(1e82):

ttwould bebetter hat legalwriters mend their ways onheir own; hey can. But witroutfie goad of some legislation,hey won't They need someencouragement, and not onlyon tonsumer agreements.

Io this pap€r, I advocate usinglegislation; not to regulate thehgrrage, but to achieve the goal ofdeer and effective legal documentgmd to correct the effects of apeculiarity which serves nolqitimate or constructive socialpurpose, but which causesnrceptable social injustice.

SummaryThe government of British

Columbia should pass a lawrequiring legal documents to bewritten clearly enough that peoplewho have to read and act on themmay do so easily. I base thisconclusion on research and studyconducted by the Plain I anguageInstitute over the past three years.

This is a sumrnary of the essentialpoints made in this paper.

L Legal documents are writtenwith goals of certainty andprecision in mind. They arenot normally written with agoal of effective communi-cation. Consequently, they dooften do not communicate

their messages effectively.

. Comprehension levels forsix documents tested by 74adults ranged from a low of23% to a high of 54%. wfihan overall average of 43%.More than half the messagein typical legal documents islost.

. Comprehension levels forlegal documents rewritten inplain language improvedbetween 3O% and 50% n aconholled !est.

. When traditional consumerstaterents were replaced with

Clarity 30

plain language statements,hydro customs becrnrc muesensitive to price varialionsreflected on theirbills

Because legal documents arehard to understand, people lcerights, lose money, lose self-esteem, lose independence, mdmoney is wasted on admin-is&ative inefficiency.

People do not get the assis-tance they need fromgovernment offices becausethey cannot understandcomplex forms.

People do not receive moneyor other benefits

towhich theyare entitled by

law, because

they cannotunderstand

programannounce-

ments, rules orfoms.

. Peqrledonot understanddecisions that

affect them.

. Peoplefeelfoolish and in-secure because

they cannotunderstaddocumentswhichthey

know are iryortant to them,

Support agencies, funded bygovemrnent, divert an average

L5% of thetr timeandenergyto assisting clie.nts to under-stand legal documents. Thetime taken for this unfundedwork is worth millions ofdollars each year.

People dislike the language oflegal documents because itmakes important messageshard for themto understand.

. 57% of BC adults rate legaldocuments hard tounderstand.

Two ordinary people sit down to write out a simplecofiract. They get off to a good, precise start with twowords:

We agree...

Soon the good start stumbles. They get help. They startover. The contract now says nothing more than it saidbefore, but there is more of it:

ln c-onsideration of the agreemerils herein contained,the parties hereto agree ...

An aroma as distinctive as stale cigar fills the room. Alawyer has been here. Or someone trying to imitate one.

D. Mellinkoft LegalW?iting: Sense and Nonsense

So people can understand: Philip Knight

. More than 6O% rate legaldocuments important tounderstand.

. Only 3O% &lieve lawyersand public servants reallytry to communicate whenthey write legal documents.

. 64% feel frustrated andangry when they have toread legal documents.

. 87% would choose a plainlanguage mortgage over atraditional one if given achoice.

. 6l% of those who prefer aplain language mortgagewould bewilling to paya one-timefee for theadvantage ofgetting plainlanguage.

4. British Colum-bians supportgovemmentaction to solvethis problem.

'92% of BCadults agree governmentshould pass a law requiringlegal documents to be inplain language.

. 48% agree this should be atop priority for governmentaction.

. 65% agree governmentshould spend taxes toenforce swh a law.

. 64% agree governmentshould spend taxes toeducate public servants towrite more clearly.

5. Writers can change the waythey write, and can becomeeffective communicato'rs. Theyneed something to stimulateand focus that ability, and toact as a counterfoil to all thecombination of forces whichresis change in their workingculbre.

According to the Canadian BarAssociation, effective commu-nication can be compatiblewith certainty and precision.The Association task force onPlain Language Document-ation wrote (at p.l7 of theirreport):

ln our view, plain languagedrafting will increase thelevel of certainty in a doc-ument because the lplainlanguagel drafting stylelorces the writer to payattenlion to the context ofthe words and the lorm ofthe document.

stimulate change amongwriters whosework is withinprovincial jurisdiction.I"egislation has been usod toregulate various aspects oflegal writing:

(a) Thevocabulary;

O) The struchre and appear-ance of the document;

(c) The mechanics of creat-ing documents;

(d) The effect of legalwriting.

6. The government should actwithin its legislative authority.

Irgislation $ouldhave the following

features:

. Itshouldregulate (d)

above, ratherfhen (a) to (c);

that is less

invasive andmore effective.

. The standard

for complimcedmuldbeftat

documentsarecreated in such away that thepeople whohave toread and acton them can do so easily. Thisdefinition should be supportedby a non-exhaustive list ofcriteria to guide interpretationof the standard.

. It should seek to promotecompliance rather thanpunish recalcitrants. Theenforcement mechenismsshould include a wide rangeof powers to the courts togive effect to this principle.

. It should ryly todffi alllegal documents whichinvolve prties in mequelbergdning podtlns, with aprefereace b irclude ntrertbnexcludedm"

. Itfuldcrpi-

Oodildqrp-13 "

The government has severaloptions available to respond tothe public call for action onthis problem.

. Leave the market to itself,and the regulation of legaldocuments to the courts.

. IJse moral suasion andresources to encourageu.riters to 'do the right thing",and provide for voluntarychange in writing.

. Use executive authority tocompel change among peoplewho create governmentdocuments.

' Use administrative authorityto stimulate change amongwriters whose work isfinanced or regulated byexisting age,lrcies of govern-me,nt.

. Use legislative euhcity to

L:I

"l find it very suprising." he began, after some reflection,as he returned the letter to his mother... "He is a busi-nessman, a lawyer, and his conversation is even ...pretentious, and yet his letter is really illiterate.'

"Well, but they all write like that,' said Razumikhinabruptly.... "lt is only the special legal style, ... all legaldocuments are still wrinen fke that.-

Feodor Dostoevsky: Crine and Punishment

Clarity 30

t It is a pity that the heading is in"typewriter" style - using thesame font, style, and size of typeas the text. Wud-processors offergreater variety.

2 'Plaintiff" and 'defendantn arenot proper nouns, and do notdeserve capitals.

3 The customary passive ispointless and verbose. "Thedefendant employed theplaintiff" is identical inmeaning, but shorter.

a nPremises" repeats "shop".Better: "as manager of thedefendanfs shop".

t Ooly lawyers say 'situated [orsituate] at" instead of "at".

6 The shop was not at Brown'sStationery: that was its name.

t The postal district and code areusually included, but I agreewith the drafter here. There wasno dispute about the location ofHammersmith, and postcodesare ofno he$ to the court.

t 'The provisions ofn addsnothing, but "Section 16 of'would have been helpful.

e Although s.16 has beenreplacedit remains in force for existingpremises until December 1995.

to 'said" is mere pompousrepetition of 'the'.

rr 'Shop" would do better than"premisas', since that is what itwas.

rra Is this pleading of lawnecessary?

t' "D"y of is otiose, and 'the" isoften omitted without loss. Manyprefer' 15 September 1990'.

t' It is necessary to show that awrongdoer was acting in thecourse of employment to makethe employer vicariously liable.It has no bearing here.

14 'While A and whilst B" couldbe re,placed by "While A andB'. Or besec "While [or wtilst]walking downstairs in thecourse of her erylofn€nt".

l5 6 ssmme has no place after"nrbbish'.

16 The reference to the shop shouldfollow "dovmstairs". The drafterhas started explaining where theaccident occur€d, broken off inthe middle to explain what theplaintiff was doi.g, and thencompleted the details of thelocation.

17 If 'suddenly' had been omitted,would the employer have denied

liability on the ground that theaccident happened gradually?

t8 As nthe plaintifF is the subjectof the sentence, it sounds as

though she is complaining that

she did not wam herself.

tn A comma is missing.

' If "the plaintiff snagged herfoot" is the subject of'causingher to fall", as intended, it mustbe'causing herself to fall .

" This clumsiness is theconsequence of a quiteunnecessary passive verb.

22 T\e plaintiff is pleading bothnegligence and breach ofsiatutory duty, so "and" isappropriate. If one of thosepleas fails the other will stand orfall on its own merits, so "or' isunnecessary. "Aid/orn, widelycriticised as meaningless, hasled to a great deal ofinconclusive litigation about itsexact meaning, and in Vil.ardo v.

Counry of Sacramento (54 CalApp 2d 413) was held fatal to apleading.In Gamey v. Gimmer(Lloyds List I-aw Reports, 44

II932l189) Scrutton LI said: 'Iam quite aware of the habit ofsome business people and some

lawyers of sprinkling "and/o'r's"

as if from a pep'perpot all overtheir documents without any

clear idea of what they mean bythem, but simply because theythink it looks businesslike."

1.

PARTICTJLARS OF CLAIM'

The Plaintiff'z was employed by3 the Defendant as ashop manager at the Defendant's premises4 situated at5Brown's Stationeryo, Unit 34, Byenow ShoppingPrecinct, Hammerimith, I-ondon ?,'between fa^nirar!1990 andFebruary 1991.

The provisions of8 the Offices, Shops and RailwayPremises Act 1963'applied to the saidto premises rt' tta

.

On the 15th day of'2 September 1990, while acting inthe course of her employmentl3, the Plaintiff, whilstlawalking downstairs carrying a light bag of rubbish,'5 inthe said premisesr6, suddenly'? and without warningrssnagged her foot on some frayed carpet'e causingT herto fall.

The said accident was caused or contributed to by2' thenegligence andlor2z breach of statutory duty of the

2.

3.

4.

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12 Better drafting: particulars ol claim

particulars. There are a fewhaphazard and inconsequentialvariations, and particular 4(e)(failure to wam) has been re,placedby 'failure to heed the previousaccident'.

6e "Thes€ further matters" = "thesecond fall'.

rc This is too vague to be of use.

71 This is not a particular of iqjury.72 Neith€r this nor the following

'end' should be there. Thediffer€nt parts of this sentence(if prticulars of injury) shouldhave been separated intoseparate sub-paragraphs, asshould (for consistency) 'pain','shock' and 'bruising". Thesyntrx of the sub-paragraphsshould ften be standardised, as

the chmge frrom isolated wordsto a corylete se,ntence jars. Butnothing in this sentence (withthe possible exception of theinsomnia) belongs under thisheading: these details areparticulars of pain, if that is (aspleaded) a sqnrate item.

t3 'Especially' tells the court thatthe driving pain is worse thanthe other pains, but it is toovague to be of use in assessingthe dsrntg€s.

to This appeers to relate only tothe secmd accident, though itmust have been intended torelate tobo{t

t5 There is no point in referring thereader to a separate [st, ratherthan including the information.

76 This paragraph belongsimmediately below, under nthe

Plaintiff slqirrx.- And why isthis claim in the funre whilstthe mein ones ae preseirt?

?7 Should this not be phrnal?

o Tte court usually awards halfthe special account rate onlosses accruing over the period(for example, loss of earnings)rather than fiddle with hivialcalculations of interest, t"kingthe view that the outcome will

has suffered pain, injury,loss and damage.

Particulars of injuryPain. Shock. Bruising. Further jarring to her back.Injurylo to her ribs and left shin. As a result of theaccident the Plaintiff was absent from work for fourweeksZ, andl2 continues to experience stingingpairy in her legs and strrooting pains in her baclq-andto have difficulty sleeping

-Comfortably, and still

fjnds it painful to stand, sit, walk and 6specially B

drive.

Particulars of special damage?o

Please see attached schedule of special damage?5.

The Plaintiff will claimT6 interest on specialdamageTT at the full ft Court special accoudt ratefrom time to time prevailingD- from the date onwhich each item of loss or expense particularised inthe said schedule of dnmage. was suffered orincurred8t, in the special circumstancese that thePlaintiff suffered those losses and expenses on thosedates83 andt4 they will be irrecoverable from theDefendant until the trid hereint5-

AND the Plaintiff claims:

(i) damages;

(ii) interest pursuant to section 69s County Courts Actr984.

be broadly the same. Thisdnft€r's approach will rrely beacceflable.

tn 'From time to time prevailing'is otime.

s 'Of loss or expense particular-ised in the said schedule ofdamage" could also be omittedwithout loss.

8l "Irss or expense ... suffered orincurred" is a clumsy form ofword-doubling that all butlawyers manage to avoid. Ifboth pairs of words areessential, and cannot bereplaced by alternatives whichcov€rs both, "loss suffered orexpense incurred' is neater. Inthis case, the drafter wassatisfied in the following line

that both losses and expensescould be suffered.

82 What is special about thosecircumstances? Is anything after"incun€d" worth saying?

83 These are hardly specialcircumstances.

8a I would have been happier witha second "that", though it is notessential. It might have beenbetter to split the two "specialcircumstances' into sub-paragraphs.

E5 What other trial but the one"herein"?

tu 'of the" has be€n omitted-

A suggested redrafi is ofiered on thenefr page.

'i1

$';ri

I

i

Clarity 30 13

The edltor ls graeful to Charles Broadle and Stcwart Graharn for thct aMce on ccndn phts ollmt and practice , butnelther of them ls responslhle tor any nlsaLes in thc fintshed version.

So People Can UnderstandD D continued lrom p.8

A positive obligation on writers to complywiththelaw.

Liability on writers for loss suffered byanyone due to a fuilure to comply.

A remedy for non-coryliance even withoutproof of consequent loss.

A right for groups to seek a declaration thata document does not comply with the law,

whether or not an individual person brings acorylaint.

It should provide adequate defences for goodfaith attempts to comply, and for use oflanguage which is required by legislation.

It should provide for a system ofvoluntary pre-approval of documents, using new and existingadministuative age,ncies.

We hope to publish fufther extracts in tuture issues.

Alternative particulars of claim

Parties

1. The defendant company employed theplaintiff to manage its stationery shopat unit 34, Byenow Shopping Precinct,Hammersmith, from January 1990 untilFebruary 1991.

2. The plaintiff was born on 13th October1966,andis now agd27.

The accidents

3. On 15th September 1990, and again on6th December, the plaintiff fell downthe stairs leading from the sales area tothe storeroom.

4. The first accident occurred because theplaintiff caught her foot in the frayedcarpet on the fifth step down, and shefell [howfar?].

5. The second accident occurred becausethe plaintiff caught her foot in a tear inthe carpet on the eighth step down, andshe fell ftowfar?1.

The defendant's liability

6. The accidents were caused by thedefendant's:

(a) negligent failure to inspect thecarpet, warn the plaintiff of thedefects, and maintain it to a

reasonably safe standard;

(b) breach of section 16(1) of theOffice, Shops and Railway Prem-ises Act 1963.

7. Each accident caused the plaintiffharm.

Particulars of harm (further detaats ofwhich appear in the medical reportsattached)

lst accident

(a) The plaintiff suffered shock. Herribs and left shin were bruised andher back jarred. She was in pain for[?l weeks.

@) She was unable to work for threeweeks but suffered no frnancialloss.

2rd accHefi

(c) [Details of general damage]

(O tDetails of special damagel

Claim

And the Plaintiff claims:

(r) Damages.

O Interest under section 69 of the CountyCourts Act 1984.

lst March 1994

14 Clarity 30

Edilorial comment has been

added in this typetace.

Legal jargondoctorate

Gwyn Winter

I was recently shown an articleabout CLARITY which appeared

nThe Independent last November.It was of particular interest to me

since I am currently researchinglegal jargon at the University ofWales in Bengor with the specificaim of discovering the mosteffective way of simplifying thelanguage of legal documents. Iwould like the opportunity todiscuss your work with you,particularly your methods ofsimplification and their success inimproving solicitor-client relations.

I believe that u&ensiryli$'ing l€Sal

language there are certain linguisticdeviceswhich it may bebeneficial toretain in order to mnintain the respect

and confidence of the client, and ftat itis not siryly a matt€tr, for exaryle, ofsubstituting more corlmonly used

vocabulary or simplifying clausestructure. Furthermore, as you haveevidently discovered, one often en-counters resistance to sirylification.from individuals within the legalprofession. The wide variety ofresourc€s that linguistics has to offer,in cmjunction with the expertise andexperience of lawyers themselves,my be able to offer a solutim to these

problens.

A number of broad questionspres€nt themselves:

. When is the use of jargonreally necessary or justifiable?

. What are the underlyingintentims of jargon users?

. How do the audience'sperceptions match rry to theseintentims?

. What misunderstandings arise?

A small preliminary studyindicated that the terminology oflegal documents often promptshostile and confisedreactions in therecipients. Why is this? ril&at are thesalient features which render itrmintelligible or confusing? How can

we improve on the language usecl?

I shall be relating the use ofjargon to Speech AccommodationTheory r, language attihrdes research,

and pragmetics 2.

I am working in conjunction withClement Jones, a local firm ofsolicitors, who have been morethan generous in offering me sorrre

financial support as well as theirtime and the use of their facilitie,s.

Gwyn Wnter has slnce JoinedCLA&ITY, and wouU like to hearfro m members (e specially lingyists)wllllngto help. Her addnss is :

Bryn Cottages, Griffiths Crmsing,Caernarfon, Gwpedd L[55 lTU

Wales (fel: 0248 670000)

this convention at all? Numbers are

numbers, after all; why cannot eventhe smaller ones be allowed toappear in their own glory,especially in printed text?

If we follow the convention, thenwe shouldwrite:

During 1989, 102 trialsconsumed twenty days or more

hrtDuring 1989, ninety-two trialsconsumed twenty days or more.

The validity and value escape me,

especially when the practiceattracts several exceptions. Itmeans that we are burdeningwriters with rmnecessary rules anddistracting them from the more

goal of achieving clarity.

I favorn writrng all numbers intheir numerical rather than theiralphaberic form unless the typefacewe are using produces ambiguity,as used to happen to the firstnumber and the twelth letter on theold typewriters. Printing numbersrather than spelling them helpsreaders grasp the message morereadily.

Miscellany

Alan King

I would like to make thefollowing comments on pointsmade in the December issue ofClarity.

Common gender pronoum (p.7)

I strongly object to the use of"they', 'th€.m" and "their" for thecomnon gender singular. It is justplain bad grarunar, and takess€x-equality to a ridiculous degree.

If the egalitarians cannot acceptthat, vfrere the context admits, themale embraces the female, and if 'heot $e' is clumsy, then the s€ntence

nust be restructured, perhaps byrepeating the norm or adjective, orusing the plural throughout.

The worst exaqles I have found re

Writingnumbers

Dr Robert Eagleson

1:

I

il

{I

II

Bryan Garner has set outaccurately the convention whichmany publishers follow onnumbers (Clarity 29 (December

1993) p.1a). But is it really the bestpractice to spell out numberssmaller than 101 as he suggests?Why do we have to persist with

I Thetheorythatpeople otherthan lawyers naturally andwithout thinking about itaccommodate their languageand gestures to help theperson to whom they arespeaking understand.

2 The study of the speaker'sreal meaning as opposed tothe literal meaning of thewords used

m the f<nm for applying for arrearsdue to the estate of a deceasedpensioner, e.g. "lltere was the person

staying vihen they died?". CI-ARITYhas a member in the DSS; could theymmge for the form to be rerrorded.l

In the revlew of Susan KrongoW,satticle to whlch Mr Kng referc,Nison Ploavlezqaotes a Nssagewhlch makes suggestlons similar tothose above. The stngatar "they",however,ls not ment'uned (or used).

I expect nore memben areirrtaed by the singular ,,they', (as Iam) than would want to be assoclatedwllh lnegalttarians. Bfi wouW il notbe useful lf "theyu mutatcd lnto asingular pronoun? We need only getused to lt as sach. (As an example otthe translence of any lnitationGowers quotes a 17th century letter

from the Secretary to theCommlssioners for Excise to theSupemlso r of Po ntelract : r

The Commissioneru on perusal of yourDiary obsenie that you make use ofmany affected phrases and incongruouswords, such as "illegal procedure","harmony", etc., all of which you use

in a sense that the words do not bear. Iam ordered to acquaint you that ifyouhereafter continue that affected andschoolboy way of wriing, and tomurderthe language in such a marrn€r,

you will be discharged for a fool.)

I also suspect thot Mr Kng'slmpatience wlth the sensiltvlties ofwomen tndtcaes tha he has neverbeen subJected to the niggllng verbalskghts of preJudtce. I tend to snarl atpeople who ask me wha my Chrlstianname ls; my reaction may beunreasonable, but the assum$lonannols me and I thank people naccew that. Women obJect, no lessreasorwbly, to the tradilion thateveryone outside the kltchen ls a man.

fohn Roberts replies for the DSSon p.16.

lnheritance tax forms (p.8)

The Complete Plain Words(3rd edition, revised bySidney Greenbaum andJanet Whitcut); p.24 of the1987Penguin edition.

I fully agree with Geoffrey Bull'simplied objection to providing, onofficial forms, extraneous inform-ation which takes a lot of time andeffort to obtain, but which is rarelyneeded.

The small white boxes on page Iof the Inland Revenue Account arebadly placed. The box to be tickedby someone domiciled in Fnglandand Wales is nearer to the word"Scotland" than to "England andWales'. The word "Parent(s)' isnearer to the box for children thanto the box for parents.

On page 2 of IHT 202 is aheading 'Section 24- Nominatedand Joint Property - Without theInstalment Option". Why is this theonly section with a number, andwhere should we show nominatedprop€rty wit h the instalment option?

Paul Whyan, customer semicesmanager at the capital Taxes ofice,replies:

Wewelcome comments andsuggestions about our forms andleaflets. Indeed, when the new InlandRevenue Accounts were in draft formwe sought the views of our customen,solicitors and bank tnrstee companies.We tookinto account many of thehepful sugge*ions made bypra.ctitioners.

MrKing has written to ue about tris

concenu and I rcprodrce bcbw thetext ofourresponse.

One of our aims whenwe rcdesignedthe Inland Revenuc Accomts was toachieve corcistency within ardbemteenthem ofboth design andcontmt as far as possiblc. As a resultwe ahnged verticalty the boxes on page1. I do accept that errors might be lessl*ety ifthe printing andboxwerecloser together. We willbear this inrnind when the Account b due forreprinting.

Unfortunatety the first print run of IHT202 (193 ) was flawed in a way thatled directty to the confiisionyoumentioned. Anew yersion was printedto retne$t the deftciency.

If any of your readers have anycomments about any other InheritanceTax form I shall be pleased to hear

Ctarity 30

fromthem.

Writing numbers (p.14)

It is surely safer and wiser towrite all important numbers (suchas the amounts of legacies in awill) in wo'rds, as a digit can easilybe added, omitted, or typedwrongly. As an added safeguard,mrmerals can be us€d as well.

Many memben noo.ld dtrogrrr.*futnkes are less llkely, and morelikely to be noticed in tlme, if thecllent k preseued wlth a readabledocamentto check before signaure.

In addition to the five exceptionsgiven in the article, I would like tosuggest two more - that serialnumbers (e.g. "page 3"), andnumbers involving fractions (e.g."53/r miles awayi), should be innumerals.

It should also be remenbered thatnone sixth" should be written 'llenand not 'leth (iust as 'threequarters" is written '3l+' and notYetrs"). And that '4.LZp" means"four pence and twelve hundredthsof a penny'; 'Four pounds twelvepence" is written "f'4.12".

Finally - Dying belore me

We often see in wills clauses suchas 'I give my baromeler to my sonJohn but if he dies before me to hiswife Mry.'I think that is incorrectglrmmnfisxlly, but I have haddifficulty in convincing others, evencolleagues vfro pride themselves inf,'on"?lthetr Engli$. If John diesbefore me, he drops dead in front ofme, in my presence. The will shouldsay something like "if he dies beforeI do'. "Me" is the object f,I am,,,surely, to a parist?l (accusative)pronou& but its function in thesentence is as the subjet (nominative)of theunstated " do'. Compare'Hitthe ball after men, which means"Hit the ball after you hit me", and'Hit the ball after I hit the ball',which means just that. Are thereany gremmar"ian readers who agreewith me? Would translating theclame into another lsngtrsge helpus discover the correct English?

16 Letters

"Hit the ball afier me" is tech-nically, but not in practice, ambiguous ,

bw it is nu angrammotical "ffisyt'requlres the accusative just as

"betweentt does, and the verb t'dot' lsrct needed. Withou the verb, we say

"a$er me" 1 wilh it, t is the phrase "Idon whichlsthe obJect,and "1" isneeded only becaase the pnonoun

becomes lhe subJect wilhin the objedphrase. I do nd think I have explainedtha very weIL Can any grammarlanscomment?

He or she

John Roberts

Documents DesignI nformation Servbes Branch

Benefits AgencyDepartment of Social Seanity

The lack in English of a singularpronoun to mean 'he or she" hasplagued us for centwies, givingrise to awkwardness such as:

. nhe or.shen

. "he'/she'

. "(s)he'or's(he)"

. 'heu to embrace both sexes.

The first, while acceptable,becomes tedious when repeatedoften, as in a Benefits Agencyclaim form. The middle examplesare clumsy and bave no equivalentin spoken English. The finalexample can only be regarded as a

last resort and angers feminists.

Obviously, if a communicationcan be personalised we would usenhen 'she" or *him" "her" asappropriate.

This is not always possible andDocument Design use 'they* and'them' as singular pronouns in thedocuments provided for the Be,lrefitsAgency. The issue has nothing to dowith sex equality; it simply aioidsthe alternative constructions I havealready criticised. Nor is it badgrammar. I have collected examplesof such usage going back to thel5th century. One of my favouritesis from the pen of the Restoration

poet Sir Chades Sedley:

As freely as we met, we'll part,

Each one possest of their ownheail.

Purists may disagree, but I thinkthose are magical lines.

T\e Oxford English Dictionarydoes not condemn such usage; the'they' entry has "Often used inrelation to a singular nom". I havealso noticed that style guidanceproduced over the last few years by(for example) The Times and the

Mehopolitan Poliie has encouragedthe usage. The latter has "allofficers must do their best".

The contemporary Good EnglishUsage, compiled and written byfufrey Horrad says "We can wearourselves and our readers outwriting 'be or she" all the time".Writ€rs se the wey ahead usrng'they', '6em', 'their' as unisexwords. Bernard Shaw remarted'Nobody wqrld cver mary if they

thought it over".

Shooting from the lip

Professor Peter ButtUniversity of Sydney

I have for meny years mrvelled atthe way lawyers use ordinry F.lglidrwords in a way that ordinryEnglish users do not. For exaryle,demise ('I didn't even know thepremises were sick"), devke, deter-mine, presents, srylc, and, sufer.

Judges are not free from thislinguistic eccentricity. Recently Icarne across the following ststerentby ajudge in a conveyancing case:"Whilst present at the execution heougbt to have made some enquiryof the marksman". Was this adescription of events at a firingsquad? No, the judge was explain-ing that a mortgagee should haveasked a mortgagor whether heunderstood the document to whichhe was putting his mark.

Legislative draltingformat

Sir Kenneth KeithNew Zealand Law Commission

I am pleased to enclose a copy ofthe Law Commissiqa's latest report,The Format of Legislntion (N7JfR27) which the Minister of Justicetable<l in Parliament on 22 Dwemfu1993. Extracts appear on thefollowing pages.

The report is one of the Commis-sion's responses to its responsibilityrmder the l-aw C ommiss i on Aa I 985and a broad Ministerial reference toadvise on ways in which the lawcan be made as understandable andaccessible as possible. The letter ofhansmittal and the report (in paras6,7 md 9 and appendix E) mentionother relevant stq)s. T\e SecondReprt of thc Wo*ing Party on thcRorganisation of the lrcome TaxAct 1976 (September 1993, AJHRB3l) gives iryctmt indications offte advantages rhet cm be obtainedfrom cbmg€s in format.

The Commission recommendschmg€s to fudesign and typographyof legislation and presents a fullstatute, the Defamation Act 1992,in the proposed new format, shownalmgside the Act in the pnesent style.

Good, firnctional design facilitatesaccess to legislation. It saves the timeof those preparing and consideringlegislation and of those who lateruse it. It saves money. As thereport indicates, those advantagesare increasingly being appreciatedin New Tnalwland overseas.

The I-aw Commission kusts thatthe proposed design will be widelysupported by those who prepareand use legislation. We have hadwide support from those weconsulted in preparing this report,and later from those consulted onthe reorganised Income Tax Aa.

In particular, it looks forward toyour support fo'r the adoption of theproposal.

i

i

t lntroduction

L. In order to improve access [tostatutes], 1foe Qemmission recom-mends in this report changes to oneaspect of legislation: its physicalappcarance arising from dasign andtypography (see pages 22 and23'5.

2. Good, frrnctional typography anddesign are invisible. Good designallows readers to concentrate theiren€rgy on substance rather than bedistracted by format. Good designcan also facilitate the very draftingof legislation because it can makethe task more logical. The nature ofthe message will of course influencethe appearance of texfi the designmust be appropriate to thesubstance, and to the reader. But abad design remeins a bad design,even though it may be redeemed tosome extent by familiarity.

3. Understanding of even the bestdrafted law may be hindered orhelped by such factors as the typeface, type size, leading (the space

between the lines of type), thelength of the line, the layout andordering of provisions, the use ofheadings, the indentation of thetext, the placing and content ofnotes in the text, and the use ofaids such as indexes, examples orflow charts. Even the size of thepage and the feel, weight andtinting of the paper are important.Communication experts agree thata page which is well designed isnot only more attractive but alsoaids understanding.

4. The Law Commission has

concluded that improvements to thedesign of New 7-aland,legislationcan help make it more accessibleaad mo're easily understood.

5. It must be beneficial if Membersof Padiament spend more timedeating with policy questions rhanhying to ascertain the meaning ofthe proposals put befo're theq iflawyers can more readily find thelaw and so advise their clients; andif the public can more easily deter-mine the rules which govern theirpersonal or business transactions.In some contexts the financialsavings have been quantified: theycan be significant, and theycontinue to grow. For example,between 1982 and 1990 the BritishGovernment is said to have savedsome f15 million by redesigningsome of its forms.

6. We cennot have a lrnrel obliga-tion to obey a law rphich is acfirallywitbheld ckept secret fromus, Butavailability is not sufficieot: thosewho re expected to know, obey,ap'ply and advise on the law must behelped so far as is practicable tounderstand it.

7. T\at understanding can be en-hanced in a number of ways, withimprovements to both the substance

and the appearance of the text. Thisreport considers the latter, and pro-poses a new format for e,nactments.As well, the Law Commissioncontinues to srpport cleaer and moreshaightforward legislative drafting:shorter sentences, use of the activevoice, use ofeveryday language. Itrecognises the effo'rts of Parliement-

Clarity 30 17

ary Counsel in this direction, oftenunder difficult conditions. Clearerdraftingneednot beatthe expense ofprecision and certainty: indeed, aplainer drafting style may revealanomalies.

8. Clearer drafting is of coursehelped by the clear stateme,nt of therelevant policies and instuctions.

9. Standard rules for draftingcommmon provisions not only speedthe drafting process and reduce thechance that issues will fail to beaddressed, but make legislationeasier to use. Certain structuresbecome familiar; readers knowufrere in m Act paticular provisionsare likely to be found; and themeaning and aplication of standrdprovisions will become morecommonly knorm. Time is savedand dispute is less likely. Thesematters are being considered by theIaw Commission in its preparationof the lzgislation Manualfor NauTzaland.

Format and design

11. Sethng out sections so that thedivisions betwee.lr section, subsec-tion, paragraph and zubparagraphare clear allows the eye to pick outeach level by simply glancing atthe page. Notes, relevant dates,tables of contents, flow charts,indexes, and running heads mayalso help the reader find the provi-sions sought. The aim of theComrnission throughout has beento consider the users. Aestheticswere a secondary consideration,but better design results in a moreathactive page as well.

The process of improve-ment

12. A comparison of eady NewZ,ealand statutes with those oftoday shows that, over time,substantial change has beeneffected. The New Zealand 'look'in statutes dates back to the 1908Consolidated Statutes; but since

18 The format ol legislation: New Zealand Law Commission

then improvements have beenincremental: some unnecessarypunctuation gradually omitted,arabic numbers used rather thanwords, the enacting clause simPli-fied. (Chan has usefully described

this process rn Changes inform ofNew fualand statutes Gn5-977 8

vuwl-R318.)

13. The I:w Commission has been

experimenting for some time withthe design of the draft Actscontained in its reports. For thepurposes of this report it engaged

consultants with experience in the

field of design and typograPhY to

advise on how that eadier workcould be extended and improved.

14. The Commission has drawnideas from a broad range of other

sources: aspects of current statutedesign in several jurisdictions;legislation prodrrced by commercialpublishers; the writing of specialists

and the growing literature on plainstatutory drafting. Jt has consultedand received comments on its draftproposals from a variety of those ofprepare and use legislation. The

responses have been almost withoutexce,ption supportive and often en-

thusiastic. The Commi ssion incorp-orated many valuable suggestions.

The Clerk of the Housepointed outthat it is important that there be a

consistent style. However, it will be

sensible in some cases that consist-

ency gives way to practicalitY,particularly in the case of schedules

to Acts, which vary widely incontent. It may be rypropriateherp toparaphrase George Orwell's famous

dictum from his essay Politics andthe English Language: 'Break anyof these rules sooner than [do]anything oukight barbarous.'

,

Costs and benefits

15. Most of the benefits are ofcourse of a continuing character,and ofadvantage to all subsequent

users. But the costs are mainly one-

off.

16. The Qommission had some

initial concern that the proposedchanges might raise the cost oflegislation: first, because theproposals might increase the length(and so the printing cost) of enact-

ments, and, secondly, becausepreparation would be more time-consuming. Th€re is some formdation

to the first concern, since thesaryle p'repmed fm this report shows

a small increase in length from the

current format - 32 pages as

compared with 30. But the benefitswould outweigh any modestincrease in printing costs, qAich inthis particular sample amounts toapproximately 7%. The inclusionof more notes to sections, forinstance, or allowing for morewhite space on the page, greatlyenhance both the usefulness andthe accessibility of the proposedformat.

17. The increase in length is keptto a minimum because of the size

of the typeface used in the mrintext, which allows more words toappear in each line - but not at the

expense of clarity. The type size issmaller than that presently used inthe statutes, but the same as that inthe stahrto'ry regulations series and

the fourth edition of Halsbury'sStqtutes. These publications (and

many textbooks also) attest to thefact that the smaller type size isacceptable in a wide range of uses.

And the samples conform to theresults of empirical research on linewidth, leading and type size foroptimal legibility. Some of theother proposed drafting changesare also helpful i1 minimisinglength. For example, omitting 'ofthis section', "ofthis Part" and'ofthis Act', where the reference isunnecessary (as it nearly alwaysis), gives an estimated saving ofone line on every page or abouttwo pages in every hundred-

18. Inrelation to the secmdmtter,the preparation of legislation, anyextra costs shouldbemorefrrm offsetby the improvements. Most of theproposals merely require changes topresent typesetting practice; that is,

of the codes which set up thespecific format. After a transitionalperiod the typeset0er's job will notalter. The government's printer has

confirmed that any increaso in thecost of printing legislation wouldrelate only to a possible increas€ inthe number of pages, if the newformat were adopted. Some of theproposed shenges would affect the

drafting of enactments, but thedifference in preparation timeappeaxs to be either minimal -such as between drafting a purpose

section and a long title - or ev€n

reduced - such as where the refer-ences to "this Act' or 'this section'are omit0ed. Others are more time-consuming; for example, theproposals relating to notes tosections. But the benefits both tothe read€r and the drafter (to Yfiomthe notes re useful as a referencepoint) CIfqrcigh tlris. And if exha

infrmetim of tb kind mentionedinpres E -29 is to be included atell, the bes tire to do it is whentbe infunti<n is fr,eshly availableas a resft of tte policy formationrd dnfting proc€ss. Once again,

the ccts are oneoff, the savingscumldiw.

A new format

Cloice of sanplz stotute

19. The substance ofeach statute

dictdes its form to a large extent;

end dthough most statutes maycmtein standard features - such

as a lmg title and an interpretationprovision - they differ markedlyfrom each other. The consequence

is thet it is not possible to find asample statute for redesign whichcovers all eventualities. For thisr€esorr, the statute which has beeir

selected to illustrate the proposedfo'rmat, the Defamation Act 1992,mu$be considered a^s indicative mly.This proviso applies particulady tothe schedules, amongst which there

tends to be the widest variationfrom statute to statute.

20. The Defamntion Aa provides a

I

i

I

particularly suitable sample.

. We considered it desirable toreproduce a whole Act, fm tworeasons: to facilitate an accu-rate cost comparison, and tocreate maximum impact andauthoritative,ness. The Defama-tion Act is of modest length(30 pages) and yet it containsmost of the features whichrequire illustration in a rede-signed format. These includemultiple Parts; schedules; crossheadings; an exte.nsive int€rpre-tation section; complexprovisions divided into para-graphs and subparagraphs; andreferences to origins which canbe inco,rporated into notes.

. It is relatively unamendednwhich means that it is notcomplicated by matters whichit is inappropriate to address inthis report.

. It is drafted in a contemporarystyle, using gender-neutrallanguage. This means that therewill be minimal incompatibilitybetween language and formatin the redesigned version.

Thetwoforuuts compared

2I. The Commission proposesthat Acts and zubordinate legislationshould be laid out in the same way.Uniformity and consistency aidunderstanding. The traditionaljustification for the different styles

- that the material in sshedules andregulations is of less significancethan the provisions in the body ofan Act - does not appear to bevalid. In practical 1srms, the rulesand procedures in those schedulesand regulations mry have greaterdayto-day application than otherprovisions in the body of the Act.In some contexts a clear distinctionbetween important and less iryort-ant material can be marked bydifferent type sizes: for example, inthe notes to sections.

22. Some small changqs have been

made to the language of the enact-ments, but these are limited to theenacting formula and the substihrtionofa purpose provision for the shorttitle, as well as deletion of unneces-sary refere,lrces to oof this Actn etc.No attempt has been made tosubstantially restnrcture or redraftthe Act, something which isoutside the scope of this report.

Typeface

24.\fu I:w Commission proposesa change in typeface from theBaskerville presently used toBembo. Because it is a relativelycondensed fuce Bembo mrkes eff-icient use of space. Ib lmg ascendersensurc that it is legibile and pleasingto the eye even with minimumleading. Baskerville's wide charac-ters take up more space and requirea correspondingly greater numberof pages. In the current fo'rmat itssetting is ovedy large and, perhapsto save space, insufficiently leaded:the ascenders and descenders oftenovedap, and this is confusing to thereader.

Titlc and purpose section

2l.T,lne long title has been omittedentirely on the basis that it nolonger serves any useful function.Acts are invariably referred to bytheir short title, and the remainingfrmction of the long title ap'pears tobe to explain the general purposesof the Act.

26. The short title should beincluded in the enacting formula Toachieve the "purpose" function, theCommissisn prsposas that principalActs should include a separateplrrpose section as the first provisionin the Act. It has followed thispractice in the draft Acts includedin its own reports, building ondeveloping experience in existinglegislation (w Oficial InformationAct 1982; Sale of Liquor Aa 1989;Ozonc Layer Protection Aa 1990;Historic Places Act 1993).

27. Purpose provisions will not be

Clarity 30 19

needed in all Acts. In particular,amending Acts might not generallyinclude them, although in someinstances they can be helpfrrl, sayin indicating a set of relatedchanges to a number of Acts or amajor change in a principal statute.The guiding principal is that apurpose section should be includedonly if it will be genuinely helpfirl.lt should not be 3 'mrnifesfs", guf

should facilitate parliamentarydebate and add something to thebody of the Act.

Definitioru section

28. Most interpretation sectionsconsist exclusively of a series ofdefiaitions, and for this reason thenew format includes a specificdefinitions section. Tnre interpret-ation provisims would if necessry,be included in a separate sectionheaded'Interpretationn. In general,the definitions should be collectedin one section. However, if adefined word or phrase is confinedto one section, then the definitionshould be included in that section;and, if appropriate, a footnote tothe principal definitions sectioncould refer the reader to sectionswhich feature their orm definitions.The location of the definitionssections will vary, depending onthe content and the extent of theAcL

29.lnthe proposed new definitionssection itself, each word ddfined ishighlighted, not byan initial capitaland by being enclosed in invertedcorlmas, but by being printed inbold type. Each definition is clearlyseparated from the others byincreasing the space between thelines. '

Notes to sectiota

30. The Commission has proposedthat notes about the "adminishation"of Acts should in general bediscarded, because they can soonbecome outdated and may bemisleading (report I7, para 96).That information can be provided

ZO The format ol legislation: New Zealand Law Commission

in more up-to{ate and convenientways, for example in departmentalpublicatims orthe Official Yeaftook.

31. Notes have also been added tosections in the sample statute refer-ring the reader to the words used inthat section which are defined else-

where in the Act or in the ActsInterp'retation Act 1924. That seems

the least obkusive way of alertingthe reader to the fact that somewords are specifically defined. Evenif that practice increases the draftingtime, it should help drafters.Consider the practice of beginningdefinition provisions with thewords "In this Act, unless thecontext otherwise requires...". Adrafter going through a draft Billbefore introduction to note thedefined words in each clause (aprocess facilitated by the search

function of new technology) willbe able to check whether the wordis used anywhere in the draft in a

sense different from its definition.If it is, the drafter can change theword or make other appropriateadjustments. In either case, theeffect will be an increase inc€rtainty for those using the Act.

32.T\e sample statute also featuresinternal cross-references, whichrefer the reader in this case fromdefences and remedies to procedure,

and vice versa. But the potential fornotes is even greater. While thetext of the Act should certainly notbe lost in a rash oftextual aids, ifanote is helpful there is no reasonwhy it should not appear in an Actfrom its inception.

33. Cross-references to other Acts,to cases, or to reports oflaw reformor other relvant bodies on whichlegislation is based (possiblypresented as a table) might all beuseful. And sometimes mafelixlfrom the explanatory notes whichusually accompany Bills mightusefully be included in notes to theAct. Such material is of coursecommonly included in commmercialpublications of legislation and was

included nThe Public Acts of New

Tzaland (Reprint) 1908-1931. T\eCommission therefore agrees withthe view of four members of theRenton Committee that 'users of theAct should also have the opportunityof seeing whether such explanatorynotes wouldbe of assistanceto them'.Certainly, even if this pra.ctice werenot adopted, explanatmy memorandacould be expanded and made moreuseful (see frrther para 35).

34.T\e objection that the practiceof including notes to clauses wouldadversely affect the legislativeprocess by lengthening debate isnot borne out by the experiencewith the explanatory notes to Bills,which have long been available toMembers of Parliament.

35. In addition, the pro'posed practice

would not have any effect on theinterpretation of statutes. Whethertr not extra material ap'pears on thepage is not the issue: the notesprinted in the reprinted statute.s

published under tbe authority of theGovernrnent of New Zealand do notap'per to have carsod dfficrrlty. Nmdo the notes included in regulations:each finishes with an explanatorynote which is stated to be 'not partof the regulations, but is intended toindicate their general effect'. Whatis important is the significance (ifany) to be given to zuch material,whether it appears in the printedtext of the Act or not. And that is amatter for the courts, which will nodoubt discount material which isnot useful, as they do already.

Schedulcs

36. The information presented inschedules can be of equal or evengreater importance to the user thanthat in the body of the Act. Theschedules should therefore generally

beprinted in the same type size, withsimilar highlighting. Because of thegreat variation in the substance ofschedules, the following commentson the changes brought about bythe new format are reskicted tothose in the sample statute:

. Pafi 3 ofSchedule 1 (Interpret-

ation) has become Definitions, tobe consistentwith s.2.

. In Schedule 2, which listsconsequential amendments, theinformation has been sheamlined

so that the essential elementsare easier to find. Thus it isreduced to the name of the Act,its number, the relevant prov-isions, and a statement of thechanges effect€d, with the natweof the change zunnrised in boldtype (Repeal, Delete, Substitute).

. Schedule 3, which lists repeals,is likewise reduced to the nameof the Act, its number, and theprovision(s), Part(s) or sched-ule(s) repealed.

Miscellaneous changes

37.T\e following is a list of changes

which require minimal or no dis-clssioru

. the number, year, and dates ofassent and commencement areclearly shown on the title page

of the Act directly beneath a

more promine,nt title;

. the contents pages are headedas 'Contents' in conformitywith ordinary usage, and not"Analysis"; but they continueto appear in double-columnformat becaise the proposedchanges in typography providea sufficient increase in clarity;

. the body of the Act begins witha prominent enacting provision;

' a Preliminary Part has beencreated - comprising prelimi-nary provisions such aspu{pose, definitions and appli-cation - for the reason that

PreliminalY Provisions are notoutside the Act and should beincluded in anumbered Part;

. the section headings are raisedabove the section text to makethem more conspicuous;

. section numbers and Part head-ings have been added to the

It

.1:

running head at the top of the Pageto make it easier to find the rele-vant section or Part;

' references to other enactments

are italicised so that they stand

out in the text;

' the punctuation has been modi-fied in order to make it more

consistent with o'rdinary usage:

for example, each definition inthe definitions section isconcluded by a semi-colon,rather than a colon; md in pra-graphed sections doshes are

omitted where a line breakperforms the same fimction ofseparating the paragr4hs andsubparagrryhs;

. a brief summary of the Act'slegislative history appears atthe very end: it includes dates

and references to Hansard as

well as to any relevant lawreform publications, and couldalso refer if necessary to an

Act's origin in a heatY.

Other legislativedocuments

.*nending Aas

38. The structure of amending Actsis not directly addressed in thisreport, but some brief suggestions

follow. The amending provisionscould be removed Itop 1fos main

body of the Act and set out intabular form in a schedule to theAct. Placing the amendments inschedules allows more directinstructions to be given than isappropriate in the body of an Act.The body of the Act would then

contain only a purpose provision,commencement and transitionalprovisions, and the amendingprovision which simply providesthat the principal Act is amended as

set out in the schedule. This format

seems neater, clearer and more

economical than the present practice.

A variety of ideas from Canadian

and Australian legislation couldalso be adopted. For example, if

several enactments are to beamended, each Act might some-

times be dealt with in a differentschedule, or a list of the affectede,nactments could be set out in thetable of contents. In other cases

amendements to several Acts butrelating to a single topic mightusefully be included in a singleschedule or provision.

39. A related matter is the use ofmore direct standard formulas forinserting or deleting words, ormeking other amendments. The

standard fomulas must be compat-ible with any requirements forcoryuterised annotation of an elec-

tronic database of New Zealand

€oectments.

Bills

40. Some of the Commission'srecommendations will also requirechanges to Bills. They should beprinted in the Bembo typeface andset out in the new format. But, ingeneral, those existing featurespeculiar to Bills work very well as

aids during the legislative process

and should remain. Such features

are the much larger margin(because Bills are printed on an A4page rather than the 240 x 150 mm

page size used for Acts); thenumbering of lines; and printingreferences to other provisions inbold type. Certainly, the p'ra.ctice ofnarking ghanges in the text, whenthe Bill is reported back fromSelect Committee or amended inthe Committee of the Whole, isexcellent. The changes during thepassage of a Bill to its table ofcontents should also be indicated.Some Bills as reported back are

accompanied by written reportsexplaining the amendments.Ame,ndments introduced by Supp-

lementary Order Paper also usuallyhave explanatory notes. It would be

very useful if these practicesapplial generally.

41. Other improvements can be

made, notably in clarifying thehistory of a Bill and identiffing the

stage it is at in the legislativeprocess.

Clarity 30 21

stage it is at in the legislative process.

42. Explanatory notes could bemade more usefrrl than at present.

Many notes now do no more thanparaphrase the Bill's clauses rather

than explain their purpose andeffect.

Other aids tounderstanding

The use of devices to aidcomprehension can be takenfurther than the changesrecommended in this report. Other

steps which would be useful inparticular Acts include thefollowing:

. The construction of flowcharts. These are particularlYeffective in explaining coryli-cated procedural matters; inshowing the interelationshipsbetween different elements in astatute; in answering specificquestions, especially thosewhich relate to entitlements and

liabilities; in reducing theanount of information which a

user must remember at anY one

time; and in giving a quickove,rview of a statute.

. The use of formulas, pictures,

maps or diagrams (instead ofwords) if that is the moststraightforward way to exPlain

a concept. This is occuring tosome extent already: considerthe formulas used for calcula-tions in tax Acts and the(colou) representation of the

New Zealand flag in the Flags,

Embbms, and Nona ProrcaionAct 1981. A great deal more

use could be made of suchdevices. One example of a

failure to do so is the Schedule

to the Aucklnnd Harbour Edge

Bilt introduced in 1989: itde,scribe.s in words part of the

city of Auckland, but it wouldbe more helpful to refer the

reader as well to a rnap.

' Examples explaining the oPer-

t

22 The format of legislation: New Zealand Law Commission

ation of the Act's provisions

tnthe Indian Evidence

Act 1872; see also the Consumer

Credit Aa 1974IUK\, Schedule 2).

A more direct statement ofpenalties than in the presentsubstantive provisions. Forexample, if a fine is a pe,naltyfor an offence the provision

The existing Act

Dcfamation

creating the offence might finishwith the words "Maximum penalty:$X'. The Swwnary ProceedingsAa 1957 could be anended toprovide that this form of words

1992, No. 105

4{. Paniculers in suppon of cLim for pui-trve d.iunatcs

{5. Procceding dcemcd to be vcxatiors ifno intcntiqr to procecd ro trid

{6. Procccdings in rtspect ofpublketion indiffcrcnt nredie of same metrcr

{ 7. Notice of muldplc actfuzu4E. C,onsolidetion of actionr on rpplk tirr

of ddcndents49, Limitation on subscqucrrt *tins50. Striling out for want of proccodn51. Evi&rrce as to publisher c princr52, Gcreral *rdkt by jrry

PAR.T V

MEcrlJltlEous PRovrsroNs

53. Agrccmcnts to indernni$ egeinst liabil.hy fc dcfamtdon

5f. Acl no. -l

to dcrogetc from Parlieme*eryPnvllctc, ctc.

5.1 Amcrdmcrt ro Limit*irn Act 1950

Sa ncpczk,rnw*nq ad caucqrntrlanaldods

Scncdulcs

1992, No. 105

An Act to amcnd the lew rclrting to defanation andother meliciour Grlrehoo& [26 Nwember 1992

BE IT EI.IACTED by the Parliament of New Zealand as follows:

l. Short Title end commencement-(l)This Act may becited as the Defamation Act 1992.

(2)This Act shdl come into force on the lst day of February1993.

2.Intcrpretation-(l)In this Act, unless the contextotherwise requires,-

"Broadcaster" has.the meaning Sven to it by section 2 ofthe Broadcasting Act 1989:

"Defamation" includes libel and slander:"Distributor" includes-

(a)A bookseller; and(b) A librarian:

'Judge", in Parts II, III, and W of this Act, means,-(a)In the case of any procedings before the High

Court, a Judge of that Court:(b) In th€ case of any proceedingp before a District

Court, a Judge of that Court:"News medium" me:rns'a medium for the dissemination,

to the public or to a section of the public, of news, orobservations on news, or advertisemerrts:

"Newspaper" means a paper-(a)Containing news or observations on news; or

.(b) Consisting *ho[y or mainly ofadvertrsements-that is published, in New Trualallrd, or elsewhere,periodically at intervals not exceding 3 mont}s:

"Processor" means a pemon who prints or reproduces, orplays a role in printing or reprducirg, *y matter:

"Working day" means any day of the week other than-

provide that this form of wordsindicates the maximum fine foranyone convicted of theoffence. This form is used insome Australian jurisidictions

and has several advantages: itstands out more cleady on thepage, is much simpler to draft,and facilitates the review ofpenalties. It may also encourage

The redrafted Act

Clarity 30 23

more direct drafting of the provi-sicns creating offences.

. lndexes to long or complicatedstafutes (see, for example, New

DEFAMATIONs1

33

34

35

36

37

38

39

Review of damages

StatemenB in open couft

Part 5

Procedure

Powen ofjudge to call conferenceand give directionsFunctions ofjudge andjury in relationto meaning of matterParticulan of defamatory meaningParticulan in defence of mrthNotice of allegation that opinion notgenuinely heldTruth and honest opinion to bepleaded separately

Particulan ofill willNotice of evidence of bad reputetionClaims for damages

Perticulers in support of claim forpunitive damages

Proceedings deemed to be vexatious ifno intention to proceed to trialProceeding in respect of publicationin different media of same matterNotice of muhiple actionsConsolidation of actions onapplication of deGn&ntsLimitadon on subsequent acdons

50 Striking out for wanr ofprosecution51 Evidence as to publisher or printer52 General verdict byjury

P.rt 6Mircellaneour Provisions

53 Agreements to indemnify againstliability for deEmation

54 Act not ro derogate &omParliamenary privilege, etc

55 Amendment to Umitation Act 195056 Repeals, revocations, and

consequential amendmens

Schcdule 1

Publications Protected byQualified Privilege

Part 1: Publications Not Subjed to Restietionsin &aion 18

Part 2: Publiutions Suhjea to Restrietions inSeaion 18

Part j: Dejnitions

Schedule 2Enactments Amerdec!

Schedule 3En.ctrnenB Rcpeded

40

41

42

43

44

45

46

47

48

49

The Padiament of New Zaland en cts theDefasration Act 1992

PART 1

PRELIMINARY

PurposeThe puqpose of this Act is to amend the law relating to defamationand other malicious falsehoods.

le ComrnencementThis Act comes into force on 1 February 1993.

2 Definitions(1) In this Act, unless the context otherwise requires,

broadcaster has the meaning glven to it by section 2 of rhe Broad-rctins Act 1989:

defamation includes libel and slander;

24 Clarity 30

Good technical uniting is forgettable. It's not read fo,rpleasure and hardly ever discussed at cocltail parties.People read technical documents only when they needto perform a specific task or research a problem.Whether filing an insurance claim" trying to rmderstanda lease, or using a manual to instal a coryuter, peopleneed infirrmation presented cleady, precisely, and inthe first place they look. They judge a document'susability by how quickly it helps them corylete thetask or solve the problem. If the document does the jobwell, people forget about it. If not, pec'ple corylain.

No one ever intentionally writes a bad manual ordesigns a bad form. So, when people complain aboutbad documents, the writers are usually surprised. Afterall, they understood it. The writers, however, are ofte,nsubject-matter experts who understand the product, theprocess, and the terminology. Fint-time or infrequentusers don't have this knowledge and, consequently,find documents confu sing.

Writers also seldom have direct contact with users,relying instead on information from their companies'sales, marketing, or haining departments about users'needs and expectationst. Not only is this informationfiltered by others, but it is often not at the detailed orprocedural level that writers need in o,rder to help userswith their tasks.

How can writers ensre that people they have never metwill be able to rmderstand and easily use a document thatis still being developed? The best way to find out if thedocument works is by waiching people trse it, seeing whatp,roblems theyhave, and fixing thoseproblems beforuthedocument is published. Yet writers, and the companiesthey work for, often balk at conducting usability tests,

I Online Help: Design and Evaluatioz; Duffy,Mehlenacher, and Palmer; Ablex publishingCorporation, Norwood, NJ; 1992

A Practical Guide to Usability Testing; Dumasand Redish; Ablex Publishing Corporation,Norwood, NJ; 1993

seeing it as an expensive frill. Although it can beexpensive, it doesn't have to be, and it's never a frill.

This article will explain why usability tests are notonly cost-effective but simply good business. It willalso describe the usability tests that the DocumentDesign Center conducted while redesigning a form forthe US Internal Revenue Service and explain how theresults of those tests guided the form's redesign.('Before' and" after' versions appeff on the nextdouble page.) Although the article focuses on a form,the benefits of usability testing apply to 4nJ document,including such legal documents as conhacts, insurancepolicies, and legislation.

Why usability tests are important

Usability testing is most often thought of as a methodto help manufacturers identify problems in a productbefore it goes into production, often saving a companyfrom marketing a product that is doomed to failure. Inthe same way, such testing can identify problems indocuments, either in a new or redesigned documentbefore it is published or in an existing document tobetter focus the redesign.

Any product that goes on the martet withproblems isexpensive. In addition to the hrdware and worker-hours needed to correct the defects, the poor customerrelations that result must be rryair€d. poor documentsare no different. Although ".ability tests admittedlytake time and money, the benefits far outweigh thecosts. In fact, usability testing is cost-effective fortlree reasons.

. Testing helps vniters work efficiently by

. identifying the real problems, rather than theperceived problems, of any document;

. pointing out the magnitude of each problem,allowing nn'iters to make changes that have themostiryact; and

. showing writers possible ways of sslying theseproblems.

Tr

. Testing ensures that the finaldocument meets the needs ofthe intended audience beforetgoes to print.

' Testing provides measurableproof that the final documentworks, saving expensive patch-ing and rewriting later on.

Finally, the first mle of writing isto know your audience. Whatbetter way than to watch thqn usethe documenl -d trlk to themabout any problerns they have?Such first-hand information ismuch more reliable and enlighten-ing than any observatisrs fr,om thesales force, and more timly, too.

How to conducl ausability test

Although usabifity teds can be anexpensive involving asophistica0ed labmatory with two-way mirrors, video cemas, andpaid participants, lhey cen elso bedone less expensively and stillprovide valuable informtim- Theprimary requirements for anyusability test are siryly that

. the participants reflect actualusels,

. the participants perform realtasks, and

. each test be "-6616j1

fig srrrrc

way.

Although many methods exirt fortesting documents, two of lte bestare the think-aloud protocol andthe structured intervien -

The think-alwcl oro/iornl

In the think-aloud protocol, anobserver tests each pcticipmt indi-vidually and records the prticipmt'sbehavior and comm€nts. Theparticipant is given one or moretretsto perform using the document,such as filling out a form, lookingup information in a menrral, orsetting up an atrswering machineand recording a message.

Throughout the task, partici-pants are asked to think outloud, which provides infoma-tion not only m whnt they b,hlrttwhy - the thought processesthat lead to their actions, theterms they find confusing, theinstnrctions that are inadequateor misleading. In addition torecording comments andbehavior, the observer promptsparticipants to speak wheneverthey fall silent and queriesthem about any difficulties tohelp pinpoint problems thatthey have fouble rticulating.

Whenever possible, writers shouldconduct the 0est in the participants'own surrormdings. Doing so helpswriters to best see the steps, bothliterally and figuratively, thatparticipants must take to performthe task and helps identify anyconstraints. For example, a formdesigned on large paper or amanual that refers people to alarger manual night be quiteusable for someone working in anoffice but not for someone workingoutdoors lsing a clipboard.

T he structured i nteruiew

In structured interviews, eachparticipant is asked the same ques-tions about the document. Thismethod is quite valuable for deter-mioing whether people understandthe language used. For example, byasking participants to define termsor explain a phrase in their ownwords, writers can find out whetherus€rs are interpreting the documentcorrectly and whether importantinformation is being overlooked.

The structured interview workswell in tandemwith the think-aloudprotocol to ensure that atl potentialproblems have bee.n identified. ForeaemFle, if participants are able toperform the task correctly, the think-aloud protocol might not catch thefact that they misunderstood a term-By using a skuchned interuiew afterthe think-aloud protocol to askparticipants to explain the meaningof words o'r phrases, nriters can be

Clarity 30 25

When to conduct ausability test

Writers must resist the tempiationto complete an entire document andthentes it to confirm their belief thatit works well. As Dumas and Redishpoint out in A Practical Guide toUsability Testing, "Usabilitytesting is best used early and ofien,not once at the end when it is toolate to make changes."

Technical writing should be an

iterative process in which sectionsof the document are drafted, 0e,sted,

revised, and retested. Buildingtesting into the process uncove,rspotential problems early. Retestingis critical because solving oneproblem often creates another. Forthe document to be effer;tle, allproblems must be identified andcorrected.

Testing early and often is essen-tial and need not be expensive. Forearly drafts, writers can ask anytypical user - a colleague, afriend, a family member - to test

the document and provide feedbackbefore the document is too faralong. Again, the important criteriaare that these participants rqrresentachtal users, that they perform realtasks, and that each test beconducted the sa:ne way.

To illustrate the benefits ofusability testing, the rest of thisarticle describes a project in whichthe Document Design Cent€r (DDC),in conjunction with the US Bureauof l-abor Statistics and Westat,Inc., evaluated and redesigned aform for the US Internal RevenueService. In this project, usability0asting uncovered serious problemswith the exish'g form. DDC thenused the rezults of that testing toguide the form's redesign, creatinga form which tested significantlybetter than the original.

Testing a form for thelnternal Revenue Service

The US Internal Revenue Service(IRS) asked DDC to redesign its

26 The value of usability testing in document design: Anita Wright

,"- 2119O.pflfmdt ot tl! T@rylnlttral RruSdvir

It You Ar.Fnng Tlt.

Fo'ln bU ltlrilltnd llot Wittr

Your signetuE

Yorr (lt a foint ratum. bolh must sign.)

The original form

Sale of Your Home> Attach to Form 1(X0 lor year of sale.

) Sec scparate instructions. > Ptosse print or type.

OMB No. 1545-0072

fl991

tr NoYesNo

trD

b

23

45678a

Yort lid narrt ad inilid. (lf ioir$ rrhm. al$ givr spou$'3 llam rld inithl.l Li3l nm Your social sccwily numba

Fi[ in Yotr AddressOdy It Yan Are FilingThb Fonn by ltsettand Not Wtlr Your

Tar Rstum

Spou$'s social srcurily numbet

Cily, lom tr Fnsl ottb6. stato. gd ZIP code

Cauton: lf the home sold was financd (n whole or part) from a moftgage crcdit certificate or the proceeds ot a tax-exempt quatifiadtunq,le! mglowe additioml lq. @t fun Mt Recapturc of Fedenl Mongage Subsrdy, for detaits.General lnformation

la Date your lormer main home was sold (month, day, year)

Face amount of any mortgage, note (e.9., second trust), or other financial instrument on which Iyou will get periodic paym€nts of pirrcipal or inter€st from this sate (see instructions) ll!l'lave you bought or built a new mah horne?.

either rnafor horne rcnted otrt q business? 'Yes," see instructions.) Yesnot amqlnts dedwt as

selling price of horne. (tlo rpt -Et do p€rsond pope.ty it€rns that llqu sold with yorr home.)Expense of sale. (lnclde sales cormEsiqsr aOvertttrg, l€d, etG).Amount realized. Snbtact lino 5 trcrn line 4Basis of home so6 (see irsmai<rs)Gain on sale. Subtzct kre 7 norn llto 6o lf lin€ 8a is zero or less, st@ hers and attach tds fom to yow refiJrn.o lf line 2 is Yos," you m$ct go to Part lll or Part M, wtrichwer applies. Othenilis€, go to line 8b.

b lf you ha\rsn't replactd ycxlr hqne, do you pEr to do so within the radacement period (see instructions)? E ves I ttoo !! "Yesl stop hor€, attacfi $b iorn to yqr Eturn, and see Addtonal Filing Hcquirements in the instructions.o lf 'No,'you mud go to Part lll or Part M 'flhichsv€r appliea.

9a Who was age 55 or older on dats of sal€?. E you I your spouse E Both of youb Did tlp person who was ag€ 55 a older own and use the property as his or her main home br a total of at

lsst 3 years (except for short ab6enc6) ol ltre S-year period before the sale? (lf "No,' go to part lV now.) fl Ves E ruoc lf llrc 9b is '{fee," do you d.ct b teka the one-trne sxclusion? (lf "No," go to Part lV now.) [ Ves E Nod At time of sale, wtro owned th€ horn€? . E you D your spouse E Both of youe Social security number of spousa d tirne of sale il you had a difier8nt spouse lrom the one

above at time of sale. (lf you wer€ not manied at time of sale, enter ,,None.") . . >I Erchsion. Enter the rmatlcr of lin€ 8a or 9125

ol New10 Subhact line 9f lrom line 8a

r lf lino 10 is zero, stop t€rs and attach tiis form to your return.o lf line 2 is "Yes,' go to line 11 now.. lf you are repoding this sal€ on the installment method, stop here and see the line 1b instructions.o All others, stop h€r€ ard enter tlre amount from line l0 on Schedule D, line 2 or line g.

11 Fixing-up expenses (sce instnrctions lor time limits)12 Adiusted salcs price. Subtrdc{ line 11 from line 6 .

l3a Me you mored into new home (nrcnth, day, yean >l / / I b Cost of new home14s Add line 9f and line 13b .

b Subhact line 14a from line 1 2. ll ihe result is zero or less, enter -0-c Taxable gain. Enter the srnallor of line 10 or line 14b .

. lf line 14c is zem, go to line 15 and attach this form to your return,

. It you aro repoding this sale on the installment m€thod, see the line 1b instructions and go to line 15.

. All others, enler the amount trom llnc ltlc on Sehedule D, line 2 or line 9, and go to line 15.Postponed gain. Subtract line 14c from line 10

bacir of nsw home. Subtract line 15 from line 13bl{ail !1$1.O9a1tlat ot.perpry, I d.clar€ that I hsve eriminod this fom, including attachmanb. and to thr b6t ot my knorvtedge and bclief. rt i3 true

cor€cl, afid comolste.

t5't6

Oat6

--))

Pmm sddr8ss (m., str€ol, ard apl. rc.. rurd mt6. or P.O. box no. il mail is not detivored to slrct

Fo. Prpcrrcfk Beductlon Act l{oticc, sa. slperat! inrtructi,ons.

Spousa's s€naturs

Departrnent of the Treasury

Sale of Your- lnternal Revenue Service

Home

Clarity 30 27

OMB No. 1545-0072Attachment Seqtrence No. 20

The first page of the two-page revised lorm

Form

2119

Read thisfirst

Give usinformationaboutyourself

If you orc 6ling lhisform with your tsxretum, you ean skiplho addrcss lincs.

Give usinformationabout yourhomes

Calculatehow muchyou gainedon the sale

Do not insludcamount! you dcductas moving Gxpenscs.

Rcad thc instructions bcforc You

to fill out this form and whethcr

Print or type all information.

I 993

begin. They'll tell you whcrc to gct thc informationyou need to fila any other forms.

5. Your cuncot arailing addrcss (slt€cr. lpanmcnl, rural routc, or P.O. box)

6. City, *aa and ZIP odc

7. When did you scll your former main home?

& lf you a,re providing the frnancing for thc buytr of your formcr main homc,whot is lhc total anount of thc loan?

9. Havc you bought or built snodrcr main homc to r€plrcc thc onc you sold?

E Y.". rAthen did you movc in?

E No.

10. ls or was any part of eitlrer your old or ncw home rcnted out or u:ed for busincss?

E yo. You may need to fill out Form 4797. Scc rhc inswctions for line 10.

E No.

I l. Whd wg the sclting price of your former main home? Do not include the pricc ofpcrsonel propcrry i ns that you sold with your lromc.

12. Whel wcrc your sclling cxpenscs? Include salcs comrris:ion1 advcAising, lcgrl, ctc.

Sublract Iinc 12 from linc ll. Thb b lic rmountrcalbcd.

14. Go to thc instnrctiou for linc ld md follow lhc dircc'tions !o calelldc tlre basig

of thc home you sold, Writc your elu*tr hcrc.

lJ. Subtracl line 14 from line 13. lflinc l4 is morc than linegdn on salc.

13, wrib 0. This is your

15. Is linc l5 zero?

E y." Go to Sign this form on thc back of this pagc.

E Ho, and you havc bought or buill moltrcr home lo reptacc thc onc you sotd.

Go to linc 18.

El No, and you havc noi bought ot buih anolhcr homc to reptrcc thc onc youmld. Go to linc 17.

17. Do you plan to buy or build anothcr llornc within drc next 2 ycars?

E yo Sec How to File on pagc 2 oflhc instrsctionr foradditionol filingrcquircmcnts. Tltcn, go to Sign thir form on ihc bck of lhh pogc.

E No. Go to linc lt.

s. llmonth doy

ll.

12.

13,

18. Do you want to takc lhc onc-timc sxclusion of glin for pcople q; 55 or oldcr?Choosing lo trka thc onc-limc exctusion of gain is an important decirion. Read

thc inrtructiorr for lhcg 18-23 befort dceiding to takc lhe cxclusion.

E y.* Go to linc 19 on lhe back of lhis prgc.

E No. Oo to linc 24 on rhc back of tlris pagc.

l. Your fust namc, middlc initial, Ilst namc

3. lf you are filing jointly, your spousCs lirst narng middle hitial, hsl nam€

Form 21 19 Oee3)

2g The value ot usabitity testing in document design: Anita Wright

Form 2119, SaIe of Your Home,which taxpayers use to report theircapital gains or losses when theysell their homes. This form is onewhich the IRS believed thattaxpayers understoird and on whichtaxpayers made few errors.

Before beginning the redesign,DDC condrrcted a usability test on theoriginal form to identiff my existingproblems. To be sure we addressedthe concems of all users, we testedthe form with tax practitioners as

well as with typical taxpayers.

festing practitioners

To identify thepotential prcblemswith Form 2119, we firstconducted telephone interviewswith 10 tax practitioners, such as

C€rtified Public Accountants or taxlawyers, who help taxpayers filetheir tax returns and who, there-fore, would be familiar with theform. Interviewing practitionersgave us a professional persp€ctiveon both the areas of the form thatthey fovnd houblesome, as well as

the difficulties that they sawtaxpayen having.

Using a structured interview, weexplained the purpose of the test,assuring practitioners that theircomments would be kept confiden-tial; asked about the practitioners'backgrounds, levels of education,and work experience; and askedabout their experiences with theform itself, specifically the termsand line items that they foundconfusing, as well as those thatthey thought taxpayers foundconfusing.

We found that although mostpractitioners said that they under-stood the form completely, theyoften disagreed about the meaningof specific terms and line items.Here are two items that we askedthem to explain and a summary ofwhatthey toldus.

Caution: lf the home sold wasfinanced (in whole or part) froma mortgage credit certificate or

the proceeds of a tax-exemptqualilied mortgage bond, youmay owe additionat tiu. GetForm 8828, Flecapture ofFederal Mortgage Subsidy, tordetails.

. 40 percent of the practitionerssaid they didn't know what thislinemeant.

. 20 percent said this line meantthat the mortgage had beensubsidized by the federalgove.txment.

. Each of the remaining 40percent gave a different inter-p,retation of the line.

Line 7 Basis of home sold(see instructions)

. 30 percent said that taxpayersshould fill in the blank on thiscryptic line with the amountpaid for the home plusimprovements.

' 10 percent said that taxpay€rsshould fill in only the amountpaid for thehome.

. Each of the remaining 60percent offered a variation onwhat could be added to orsubhacted from the cost of thehome.

If the professionals were inter-preting terms differently, thenaverage taxpayers were certain tobe confused. Practitioners agreetlthat most taxpayers were confusedeither by the terms themselves or bythe IRS's specific meaning of theterms. For exaryle, the practitionersthought that, while taxpayersgenerally understand the concept offixing-up expenses, they do not knowwhat theIRS considers to bea fixing-rp expense. Without that knowledge,taxpayers cannot correctly fill outthe line that asks for fixing-upexpenses.

Iesting taxpayers

To find out how well typicaltaxpayers understood the form, we

had, 2I people fill it out on thebasis information in one of threescenarios provided by the IRS.These people were tested one at atime using a think-aloud protocol.

The scenarios provided the raw dafa

- such as purchase price of both thehome sold and the home bought,date of the sale, and the dates andamounts of any remodeling that hadbeen done

- but the participanthad to decide how to use the datato answer the form's questions. TheIRS considered these sce,narios tobe basic e,nough that participantswould be able to fill out the formwithout knowing tax law.

When participants had finishedfilling out the form, we followedup with a structured interview,which asked many of the samequestions that we had asked thepractitioners, such as which termsand line items were confusing andwbat specific terms and line itemsrneant 0o them-

Tarpayers pertormance

Of the taxpayers we testat, lOVo(two people) performed well. Onlyone person filled out the entireform correctly. One other personalmost completed the form correctly,making only one error on a line thataffecte<l no other line on the form.Therefore, 95% of the taxpayerstestedfilled out the form wrongly.Again, this was a form that the IRSbelieved had few errors.

In addition, we found that mosttaxpayers were rmcomfortable withthe coryleted form. Many felt theyhad done something wrong -some even knew exactly wherethey had gone wrong - but theydidn't know what was wrong orhow to fix it.

The results also told us thatparticipants were most confused bythe same three line items no matterwhich scenario they used.

Line 1b Face amount of anymortgage, note (e.9., second

.:;'*&,

trust), or other linancial instru-ment on which you will getperiodic payments of principal

or interest lrom this sale (seeinstructions)

' To correctly answer this it€Nn forall three sce,narios, prticipantsshould have left fte lias $lenk,and almost everyone did.However, because the partici-pants were thinking aloud, wefound out that they left il blanknot because they knew that was

the right response, but because

they didn t rmderstmd ufrat the

line meant. They were conftsedby whether'mutgege' referredto the amount of the originalmortgage on thehome or to the

amount remaining when the

home was sold. The word 'get'also bothered them. Th"yunderstood a mortgage to besomething people pay notsomething they get.

Line 7 Basis of home sold(see instructions)

. This line caused more erns6 than

my other. Because no participantwas familiar with the phrase"Basis of home sold' andbecause the line ends with 'seeinstructions", the participantsturned to the IRS Instruaioru

for Forrn 2 I I 9 . tlae instructionsbegan by explaining what to"include" and vihat to "subtract".

However, participants wouldhave to read eight more linesbefore the inshuctions specifiedthe number to start with.Testing showed us that mostpeople didn't read that far.Instead, prticipants siryly tooktheir best guess at what inform-ation the IRS wanted. Becausethe number they entered on this

line affects four other lines,errorsnow multiplied.

Line 10 Subtract line 9l lromline 8a

. This line seems shaightforward.How could any writer improveit? The problem occurs because

only a few taxpayers are requiredto fill out line 9f. So participantswho had correctly skipped the lineand, therefore, did not have anumber to subtract were,r't surewhat to do.

Redesigning the lorm

Testing the 1991 form told us thattaxpayers were malctng mistakes onthe form, told us where they weremaking them, and wfty. These testresults guided the form's redesigu.For exaryle, because testing told us

that most elrors came from threelines on the form- lines lb, 7, and10 - ou p,rirnary goal was to reducethose errors on the revised form.Te$ing also told us that pra.ctitioners

md taxpayers alikewere confusedbythe financial terms on the forn.Therefore, another goal was tosirylify the language. Finally,hearing people sigh, moan, and

mutter before they even beganfilling out the form told us thrt theform n# to look less intimi&ting.

Tines 1b, 7, and 10 had generated

the most errors on the form. Mostparticipants had left line lb blankbecause they didn't rmderstand it. Tohelp themwe changed this line from

Face amount ol any mortgage,note (e.9., second trust), orother linancial instrument on

which you will get periodicpaymenb ol principalor interestlrom this sale (see instructions)

tD

lf you are providing the financ-ing tor the buyer ol your formermain home, what is the totalamount of the loan?

Testing had told us that "line 7Basis of home sold' had confusedboth test participants and practi-tioners more than any other lineitem. hactitioners had predictedthat taxpayers would have troublewith this line, and 81 percent of the

test participants did indeed makean error here; this in turn affectedforn other lines. Improving this one

Clarity 30 29

line would greatly improve theerror-rate for the entire form.

Because testing had told us thattaxpayers didn't know whatnumbers to use to calculate "Basisof home sold", we incorporated amini-worksheet into the form'sseparate instruction page to guidethem through the calculation. Thisworksheet shows taxpayers whatnumber to start with and whatnumbrs to add and subhact.

On the form itself, we changedthe text from 'Basis of home sold(see instnrctions)" to "Go to theinstructions for line 14, and followthe directions to calculate the basisof the home you sold. Write youransw€r here'. (Line 14 is the equiv-ale,nt to line 7 on the revised form.)

On line 10 of the 1991 form,which directs taxpayers to "Subtactline 9f from line 8a', we found outthat taxpayers didn't know what todo if they hadn't needed to fill outline 9f. To help them, we added a

s€ntence explaining what to do ifthey had not filled out that line.

We also tried to simplify thelanguage where we could.Although most of our participantswere well-educatd (76 percent hadattended or coryleted college, and

another 14 percent had attended orcompleted graduate school), theyhad difficulty understanding theterminology on the form. Hbwever,because rewording often had taximplications, we had to leave manyterms unchenged. These continuedto cause problems in the next rormd

of testing.

In addition, we made manydesign changes to help people navi-gate through the form more easilyand to make the form look lessintimidating).

We then modified the inskuctionsheet to correspond to the rede-signed form and to give taxpayers

more information. Among otherchanges, we

30 The value ol usability testing in document design: Anita Wright

. arranged the inshuctions in theorder that taxpayers wouldneed them, from the purposeof the form to how to file; and

. added information fo'r more lineitems. The 1991 instructionsaddressed 27 percent of the lineitems on the form. The revisedinstnrctions addressed 7 6 prz..cent

of the line items, covering alllines except those requiring a

straightforward calculation or aYes/No response.

festrng the revised form

To ensure that the revised fmmworked, we tested it with 51taxpayers. In this round of 1"s1ing,

however, time conshaints dictatedthat we not use struchrred inter-views or think-aloud protocols.Instead, we tested the taxpayers ingroups of 10 to I2,havrng them fillout the new form based on datafrom the same thee scenarios usedto test the original form,

Because we had chenged fewterms on therevised form, weknerw

that taxpayers would still haveproblems with the form- Overall,however, we formdthetperformed significantly bctt€r mthe revised form than 6ey hed mthe original. Of the taxpayers uAotested the revised form,tterewas a

45 percent increase in thme uAoperformed well over those c,ho hedperformed well using the originrlform. In all,55 percent perftrm€dwell, compared with 1O p€rc€ntwho had performed well with the1991 fo'rm. Specifically, 29 perenlcompleted the entire form coneclly,compared with 5 percent whocorrectly completed the originalform. As before, the balance whoperformed well made minor errorsaffecting no other line or only thelast few lines.

We also found that, unlike theerrors made on the 1991 form,which were grouped primarily ontbree lines, the erro'rs on the revisedform had no general pattem. Some

people subtracted wrong lines;some people had touble subtnactinglarge numbers from small numbers;some people put an answer on thewrong line. But because we didn'tuss 3 ffoink-aloud protocol whentesting the revised form, we don'tknow why participants made theseerors.

In general, we found that peopleusing the revised form made fewerconceptual errors and seemed tounderstand the form and theinstnrction sheet better. In addition,when we compared the taxpayersperformance on the lines thatcaused problems on the 1991 form(lines lb,7, and 10) with the corre-sponding lines on the revised form,we found that their performancegreatly improved.

Participants using the revised frmalso appeared less confused andless frustrated than those whotested the l99l form- Even withoutmicro-level data perticipants' bodylanguage zuggest€d that nAile therewere mce line items m therevisedform, they found il easier to fillout. Most participants using therevised form seemed to simplyfollow the instructions and moveeasily through the form, unlikethose testing the 1991 form, whooften seemed confused.

The value of conductingusabilry tests on Form 2119

In this project, usability testingb€nefited both DDC staff and theIRS. For our writers, the benefitscoincided with those listed at thebeginning of this article.

' Testing helped us work effi-ciently by

. pinpointing the most criticalproblems - the three lineitems md the terminology;

. pointing out that taxpayersmade the most errors on line7, allowing us to correct themost errors with the fewest

changes; and

. showing us why people made

the errors they did, which' directed the ways we

attacked these problems.

'. Testing ensured that the revisedform did indeed meet the needs

of the audience.

. Testing provided measurableproof to the IRS that the revisedform worked significantlybetter than the original.

For the IRS, testing identifiedproblems with the existing form.Without testing, the IRS wouldhave continued to believe thattaxpayers rmderstood the items onthe form and were making noerrors when, in fact, 95 percent ofhc peofu we tested filled out theoriginal form inconectly . Because

no form exists in a vacuum, theeffects of these errors are wide-spread. Numbers from Form 21 19are used on IRS Schedale D, whichin turn are used on the Form 1040.

By reducing these errors, the IRSwill

. capture revenue lost by taxpay-ers' incorrect reporting,

. reduce costs ft,om telephone callsmade to and from taxpayers toclarify information or answerquestions,

. improve the statistics generatedfrom tax rehrns about individ-ual income and the USeconomy, and

. improve the decisions based onthese stafistics.

For both DDC and the IRS,conducting usability testing was

simply good business. But let's notforget the users. For the taxpayers,testing ensured that they have aform that is more easily understood

and less frustrating to complete -a form that is cleady more usable.

In our zeal for clarity we must notdistort the realities of legal practice.

At the I-aw Society's last annualconference the Vice-Chancellor,Sir Donald Nicholls' won eesy

applause for his conderrmatim ofthe White Book (ClaritY 29, P.4),but he ought to know that it isjustnot possible to rerrrite this 'in a

form that anyone can und€(stend'.Lord Renton asked the PrimeMinister to insist that all legislatimshould be "clear, simple, conciseand nnambiguous' (Clnrity 29, p.5),

which he ought to know is another

impossible task. Dr Robert D.Eagleson's article Judicial decisions :acts of communication (Clarity29,p.11) presents a travesty of thejudicial function and is open to anumber of objections. Here are

soreof then

The rticle is vnitten as if all judicial

decisions are of the same tYPe. Infact they are of widely differingtypes. Advice on how to Presentthem must differ accordinglY.

Dr Eagleson says 'the purpose ofa [judicial] decision ... is tocommunicate the law'. It is not.

The purpose is to resolve a disPute

by applying the law to it. The

dispute may be about the facts, orthe law, or both. Presentation of the

decision will reflect this.

The article assumes the Parties to

the litigation form fhe only audi-

ence. However, their advocates

also form an audience' as does theprofession at large and indeed thepublic at large. The waY a judicialdecision is formulated must iake

accormt of dl the audiences.

The author confu ses rmderstanding

ajudicial ruling with accepting it as

reasonable. He equates a case where

antagonism is aroused because

"organisations... have fallen

back oncomplicated

p'rovisions insmall print to

snatch avictory overyou'with a

case where one side cannot makesense of what the decision maker issaying and so feels disgruntled.The two are obviously different.

Then there is the usual blanketassertion that nwe should use the

active rather than the passive'. Butsometimes the passive is befrer, as intbe very example Dr Eagleson gives.

He says, as if the two variantsmeant the same, that an ordersteting "You must rehrn the goods

by 3O November" is preferable toone saying 'The goods must bereturned by 30 November'. Theydon't mean the same. The firstsuggests, without being quite clearon the point, that the goods must be

rehrmed by the "yott' in question and

no-one else. The second allows forthe possibility that the person might

die or become incapacitated before30 November, or the goods mightpass into the possession of someone

else. There is a possible difference inthe persons bomd by the order.

Technical tenns, says Dr Eagleson,

should always be explained. But dowe really want judgments to belengthened, and the time taken toprepare them extended, so thatjudges can p€pp€r them with littlehomilie.s on the relevant law? Isn'tthat ajob bett€r done by the parties'

legal advisers? (In the rare case

where a party ap'pears in person Iaccept that judicial explanationsmay be needed.)

Dr Eagleson says it is thosejudges *trs mske themselves clearwho impress 'because the hearers

go away satisfied'. He adds: "TheY

have understood the law - and that

is wbat they came to cowt for'. In my

experience of litigation, extending

over more than forty years, Partiescome to coud to win their case. TheY

go away satisfied when they ftave

Clarity 30 31

won the case, and not othenvise.Understanding the law is littlecomfort when your case has gonedown, whether you think it wentdown justly or unjustly.

0f course these criticisms do notmean I am unsympathetic toattempts to improve the form and

quality of judgments. I agree whenDr Eagleson says that judges mustdetermine rigorously what is the real

issue in the case and how the law

ryplies to it. I notewhat is reported inClarity 29 (p.5) about Dr Eagleson's

rmderstandable dissatisfaction thatin the inryortmt Mabo case there are

five separate judgments totallingsome 200 p4ges. But in his rticle DrEagleson misses the one point thatreally could make a significantdifference to the quality and usefrrl-ness of mmy judgments, namely the

inclusion of a statement in legis'laiw fom of fte nr(s) of lnr applied

by the judge. This is particularlyimportant when the applicable lawis in dispute between the parties.

In this connection I refer thereader to the passage on interstitialarticulation on page 20 of myauiicle Statute I'aw Reform - isanybody listening? also published

tn Clariry 29. I zuspect Dr Eagle-son would condemn the phrase

int erstitial aniculation as "inflated"or infected by what he considersthe vice of 'brpadth of language".So I will conclude by explainingwhat I mean by it in conhacted ornarow language.

The adjectiv e interstitial refers to

the interstices within a legislativeformulation. Dr Eagleson mightprefer to call them gaps, but there

is a difference. 4 sffin_link fence

has interstices between the links; itdoes not have gaps unless it isbroken. The interstices in a passage

of legislation mark the Placeswhere the drafter has not felt able tobe more detailed. Yet the court maY

find more detail necesarry in order

to decide the point at issue' If a

previous reported decision does notsettle the point, the court must do

so itself. What I am suggesting is

that the cornt should do itby articu-

32 The value of usability testing in document design: Anita Wright

Iaing the missing words. It shoulddo this in legislative form, that is bydevising a form of words which the

drafter might have used if he or she

had gone into more detail.

This process of articulation isoccasionally carried out by judges

today, but it is rare. Yet it hasgreat advantages. If either party

wishes to consider an appeal on apoint of law, the articulationmakes it crystal clear just what the

point of law is. It is that thejudge's articulation is an incorrectfo'rmulation of the missing statu-tory rule. In future cases, if thejudgment is reported or otherwiseavailable for reference, the artic-ulation makes it clear just whatthe case decided. The future courtmay follow it or (if it has thepower) overrule it.

If the law in question is laterreduced to code form (as I believe it

should be whenever this is helpfrrl),

the codifier can use the articulationas prt of the code. Wide availability

of such articulations would simpliSthe process of codification and make

it more likely to be carried out.

Finnlly, the articulation would tellthe litigant precisely what rule oflaw the judge had used to decidethe case. I'm sure Dr Eaglesonwould approve of that.

Fhancis Bennion is recognised fmhis work on statutory interpret-ation. It is unexpected, then, to findhim lapsing into misinterpretatimand self-contradiction in hisriposte, which he bas labelled well.It has more the marts of a quickthrust than a considered response,as his introductory, tetchy parriesat Sir Donald Nicholls and LordRenton reveal.

My article, which was written tothe tight limit of 15(X) wordsimposed by the original editor, wascommissioned to encapsulate theessence of a 7-hour workshop oncommunicating judicial decisionspresented at their request tojudgesand registrars in one of our courts.This segme,nt had been preceded bya 3-horn workshop on making dec-isions, led by a judge. The work-shop has since been repeated forjudges and registrars in a differentcourt.

I do not give these backgrormdfacts to excuse the article. It oughtto be capable of standing on itsown and it certainly should notcontain error. But the facts bavesome pertinence to a discussion ofMr Beirnion's riposte.

1. Mr Bennion is mocking words

whenheargues that the

purpose ofjudicial

decisions isnotto communicatethelawbut'to

re.solve a dispute by applyingthe law to it'. Because theresolution is in terms of thelaw, and not on any otherbasis, judgments set out thelaw. Judges and registrars -or at least the ones I was in theworkshops with - do notsimply declare the finding, butalso add their reasons, andthey see it as e,ssential that thefinding emerge from thereasons. The participants inneither workshop disputed thattheir role was to make the lawclear to the parties so that theywould recognise that thefinding flowed unequivocallyfrom it and was proper.

Mr Bennion himself wouldseem to lean in this direction.Later in in riposte he arguesthat 'the inclusion of a state-ment in legislative form of therule(s) applied by the judgecould make a significantdifference to the quality andusefulness of many judg-ments", and he renews hisadvocacy of "interstitialarticulation'.

In its favour, he asserts that"the articulation would tell thelitigant precisely what rules of

law the judge had used todecide the case". At this pointto separate resolution of thedispute and commrmication ofthe law seems to be splittinghairs.

L Mr Bennion seems to wantauthors to cover every aspectof a to'pic whenever they write.He chooses to ignore socialcontext and current concerns.The fact that my article doesnot mention other members orpotential members of theaudience does not mean that itassumes that "the parties to thelitigation form the onlyaudience'. Instead it takes forgranted that lawyers alreadyreceive sufficient attention inthe courtroom: their causedoes not warrant furtheradvocacy. The article and theworkshorp were concerned topromote a greater awareness ofthe partias to the litigation andan understanding of theircondition and needs. It doesassurrc - I think justifiably

- that if they can grasp thedecision, then their advocatesshould be able to do so. Thereis also a good probability thatmany in the public at large willbe able to follow the mling.

In his opening paragraph, MrBennion takes Sir DonaldNicholls io task for wantingthe White Book to be written"in a form anyone canunderstand", but he se€ms to

decisions be formulated to'take account of all theaudiences'.

The article does not make "theusual blanket assertion" (MrBennion's words) that "weshould use the active ratherthan the passive' and MrBennion's use of these wordsconfirms the hastiness of hisresponse. I was careful topreface my remarks on voicewith the words "when we are

requiring someone to dosomething". It is onlY in thiscontext that the stated Prefer-ence for the active should beread and I selected this item as

an example of lmguage issues

in the short article because itoccurs frequently in thedecisions of the workshopparticipants.

Nor did I imply, as hesuggests, that the two voicesmeant the same, but insteadconcenhated on the fact thatthe actor (or agent) wasexpressed in the active but notin the reduced version of the

passive, which is used so

commonly.

Mr Bennion's argument that,the passive is "better" in thisparticular context is shakY. Atleast the active "You mustreturn the goods bY 30

November' caphres the 9O+%

who survive to fulful therequirement. By mentioningno-one, the passive 'the goods

must be returned by 30November' could allow every-one to evade responsibility. Ifit is argued that this is an

over-literal interpretation ofthe passive, so also is MrBennion's interp'retation of theactive - an interpretationwhich very few in thecommunity would adopt. MrBennion is wielding a two-edged sword in this riposte.

(In passing, I could add thatwe did discuss and confirm

uses of the passive in theworkshop. That I might do so

is confirmed by my otherwritings on plain English. MrBennion might have acknow-ledged this.)

Mr Be,nnion disagrees with myproposal thatjudges and regist-rrs should explain technicalterms. Hebelieves that this task

might be better undertaken bythe parties'legal advisers butgives a desire to keep judg-ments shorter as the onlyreason that the responsibilityshould be shifted from judgeto adviser. However, havingjudges and registrars providethe clarification encouragesthem to be controlled in theiruse of terms and guarantees

thet all sides receive the same

me.$sage.

Mr Bennion nay have longexperience with clients but itmay not always have beenvery illuminating for them.Clients often hold back in theprese,lrce of their professionaladvisers, especially bewiggedones. They can be overawedand so may not reveal all theirthoughts. Patients - if I mayuse another example - oftenenquire of nurses and pharma-cists rather than their medicalpractitioners for much thesrme feasons.

Obviously, in a court case

winning is the immediate con-cern, but that gives way laterto other int€rests, especially ifone has lost. Then it is thatunderstanding takes on moreimportance. It is not just a

question of comfort, as MrBennion suggests, but can also

be a crucial determinant forfuture action.

Clients' failure to complain tobarristers that they did notrmderstand the ruling does notmean they do not comflain at

all nor that they do not want tounderstand. Even the winners

Clarity 30 33

mtheMabo case have criticisedthe obscurity of theruling.

In an argument it is wrong to

atkibute to others lower stand-

ards than one's own, as MrBennion does when he takes up

interstitial articulation. Heknows my unitings. I have never

condemned richness of langrrage

itself as a "vice" but, as the

article itselftestifies, I oppose a

mere display sf language forself-aggrandisement or personal

image without concern forother human beings. Never have

I downgraded precision; always

have I insisted that claritymust accompany accuracy, not

replace it.

In the article I propose thatjudges explain technical terms,

not substitute inexact wordsfor them. Hehas no grounds to

say that I would prefer gapsto

interstices. To caricature an-

other's position and thereby

seek to overthrow it by mormt-

ing a fake argument isunscholady.

In the midst of this sorrysegment, Mr Bennion once

againborders on the contradict-

ory. He had argued eadier thatjudges could leave it to lawyers

to explain hshnical terms to

their clients: the judges need

not trouble themselves and

lengthen their judgments. Yet

when he is writing to the

learned legal readers ofClarity, he inserts a longexplanation of interstitial artic-ulation, even though readers

had read about it in the previous

issue and in his publications'

But this inclusion of the expla-

nation has a happy side. Itshows that Mr Bennion does

not follow his own PrecePtsbut rather practises what Ipreach.

7.

3.

4.

5.

34 Clarity 30

Good document organisation isjust as important a plain Englishprinciple as shont sentences. Simple,understandable language (and time)is wasted if the document as a

whole is muddled and confusing.

There are severalplanning docu-ments, most ofwhich centre onchoosing therightstucture (forexarqrle, chon-ology, geog-raphy,

or the alphabet).The choice ofstnrchue will beinfluenced by thepurpose ofthedocument.

techniques for

lanvyersfrequently use chronology as thetrasis for setting out, say, a letter toa client, or the facts of a case in a

headnote or report.

Margot Costanzo

In her excellent papeftrck LegalWriting (Cavendish to6lishing,f10.95), Margot Costanzo, a fumersolicitor and now teacher of legalskills, includes advice on stnrcturingdocuments and outliniag.

Using a judgment as an exaryle,she shows that a chronological listof events can leave the readeruncertain of what is coming.Which fact is relevant to what? She

recommends that we start not withthe first event, but with a sentenceexplaining what is in issue. Thenthe reader is ready to pick out thesiguificant elements of the story.

Her advice about preparatoryoutlining is to break the task intofour stages, and to be prepared to

repeat some of them:

I Start stage I by brainstorrning;end it with a list of every pointyou need to cover. Settle onthe basic vocabulary - forexample, how you will refer tothe parties - and decide whichterms of art need explanation.

2 Write down the problem inlanguage which is "simple,clear, concrete and active". Youmight at this stage want to noteyour tentative conclusions.

3 Re-order your initial list into

Using a large sheet (preferablyA,3, unless you are neat even indraft) in landscape view, you put inthe centre a simple graphic versionof your topic: if you were writing aletter about a lease, for example,you might sketch a building. Thenwith colow, shape, and size (biggerand more colourful near the centxe,

for the most important concepts)you note your thoughts onto spokes

radiating from the central image. Thernain headings surround the centre,and secondary and tertiary pointsspnead out like fingels frm them.

Mind maps can be used to getdown first thoughtsquicHy and laterto

sort them out.Theyiqroveonordinary prepar-

atory writingbecause you can

add to the map,and connect linked

parts, very easily.They allow you to

consider all yourideas at once, andget a clear idea ofthewhole of your

topic. If you have never tried them,don't be put off by the apparentsimplicity of the idea. It is one ofthe most useful things I have everlernt.

Word processors

Many word pro@ssors include anoutliner function. Others can bebought separately.

These enable you to plan yourdocument on the computer. Youcan move around the outliner, anddo things with il - like hide partsof the outline so you can see themain headings, that you probablycannot do with an ordinary wordprocessing progam.

However, I was frustrated by thedifficulty of learning my outliner,and I doubt they justify the effortinvolved (unless you enjoy usingcomputers) or that they are betterthan pencil and paper.

sectims, under notional head-ings, liniting each section orsubsection to about sevenitems to help the reader'sm€mory.

4 Finally (and after repeating theeadier stages as often as neces-

sary), write your conclusions.

Margot Costanzo is a firmbeliever in not uniting too soon.Only do a first draft, she says, onceyour recommendations are clear inyourmind.

Tony Buzan

Tony Buzan's mind maps are akind of outliner. (If you are notfamiliar with this attractive anduseful means of organising think-ing and developing new ideas, youcan find it in a number of hisbooks, the latest of which isRadiant Thinking (BBC Books,hardback, fI6.99).

q- Jtdposgil 1 a-- lrov+nmssU -,]-6@\llffi/ L@.-

/\\=

Organisingdocuments

Here is an extract from a typicallease (in this case of a flat in aSurrey block):

2. The Tenant hereby cov-enants with the Lessor andwith and lor the benefit olthe owners and lesseesfrom time to time duringthe currency of the termhereby granted ol the otherllats comprised in theBuilding that the Tenantand the persons derivingtitle under ham will at alltimes hereafter observe therestractions set fiorth in theFarst Schedub hereo

3. The Tenant herebycovenants with the Lessoras lolloursi

(1 ) ...

4. The Tenant hereby cov-enants with the Lessor andwith and for the benefit ofthe owners and lesseeslrom time to time duringthe currency of the telmhereby granted of the otherllats comprised in theBuilding that the Tenantwill at all times hereafterduring the said term sorepair maifiain uphold andkeep the Flat as to afford allnecessary support shelterand protection to the partsof the Building other thanthe Flat and to afiord to thelessees of neighbouring oradjoining flats or premisesaccess lor the purposesand conditions set out inClause 3(9) hereof

These clauses should have beennumbered 2(a)-(c), so that clause 2related to tenant's covenants in the

same way as clause 5 related tolandlord's covenants. Moreover, thewords common to all parts could betaken out of the individual zubclausesand wriuen once as a lead-in lineapplicable to all of them" This wouldsave much confusing repetition.

Nor is there any justification forhiving offone set of covenants to aschedule at the end whilst listinganother set in the main clause.Apart from the logic, it would beconvenient to have them adjacent.

"Defining"the parties

Definition clauses customarilybegin with the parties. So we have

'The Company [or Landlordor Assig neel" meansNogood Limited whoseregistered ottice is at ...

But it is a mistake to heat this as

a defintion in the same way as, foreaample, the definition of 'theflat'. The flat is defined as (say) 56Kingfisher Court, and so it remainstbroughout the text and throughoutthe term. The tenant is named xNogood Ltd, but is not always thatcompany, either throughout thedocument (as successors in title areincluded - by law ifnot expressly)

Clarity 30 35

or throughout the term (if the lease

is assigned).

It is more accurate to se.parate the"details" (strictly, the'originaldetails") from the "definitionsn.

Deeds bycompanies

The knd Registry approve thiswording for the execution of deedsby companies:

Signed as a deed bySamuel Bernard as directorauthorised to sign onbehall of Sound Limited.

The citation of the signatory'sauthority is essential.

From a recentbuilding contract

ln this Agreement unless thecontext otheMise requires

references to recitals clausesand schedules are references

to recitals clauses andschedules in or to this

Agreement and references tothis Agreement include

references to the scheduleswhich schedules form part of

this Agreement.

gJURTCOM

LEGAL TRANSLATION

JURICOM inc.Since 1982

DRAFTINGPLAIN LANGUAGE CONSULTING

' Elperts in contracts, finance and forensic medicine

French . English . Spanish

(514) 845-4834

Fax and modem: (514) 845-20551140 de Maisonneuve Wqst, Suite 1080, Montreal H3A 1M8,

Qu6bec, Canada

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38 From the committee

CLARITYprecedents

Chris Smith bows out...

Our congratulations to ChrisSmith on his new legal-commercial post with Oriflamein Brussels (to which he ismoving from the Midlmds at theend of April), and on the birth ofhis daughter, a first child.

Because of these newcommitments he feels he mustgive up the collation of theCLARITY precedent library.V/e wish him the very best ofluck and are glad that he plansto remain an active member.

The library has been a difficultjob. Hetook itm afrer it hed b€€nin the doldrums fm some years,but despite his efforts we still donot have a collection whichreflects CI-ARITYs potential.

... A CLARITY book

The committee feels that thelibrary would do better ifmembers were to have somecommercial return for theirdrafting skills. Mark Adler hasbeen editing a precedent bookfor Tolley Publishing as apfivate venture, and this is nowto be a CLARITY project. Thepublication of details would bepremafire, but if anyone is interestedin submitting precedents they shouldcontact Mr Adler at the addressopposite. Modest payments will bemade for each precedent used andthe authorship will be credited.

The Solicitors'Conference 1994

This is the first of the new-styleconferences o'rganised by The lawSociety. CLARITY was to havehad a mninstream slot, but shortageof time has demoted us (and,incidentally, at least one of The

law Society's own presentations)to a fringe meeting. We areschecluled for 5.30 pm on Friday,7th October at the Queen ElizabethConference Centre in ParliamentSquire, I-ondon.

Our preseniation will address thefears about plain Fnglish expressedby solicitors in our recent researchproject. We hope to persuade ouraudience that the cha.ge of stylewill improve efficiency, clientrelations, and profits; that cleardrafting will not be penalised bythe bench; and that significantimprovements can be made by afew quite simple and unconkover-sial changes.

CLARITY will be represented bytwo judicial members. Lord RentonQC - a former recorder - is to chairthe meeting, and the presentationwill be given by Judge MichaelCook, a former solicitq.

Annual supper: 28 Oct

We are retaining the successfulformat of the last couple of years,holding the supper in a Londonresteurant at 6pm for 6.3opm onthe last Friday in October. Wehope to welcome those whose lawSociety commitments kept themaway last year, when the suppercoincided with the IJ conference.

CLARITY SEMINARSon writing plain legal English

CLARITY now offers seminars by

Professor John Adams and Trevor Aldridge eC28 Regeat SquareLondmEl3HQ

081 981 2880

and (as before) by

Mark Adler(vAose contact details appear opposite)

All seminars coryrise a mix of lecture and drafting exercises.Professor Adams concenbates on property and commercial law, and

Mr Aldridge on commercial leases and other property documents.Mr Adler deals with drafting in general and for part of the time works on

documents zupplied by thehost firm.

All the seminars last 3hrs 3Omins (including a 2O-minute break).Mr Adler's is accredited under the CpD scheme, with a 25% nplift.

Accreditation of the other semhars is under discussion.

The fee is currently f,500, rising to f600 fo'r seminars held after 3rst Augus.Expenses and VAT are added, and an exha charge may be negotiated fo,r

long-distance travelling.CI-ARITY's share of the fpe is lA% now, rising to f,150 on lst Septe,mber.

Please contact the speaker of your choice.

Clarfty 30 39

David Sellar; law lecturer, University of Edinburgh

WalesGlvyn Winter; PhD linguistics student, University of

Wales in Bangor

As wego to press on 13th April we have483 members in 21 countries

AustraliaChristopher Balmford; solicitor, Phillips Fox;

MelbourneFioa Beith; solicitor, and Sydney hecedents Manager,

Minter Ellism Moris & FletcherLouise Herronl solicitor, Minter Ellison; Sydney

EnglandProf Ruth Anand; solicitor; University of Bristol

Peter Byworth; retired chartered accountant; kln SWIJonathan Crosbie; student, L,ondon E9

Susan Holland; solicitor and law lecfurer, Universityof Bristol

Penny Hopkinson; technical rryriter and publisher,MmulWriters; LondonW6

Stephen Itrley; nainee solicitor; BirminghamDr Jdm Kirkman; communications conzultant;

Mulbuough, WiltshireLegal Information Resources Ltd; legal publishers;

H€bd€n Bridge, YorkshireTim Pness; solicitor and law lechrer, University of

BristolRevd Brue Sharpe; CofE priest, Bexley Magishates

Court (and retired local governme, rt officer); KentPaul Ventonl solicitor, Woolsey Morris & Kennedy;

Sidcup, KentEmma Wtrcurcll; solicitor and law lectwer, University

of Bristol

ScotlandThe ScottiSr I-egal Aid Bmrd; Edinburgh

For all theright words

Seminars and courses on advanced writingskills (including ptain English for tawyers)

Editing and designof plain legal documents

Martin Cutts69 Bings RoadWhatey Bridge

Stockport SK12 7NDTel: 0663-732957 Fery.:0663-795195

Committee

Mark Adler

RichardCastle

Alexandra llladrs

Justin Nelson

Alison Plouviez

and in the United States

Pmf Pahicia Hassett

Honorary President: John Walton

28 Claremont Road Surbiton, Surrey KT6 4RFDX57722 Surbiton118 High Strreeq Hunpierpoint, Vy'est Sussex BN6 9pXDX 94803 Hurstpi€rpointLinklat€rs & Paines,160 Aldersgate Street, Iondon EC1A 4LpDX 1O londonMeridian House, St David's Bridge, Cranbrook, KentTNlT 3HLDX 38954 CranbrookThe law Society, 50 Chancery lane, l.ondon WC2A lSXDX 56 London€hanwyLane

College of I-aw, Syracuse, NY13244, USA

Cl4fty ts ediled by Mark Adler and published from his Surbiton address.

o8L 339 96it6Fax:9679

on3$3171Fax:832@7

071 @6 7080Far 6fl) 2885

0580714194Fax:7I49A9

07121:21222Far 0057

315 443 2535Fax:9567

Clarity 30

Membership application formplease copy as required

These details will be kept on computer. They may be given to other members or interested non-members (although not for the purpose of mailing lists).

Membership in name of individual

Title lFirst name Surname

F irm Position in f irm

Professionalqu al i fi cati on

Occupation if diff erentfrom qualification

Membershio in name of oroanisation

Nature of organisation

All members

Address

DX Telephone Fax

Specialist experience

Please send this application to(United States and Canada)

Professor Pakicia HassettCollege of I:w

Syracuse, NY 13244, USATel: 315 M3 2535 (Fax: 4141)

with a cheque for US$25

(Everywhere else)Justin Nelson

MeridianHouseSt David's Bridge, Cranbrook, Kent TN17 3HL

(DX 38954 Cranbrook)Tel: 0580 714194 (Fax: 714909)

with a cheque for fL5 sterling or (inBritain) a completed standing order form

Standing order (Britain only)

To

----* Bank plc Branch -- Sort code ---

Brancfr address

Account name Account no ------------ Date

Please pay to CLARITY's account 1504224 at Lloyds Bank,81 High St, Ashford, Kent (sort code 30-90-28) quotingC I,ARITY's reference

-,

€15 now; f,15 on L.9.95, and f15 on 1.9.96 Signed