PREPARING A COMMERCIAL AGREEMENT:SOME CRITICAL STEPS IN THE PROCESS

)

Patricia MiquelonFederated Co-operatives Ltd.

401· 22ndSt E.P.O. Box 1050

Saskatoon,Sask. S7K3M9Ph: 244-3311 Fax: 244-3403

I

BIOGRAPHICAL INFORMATION

PafMiquelon

Pat·received a.·B.A.(Hon.).fromthe University of.Waterloo in 1966 and her LL.B .from· the University of. Saskatchewan in 1974. Shew~s.calledtotheSaskatchewan Bar in. 1975.. Pat practices in.the area·ofbusiness law includirg corporate,· comrnercial and securities Iaw,employment law,construction law andintellectual property. ..H~r experience drafting contracts includes construction >contracts,engineeringcontracts,executive employment contracts, .acquisition of computers and software, custom softwaredevelopment contracts and government procurement. Pat practices with Federated Co-operatives Inc.. inSaskatoon.

)

PREPARING A COMMERCIAL AGREEMENT:

SOME CRITICAL STEPS IN THE PROCESS

TABLE OF CONTENTS

1. INTRODUCTION: PURPOSE OF PAPER . . . 1

II. THE FIRST CRITICAL STEP: SELLING THE CONTRACTING PROCESS . . . 1

A. WHY ARE WE DOING IT? 1

B. VALUE FOR MONEY 3

III. THE SECOND CRITICAL STEP: ESTABLISHING WHAT THE CLIENT

WANTS.................................................... 4

A. AFLYONTHEWALL 4

B. THE PROCESS OF "INTERFACE" 5

C. THE RELUCTANT CLIENT.. . . . . . . .. . . . . .. . . . . . . . . . . . . . . .. 8

IV. THE THIRD CRITICAL STEP: WRITING IT UP . . . . . . . . . . . . . . . . . . . . .. 11

A. CURRENT DEVELOPMENTS 11

B. AN EXAMPLE OF THE THREE STYLES . . . . . . . . . . . . .. 15

C. TRANSLATION OF A COMMON LAW STYLE RELEASE 16

D. SOME CONTRACT THEORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17

E. HOW TO GET STARTED OR TO GO DEEPER . . . . . . . . . . . . . . . . .. 21

1. Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21

2. Doing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21

V. CONCLUSION 22

11

Appendices:

A - Carswell's Advertisement for and Table of Contents from Robert C. Dick's Legal

Drafting in Plain Language, 3rd ed., 1995

B - Checklist of Client Participation in Preparation of the Contract

C - CBA's Guidelines for Plain Language Drafting

D - Report on the Plain Language Draft of The Consumer Fireworks Regulations

(Federal)

E - Program from Plain Language Conference Held in Winnipeg August 1995

F - Farm Credit Corporation's Plain Language Mortgage

G - Farm Credit Corporation's Plain Language Lease

H - Release:

H-l - Common Law Style

H-2 - Plain Language Style

I - Report on Plain Language Session at American Bar Association August 1995 Meeting

J - Texts and Articles on Plain Language Drafting

K - Additional Books of Interest

L - Information about Plain Language Newsletter and the Plain Language Society

M - Kelsey Institute Courses on Grammar, Writing and Communication

)

I.

1

PREPARING A COMMERCIAL AGREEMENT:

SOME CRITICAL STEPS IN THE PROCESS

INTRODUCTION: PURPOSE OF PAPER

This is a different kind of paper. It is not concerned with substantive law. It is not concerned

with procedure. It reflects on process. It reflects on the language of the law, a traditional

language we have inherited and often do not understand. It reflects on our relationship with our

business clients. It reflects on the stresses) -- for both lawyer and client -- in the drafting

process. It reflects on marketing. It is a discussion paper.

Business people call upon commercial lawyers to write up their deals. Do business people see

us as contributors to making the deal or as a necessary evil that could potentially derail the deal?

What do the business people think of the contract that we produce for them? Do we have a

marketable product? Marketing looks at what the client wants, what is attractive to the client.

Contracts not only have to meet the wants of clients, but also have to be seen by the clients as

meeting their wants.

Here's how.

II. THE FIRST CRITICAL STEP: SELLING THE CONTRACTING PROCESS

A. WHY ARE WE DOING IT?

The narrower the vision of the lawyer and the client on why they are going to the trouble and

expense of documenting a transaction with a contract, the more constricted the drafting process

and product will be. Often the client's thinking at the time of preparing the contract is short­

tenn; the focus is on getting the contract written so that something exciting can happen soon.

1 I am encouraged to address the issue of stress in contract drafting since Jean C6te and others addressstress issues extensively in Safe and Effective Practice (Legal Education Society of Alberta, n.p., n.d).

2

I try to describe the purpose of the contract to my client by drawing upon the ideas in the)

following statements:

• Most disputes . . . arise not because a party has failed to fulfil a promise,but because the two parties failed to discuss a matter or include it in thecontract.2

• Any good contract considers all important promises and commitments.3

• A good contract fairly represents all parties involved and helps establisha mutually beneficial relationship in which promises and commitments arelikely to be honoured.4

• . . . a contract also serves to ensure that each party understands itsresponsibilities and obligations.S

• Do not be unnecessarily adversarial in your approach to drafting orcontract negotiations. The best way to regard the process of entering intoa contract is not as a contest but as an attempt by the two sides to findtheir way into a mutually beneficial bargain.6

I use these statements to orient the client to the drafting process and to the future -- after the deal

is done and the parties are living the deal. Some discussion of our role helps the client to realize

the full scope of the services we provide. Initially, the client may think we have a standard form

that will fit the deal like a glove. Initially, the client m~y also think that everything that needs

to be thought of and discussed has been done. We should explain it is likely that the essential

points of the deal will require clarification and that brainstorming together will bring out some

other important points that the parties may want to address in the contract. Business people are

2 J. Martin and C. McLure, "Keeping Informed Buying Software Offthe Rack" (November-December 1983)Harvard Business Review 32 at 42.

3 Ibid.

4 Ibid. at 52.

5 M. Asner, "Standard Computer Contracts - Just Sign Here" (FalI1983) Business Quarterly 58 at 58.

6 R. Christou, Boilerplate: Practical Clauses, 1st ed. (London: Longman, 1990) at 3.

3

worried that the lawyers will create so much antagonism that the deal with fall apart. We should

reassure our client that our questions, our brainstorming, our recommendations are our

contributions to a fine-tuning process that is meant to ensure they get a deal that they can live

with. By raising the issue of fairness at the outset, it is likely that the lawyer will get instructions

to prepare a balanced first draft that will require less rewriting after its review by the other side.

B. VALUE FOR MONEY

I tell my clients that a contract is a "rule book" or a "code of conduct" or a "bible" to govern

their relations with their contracting party during the term of the contract. To make the contract

useful, I package all the documents relating to the deal, registrations, etc., with a table of contents

in a binder or Accopress folder and present it as a "Record Book." I tell them they will find

themselves referring to it time and again and they will come to value it as a useful tool. Before

long they see that they got and are still getting value for their money and effort spent on the

process of writing the contract. A deal does not have to involve millions of dollars to merit a

) record book.

Recently, in the course of amending some agreements that were part of an existing deal, I had

my client's record book in to update it. I was pleased when, after a few weeks, my client called

up to request a.s.a.p. delivery of his record book. He needed to refer to it. Another client made

my day when she phoned to enquire if it would be "tacky" to put all the documents we had

prepared into a record book before presenting them to the other side for signing. She had found

the record books that my secretary and I made for her in other cases so useful that she adopted

the practice at an earlier stage. She also reported that the other side was impressed with the

control over the paper that the record book provided. Immediately on completion ofthe signing,

each side had a record book and a sense that things were in order.

As commercial lawyers, our product is often a contract. As a product, we should sell its long­

term usefulness and package it to be used. Lawyers would be wise to look at the marketing of

)

4

other products and try to apply some of the principles to our own products. Sell the client on

the contract and the process of creating it will open up.

III. THE SECOND CRITICAL STEP: ESTABLISHING WHAT THE CLIENT

WANTS

Robert Dick is our leading Canadian writer on legal drafting. He published Legal Drafting in

1975. I bought the first edition in the late '70's or early '80's, and it has served me well ever

SInce. A second edition followed in 1985. Carswell is advertising the third edition, now called

Legal Drafting in Plain Language. (The advertisement and table of contents are attached as

Appendix A.) The time is ripe for this third edition to become a Canadian legal bestseller.

Robert Dick practices law at a finn in Toronto. He writes about legal drafting from many years

of experience and study. In Legal Drafting, he sets out two basic stages in the process:

"Thinking Stages" and "Composing Stages".? He has four thinking stages. I want to discuss

only the first step in this stage, which he describes as establishing what the client wants.8 This

is easier said than done. This is where we may encounter pitfalls, both hidden and obvious,

which can fatally flaw the agreement and which no amount ofdiligence in the other steps (except

perhaps the step of having the client review the drafts) will cure.

A. A FLY ON THE WALL

The best way to know what the client wants is to be at the meetings when the parties are creating

the deal. Robert Dick: "The drafter should be present during the negotiations, from the start,

to understand the problem fully. ,,9

7 R. C. Dick, Legal Drafting, 2nd ed. (Toronto: Carswell, 1985) at 29 and 37.

8 Ibid. at 29.

9 Ibid. at 30.

5

) The vendor and purchaser have just concluded their negotiations. You act for the purchaser.

Now the purchaser instructs you on the tenns of the deal, asks for a letter of intent and a draft

agreement as soon as possible. Your mind is cold on the deal. You have had no wann-up

mental gymnastics like the business players. Just as an athlete who has not wanned up risks

injmy, the lawyer who is too distant from the deal risks errors in understanding the intention of

the parties and the tenns of the deal.

We must educate our clients by explaining the need for our involvement in some of the meetings

and our commitment to being merely "a fly on the wall" at the meetings. We just have to hear

the deal evolve, not help make it.

The problems associated with bringing in the lawyer to pitch the last inning are seldom

articulated. We are at a disadvantage in the circumstances described and expect more of

ourselves than we should. Our only solution at this point is to question, question, question.

B. THE PROCESS OF "INTERFACE"

As commercial lawyers, ever desirous of having more and better business clients, we hope that

our relationships with our clients will be smooth and cordial. The very nature of the drafting

process, however, involves lawyer and client in an often demanding intellectual effort, which

takes the relationship beyond smooth and cordial. A considerable intellectual effort is required

in many cases to understand the client's deal. This is especially true when the business lawyer

is not familiar with the particular type of business that the client carries on or, at least, not

familiar in sufficient detail. That necessitates more explanations of what to the client are obvious

matters. The client may be frustrated by the demands of explaining the deal, and may see the

"what if' brainstorming as an attack on the deal.

Robert Dick describes the process for the legal drafter in analyzing the client's problem as

follows:

6

A drafter must grapple with that problem and help a client think it through stepby step. The purpose is to find what goals are to be achieved and to help a clientdecide on the best means of achieving them. All necessaIy facts must" be elicitedto assist the drafter.

In chemistry there is the process of 'interface' that refers to the interaction ofsubstances in a kind of mutual irritation. This is analogous to the process thatmust take place between lawyer and client since, through interaction by dialogue,thinking is clarified, and the multiple aspects of any matter are exposed.10

The stress involved in receiving instructions and going through the thinking stage of preparing

a commercial agreement will be reduced if we recognize that the process of "interface" involves

a "kind of mutual irritation." It is useful to explain to the client that we need to know all about

the deal, that we have to ask hypothetical "what if' questions so that, if the client wants, the

contract can be drafted to address important issues that could arise in the future. We have to

assure the client we are not pouring "cold water" on the deal, but that it is our professional

responsibility to enlarge the focus as we look at the deal through the viewfinder.

Business people seldom realize how much discussion of a complex deal is necessaIy before the

executives and their lawyers and accountants are all on the same wavelength on all points, and

lawyers are afraid to tell them. I have been in long meetings with clever executives, clever

accountants and clever lawyers, when only in the last fifteen minutes will someone (usually the

lawyer) realize that some point is not understood the same way by all the parties to the

discussion. It is appropriate for the lawyer to confidently assert the need for thorough discussion

of issues. There is a fetish for short meetings. When a complex financing or a significant

acquisition of a business is the topic, short discussions will not ensure that the lawyer has

established what the client wants.

It is important to reflect on the fact that the process of "interface" Robert Dick describes,

whereby the lawyer and client get their minds around the larger issues in the deal, usually

accounts for a small proportion of the provisions in a contract. In my opinion, it is not even

10 Ibid. at 29-30.

7

') possible to communicate with a client the myriad issues they might consider in many contracts.

We face a communication problem similar to that of the medical profession; how many of the

risks must we identify and explain? In reality, when drafting a commercial agreement, we do

not have "instructions" or know what the client wants on numerous aspects of the deal. This lack

of instructions could lead to problems later.

Before we start writing it up, we make a selection of the type of contract that suits the client's

personality and capacities (including financial capacity) and the actual situation. For the purposes

of this discussion let's talk in terms of grades of contracts: good, better, best. The long (107

closely printed pages without schedules) shopping centre retail lease in Harvey M. Haber's The

Commercial Lease: A Practical Guidell is the "best" lease available in the sense that it is very

comprehensive, but even if it is technically substantially suitable, it isn't suitable in a larger sense

for clients who want a retail lease for a small shopping centre. The client does not want to be

bothered with all the detail of the "best" lease. There are definitely occasions when a client who

could afford the best lease is only interested in a good lease and that's what we provide, without

a lot of discussion. The problem is that all the time we are preparing the good lease, we are

worrying about not preparing the best lease.

What principle or principles could guide us in this situation? Is "suitability" a legitimate drafting

principle? Isn't the instruction "Give me something suitable" unspoken in each request by a

client for a commercial agreement?

What if, after the "what if' brainstorming session, what the client wants is silence? Business

people sometimes prefer to leave the contract silent on an issue rather than engage in lengthy and

potentially disruptive negotiations. As commercial lawyers, we only elaborate the deal to the

extent the client wants. 12 The client may want to let the future take care of itself. Our proper

11 H.M. Haber: The Commercial Lease: A Practical Guide, 2nd ed. (Aurora, Ontario: Canada Law BookInc., 1994) at 369.

/ 12 Dick, Legal Drafting at 23: "A drafter should not import substance beyond a client's instructions."

8

role in this situation is not to draft to close the gap, but to record, as suggested later in this paper,

the client's decision to remain silent on an issue. 13

Discussion with the client about drafting goals would be helpful to both lawyer and client. In

Section IV I will discuss various drafting goals. Presented with these goals, the client can make

choices and provide us with a direction, ifnot comprehensive instructions. I think the profession

needs a more in-depth understanding of the real-life communication process between lawyer and

client and the content of instructions so that we can better understand our role and responsibil­

ities.

C. THE RELUCTANT CLIENT

Establishing what the client wants is difficult when the client is one who says (when it is clearly

not appropriate):

Only want a bill of sale, nothing fancy.Just a very short agreement, nothing complicated. 14

It can't be more than a page.

Here we fmd the not-so-rare dilemma ofthe business lawyer, a classic catch-22 situation. In Safe

and Effective Practice, the authors say, "Don't cut comers."IS But the client says, "Make it

short, keep it simple and have it ready tomorrow."16 Needless to say, this client is not willing

to enter into the dialogue whereby thinking about the deal is "clarified" and the "multiple aspects

13 For more discussion of the significance of silence in contracts, see L.E. Trakman, "InterpretingContracts: a Common Law Dilemma" (1981), 59 (2) Can. Bar Rev. 241 at 269 - 272.

14 Cote, Safe and Effective, at 70.

15 Ibid.

16 For an excellent discussion ofthe perils of rush jobs, see ibid. at 71. One should advise clients that theproduct of a rush job may be flawed.

9

) of any matter are exposed. ,,17 It is natural to feel defensive when we hear these statements.

This client does not want to take advantage of our training and drafting skills, but wants us to

act more as a secretaI)' to "paper the deal." The message this client is giving is: "Don't think,

don't pull out your checklist, don't discuss the issues with me, don't make this complicated."

In Safe and Effective Practice, the authors tell us to "be careful" of this client; that "a legal

retainer is like a marriage: it does not work properly unless there is a complete trust and

confidence on both sides."18

We may not always be willing to turn away a client who wants a bone with so little meat on it

that we have to consider if we would be putting ourselves in jeopardy by drafting the contract.

This client, who has insulted us in our professional capacity, needs reassurance. We must

attempt to bring this client into the two-way communication process because in this case we

instinctively realize that establishing what the client wants means breaking down a fear of even

discussing the deal. To the extent we can ease the client's fears, we can do our job.

Often this client has a fear of words, of reading, of lawyers, of legalese, of contracts, and of

expense. With this client, as with all clients, it is wise to:

• TI)' to find one business issue to question the client on that the client hasn't thought about

but that will capture his or her interest. Having won the client's confidence a little bit,

progress to other questions of importance to the client. Then, raise "legal" issues like

indemnification issues. Save a couple of questions for insertion into the first draft (but

that can be dangerous if the client doesn't like reading and doesn't read the draft).

• Try to build a team concept: "Two heads are better than one."

17 Dick, Legal Drafting, at 29-30.

18 C6t~, Safe and Effective, at 68.

10

• Reassure the client with statements like: "We can keep it clean and simple. Since I've

done other deals like this, I may think of some issues that you'll want to consider. If you

feel some provisions can be cut, you can strike them out in the draft you will be

reviewing. It is best if I give you a "menu" and you make the selections. I'll bet you

$100.00 you'll like some of the items on my menu. You will be glad to know I draft in

a modem, easy-to-read style."

• Finally, we make our sales pitch on the practical usefulness of the contract in the daily

administration of the deal down the road: "When we get this deal done, I'll give it to you

in a binder. You'll be able to get it off the shelf every time a problem arises to see who

is supposed to do what."

With this type of response, we acknowledge the client's concerns but we don't surrender our

judgment. We stay in control.

We believe that the contracting process involves a division of labour. The client does the deal

and we write it up. The client gives us "instructions." When we examine the process, however,

we see that both lawyer and client "make the deal" and both lawyer and client "write the deal."

The lawyer helps make the deal by helping the parties to the contract clarify their thoughts,

address consequences and resolve inconsistencies, etc. The client helps the lawyer write the deal

by reading all the drafts, clarifying the intention, setting the goals, etc.

I was once asked to prepare a simple lease which was to be just like the existing lease at another

location. My client would be the tenant as it was in the other lease. The only difference would

be the name of the landlord. I was busy and short-staffed in the secretarial department. I asked

the businessman if he could have the lease typed in his office. He agreed and over the telephone

I reviewed all the necessary changes. His involvement in the creation of the document in the

first instance and in the first proofreading led him to discover that his standard fonn lease did

not reflect the way municipal taxes were being paid and had the wrong party owning the

11

) inventory. I am convinced that he would not have noticed these points if I had done up the lease

and handed it to him. This client was empowered by the experience.

Clients have a dangerous belief that, with very little client input, lawyers can produce the desired

result. They do not understand the two-way communication that must happen to produce a good

contract until they go through the process as a full partner. Over-dependency on the lawyer

results in a contract that may well not be right on major and minor points. We have tended to

attribute too passive a role to the client and to assume a larger role than is realistic.

We need to educate ourselves and our clients to the fact that our clients have responsibilities

during the contracting process, just as, for example, the Alberta Financial Consumers Actl9 tries

to educate consumers to their responsibilities before and after investing. Since the process of

preparing a contract is not the sole responsibility of the lawyer, common sense dictates that we

record the client's decisions and degree of involvement in a systematic way on our file. Lawyers

might consider developing a checklist along the lines of the proposal in Appendix B. This is

consistent with the recommendation to keep records in Safe and Effective Practice,2° A more

conscious appreciation of the roles should lead to better contracts and more loyal clients, and,

therefore, to less likelihood of negligence claims.

IV. THE THIRD CRITICAL STEP: WRITING IT UP

A. CURRENT DEVELOPMENTS

The common law style of drafting the profession uses today is under attack from all sides.

Robert Dick quotes an apt criticism from a 1990 report of the Law Reform Commission of the

state of Victoria in Australia titled "Plain English in the Law":

19 B.A. 1990, c. F-9.5.

20 C6te, Safe and Effective, at 61.

12

Many legal documents are unnecessarily lengthy, overwritten, self-conscious andrepetitious. They consist of lengthy sentences and involved sentence construction.They are poorly structured and poorly designed. They suffer from elaborate andoften unnecessary cross-referencing. They use confusing tautologies such as"ordered adjudged and decided" and "let, allow and pennit". They retain archaicphrases such as "know all men by these presents" and "this indenture witnesseth".They use supposedly technical tenns and foreign words and phrases, such as interalia and res ipsa loquitur, even when English equivalents are readily available.They are unintelligible to the ordinary reader, and barely intelligible to manylawyers.21

The fact is the style of contract drafting that is still current is an historical relic from times so

long past that "primitive word magic" and "metaphysical ritual" were important, from times when

there was a need for "bilingual duplication", from times when there was "a pay-by-the-word legal

economy. ,,22 We are increasing our stress and risk of claims by writing with words and

structures that have lost their original context. We use "provisos" but we do not know the

elaborate rules that once surrounded their use. We stick them in anywhere. "Unless the lawyer

knows a reason for a usage, knows what a word means, knows why he uses it, then the course

of honesty and safety for a member of a learned profession is not to use it." 23

In Canada, the move to plain language has accelerated in the 1990's. In February 1991, at the

CBA Mid-Winter Meeting in Regina, the Canadian Bar Association adopted the recommendations

of a Joint Committee Report of the CBA and the Canadian Bankers Association called The

Decline and Fall of Gobbledygook: Report on Plain Language Documentation.24 This new

"Regina Manifesto" set out "The Ten Commandments For Plain Language Drafting," and these

are copied in Appendix C.25 The Report urges law schools and bar admission programs and

21 R. C. Dick, "Reflections on Legal Drafting From a Practising Lawyer" (1991) 49(1) The Advocate(Vancouver) at 89.

22 D. Mellinkoff, The Language of the Law (Boston: Little, Brown, 1963) at 399.

23 Ibid. at 393.

24 Ottawa: CBA and CBA, 1990.

25 Ibid. at 6.

13

) lawyers and law fInns to promote plain language legal drafting. The Report is well worth

reading.

The Plain Language Institute was established in 1990 in British Columbia to promote the use of

plain language in law, government and business. It was jointly funded by the Attorney General

and the Law Foundation, but has ceased to exist. The Plain Language Society has risen from its

ashes. It is a non-profIt association of professionals with a keen interest in advancing the cause

ofplain language. British Columbia may be our leading jurisdiction in plain language legislation.

The standard statutory mortgage document has been drafted in a plain language style since the

late 1970's. The new Motor Dealer Consignment Sales Regulation in British Columbia

prescribes the use of "plain language" in every consignment agreement. The entire Small Claims

Court process is in plain language: the legislation, Rules of Court and court fonns.

Alberta, too, manifests a commitment to plain language. The Financial Consumers Acr6 is

model legislation in this regard. Its simple, clear style pennits a lawyer to understand it quickly

and explain it to a client inexpensively. In addition to using plain language, it mandates the use

of plain language in the financial services industry. The Financial Consumers Act should be

compared to Saskatchewan's Cost ofCredit Disclosure Act, which requires at least a one-tenn

course as background to understanding it and a fee of at least $10,000 to any client who might

want its documents evaluated and revised to meet its requirements. 27

Ian Brown of Saskatchewan Justice advised that the Department has had a "clear language"

policy for a number of years. He invited me to compare the new Change ofName Act and The

Private Vocational Schools Regulation Act from the last session with the previous legislation on

those matters. The Department is also proud of the drafting of The Crown Corporations Act of

1993 in comparison with its predecessor legislation. All the new legislation in the province has

26 S.A. 1990, c. F-9.5.

27 On this point, see quotation from the Regulations to the Cost ofCredit Disclosure Act in D. H. Layh,"Plain English: Increasing the Power of Our Writing" (1992), 56(1) Saskatchewan Law Review 1 at 2.

14

a table of contents, gender neutral language, short sentences as much as possible, more

paragraphs, more white space, bold-face headings - in short everything to facilitate understanding,

which cuts down research time. The Department has a policy of preparing a table of contents

for all the existing legislation, but it will take some years to fully implement.

The federal Department of Justice has a plain language policy and a committee on plain language

drafting. They are practising on the regulations before tackling statutes. Appendix D contains

an interesting report on the testing of the plain language draft of The Consumer Fireworks

Regulations on various interested parties: consumers, retailers, distributors, police and fIre

prevention officials. The feedback from the test groups and the consequent rewriting of the

regulation supports my contention in the earlier part of this paper that the drafting of contracts

is also an interactive process between lawyer and client.

Cheryl Stephens, a non-practising lawyer,. plain language consultant in British Columbia and

publisher of Rapport: News about plain language, sent me the program from the conference

"Plain Language in Progress: more than just language," that was held in Winnipeg this August

immediately after the CBA meetings concluded. The program, attached as Appendix E, shows

the wide scope of the plain language movement. In terms of geography, it is worldwide. Nor

is it just governments and the legal profession that are addressing the issues of better

communication. Consumer, business and medical groups have realized that small print and

complex language have caused many people to misunderstand the instructions on packages,

medicines, household items, etc. The medical profession is beginning to realize that plain

language can save lives.

The banking and insurance industries have been active for a long time in converting their

consumer documents into a plain language style. The Bank of Nova Scotia has been the leader

among the banks. In the 1970's it hired Robert Dick to redraft its conventional mortgage. All

the major banks are moving in this direction.

)

15

') Fann Credit Corporation has developed a plain language mortgage and lease and has kindly

consented to allow them to be reproduced as Appendices F and G to this paper. An officer at

FCC attributed the origin of the plain language movement at FCC to the initiative of one lawyer

who believed in plain language, drafted a plain language mortgage and worked within the

organization for its acceptance. FCC intends to expand its number of plain language documents.

B. AN EXAMPLE OF THE THREE STYLES

In drafting a client's contract, we have three distinct styles to choose from. We are all familiar

with the "common law style." It is used frequently in the province today. The "plain English

style" originated in the 1970's in New York and is almost conversational in nature with its "you­

me" form of personal address. The plain English style works for lenders' forms and consumer

forms, but is not well suited to contract drafting. The "plain language style," which I have been

referring to, called the "clear language style" in the Department of Justice in Saskatchewan, is

the preferred style for contract drafting. From an example set out by Robert Dick, let's take a

) brief look at the same clause, one that controls the name of a tenant's business, written in the

three styles:28

(a) Common Law Style

The saide9] Lessee covenants, promises and agrees that it will not carry

on or suffer to be carried on any business in the herein[30] demisedpremises under a name or a style other than the name of the said Lesseeas designated herein nor call or suffer the herein demised premises or anybusiness carried on therein to be called by any name other than such name,without the written consent of the Lessor fIrst had and obtained.

28 Dick, Legal Drafting, at 184-185. Reprinted with permission of the publisher.

29 "Said" is older Middle English. It does not provide certainty of reference. It has been litigated manytimes. It is merely redundant in this context. "It is either unnecessary or dangerous and should be dropped"(Mellinkoff, Language, at 319).

30 "Herein" is Old English. It is imprecise and has been litigated many times. Its use in this context isredundant. "It is a poor word ofreference, which laymen scorn and no careful lawyer should use" (ibid. at 315).

(b)

16

Modem North American Style

Without fIrst getting the Landlord's written pennission, the Tenant shallnot,(a) carry on business; or(b) let business be carried on in the leased premises,by any other name other than the name of the Tenant as described in thislease.

)

(c) Plain English Style

You must not carry on business or let business be carried on in the leasedpremises by any name other than your own (as described in this lease),without fIrst getting our written consent.

C. TRANSLATION OF A COMMON LAW STYLE RELEASE

The use of the tenns "plain English" and "plain language" to describe the two modem drafting

styles are narrow in suggesting that all we have to do is use current, simple words and modem

speech patterns and we have done everything necessary to communicate well with our clients.

The modem style involves much more: use of a table of contents, logical order and great fonnat

consisting of infonnative headings, various fonts and paragraph sculpture. The production of a

document in the modem style requires teaming up with a secretaIy who is interested in smart

fonnats and willing to make maximum use of your software program.

I recently received the fonn of release shown in Appendix H-l. I translated it into plain

language as shown in Appendix H-2. This was a "quick" rework. Having got it to this stage,

another rewrite could produce a more truly modem style.

The work of translating is time-consuming and has both easy and challenging aspects. It was

easy to delete the "Know all men by these presents" (which translated means, "See everybody,

I'm still drafting in the common law style."), the "hereins," the "hereinafters," the "herebys" and

the reference to _consideration because they did not need to be replaced. It was easy to use

paragraph sculpture to enable the reader to grasp the ideas quickly. Although the sentence is still

17

long, it has been reduced from approximately 321 words to 192. It was more difficult to decide

if the trilogy "based on or arising out of or related to" had to be retained. The phrases are not

synonymous, but the differences in meaning are slight and obscure. In the end, I decided that

nothing was to be gained by using all three of them. One place where I failed the translation

challenge was to acquiesce in the long sequence "actions, causes of action, etc. ,,31 The example

shows that it is fairly easy and even fun to translate a common law document into a modem

document, all to the end that both lawyer and client can quickly understand what it says.

D. SOME CONTRACT THEORY

Even if we reduce our stress by writing in a modem style with words we know the meaning of,

a stressful question still remains: how many of them are we going to use? Who is making us

be so precise and comprehensive as to draft a release which says a person is released from six

different things in various shapes and forms "based on or arising out of or related to" a certain

matter?

Let's be honest. Our precedent is making us do it. Our fear of negligence claims is making us

do it. We are doing it for ourselves, not for our client. Let's be realistic. Our client is annoyed

by this trilogy. Let's blame someone. Our legal education did not (until more recently) deal

with contract theory or plain language issues. Why are we doing it? What are our goals in draft­

ing? Precision? Comprehensiveness? Do we have any other goals?

In David Mellinkoff's 1963 book, The Language ofthe Law, I found a theoretical basis to guide

the contract-drafting practitioner. First, let's put precision in perspective. Mellinkoff examines

the role of precision in legal drafting:

31 No one knows what "causes of action" means. "There are a myriad collected cases which tell us, forexample, that cause ofaction means the facts, or -if it better suits our purpose- that cause ofaction meansrights" (ibid. at 296).

18

The lawyer . . . can flog himself less with vague and debilitating misgivings, ifhe recognizes once and for all that it is impossible that the language of the lawbecome completely precise....

The common law is built for ... ambiguity, hand-tailored for people. Its basicnotion is that things cannot be too precise, that no matter how thin a principle issliced, particularization is always possible....

The language of the law shares the imperfection of the common language and oflanguage itself. And while it can be better understood, better used, refined, it willnot become completely precise as long as it is to be an instrument of communica­tion - person to person. . . .

Complete precision is sometimes also incompatible with some of the otherdesirables of law language - durability, intelligibility, brevity, for instance....There are times when precision will kill a deal that should not be killed, orconfuse an issue that should be immediately clear, times when precision isundesirable even if possible.32

Because of a lack of training in drafting and contract theory, our focus is on precision and

comprehensiveness. The good news is that there are other equally important and sometimes more

important goals in contract drafting, such as "brevity" and "intelligibility.,,33

Isn't this what our clients are asking us for - whether requested out of fear or confidence? Why

don't we see more legitimacy in our clients' requests for brevity and intelligibility? Because we

are not aware of any legal theories that support their point of view. Because these goals seem

too pragmatic to be legitimate professional goals. Because clients did not have standing in law

school. Because we lack a precise grasp of our role: since we know the good, better, best

grades of contracts, are we to give our clients "the best" or what they want? Mellinkoff

legitimizes our listening to our clients' (often silent) pleas for brevity and intelligibility.

Brevity lessens the possibility of error and of interpretation. Why list twenty-seven specific

causes justifying delay, as Mr. Haber does in his shopping centre lease: "strikes; labour troubles;

32 Ibid. at 394.

33 Ibid. at 405.

19

) inability to procure materials or services; power failure; governmental laws, regulations or

controls; riots; civil commotion; insurrection; sabotage; terrorism; invasion; rebellion; military

or usurped power; war or warlike operations; blockades; epidemics; washouts; nuclear and

radiation activity or fallout; explosions; act of God; or any other reason whether of a like nature

or not. ... ,,34 Is this drafting comprehensive? No. There is a list of even more causes of delay

in Richard Christou's Boilerplate: Practical Clauses.35 Is this drafting durab1e?36 Probably

not. This is Mr. Haber's second draft of this clause. He has added seven causes since the ftrst

edition. For example, he added "blockades," probably due to the case arising out of a suit for

non-delivery of perishables due to a blockade where a long list of causes of delay was held not

to apply to a blockade.

Each word gives scope for interpretation. The creation of a list makes it possible to argue that

something has been left out by error. Another problem with adopting a clause like this is that

we are so exhausted by reading it that it is easy to think that the thinking job has been done for

us. Will the sweep-up provision at the end of the list save this excusable delay clause if our

client is in the custom software development business and cannot deliver the custom software on

time because the purchaser provided incomplete or inaccurate technical information? Ifwe don't

add into this clause any causes more directly related to the types of delays that could arise in our

. client's particular business, is it an error on our part? If the long excusable delay clause is not

comprehensive, not durable, and not suitable, why are we using it?

When a client requests brevity and intelligibility, the following drafting would be more in accord

with the instructions: "by reason of any causes beyond its reasonable control." This is

immediately understandable. It is a saving of forty-six words. It should endure and not need

34 Haber, The Commercial Lease, at 472. Mr. Haber's books are invaluable to the commercial lawyer. Mr.Haber acknowledges that his lease is written in legalese, but points out that his commentary is all in"laymanese."

35 At 109.

36 Mellinkoff, Language at 437. Mellinkoff discusses "durability" as a drafting goal more in the sense ofthe language of the law being memorable. Here I am using it in the sense of enduring relevance with thepassage of time.

20

remodelling every ten years. It lessens the risk of error by avoiding the pitfalls of making a list.

It does not invite interpretation to the same extent as Mr. Haber's clause. Before charging that

"beyond its reasonable control" is hopelessly imprecise and requires interpretation, let's remember

that criminal law is founded on "a reasonable doubt" and negligence law is founded on "the

reasonable man" and contract law is founded on "the reasonable expectations" of the parties.

From a practical and theoretical point of view, it is arguable that the complexity of our society

and ,our business deals and concerns with the cost of legal services are forcing us not to ever

more complex drafting, but to simpler drafting.

It has been thirty-two years since Mellinkoff set out intelligibility as a legitimate drafting goal.

The fIrst goal of the plain language movement today is to make the reader's job easy. At the

plain language session at the American Bar Association meetings in August 1995, surveys were

reported showing that lawyers and judges prefer to grasp documents quickly and think more

highly of the lawyers who. submitted plain language documents than those who wrote in legalese.

An interesting report on the session is included in Appendix I. If lawyers and judges want to

grasp documents quickly, surely it is a legitimate request from our clients. It is all right to

sacrifIce precision to intelligibility when appropriate.37

A systematic discussion with the client about drafting goals would clarify what the client wants

in general and, therefore, the drafting approach the lawyer should take. We could present the

goals of brevity, intelligibility, suitability, and durabiiity in a positive light rather than as poor

relatives to precision and comprehensiveness. The client could be made aware of the existence

the good, better, best grades of contracts. Issues of cost would also be part of this discussion.

This kind of communication should narrow the gap between what the client wants and what the

client gets.

37 Ibid. at 416.)

) E.

21

HOW TO GET STARTED OR TO GO DEEPER

1. Resources

I highly recommend Don Layh's article, "Plain English: Increasing the Power of our Writing"

in the Saskatchewan Law Review, as an excellent overview of the topic. Also, Robert Dick's

new book, Legal Drafting in Plain Language, will be an invaluable resource. Peta Bates, our

librarian in the Law Society Librat)' in Saskatoon, has kindly furnished a list of texts and articles

on plain language drafting available in the Law Society Libraries in Regina and Saskatoon and

at the College of Law, as well as some other texts that are available, all of which appear in

Appendix J. In Appendix K, I have listed some of the texts that I use in my practice. They are

invaluable, although the precedents may be in legalese. Appendix L contains addresses for

Rapport: News about plain language and for the Plain Language Society in Vancouver. Kelsey

Institute offers the courses on grammar and writing set out in Appendix M. A refresher grammar

course would be a great help to us.

The Saskatchewan Legal Education Society might consider having a session on drafting each year

as part of the annual contract law update program that has developed. Continuity on this topic

is important. In Vancouver, Edmonton, and Calgat)' there are plain language CBA Sections. We

could consider having plain language Sections in Saskatoon and Regina. Alternatively, we might

consider having drafting as an annual topic in our CBA Business Law Sections.

2. Doing

We can start without reading a book - just by dropping the words and sentence structure of

previous generations. Just write it as we would say it. Every law firm could establish a plain

language committee to develop a program to convert the firm's precedents into plain language.

The fIrst lawyers and law firms doing this would reap the advantage of client loyalty and be able

to use their "p1aiti language" policy as a marketing tool. Eventually, however, the goal is to have

22

the legal profession "writing it up" in the vocabulary and style of the late 20th century with the

organization and formatting that computers facilitate.

v. CONCLUSION

Business is dynamic. It involves buying and selling, products and services. The parties to a

contract make the laws they want to govern their relationship. They should be dynamically

engaged in the preparation of their contract. That means contracts have to be briefer, simpler,

suitable, and written in plain language with all that involves. Business people understand value

for money. They know when a contract meets their wants. As cornmerciallawyers, we must

heed our clients more than our precedents. We have to be flexible and responsive. We have to

be the masters of words, not their slaves. We have to produce a marketable product ourselves.

)

\

)

APPENDICES

Appendix A

Legal Drafting in Plain Language. 1995. Third Edition. Robert C. Dick, a.c. pp. i, viii, ix to xiii. Carswell,Thomson Professional Publishing, Scarborough, Ont. Reprinted by permission of Carswell - a division ofThomson Canada Limited.

Legal Drafting in Plain Language, 3rcl EditionRobm C. D,,·1c. Q.e.

'fhi~ acclaimed publication examines the principles andtechniques of plain )1In~uagc drl\flin~ in Ihe conleXI of le,aldocumclllation. The wnrk lIdLlrc,sses the special problems ofIc£aJ language, nnd presenls a cooc or 33 drafting rulcsdesi~ncd to achieve bUlh cl"rily and precision in Jegaldrafling. The author eXJ)lain~ how to avoid undue wordiness,excessive legalclIc, contextual :unbi~itie.c; and unnecessaryproviliOS whelher prcpi'\ring cummercialleases, partnershipagreements. m()rtgage c1nu$es. insurance policies or slatutesAnd rcgulalions. The work also covers Ihe use of properparAgraphing. headings Itnd such dc.c;lgn elements ali Iypefonts. spllcin~ alld highli~htillS to improve readabilily andacceptance by chcnlll lind the public. A sample will precedent.

'Iedrafl uf a banking agreement and diapams i1Julilrating Ihe, I orgllniz:nion pruvidc Importanl insithl inlo the skills

. liiili~.cd in plain IlIn8ull~e drafling.

o-~S9·5.s307·0 AUllu~1 199.'; 294 pagel ho,d(ovot $60Ord.r Number 9553070-374

Appendix A

LEGALDRAFTING

INPLAIN LANGUAGE

Third Edition

by

Robert C. Dic!<, Q.C.

Contents

P,,'ac•........ I v

Chaptll' 1 Pl~ln Language DrafttRI.....••.. '. . . • . • . • . . • • . . . • • • .. 1

Ch4pcll 2. Drlfd-naln GlUIer.! ••....•.•..•..........•...•••• :. 5

1. LI,al Drafciq-Wb.t is itl .............•....•... 51. Subnance Inc! Form ...•..................•..... 83. Draftiftl Reform.... t ••••••• I ••••••••••••••••••• 5)

4. Ora£ci~a' CommuD1cadon ....••......•••••••• 11$. Precedents ........•..........•....••.••...••. 156. Meaniol ..••...••.•.••••............•.... , •.. 15.,. LeSa! Jarson •.. , t ••••••••••••••••••••••••• , • • • 178. Rule. of Interprecation .. , 17P. Accuracy and Precision 18

10. Val\&eneu and ArnbiaUltY ..•....•........•....• 1911. Generality..••....•.••.•..•.....•....•.••..••• 2112. Brtvity ......•••...••....• , •..........•..•••. 22

Chapel13 The Drutinl Frlmework 27

1. Drafdnl Ichics.•............•................. 2.72.. CUidelln,. •••..••...•••....................•. 29

(11 Sens1ble &mnpment.••••••.•••.•.••.•....• 28(:ll Internal cOQ$i.tency 19

3. Can.acUIIl IniUlIh•..••••.••.•..••••.••.•••••••• 30

Chtlpr.r 4 Su,e, in Drafcilll .......•.........••........•....• 33

1. Thinking Scages ..... ~ .•..••..••••••.••.••••..• 33111 EacabU,h whae cliene want•.•.........•••... 33(21 Relace documentS co ocher documents and

co dlelaw in I.noral .•.•..••••..•.. , 38(a) Peruse form precedentll, ardcl.. and clle•..•.. 3914) Prepare outline ..•..••••..••••.•••••••••... 40

:1. Compoaina Sea,••..•...•.•...••...••..•••••..• '1(1) Prepo.ring firsc drafc 41I~) Reviae U\d polish .......••.....•.•••.•.•... 41(3) Check aepnlllcII.n S\l~c.seiOll•••..•......... 41(4) Make intemal checks .•...••••••.•••••••... 43

)

)

viii CONTENTS

(S) £x&mill. flow ohhouahc 4316) !nv!lecomments 44

Addendum co Cbotpler 4: Check·Un for p.tu\erl~ip

Alfeemenc , ....••...••..• I •••••••••••• , 4&4.

Chtzpru 5 The DetJp of Legal DOCUlDtnc5••••••••••••••••••••• 51

1. AalulJeln""~ ., 512.. Choosing Principles 01 Division .••..••..••••••.• 513. CI••• Division ..•.•..•...............•.••••..• 5~

4. Sequence••..•..•••...•• , ..•.•.••............. 53

Chapell 6 Rill.. 0' Dnfrin,........................•.....•... 59

1. Introduction •.•.•..••••.. " •••..••.•....••• ". 69:1. Syntactic Palt.rlU ••.••••..•••••..•.•••..••••.. 60

Lela! ,ublect .•••.••••••.•••••...•••.••.•••. 61Legal action•.•••....•• , .••••..•.•••••..•.•• 61Case ........••......• , ...•••...••••...•... 61Conditions...••••..•••••.••• , ••...••••.•••• 62

3. Summary of eM Rules of Drafdn,............••.. 65

~Ut.ll. Avoid com",rutlJ. $,manric tmd syntactic Qmbi,uily .• 65

(l) Cornexwal ambiguity•.....•.•...•••.•..••...•• 6S(11 Semantic ambi.uity .•.•..•••••....•.•. '.' ....•• 6'1

(II Muitiple·meanlncworda ••••.•.••••.•••••.•• 67(bl Ale ancllime .•.........••••..••••..••••... 68[~) Pa"lw 9as~ participles .•••••...••••..••••.• 70(ell Number ..••.•.••..•........•.........••.. 11(t) Mead .••••.••••.•.••••..••.•..••• , ••••... 11(1) ProVisol •••.•.•••..••....••••.••••.•••••.. 72

(31 Synraeci, ambiauiry ....••...••.••••••..••••.•• n(al Misplaced modifiet 71IbI Serle•••...••••.••.•..••...•.....•.•...•.. 72.Ie) Une,nain pronominal refereDce •..••....•• " 74(eil Sphere of hlllue1lce of modifier•...••.••••••.. 7.leI Preposidon41 ambiJwcy .•...•...••.•....... 75Ifl Ambi;uitie$ $\lffouadin, participle.

and larunda ..•...•.... ; . . . . . . . . . . • . . . . . •.• 75(,I Pinal"betluu" cla~e ..•.•..•..•.......•.• 76

!lULl 2. [II. dc/ilJt,1ons spGrin:ly•....••..••..•.••..••••••••• 77

(1) Confinilll definicion••.••••..•••.••••••..••... 80(11 aeatl'1ctive definttiolu .•......••..•......•.... 80

CONTENTS ill

13/ Extendlngl:lcl1nlduns S1(4) FQrc~d definitions .......................•..•. 81IS) Cilluyina de.finitions 8216} Del.gatiftl definitions 82m Labelling definitions 82(8) Uselul dof!nitions •.•..••.••................. 83(9) One·time definitions ...•.....•............... 83

1101 Confu:iina definidoM ...................•..•.. saIII J LQaded definitions. , ...........•............. , 84112.) Capin.4eilnlclollt 8SliS) Provito dcrlnicloQl .....•......•.........•.... 86

RUl.E 3. Do nor w. dJ1'",nr wOld$ or uprlslion, rod8l10t' 'h, same rAi l2l ..•..••..•..•.....•..•....... 86

lUt.! 4. Snow cl,tlrJy upon whom Q privileg, is Conf'"'d.in wbom a POWIT i$ vt.st,d. or upOlJ whom, dury isImpO$fd •••••..........••..•.••..•...•........•.. 87

ItUU S. Us, pr'SBnl [,nte in pr,',r,nc, to !unPe rltlJ:i,.4cliv, vote, Jnsriad 01 ptmlv, vote, and 1rJdicQriv,mood inslead 01 ,ubjuneliv, mood ••.••.••••••.••... 81

(l) UdC pruel'u tense in prelerence co futuretcme .. , " , 87

(~) Use the active voice inltdad of the PII.ivevole I •• 91

131 Ute the indicative mood in.te:ad of cheIUbJuhceive mood ., ..•..••.•.••••....... : ..••. ~

RULI.6. U.I, chit ptlS,nt Jndicaci~,alter rhe word ·'ir . ....•... 92

lULl 7. Use "shall" :0 impos, a dury or (wi:h "nOl· or"no ") " prohibiciol2J ut, "may" c.o con/II OT indicar,a pOWltl, tighr Ot cnoic, ...•...•.......••........... 93

Run 8. Al'otd th, rzSI O/plOVUM 96

/1 J It the daules or p.r.aphs are completolyseparate rules then use "and" in pl"ce 01"provided alway." ........•.•..........•....•.. 99

(2) If the clau.es or p.rall'Aphl arc altern.tivesthen thow them ,$ .1ternAdves.......•.......... 99

131 rE one Cla\lSlI or pat.lt.ph tl a quaUlicaclon oithe ocher thon ule the conJunction "bue" torelace cb, one co the other ..........•.••....•... 99

)

\/

lC CONTENTS

lULl 9. Use the conn.clivl! "tlnd" and "or" withducrlmln4cion .........................•..•...•• 104

ItULI 10. N,vIf us, "and/ot" •....•....••..•......•.••••.•. 107

lUll 11. V" Canadian spelling 111

lULl 12. 10 improv'l,adlbilicy aud underscudin, ofdocumtnts:

1. Divid, a long dOCUllI'nt intO PIlaU Ilndnumb.rPdlll with 1az" RomQn numual, ....•.. 111

2. V" GJJlddinl for each palt •••••••••.•.••••.... 1113. DIVld, ,/lei! plm uno cOlllpon~t"cl/onl ••..... 1124. Us, b,adinl' lor 'lellons. ....•.•••.••••.••.•.. 1115. Divid, IlCuons into 'UbUI:U0l21 wb,,,

n'Uillll, to avoid undu, JllJIcb tlndGOmpl.JCiry . • •• I • • • • • • • • • • • • • • • • • • • • • • • • • • • •• 112

6. Us, ctlpitalllll'll ,parlnlly ..•........•..•.••. 1117. UI' apploptitlll punccuation . ...........••••••• 112

AU!.! 13. D,oid, on and adh,re to a numb,lIng tludInrtril2l ptlrr.m lOt con"cUUV8 $SCrlMI lindIUb"cuons. clau,,, and subclaulIs, paragraph,QlJd 'UOpalQlrQphl .•.•••••..•••.•••••••.•••.•.••. 11:1

lUlol 14. U" ptUlJIlaph leu/pew, 101 clanlY ..••.•...••.•..•• 118

4. Subsidiary :Rul•• of Oraltinc •.•.•.••......•..•. 115

RUU 15. Avoid unn'CU'41Y enUm,flJUOn 01 parucwlZII ••••.•. 115

l'UU 16. Avoid 4ppJlCllfio12 ollh, ,.chniC41 Larin rul,of con4uucrlon call,d lll. ,;usd&n"nul' rule•••.•.• 125

&UU 17. Avoid IrrizJl$ ofsynonyms 126

lULl 18. Avoid $Ulplul word, dnd UlIIllIeu . ..........•••••• 129

IUt119. Oilcr1m!llItt 1&\ rh. 'lIe ol"rhatll ancl "which" ••.•.•. 13~

lULl 10. Us, fables to polfldY ucbnictll data tll2d us.sompl, OOmjlutdriOI2$ rOlhow Ih, srqll,adJnlfD II ,lIUlt. I • • • • • • • • • I • • • • • • • • • • • • • • • • • • • • • • • • • • • 1.93

lUU 2.1. Do 120e WI -"uch" Wild" an illllcJ1 mil1 0' und ..••• 137

CONTENTS xi

RULa ~1. {)o no, Ult "$aid" but ilJsr'lld USI ",h,·,"char-.Ol -'bo:Js- , ......•...•.....•...• 141

Il.ULI13. Do nor liS' "aam," bu' Ime,ad us. "it", ·h,","th~·, "him". "h,r" Or orh" ,uiCllbJu.!'ll1J':U.. .... 143

~uLl14. Do nor u~t rh, words "any", -~Qcb" Or -ev~ry"

wh,r"h, iJld,!inll, ,mic], mlW b, usld 144

"uu 25. B, car~lul in Ih. choie, o/'wn"," 4nd ..wben"•.. ... 145

lULI~. Avoid u~'inl "whlZlQs" 145

)ULE 2.7. 86 pr.cis. in ,h, us. of "blrw',n" ~d "4122011I" ••••• 147

AULI18. Avoid:

/ll "It shin be lawful", "it ia the duty", "St isc1~clared" and similar expttHioftl. . • . . . . • . . . . . . . 149

121 "Whatever", "whatsoever" alui"wheteloever" .. , ...••.. , , ... , .•..• , . . . •. • . . . 149

lSI "Aforesaid", "hereinbefore mentioned", and"herein providttd" , 149

(41 "M••nund lDchldes" 152

RULE 19. Do not use lh, terms USlfd . ..•..••••.• , •.••••.•••. 1~

RULE 30. Us. rb. 'Words alld ,hlaSH in column cwo 112,,,'nellc, ro rh,ir COunIITPQff, in column on, 154

lULt 31. Avoid Ullusual ollolfl,n word ortIu. .•.• , , ••••. , •.• 159

~uLl31. AvoId starin, n,,/lfivII 161

lUI.E 33. Us, s1l01r words 'iMr"d 0;10Dl on"" u,.!llrniliQr word' imceado/l," Illmilial wOld, ••...... 162

Ch,pr'l 7 Sex aad Gende( .......••.••••.•• , •.••...•••.•• , •. 163

Chap"r8 L•••1DnRla.Styl 171

1. Inuoclucrion 1711. "Common uw" Style..•.••..•••.•••••••..••.• 172-3. Modern Canadian or Modem Norm

Amorican Stvle ....••... , ••.•••..•••.•...•••• 1744. "Plain Langua.o" $tyle••• , ••.•••.•••••.•..•••. 175

)

xii CONTENTS

Appendix A to Chllpu~r 8: SJmplu Of DifferentDraftinl Seylell , 180

(1.) Confidentiality ....•..........•..........• 180(4) Common Law Style 180lb). Modem North American Style ...••.••.. 180Icl Plain Laneua,e Style 181

12.) Parti.l Dflcharses (in a chu,e) ..•.........• 182(aJ Common Law Style ...•..•...........• 182(bl Modem Nonh Americ.n S~yl" 183(e) PlaIn WJ\l.re Style 183

(J.t Name of TCQant's BUltnea. (in a leuel 184(a) Common law Style .•.....•..........• 184lb) Modem Nanh AD1eri~nStyle .•..••...• 184Ie) Plain lAJllll&se Scyle•.•.••..•••.••..... 184

14.) Expropriation (in an ,,"ee purch.ae corporateIgfcemllntl........••..•••.....••...••.. :. 184la) COlnmon Law S~l 184(b) Modem North American Style .......•.. 185re) Pbic' unSlu.,. Style•...•......••...•.. 185

Appendix 8 to Chaprer 8: Oti.in.l Agreement forLOlt Bank Cheque .•....•...••..••..••..••...•. 186

Pl.in Lanp..,_ Redraft.......••...••.............• 187Appendix C to Chapler 8: Scod. Mort,.,e

Corporadon Standarel Chlr,e ·.~tms 188

Chapell 9 Current DocumentS .......•............••.....•.. 209

1. Ceneral CritiCisma 2092. Heaclin,l .•...••...•.....•..••••••.........•. 1103. P2n1e£ and Dll$Cription....•..•••.•••.........• 2.114. R.ec:hAls... . . . . . . . . . . . . . • . . . . • . . . . . . • . . . . . . . . 1115. Consideration..••...••..............••.....•. 11$6. Body of Document 2137. Tenninal WorcUo' 214

Chtlpt., 10 PWo Lanfll.,' WUl. . ..........•••. , ••......•.... 217

AppendiX A to Chapter La: A Plainer Form oi Will ..•. 2:11

Cht2ptlll1 IAgil1ativt DraidDI •............••..•.•......•... 229

Cht2pr.r 1:1 DraftiAl Graphicll .........•...•..•..............• 2.35

1. Components of a DocUn\llnt ....••..•••.•••.... 2362. ThouJht lxpan.IOQ Olaar~m (showing zones

ohhougnl hu willI 131

CONT£N"~ xiii

J. Component SubiCCtions Forming PolYIODllround Cure (dell 0 •••••••••••••••••••••••••••• 238

4. nlusuacion of StAIUtOry Subdivision.Showing "Ccll. of Thouahc" .......••.•.......• 139

5. Familiar Chronological Order of ConcepcIl inI M4nutaccurlnl .o\irc:ement ••••...•.•••..•...• 1~O

6. Two S4mpl. Choices of AnanaemcDc 01Concepts if Proceedin. from Simple coComplex as a Principle of An'll\ltDlent•.••...... 241

Chlll'''' 13 R.I.ODj for Jucll1ll'DC ~ ~43

l. Inafeina Rtuou. for JUdamoDc •••••••.....•••.. 2.43(1) Oenorlll ......•••••......•••.•.....•••.•. :143121 SClcing th, issue .•........•••••..........• 243t3} 'acts and law .••••.••...•..•.•••.......•. 244(41 Procedure.•........••••......•••........• :145(!j Lenlch of reuolll •.••••••.•...•••••.•••.•• 145(6) Wndn. Icyles ....••••.•..•....•.........• 145(7) SubcUvisiol\ And orlanizuicn .....•••....... 246

2. The Judgments of Lord Dennin, .....•.........• 148The lntriluiDI Opener 252Tho Hi.coricil Opener 2.53The Fatal an<l DeAdly Opener ••.........•••••. 2S4"Thls iathe c..e/ Opentr 154ThlS Ed.lcorlal O~net 154"Thil i. an lntetesciaa calt" Opener .........•. 2.55Tho Whim:llcaL Opener .............••....... 156The PiCture.que Opener•.•....•...•••••••.... 157

Chap,,, 14 Teaobins Le,I! Drafting....••.•.....•.•......••.•• 2.59TetchillS Marerial, 0 •••••••••••••••••••••••••••••• 161

ChuplIr 15 TreAd, III Drahins .•.............•..•...........• 163

1. Incroc!uChon ..............••••.••.•.....•••.. 2632. Inmuccion in Drafting ...•.•..••....••........ 1633. Craflin, Counsel .....•..•..•..•••••••..•..... 2634. Or.hinl by Computet 264

Ch"plotr lti elo.iDa ltemarka......••••••••.....•••••......••• 2.65

Source Macerl.l•.•.••.........•....•..•..........•••••.•...•. 267

IIId." .. , I I •••••••••••••••••••••••••• 269

APPENDIX B

') CHECKLIST OF CLIENT PARTICIPATION IN PREPARATION OF THE CONTRACT

1. Attendance with Client at Meetings with Other Contracting Party(ies).Meetings Attended: _

2. Briefing by ClientBriefing Given By:, _

Time:--------Discussion Was: Thorough , Superficial , Unsatisfactory __

Limited by client's reluctance to deal with "what if's" __

3. Client's General Goals for the Contract Drafting ProcessPrecision _

Comprehensiveness. _

Brevity _

Plain language or legalese, _

Durability _

Suitabi1ity~.------- _

Fair or one-sided. _

4. FeesClient limited legal fees to:, _

Which was realistic unrealistic __ for the job to be done.

5. Time ConstraintsReasonable __ Unreasonable __ Only had __ to produce first draft.

6. Client Review

Produced drafts. Reviewed all drafts with client personally in office.Client's review was superficial due to '

7. Issues Raised But Not Addressed in Contract on Client's Instructions

)

APPENDIX C

The Ten Commandments ForPlain Languag"~Dra.ftihg

.. "':-"':: .. :'.: .' ..".. . ':::::"::'::;\=:'::\.:.:...:;::"

1~ Consider your reader and write With that::: .... :". reader's viewpoint in mlncL: ..

%. Write short sentences.

3. Say what you have to Sly. and DO mOre.

4. Use the active voice.. .:.... -: .•... :

5. Use simple, "eVeryday" words. .' ..; .....:: ;-.

6. Use words coDsfstentll~

7. .Avoid strings orsynonyms.

8. . Avoid unnecessary.rormality.. ,.:'

- . ::-.

:\., .'::.;".::. "';" .. :.-

).j

...,....•. , •. "OrgaDize your text:..... . - ::::. ".;.:: ::::;:::::~':'.:' .: .. . .~ .:

-.: .' .. .• ::: :{ty. Ilia foeicaI sequen~

. ."0;,:,::(%),,, with informative beadings, and'.'.,.,::::,:,,':.(3}.:. with a table orcontents tor IoDI:......:":.,. documents.

·::;·:\:··;:·~:;:r·;

........

10. Make tbe document attractive and .desianed. tor easy readln...

6

The Canadian Bar Association and The Canadian Bankers' Association Joint Committee Report, The Decline and FallofGobbledygook: Report on Plain Language Documentation.

)

Appendix D

Draft Regulations) Tested

Por the first thno. U\c Cloadlan federal aovenuncnt baI teaed Ihc Ulablllt.)' orreJUlaUons before brlnatoa them into foRlO. The Consumer P1IeworkJ ReJUladouwen: wrltten In plain IansuaBc and thco~ with coosu.mcn, retaUcn. c11llributorsand police and tLre prevention otnclals. The teAl", II pan ot lhc DepartmeDt ot lU1t1<lOeanada'.lnnovatJvo plalnlanpsc 4raft1a, proJed.

Tbc Reautalol)' Consutt1111 Group Inc. (RCOI) W8I h1rclS b)' the Depart.monl todevelop the lest prOlOOOl and ClOndua I.hc Wtlq in Ontario and Quebec. Phil KD1BIU. •Ia")'Cl and plain lanpa,e specialist. conducted the testIna In Britllh Columbia 1II1n,the R.COI materials. Claire Veillette, a t.ra1ner, COI\4uc:t.cd tho tesl1ns in Queboc.

Tbc purpoIO of the t.cIt1nI wu to dJIoovor bow eully partIoIpudI~WiotormatJon in the ResulatJoDS and bow wen thc1 ClOUld undon&and what thekeptalions requirod. Tboso who devolopod tho tod also wanted 10 know Ifabo TabJocrt Comenu. Summary, .nd O1her readGl' alds(loclud1D&~ bold tor deftDed worck)in the plaia lanpaJC ReJulatlODl werohoI~. PartlcIpanU wero asked It the)' likedthe usc or 'you'ln tho rcswatlon. Partldpanta woro also asbd It&her wou1d havo aJlTdJmculUes compl)'ins with, or enCorclnJ, the kcplaUonl.

A .ummel)' oftbe nodlnl'

Particlpanta .ppreclated the plala~ Itfle or tho ReJUIadoDS andcommented favourably on \heir c1artry and lack otlcpl=. Many panlclpants used the'fable of ContentllO tlnd InCormatlon. OIJ\crS reUod more on tho marJlnaJ 00* bc5Ideeach section. We found that l'eldefl wont dlrca1y &0 cbo IU~IJVC 1ClCt101l1 otlhoJleBulatlons and did not~~ remember tho adcIIdonallllfbrmaUon IDcJuded In theSununa.ry or Backlfound Inf'onnatlon lCdlolll.

Panlc;lpanLJ bad some troublo dlltlnplshlll$ beCwoea dJ5p1ay and storqo~ulRmentsfor ftrewDW. Tbt; RcSUlatJoDS wcro Drpnlsoc1ln a WI)' that did DOlI8UsCactoril)' dlstlnJUish betwe!eD dJipley and st0rli0 orberwooD I)'pOI ortlrewortaowners. 'fhe lcstlns also Jdcntltlcd IOmc words that wore dlmc:uh tor peoplo 10understand, particularly In French.

PanJclpanU were BiVCD~ wnplo pili" otlt.oJUlldou r.o compan - DOG uslDaYO" and the otber ushli .lIU)',.,.3011. SolDO putlclpantl tawurod abo WO of YD"boc:auso It .poke directly to them and the)' knew what &hay bad &0 do. Othor~lpantl (most llotJocably.1hc PranClOpbones) prdcrre4 .".,., f¥1'6On bccauIo IIwas more torcetul and made It dear that • rcqulromccu applied to e'm)'ODC.

Oencrally, partlclpanu th,ougbt tho RcplaUoDl were NIiOP&blc and quJlO CU110comply with. PA.rt1cipantl' conamenta on compl)1nB blBll11J1ucd IODlO~ Indr'at\lrti (where exactly Is mokinB prohlbltod? ...D)'WhaR lq a store In wblch Ilreworbarc IOld or only near thc ftreworb?) and SODlcdJ1lCl the)' rcvcatod a problem with arequirement Itself (how can retailers display certaln t)'peS or rounded fireworks In •vertical polltlon?).

~~~~~~~J, a report from ~~ Vicki Schmolka I,ll~lllJ,.

)

lrJ,.J,.J,.~J,.,"J,.J.J,.~~~~J.t TeeUngfederal f1reworka ragulaUon8 tfC-IIau"t-_~J,. J,. ~ J,. J,. J,. J,. ~ J,. Ir J,. J,. ~ J,. J,. The value of uaabUity testlol

Tbc:~ provldccS I weaJtb ofdata 00 bowJaIdorI WOlIIbo R.epJatloDS to ftD4Intormatloo. and OD the lanpaao, OlpplzltlQQ,~ ClOJUeDl ofabo MaplatlODl. WithtIl1I ruoarcb. tho 4rIften aod poUcy ID8bIJ ...w lao Ibltao reftDe tho draft~~ODl80 that Ibq~~".Iepl ~ulrDlDOQII aDCllCblevt theirp~ 1'bc~ CID DIO tbt .. 1'OIU1ta to IOtIOmo obJ~\'OIfbr flltureplalD Ianpap drIftIaa projecU.

TbIJ 8rIt cxpcdcDc:c In toc1anl UllbWt)' tllldAllUISCIU tbat .ovemment dcpanmenllcan pip a uemCDdoua edvanlalOb)' IaklPi~ clme (10 au. c:uo tour monlhl fromIW1 to ftnlsh) AD Iallhc usabWty 01. RplatJoa wllh replalOOl before brlnj1Da itinto to~. The lCItln& can ldentiJ)' problclnf••100I ma), hive III undcJ'5laDd1DIIhclr lo,plaupooslbWtlCl. Drancn wUllheD be able 10 ClOnect lboIo problems beforethe repll1loPl ClOmo halo 1oRlC. By IC5t1n.J 8rit, abo .ovcmmenl C8D. oxpect improvedrolatiODI wllhro~ and bnprowxl ClOmpl1aPco with regulations.

~&:hmolbl. AIIodaIc· UIlIbW" TeII1AIo BCOI. developed abo we methodolol)'u4 c:onduct"" &ho &oIt1OS In Oo&ario. noDopanmeDt oflustlc:e Qlnada publishedtbo FmaI Report on the CoasumorP4rewow RQpII110D5 UIlbUlty Teat IS aTcchnical~. ItuavaUablc from &h; JtaIc:8rdl SecdoIl of the DcpaJ'tlMRL

Por JntormatJon or reterrals, wrlto or eeU:

International PlaIn languageconsultants Network

Chel)'l Stephens. Bo~ 412". BentaU Conlre, Vane., BC CAN V7X lAI1 (604) "9.044) Ilx I (604) 7J9~Sn

Kate Harrison, Box n08, Wiaalpc.. MN IUC 4271 (204) 4$2.19'2 fax I (~04) 4'7J·S~7J

Judith BODnett. Prceblll Holllagdale &t Paao, Level 43, 101 Collins Street,Molbourne, VIC '000 phoDe (61) 288..1)%1, rax (613) 288.1561

Mlrtla Cuttl, 69 Blnss Road, Wbaley Bdd.c. Stockport, Che.hlreSki 'Nt) phooc (0663) 1J2957 fax (0663) 7)SU'

LooklD. tor. piliD IIOIUlJO coaaultaal'a )'our 1000rapblc .rea?

Arc you • plalo 'anJIlI,c c:on'lIlIllIt"'intlna know plaia l,nBuI" coll5ultaat,

ouulclo )'our aco....phlc or .poo1&1111 area?

International Contact:

aqteod:

Australia:

:. .... . . Rapport. N0WS (,1IJCIl,tt pl~'Jin langu8QH . 4/19~)4 PL,\~~(1 1()

Appendix E

Plain Language In Progress:More than Just language

Hotel Fort Garry, Winnipeg, August 23-25 1995

Wednelday, Auput 23

Programs In Progress

9· 12 noon R.glstratlon1:00 Welcome: Cheryl Stephens and Katt Harrison,

Conference Co-cbalraInternational Plaln LanBuage Consultants Network

Plenary Panel: OlobalDcvelopmenbPanelists will discuss Australia, Sweden, Canada, USA and South Africa

)

AllrI"Law"QPXOrpmAPI

DeveJoplnsplain lapsu~e

regulationsWendy GordonShelley Trevethan

Thursday, Auaust 24 :

Issues and Ideas'"d.. I iLaw &goyernmept

Legislating plainlanguage: Yes or NoPhil KnlghlVicki Schmollca

Lela! Prorealon:'Wbyuseplafn lancuaJc'Cheryl Slfphtns

B IIrI"Dualncas, Consumer

AI.lImGf

Prop-ams In proSr&Nancy Perou;o,Glmn Hildebrand,Kale HanVon,Darell Pack, JOQlUlt n-onlak

.. 'Md.. .Bualneu, CoaaumcrAI.U'V'Q'

LlteraCIlOludoDl& alternativesBrent PoultonJandDtan

Plain lanpase &lIteraclln• knowledC&­based societyBrtnt PoultonJOQMeGodln

gHri..ToduIlquoaA

lADpyatiON •

Fol'llUl df£ip=Wb)'lcss" moreKlmJa.sperRobP"II

Tcc:bDlquea &IpPQY'rlPQI

Plain lanpa,.ledmlquel Jiveure to ),our wordsJOQIIIIt God/II

Kefcomponentlofa programKate Harrison

Plain lanpale and pubUc InformationGordon Macldnrosh, Member ofLegislative Assembly 01Manitoba

followed by Media Debate; Plain speakingChaired by Terry Aseltine, Pres., Public Relallons Society ojCan.Panelllsts: Duncan McMonagle, Winnipeg Free Press, Maureen Prendergast,

l"'ormation Raidb,CBC Winnipeg, Steven Riley, Television Producer,esC WlIJIJipeg

'ltrl..Law"Qg,ycmmepr

Plain lan""'leIn SwedenBarhro Ehrenber,-Sundin

DranlDg dearrelulaUonsLlndaHume

'ltd"Duslnoaa. Coaaumcr4; LllNBPY

Clear eornmumcaUons:The competitive ed,.Jamie Conklin

Consumer advoeacrand plain lanpal'AIuiJ CtunpbeU

c ••rI..TecJulIquea &InnovatloN

Oral/aural plain language'JaM,De""Cheryl Stephens

Assessment••valuaUonJOMr Dean, Vlckl SchmollcaPhil Knight

FrIday, Aupst 25: Future Vision• "rl.. I uri"Law &; 8ualDoa. eonlUm"ao",mmepl A; 1J1cmy

CMrI.,Tecblalquca •

,lnoopuona

TedmoloBf serves'plain lanjuBge: ACJNetAlan Dldl4ckCheryl Sttphens

Conference repOrdD&& review sessionVicki Schmolka

Banklns'ndustry" plain languageGraham Dixon

Consumer-drlvenplain laJlP8&eKoren GameyJohn Stillion

Plannl.. a plain languageeducaUon programTom MohatnmedJanet Dean

MolU-UnlDaIplain wrlUn&Nicoli Fernbach

We thanIc the following sponsorslor their S"P/N'N ol'lJis conference:Sponsors: National UteraC)' Secretariat

Rapport ConununlcationaCanadian Dar Association, B.C. Bra.oohInvoltor,· GroupManItoba CoDlUll1el and Corporate~CanadIan imperial Bank orCommorc:cRoyal Bank ofCanadaThompson, Dorftnan, Sweatman, Barrlsten " SollchorsTourism ManitobaASAP Prlntlns Centre, Vancouver, B.C.

)

Appendix F

The Land Titles Act

STANDARD MORTGAGE TERMS

FARM CREDIT CORPORATION

. PLAIN LANGUAGE MORTGAGE

1. DEFINITIONS

This section defines some of the specific tenns you will fmd in these Standard MongageTenns.

Mortgage means the Specific Mongage Tenns attached, these Standard Mongage Terms,and any changes made by written agreement with you.

You and your mean each person or corporation who has signed, as Mongagor, the SpecificMongage Terms attached. This includes the personal and legal representatives and anyperson or corporation who has assumed any obligations under the mongage.

We, us and our mean the Mongagee, Farm Credit Corporation, and its legal representatives.

Property means the land described on the Specific MongageTenns attached. This includesall buildings on that land now and all improvements made before or during the time thismongage is in effecL

Principal amount means the principal amount ofyour loan stated on the Specific MongageTenns attached.

Loan amount means the outstanding balance of the loan at any time during the life of themongage. This includes the unpaid principal amount, interest on the unpaid principalamount, defaulted payments, interest on defaulted payments, other charges and interest onother charges.

Other charges mean our expenses ofprotecting and/or enforcing our rights and of makingpayments on any prior charges against the property.

Other charges could include the cost of the follo~g:

• investigating the property, and preparing and registering this mongage

• insurance ifwe decide to insure you or the property .

• legal costs on a solicitor-client basis in an action under this inongage

• the cost of any receiver appointed under this mongage

• inspecting the property, and

• all our administration and clerical costs.

Other charges may include expenses not listed here.

Prior charges mean any charges or liens against the property that affect the priority of thismongage.

Hazardous substance means and includes all hazardous substances, toxic substances,contaminants, pollutants and all otherdangerous substances as defined in any act, regulationor by-law.

~ ..... ,....,....,

FCC P1ain Lan...... MOIl••••

2. WHAT THIS MORTGAGE DOES

P... 2

By signing the Specific Mongage Tenns attached. you mongage your entire estate andinterest in the propeny to us. In return we make a loan to you in the principal amount.

2.1 Your title to the property

You guarantee that you are the registered owner of an estate in fee simple in thepropeny and have a right to give us this mongage.

You also guarantee that there are no prior charges on the propeny. other than thosewe have agreed to in any loan approval document.

You agree to make payments on these approved prior charges as they become due.

2.2 Who Is bound by this mortgage

The obligations under this mongage are the collective and individual responsibilityof all persons or corporations who have signed it

Your legal and personal representatives and our legal representatives must complywith this mongage.

2.3 Changing or extending this mortgage

We may make written agreements with you tochangeany panofthis mongage. Thiscould include extending the time for payment and changing the interest rate. We donot have to register any written agreement to maintain the priority of this mongage.

If there is no written agreement in force on the date your loan amount is due. we arenot taking steps to recover the loan orwe have not notified you this mortgage will notbe extended. this mongage will be automatically extended for one year.

An automatic extension would take effect under the following terms:

• any default under this mortgage would continue to be a default

• the interest rate would be our one year mortgage rate on the dateyour l!>an amount is due

• the payment periods and all other terms would not change. and

• we would notify you ofthepaymentamounts, which would be based on thenumber of years left in the amortization period. You will fmd the amor­tization period on the Specific Mortgage Terms attached.

The automatic extension provisions will continue from year to year until the end ofthe amortization period.

2.4 Termination of this mortgage

Our inierest in the property ends when you have repaid the loan amount.

FCC Plain Lon,III,. Mon,a,.

3. INTEREST

3.1 Interest rate

You will fmd the interest rate on the Specific Mortgage Terms attached.

3.2 Interest on your loan

Pa,.3

)

We will charge interest on yourloan both beforeandafter the interest adjustmentdate.You will find the interest adjustment date on the Specific Mortgage Terms attached.

.We will charge interest from the date we release the loan to the interest adjustmentdate. You will pay this interest on the interest adjustment date. If the first paymentdate and the interestadjustmentdate arC the same, this interest will beincluded in yourfirst payment. .

Starting from the interest adjustment date, we will then calculate the interest on yourloan every six months through the life of your mortgage.

3.3 Interest on defaulted payments

If you fail to make any payment on time, we will charge simple interest on thatpayment. We will calculate interest from the date the payment was due until the dateyou pay it.

The interest rate on defaulted payments is the same as that on your loan.

3.4 Interest on other charges

We may add othercharges to the loan amount You agree to pay othercharges fromthe date we pay each charge until the date you pay us.

The interest rate on other charges is the same as that on your loan.

4. YOUR RESPONSIBILITIES

Bysigning this mortgageyou agree tocarry outall ofyourresponsibilities under it. You alsoagree to carry out all the conditions under which we make the loan. You will fmd theseconditions in the document approving the loan.

4.1 Business plan &financial statements

You agree to carry out any business plan that we requested and have approved. Youalso agree to provide financial statements when, and in the form, requested by us.

4.2 Use of your loan

You airec to usc your loan as described in the document approving the loan.

4.3 Repaying your loan

You agree topay to us the principal amount, plus the interest calculated in six month

FCC Plain Lon.UI.e MOIl.I.e Pip 4

intervals from the interest adjustment date, in regular payments. You will fmd theamount of each payment on the Specific Mortgage Terms attached.

You agree to pay us in Canadian dollars.

You agree to make your payments on the payment dates stated on the. SpecificMortgage Terms attached.

If you are not in default on any loan from us, we will apply each loan payment asfollows:

• first, to pay other charges

• second, to pay the interest due, and

• third, to reduce the principal amount

Ifyou are in default on any loan from us, we can apply each loan payment as we seefit

4.4 Prepayments

Ifyou are not in default on any loan from us, we may grant you the right to prepayall or part of the principal amount and interest

Ifwe do grant you a right ofprepayment, we may require you topay us an additionalamount representing our costs incurred by reason of the prepayment, including allinterest lost by us as a result of the prepayment

4.5 Taxes on the property

You agree to pay all propeny tixes.

You also agree to pay allchargescollectible as property taxes such as municipal hailinsurance premiums.

4.6 Insuring the property

You agree toinsureall buildingsandimprovementson yourlandinourfavour, duringthe time this mortgage is in effect. We must approve the insurance policy andcompany. We can require changes in the policy.

The insurance policy must cover loss by fire and other hazuds, including extendedperilscoverage. The policy must be forrcplacement value. The policy must includea mortgage clause stating that proceeds are payable to us.

Ifyou do not insure your buildings and improvements in this manner, wecan insurethem and the cost will be considered other charges and added to the loan amount

Ifany damage orlossoccurs, you agree to notify uspromptly and co-operate with theinsurance company.

We may apply the insurance proceeds to any of the following:

• to repair or rebuild buildings or improvements

• to reduce any part of your loan amount, or

FCC Plain Lon.III.e Mon.l.e

• pay them to you.

PI.eS

4.7

Ifwe pay the insurance proceeds to you, that does not affect yourpayment obligationsunder this mongage.

Life Insurance

If requested by us, you agree to provide and maintain life insurance on yourself orothers in a fonn satisfactory to us. The life insurance will be assigned and payableto us during the period of time this mongage is in effect If you do not provide ormaintain this insurance, we may do so and thecost will beconsidered as otherchargesand added to the loan amount.

4.8 Transferring the property

You agree not to transferany of the propeny withoutour written consent. This wouldincludecreating anewparcel from thepropeny,orgiving a lease oralicenseoveranypan of the propeny.

You assign to us any agreement relating to the propeny under which you receivepayments. Ifyou are not in default, we may not require these payments to be madeto us.

We are not responsible for your obligations in any of those agreements.

4.9 Removal of resources

You agree not to remove any trees, gravel orotherresources from the propeny with­out our written consent

4.10 Keeping the property In good condition

You agree to keep the propeny in good condition. You shall not do anything thatlowers the value ofthe propeny. Ifyou do not maintain the good condition and valueofthe propeny we may enterand take any action we considernecessary to restore thepropeny. Any cost taking such action may be added to the loan amount.

4.11 Environmental protection

You represent and agree that:

• you and all persons you are responsible for in law will, at your cost, comply withall relevant environmental laws, including those relating to the management,handling and clean-up of hazardous substanceS;

• the propeny has not and will not be used to store any hazardous substancesabove or below ground, except in the normal course or your business at the timeof this mongage. Any such storage in the normal course shall comply with anylaws, regulations or by-laws pertaining to safe storage and/or handling of suchhazardous substances;

• no hazardous substances have or will be released into the environment;

• there are no existing or threatened legal proceedings or investigations in relationto any hazardous substance affecting the propeny or any environmental mattergenerally nor any grounds for same;

FCC Plain Lan....._MOII,",_ PI._6

• you will advise us ofany environmentalcondition involvingahazardous substanceor breach of environmental law on or near the propeny which you may becomeaware of. You must remedy the environmental condition on the property andremove any hazardous substance at your expense within a reasonable time asdetermined by us. .If you fail to do so, we may, but are not obligated to, take stepsto remedy this environmental condition and remove such hazardous substance andany costs, expenses or damages incurred by us shall be added to the loan amount;

• you will provide us with any environmental information respecting the propertywhen and as requested by us during the time this mongage is in effect

4.12 Paying other charges

You agree to pay all other charges we are lawfUlly entitled to collect.

We may add other charges to the loan amount when they occur.

5. OUR RIGHTS

We have rights under this mortgage to ensure that you carry out your responsibi~ities.

5.1· Our right of Inspection

We have the right to enter and inspect the property for any reason and at any time,whether or not you are in default

5.2 What we can do If you default

You are in default ifyou fail to make any paymenton time or fail todo anything elseyou agreed to do under this mortgage.

You are in default ifany of the environmental representations are untrue at the timegiven or are breached during the time this mortgage is in effect

Ifyou are acorporation, you are also in default if there is a material change in votingcontrol, ownership, or officers and directors without our written consent

Ifyou default, we may take certain actions.

• We may demand payment

Ifwe demand payment of the loan ~unt, the loan amount is immediatelydue and payable.

• We may sue you lor the loan amount

• We can take &:lIe proceedings

.We can take possession of the property.

We can sell all or part of the property by private sale or public auction. We. can sell for cash or credit or both.

We can lease the property on any terms or for any period we wish.

Before doing any of these. we will live notice or obtain court approval ifrequired by any applicable law.

)

FCC Plain lAnCUACe MonCICe Pice'

)• We may foreclose

We may take action in court to foreclose your title to the property and yourright to reclaim the title. If the court grants a final order of foreclosure, theproperty legally becomes ours.

• We may sue you

We may sue you for possession.

We may ask the court for a judicial sale of the property.

If the amount we receive from any sale does not equal the loan amount, wemay sue you for the difference. .

• We may appoint a receiver

We may appoint or may ask a court to appoint someone to manage, sell orliquidate the property.

• We may take any other lawful action

5.3 Non· merger

Ifwe take any action forcing you to comply with any partof this mortgage, orobtainajudgment against you, it will not affect ourother rights under this mortgage. It willalso not affect our rights under any other mortgage you have with us.

5.4 Time extension

Ifwe delay in enforcing aily ofour rights under this mortgage, it will not affect ourother rights under this mongage.

5.5 Partial release

If we release part of the property from this mortgage, it will not affect yourresponsibilities under this mortgage. Our interest will continue in the rest of theproperty.

Ifwe release any person or corporation from any obligation under this mortgage, itwill not affect the obligations of the remaining signers.

5.6 Consolidation

Ifyou default under any terms ofany other mongage with us, we will consider youin default under this mongage.

Ifyou default underanyofthe tenDs ofthis mongage, we will consideryou in defaultunder any other mortgage with us.

5.7 We are under no obligation to make advances to you under thismortgage

FCC P1ain LonCUlce MonClce PlceC

We may decide for any reason not togive you all orpanofthe principal amount, evenif:

• you have signed this mortgage

• we have registered this mortgage, and

• we have already given you pan of the principal amount.

5.8 . Right to Readvance

Provided you are not in default under any terms of this mortgage, we may, in oursole discretion, readvance any principal portion of the mortgage debt to an amountnot to exceed the original principal amount secured.

5.9 Differences

Where there is any difference between the terms ofthis mortgage and the termsofthedocument approving your loan, the terms of this mortgage will prevail.

6. DISCHARGE

When you have met all your obligations in this mortgage, including payment of the loanamount, we agree to discharge this mortgage.

We will prepare and provide you with a full discharge in a reasonable time afterour interestin the property ends.

flR11 <:111""

FCC Plain Lon,...,. Mort,.,.

The Land Titles Act

SPECIFIC MORTGAGE TERMS

.FARMCREDITCORPO~TION···· .

P.,.9

""::. '.:.:." '.

PLAIN LANGUAGE MORTGAGE:. ..•.•.•.··•.

........... ;":::: ..; ..."

...,..----.,---~IAdcIlionaI T8mII ....>.::.:.:. ..•.•...•. ...•..:,:;:/ .: ...::::.... :..

:=::::===========::::::::::::::=:::::::::''.::::.":=..:::::::::::::::::::::::::=:=::::::=~l<·

Amount 01 Each Payment R~I Pa~ntD81e .

1'---__11'-- __Bala.- Due DalB .• Last Payment DalB1="'---1'1..,.----_

YOUR PAYMENT TERMS

The Land Titles Act

········.····.····.••·•.·····.SPECIFiqMOFijGAGE TERMS

FARM CREDIT CORPORATION............. PLAINLA~~J~GE MO~TGAGE

....... .-.:.:.., :.- ,

PiP 10

Pa,_ II

AFFIDAVIT OF WITNESSI. ~-=----:-__-:- of _

in the Province of Saskatchewan. make oath and say that:1. I was personally present and did see _named In the within instrument, who__personally known to me to be the person(s) named therein dUly sign, andexecute the same for the purposes named therein.2. The Instrument was executed at the of in the _of and that I am a subscribing witness thereto.3. Ikoow _

and that In my belief of the full age of eighteen years or more.SWORN before me at )_____________In the)

Province of SaSkatchewan )this dayof ,19_.)

A COMMISSIONER FOR OATHS in & forthe Province of SaskatchewanBEING A SOLICITOR -or-My Commission expires__--:- _

AFFIDAVIT OF WITNESSI, -=----:-_--:-::---:---:-__--:-_--.-_-:----. of _In the Province of Saskatchewan, make oath and say that:1. I was personally present and did see__-.- _named In the within instrument, who__personally known to me to be the person(s) named therein duly sign, andexecute the same for the purposes named therein.2. The Instrument was executed at the of In the _of and that I am a subscribing witness thereto.3. I know _

and that In my belief of the full age of eighteen years or more.SWORN before me at )_____________Inthe)

Province of Saskatchewan )this day of , 19_ .)

A COMMISSIONER FOR OATHS In & forthe Province of SaskatchewanBEING A SOLICITOR -or.My Commission expires _

CONSENT OF NON·OWNING SPOUSEI, •non-ownlng spouse of ~~~_~.......,.~ __~____-.--.---.-:-:---:::---:--' consent to the above disposition. I declare that I have signed this consent forthe purpose of relinquishing all my homestead rights In the property described In the attached disposition In favour ofFarm Credit Corporation to the extent necessary to give effect to this mortgage.

Signature of non-owning spouse

CONSENT OF NON-OWNING SPOUSEI, ' non-ownlng spouse of-::-~-:-----=_~-:--_~____-.--.---.-:-:---::---:--. consent to the above disposition. I declare that I have signed this consent forthe purpose of relinquishing all my homestead rights In the property descrl>ed In the attached dispoSItion In favour ofFarm Credit Corporation to the extent necessary to give effect to this mortgage.

Signature of non-owning spouse

6611S1()lO'1

FCC Plain Lm,III.e Mon•••e Pa.e 12

CERTIFICATE OF ACKNOWLEDGMENTI, ,Notary Public/Solicitor, certify that I have examined

non-ownlng spouse of•the owning spouse,ln the attached mortgage separate and apart from the owning

spouse. The non-owning spouse acknowledged to me that he or she:(a) signed.the consent to the disposition of bis or her own free will and consented without any compulsion on

the part of the owning spouse; and(b) understands his or her rights in the homestead.I further certify that I have not, nor has my employer, partner or clerk, prepared the attached mortgage and that

I am not nor is my employer, partner or clerk otherwise Interested In the transaction Involved.Dated at , In the Province of Saskatchewan, this

day of ,A.D. 19__.

A NotaryPublic pursuant to The Notaries Public Act A Solicitor entitled to practise law pursuant to The LegalProfession Act.

My Appointment expires 19__.

CERnFICATE OF ACKNOWLEDGMENTI, ,Notary Public/Solicitor, certify that I have examined

non-owning spouse of, the owning spouse, In the attached mortgage separate and apart from the owning

spouse. The non-ownlng spouse acknowledged to me that he or she:(a) signed the consent to the disposition 01 his or her own free will and consented without any compulsion on

the part of the owning spouse; and(b) understands his or her rights in the homestead.I further certify that I have not, nor has my employer, partner or clerk, prepared the attached mortgage and that

I am not nor is my employer. partner or clerk otherwise Interested In the transaction Involved.Dated at , In the Province of Saskatchewan, this

day of ,A.D. 19__•

A NotaryPubilc pursuant to·The Notaries Public Act A Solicitor entitled to practise law pursuant to The LegalProfession Act.

My Appointment expires 19__•

AFFlDAVrrlfWe (and) (both) 01

. In the Province of Saskatchewan, (SEVERALLY) MAKE OATH ANDSAY THAT:

1. I am (one of) the Mortgagor(s).

2. My spouse and I have not occupied the land descrbld In this disposition as our homestead at any time dUringour marriage.

-or-

2. I have no spouse

-or-

2. My spouse Is a registered owner of the land that Is the subject matter of this disposition and a co-slgnator ofthis disposition.

(SEVERALLY) SWORN BEFORE ME)at In the)Province of Saskatchewan )this day of )

,19_.))))))

A COMMISSIONER FOR OATHS In & forthe Province of saskatchewanBEING A SOLICITOR - or-My Commission expires

6611S1JC"1)

Appendix G

A . L d 1111= Ag . . bIgn- an §iiii n-unmeu esSaJ6 .-nd t .ea.llljing Ventt ("f Incatlon

1\ I)ivi~lnn n( farm C,c-dil (:nrpnurinn l'n(' di,i'ion de- I.. Soc.l~f~ till .... rcdil .lJ:fltnlC'

) AGRI·LAND INVESTMENT LEASE

THIS LEASE MADE BETWEEN:

FILE #: _

AGRI-LAND SALES & LEASINGA Division of Farm Credn Corporation900 - 1801 Hamilton StreetRegina, Saskatchewan S4P 4L51-800-910-5263G.S.T. No.: R101742203(referred to as "Agri-Land")

AND IN AGREEMENT AS FOLLOWS:

1. J.ANQ

- and-

(referred to as "You" and ''Your'')

(approximately .Acres total acresl Cult. Acres cultivated acres)

2. :mRM -Agri-Land will lease to You the above land for the period, from December 1, 1995 to November 30, 1996.

3. B.M -The rental will be payable as follows. Select a payment option and provide the appropriate post-dated chequesfor the total lease rent. This agreement will not be /n effect unless the signed lease and post-dated cheques arereceived by Agri-Land.

Selection Payment Payment

0/ Date Amount GST

January 15, 1996 $ $

January 15, 1996 $ $

October 1, 1996 $ $

January 15,1996 $ $

October 1,1996 $ $

RENEWALThe Agri-Land Investment Lease is a series of five one year leases, this being your first year. If You meet all terms,conditions, and eligibility requirements of this lease, and any renewal, Agri-Land will provide You with an annual option torenew this lease for up to four one-year terms. The rent payable in each year may be adjusted to reflect increases ordecreases in local market rents. /f you are not in default of the lease, you will be offered the lease renewal and any rentaladjustments, upon expiry of the existing lease term. If you are in default, you will be ineligible for any lease renewal.

OPTION TO PURCHASEIf You meet all terms and conditions of this lease, You have the option to purchase all of the land, or any parcel at any timeduring the lease, provided the purchase does not interfere with access to, or value of the land, remaining in the lease. UponYour written request and a payment of a $500.00 administrative fee, Agri-Land will set the Option Price and the time forexercising the Option. The fee will be applied to the purchase if the Option is exercised. If the Option is not exercised, thefee will be retained by Agri-Land.

4.~ - Agri-Land will pay the municipal property taxes. You will pay any municipal hail taxes, irrigation water taxes,GST, and any other tax which may be levied by any level of government, during the lease.

5. CAVEAT - You will not register a caveat against the land, and agree that a breach of this term will entitle Agri-Land toterminate the lease.

6. SUMMERFALLOW - You will summerfallow, in a proper manner, not less than acres each year, and Youwill pay $50.00 for each acre agreed to be summerfallowed that was not summerfallowed.

7. CULT/VAT/ON - You will cultivate, use and manage the land in accordance with community and municipal standards.

8.~ - You will keep the land, buildings, and improvements in good repair, and You agree to be responsible for andpay for all repairs.

9. APPLICATION OF CHEMICALS - You agree that any chemicals applied to the land will be applied according to labeldirections and proper farming practice. You agree to keep a record of chemicals applied to the land and You will providethe record to Agri-Land upon request.

'HIl) - IHili llamil.on StreetI(q~ill". S..,k,"chew.. n S4P 4L5"I""I<"hllll<' LU)(,) ~H()-R411

1'.Il\imilic LIII(,) ~H()·757(,

1110 I, rue H.mil,on, hureau 900Re'gina (S..,katchowan) S4P 4L5T e'1e'pholle : (J061 780·1141 ITCIc'copieur: U(6) 7110-7576 Canada

10.~ - You will keep a record of crops grown on the land, and You will provide the record to Agri-Land upon request.

11. RELEASE OF INFORMATION - You agree Agri-Land can release information to a third party about crops, chemicalapplications, environmental conditions, and your farming practices on the land. You agree Agri-Land can refer your nameand telephone number to the third party to confirm this information. Agri-Land will only release the information to a thirdparty interested in purchasing/leasing the property.

12. INDEMNITY - You will protect the land and indemnify Agri-Land in regard to any liens and charges from theconstruction of any bUildings or improvements. You will indemnify Agri-Land from all claims, demands and costs madeby anyone, arising from this lease or Your occupancy of the land, including any damages which result from the applicationof chemicals, contamination or environmental hazard.

13. ENVIRONMENTAL PROTECTION - You will protect the land from environmental contamination at Your cost, and Youwill comply with all environmental laws, relating to the use, handling and clean-up of any environmental hazard orcontamination inclUding any substances defined as hazardous substances, contaminant, pollution, and/or pollutant in anyapplicable federal, provincial or municipal legislation, now in force or enacted, and the land will not be used to store orrelease hazardous substances above or below ground.

You will advise Agri-Land of any environmental problems regarding the land and You will remedy any problems at yourexpense. If You fail to do so, Agri-Land may, but will not be obligated to, take steps to remedy the problem and the costwill be a debt due by You to Agri-Land.

Agri-Land will limit Your responsibility for clean up of environmental contamination to the situation where You are found tobe legally responsible for the contamination.

14. ASSIGNMENT - You will not assign the lease or sublet the land, buildings or improvements, or graze or house livestockother than those livestock owned by You, without the written permission of Agri-Land.

15. SURFACE RIGHTS - You have no rights to sand, gravel or clay and You have no right to valuable stone or othersubstances eXisting on, or under the surface of the land. Agri-Land will be entitled to grant Seismographic Licenses,Surface Leases and/or Easements for exploration, development and pUblic use. You will be responsible to negotiate withthe third party, compensation for any crop damage.

16. TIMBER &WATERWAYS - You will not change the natural course of any waterways or cut timber on the land, andYou will not permit any other person to do so without the written consent of Agri-Land.

17. IiliIBY - Agri-Land or its Agents are entitled to, at any time, enter the land for inspection or testing. If Agri-Land orits Agents require access to an occupied farm house, prior notice will be given.

18. POSSESSION - You may possess the land without interruption or interference from Agri-Land or its Agents. Agri­Land is not responsible for interruption or interference by other parties.

19. BUILDINGS AND IMPROVEMENTS - Agri-Land carries no insurance against loss or liability. In the event thatbuildings or improvements are damaged or destroyed, Agri-Land will not be obligated to replace or repair the buildingsor the improvements.

20. CROPS STORED ON LAND AT COMMENCEMENT OF LEASE - If Agri-Land is unable to remove cropspreviously grown and stored on the land, the crop can be stored on the land up to six months from leasecommencement without charge or interference from You, and Agri-Land can remove the crop at any time.

21. CROPS REMAINING ON LAND AT TERMINATION OR EXPiRATION OF LEASE - If you have crop unharvestedor stored on the land at the termination or expiration of this Lease, the crop may be harvested and removed from theland according to The Agricylturalleaseholds Act. You must advise Agrl.Land In Writing of any unharvested orstored crop.

22. !!MS -Time and strict performance of the terms of the lease will apply in every respect.

23. RELEASE OF CLAIMS - You agree to release FCC, Agri-Land and its employees from all claims, in any way,connected with any previous loan, lease or other agreement.

24. OVERHOLplNG - Possession of the land past expiration of the lease, is not permitted and will be considered atrespass.

You agree to accept this lease as Tenant, subject to the terms and conditions above.

Tenant

Tenant

Agri-Land Sales & Leasing

PREF - U:\PROP5\FORMS\AGRILAND.LSE

Oate: _

Date: .,..-__

Date: _

)

Appendix B-1

RELEASE

KNOW ALL MEN BY THESE PRESENTS, that the undersigned,

(hereinafter referred to as the "Releasor") for

good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged)

hereby releases and forever discharges . and all of

its successors, predecessors, and related corporations, divisions, assigns, past and present officers,

shareholders, directors, agents and employees, and all persons acting by, through, or in concert

with any of the foregoing (all of whom are herein collectively referred to as the "Released

Parties") of and from all manner of actions, causes of action, claims, demands, damages and

liabilities of any nature or kind whatsoever and whether in law, equity, contract, tort or otherwise

which the said Releasor and their respective successors and assigns ever had, now has, or can,

or shall or may hereafter have against the Released Parties or any of them based on Or arising

out of or related to any of the matters referred to in the action commenced, by

in the Court of Queen's Bench as Action No.

Judicial Centre of and in the action commenced by

Court of Queen's Bench as Action No. , Judicial Centre of'

party and cross-claims arising therefrom.

in the

and the third

THE RELEASOR represents that it has not assigned or transferred any of the

claims or rights hereby released and that no statements or representations made by the Released

Parties or any of their agents, employees or legal counsel have influenced or induced it to execute

this Release.

2

FOR THE CONSIDERATION aforesaid, the Releasor further agrees not to make

any claims or take any proceedings on account of any of the claims hereby released against any

person, fInD or corporation who may claim against the Released Parties or any of them under the

provisions of any statute or otherwise.

IN WITNESS WHEREOF the above-named

has hereunto affixed· its corporate seal, duly attested to by the hand(s) of its proper

officer(s) in that behalf this day of , 1995.

PER: _

(Seal)PER:, _

)

Appendix H-2

RELEASE

X COMPANY LTD. ("X") releases:

(1) Y COMPANY LTD. ("f"); and

(2) all of Y's predecessors, successors and affiliated corporations, assignees, past and presentofficers, shareholders, directors, agents and employees (collectively, the "ReleasedParties")

from all actions, causes of action, claims, demands, damages and liabilities of any kind whateverand whether in contract, negligence or otherwise which:

(3) X; and

(4) all ofX' s predecessors, successors and affiliated corporations, assignees, past and presentofficers, shareholders, directors, agents and employees, on whose behalf X is acting forpurposes of this release,

have or may have in the future against the Released Parties, arising out of any of the mattersreferred to in:

(5) the action commenced by Yin the Court of Queen's Bench as Action No. - of-, JudicialCentre of -; and

(6) in the action commenced by Z in the Court of Queen's Bench as Action No. - of-,Judicial Centre of -; and

(7) the third party and cross-claims arising from these actions.

X represents that it has not transferred any of the claims or rights released. X agrees that nostatements or representations made by the Released Parties or any of their agents, employees orlegal counsel have influenced it to sign this release.

X agrees not to make any claims or take any proceedings based on any of the claims that arereleased by this release against any person, firm or corporation who may claim over against theReleased Parties.

X COMPANY LTD. has signed and sealed this release by its authorized officer(s) this dayof , 1995.

X COMPANY LTD.

By:, _

(S E A L)By:, _

)

)

APPENDIX I

Lawyers hear plain language pays big dividends

The American Bar Association Annual Meeting session on plainlanguage took place August 6.

Panelists (and plain language advocates) included DuncanMacDonald of Citibank, Kenneth Gluckman of ChryslerCorporation, Judith Kaye, Chief Judge of the New York Court ofAppeals, Christopher Balmford of the Australian law firmPhillips Fox, and Bryan A. Garner, legal writing consultantand author. Joseph Kimble, a professor at Thomas Cooley LawSchool organized the plain language program.

Kimble says that legalese persists "for a lot of bad reasons -­habit, inertia, fear of change, the overwhelming influence ofpoorly written opinions and forms, false notions of prestige,and number of myths about plain language." Kimble addressedthe myths and explained the realities:

Myths and realities about plain language

Myth: Plain language means baby talk or street talk. It's not"literary".

Reality: Plain language has to do with clear and effectivecommunication -- the language that good writers use when they aredetermined to be understood. What's more, plain language has a longliterary tradition. It is the style of Abraham Lincoln, and MarkTwain, and Justice Holmes, and George Orwell, and Winston Churchill,and E.B. White.

If anything is anti-literary, drab and ugly, it is traditionallegal writing. Professor John Lindsey says that law books are"the largest body of poorly written literature ever created bythe human race."

Myth: Plain language is only concerned with getting rid of archaicterms like hereby and aforesaid.

Reality: Plain language is concerned with all the techniques for clearcommunication -- dozens of them. These techniques and guidelines areflexible and varied. They range over planning, design, organization,sentences, words, and testing. Getting rid of archaic terms is only aliberating first step.

Myth: Plain language is not as accurate or precise as traditionallegal style.

Reality: In many demonstration projects worldwide, statutes andcontracts have been redrafted into plain language with no loss ofprecision. Just one example: The Law Reform Commission of Victoriarewrote Victoria's complex Takeovers Code. They cut it by almosthalf. The redraft was checked and rechecked for accuracy bysubstantive experts. And in testing, lawyers and law students tookbetween a half and a third of the mean time to comprehend the newplain-language version of the statute.

Myth: Plain language is incompatible with precision.

Reality: Most of the time, clarity and precision are complementarygoals. Clear, plain writing lays bare the ambiguities anduncertainties and conflicts that traditional style tends to hide. Atthe same time, the process of revising into plain language will oftenreveal all kinds of unnecessary detail. The notion that traditional

Rapport: News About Plain Language 15/95. Reprinted with pennission of the publisher.

legal writing is precise is a dubious assumption to begin with. AsProfessor David Mellinkoff sowed in the Language of the Law, the lawhas only a "nubbin of precision".

Myth: Judges and clients expect and prefer traditional legal style.

Reality: In a study that was carried out in four states, almost 1,500judges and lawyers were invited to choose between the A or B version ofsix different paragraphs. One choice was written in plain language andthe other one in traditional style. In all four states, the judges andlawyers preferred the plain-language versions by margins running from80 to 86 percent.

Similarly, in California, ten appellate judges and theirresearch attorneys, reading passages from appellate briefs,rated the passages written in legalese as "substantively weakerand less persuasive than the plain English versions". And thereaders inferred that the attorneys who wrote in legalese carnefrom less prestigious firms than those who wrote in plainEnglish.

As for clients, a survey conducted for the State·Bar ofCalifornia found that 90 percent of the public said there is aneed for simpler legal documents. In another public survey,for the Plain Language Institute, in Vancouver, BritishColumbia, 57 percent said that legal documents are poorlywritten and hard to read; 83 percent said that lawyers do noteven try to communicate with the average person.

If some clients expect legalese, it's because they have beenconditioned to think that legal documents have to be that way.Increasingly, clients are learning that it's not true.

Myth: Plain language is impossible because lawyers have to use termsof art.

Reality: Real terms of art are a tiny part of any legal document -­less than three percent in one study. the rest can be written plainlanguage. And even technical terms can often be translated into plainlanguage at the cost of some extra words.

References:Robert W. Benson, The End of Legalese: The Game is Over, 13 N.Y.U. Rev.L. & Soc. Change 519, 559-67 (1984-1985)Bryan A. Garner, A Dictionary of Modern Legal Usage661-665 (2nd ed. 1995); the Elements of Legal Style 7-15 (1991)Joseph Kimble, Plain English: A Charter for Clear Writing, 9 T.M.Cooley L. Rev. 1, 11-27 (1992); Answering the Critics of PlainLanguage,5 Scribes J. Legal Writing (1994)Law Reform Commission of Victoria, Plain English and the Law 45-62(1987; repro 1990)

)

)

APPENDIXJ

Plain Language Texts at theLaw Society of Saskatchewan Libraries

R = Regina LibraryS = Saskatoon Library

Canadian Bar Association / Canadian Bankers' Association. Thedecline and fall of gobbledygook: Report on plain languagedocumentation. ottawa: CBA, 1990.KL 34.2 C212 (R)

Continuing Legal EOducation Society of British Col umbia. Legalwriting for understanding, clarity and precision. Vancouver:The Society, 1982.KL 34.2 L496 (R S)

Dick, R. Legal drafting (2d). Toronto: Carswell, 1985.KL 34 D547 1985 (R S)

Driedger, E. Manual of instructions for legislative and legalwriting. ottawa: Justice Canada, 1982.KL 34.1 D779m (R)

Dykstra, G. Plain language and the law: CLIC's backgrounddocuments. ottawa: CLIC, 1986.K 100 D996 (S)

Lists prepared by Peta Bates, "Librarian, Law Society Library, Court House, Saskatoon.

Plain Language Texts at theUniversity of Saskatchewan Library

Asprey, M. Plain language for lawyers. Sydney: Federation Press,1991. K 94.Z6 1991

Continuing Legal Education Society of British Columbia. Commercial. agreements drafting. Vancouver: The Society, 1991.

KF 250.C64 1991Continuing Legal Education Society of Bri tish Col umbia. PI ain

Language Project. Retainer agreements. Vancouver: The Society,1993. KF 316.C65 1993

Dernbach, A. A practical guide to legal writing and legal methodil4l. Littleton: F. B. Rothman, 1994. KF 250.D47 1994

Dworsky, A. The little book on legal writing (2d). Littleton: F. B.Rothman, 1992. KF 250.D88 1992

Felsenfeld, C. Writing contracts in plain English. st. Paul: West,1981. KF 801.Z9F44

Flesch, R. How to write plain English: a book for lawyers andconsumers. NY: Harper & Row, 1979. PE 1479.L3F57.

Garner, B. The elements of legal style. NY: Oxford, 1991.KF 250.G37 1991

Goldfarb, R. Clear understandings: a guide to legal writing. NY:Random House, 1982. KF 250.G64 1982

Joseph, J. Legal agreements in plain English. Chicago: ContemporaryBooks, 1982. KF 801.Z9J67 1982

Law Reform Commission of Victoria. Plain English and the law:Appendix I - Guidelines for drafting in plain English.Melbourne: The Commission, 1987. KF 4950.L3863 1987

Perrin, T. Better wri ting for lawyers. Toronto: Law Society ofUpper Canada, 1990. KF 250.P47 1990

Practising Law Institute. Drafting documents in plain language,1981. NY: The Institute, 1981. KF 250.D7 1981

Rothenberg, R. (ed) The plain-language law dictionary. NY: PenguinBooks, 1981. KF 156.P58

Till, P. Contracts: the move to plain language. NY: AmericanManagement Associations, 1979. KF 801.Z9T53

Wincor, R. Contracts in plain English. NY: McGraw-Hill, 1976.Law Texts .W7626C7

Wydick, R. Plain English for lawyers (3d). Durham: CarolinaAcademic Press, 1994. KF 250.W93 1994

} Plain Language Articles1990 - 1995

Conklin, W. " 'Access to justice' as access to a lawyer's language"(1990) 10 Windsor Y.B. Access Justice 454-467

Dick, R. "Reflections on legal drafting from a practising lawyer"(Jan 1991) 49 Advocate (Van) 89-91

Kentridge, C. "Yes, you can write better"(June 1992) 16 Can. Lawyer No.5, 40-41

Krongold, S. "Writing laws: making them easier to understand"(1992) 24 ottawa L. Rev.) 495-581

Layh, D. "Plain English: increasing the power of our writing"(1992) 56(1) Sask. L. Rev. 1-21

Perell, P. "The standard form agreement of sale in plain English"(Nov 1990) 3 Leg. Res. Update No.4, 5-9

Perell, P~ "Written advocacy"(Mar 1993) 27 Gazette 5-30

Watson, J. "Drafting of documents"(Mar 1993) 51 Advocate (Van) 229-234

other Plain Language Materials

Continuing Legal Education Society of British Col urnbia. Modernwriting for lawyers. Vancouver: The Society, 1993.

Con'tinuing Legal Education Society of British Col umbia. PlainLanguage Project. Wi 11 precedent. Vancouver: The Society,1993.

Plain Language Institute of British Columbia. Free your words: aquick and easy guide to clear legal writing. Vancouver: TheInstitute, 1991.

)

)

APPENDIX K

ADDITIONAL BOOKS OF INTEREST

Aird & Berlis. Business Acquisition Agreements: An Annotated Guide. Aurora, Ont.: Canada

Law Book Inc., 1992.

Aitkin, J.K. Piesse The Elements ofDrafting. 8th ed. Sydney: The Law Book Company Ltd.,

1991.

Haber, H.M., ed. Shopping Centre Leases: A Collection ofArticles and Precedents. 2 vols.

Agincourt, Ont.: Canada Law Book Ltd., 1976 (voU), 1982 (vol. 2).

Melville, L.W. The Draftsman's Handbook. London: Oyez Longman, 1985.

Waldron, M. A. The Law of Interest in Canada. Toronto: Carswell Thompson Professional

Publishing, 1992.

Appendix L

Make sure that you continue to receive Rapport throughout the 1995 calendar year.

Rapport subscribers, receivo these bcncflu:

· keeping u?"to-.date on newJ about plain lansuase activltlca• becomlns aware ottho breadthotlhe plain 1anauagc coDUnunlty· connectIng with other plain Ianauage ~dvocatcs

· 1eAminS ofresearch underway or concluded• having a place to express oplnlons on plaln lansuaso Issue.• learning of events ofintcrcat to you

We kept our subscription rate the wne in 1995 as in 1994. To continue to enjoy Rapport, please sendusyourchcquetoday.

• The 1995 subscription rate is SSO (trom outside ofean.da please pay in USS).• Addt~ whore appJioablo:

$3.50 OST within CanadJ;S3.S0 GST and $3.S0 PST. within B.C.

Pill in this information, and send us )'Out cb~uo today:

Name:

Title:

Department: _""'--- --.. _

Addrels:

)Ma.il to: Rapport Communication.

Box 48235. Dentall CentreVancouver, British ColumbiaClI\8da V7X IAI

~HOUSE

Rapport CommunlcatiODlinvites you to visit our home page on the World Wide Web.

This site will hold the archives to Rapport: News aboutplllin language

Rapportr--.AqIpoItNNMIf Mt~~..,.,..r.bIrtft'v .~

....Corrrru*:cleonDror...

Visit us at http://rapport.bc.ca

~;

Wn-c1t We Do

The purposes of the Plain LanguageSociety are:

• to promote, encourage, andfacilitate the use of plain languagefor the benefit of the community

• to promot~, organize, and sponsoreducational programs whichprovide training to the generalpublic and members of the Societyin all aspects of plain language

• to provide information on plainlanguage to the community as apublic service and to members ofthe Sodety

• to encourage the advancement ofpublic information on plainlanguage by helping educationalinstitutions organize and presentcourses

• to offer the public and the Society's·members specific seminars andcourses on topics related to plainlanguage

• to disseminate information on plainlanguage through any and allmeans.

Plain Language SocietyMission

To promote the use

of language that

meets the needs ofthe intended audience

so that people can

understand information

important to their lives.·

Directors

Wendy Putman, President

Dianne Bodnar, Vice-President

Shirley Dommisse, Secretary-Treasurer

Peter Buitenhuis

Stephen Cadman

Sheila Jones

Phil Knight

®

PlainLanguageSociety

Plain language:Treating youraudience withrespect

PO Box 5054Vancouver, BeV6B 4A9

604-730-4657

The Plain Language Movement

The plain language movementbegan in Britain in 1979. On the lawnof the British Parliament, two peopleshredded government documents toprotest the fact that they were sobadly de~igned as to beincomprehensible.

Things haven't changed a great dealover the past fifteen years. We may be.living in the "information age," butmuch of that information isn't gettingthrough to the people who need tolise it.

Plain language starts from thereader's point of view. Whether youare creating a publication, a form, or avideo, you need to think of how yourinformation will be understood byyour audience. The spirit of plainlanguage is to "treat your audiencewith respecl."

Practitioners in the plain languagemovement continue to work atmaking information easier tounderstand. Techniques su<:h as clearwriting and editing and careful designare criticaJ to the process. Fieldtestingis also important in creating effectiveplain language material.

The Plain language Society

The Plain Language Sodety is aprofessional organization devoted tothe improvement and advancementof the theory and practise of plainlanguage. Plans for organizing thePlain Language Society began in 1993,filling a gap Jeft by the closure of thePlajn Language Institute.

The Society provides a forum whereplain language practitioners canconnect and discuss plain languageissues. We organize professionalseminars so people can learn moreabout plain language; we advocate theuse of plain language in governmentand the community to make ourworld more understandable, and wediscuss current research· to keep ourmembers QP to date on newdevelopments. .

The directors are always looking forne\\' ways to serve the membership.For example, we are compiling adirectory of local plain languagepractitioners, in which members maybe listed, to let everyone know thisexpertise is available.

If you are interested in knowing.more about plain language, or in .supporting the plain languagemovement, we invite you to join us.

Benefits of Society Membership

As a member of the Plain LanguageSociety, you will:

• receive a quarterly newsletter

• be notified about an}' events orseminars the Society offers

• receive a discount on fees for events

• be part of a plain language netv\'ork.

How to Join

Simply send your name, address, andmembership fee to:

The Plain Language SocietyPO Box 5054, Vancouver, Be, V6B 4A9

YES, I want to be a member of thePlain Language Society.

I have enclosed my membership fee of:

0$50 (regular membership)o $20 (full-time student membership)Name _

Organization _

Address _

Postal Code _

Tel Fax _

Appendix M-------__Career Development

________ Communications

BUSINESS WRITING MASTERY (RPRT 1802)Need to improve your writing skills. Designed for anyone from Secretary toCEO who uses the written word to communicate. Intended for those who writelellers. reports. budgets. memos. faxes or proposals. This course makes yourwriting easier. faster and clearer. It helps with preparation and research. andgives an overview of the business writing process. It provides you with draft­ing and editing techniques. grammar basics. idea getting techniques. It alsohelps you build audience appeal. avoid procrastination. and design companywriting guidelines.INSTRUcrOR: Jennifer BurgessLOCATlON:Kelsey Institute Room No. 12802.998 Sal. Ocl. 7 9:00 a.m.4:00 p.m. 6 hrs/I wkTUITION FEE: $75 (OST included)

COMMUNICATION STYLES: HOWTOIDENTIFY AND WORK EFFECTIVELY WITHDIFFERENT STYLES OF COMMUNICATORS(COMM 1803)Have you ever had trouble gelling an idea across to a boss, co-worker orspouse? This course will help you to identify your OWD communicatioll styleand that of people close to you. It will help you discover how different stylesof communicators approach problems and how you can work harmoniouslyand productively with people who "don't think the way you do" and people"who do". This course will focus on the attitudes, tips and techniques that youneed to communicate and work with other people more effectively.INSTRUcrOR: Jennifer BurgessLOCATION: Kelsey Institute Room No. 21402.1000 Sat. Nov. 25 9:00 a.m.-4:00 p.m. 6 hrs/I wkTUITION FEE: S75 (OST included)

CONFLICT MANAGEMENT (HUMR 1803)Competent people often become ineffective during conflict, held captive by thepower of myths about contiict. Learn the different stages and characteristics ofconflict. You will have an opponunity to assess your conflict managementstyle and develop effective interventions.INSTRUcrOR:DonnaSealyLOCATION: Kelsey Institute Room No. B 7 B02.795 Wed. Nov. 15-Dec. 6 7:00 p.m.-9:30 p.m. 10 hrsI4 wksTUITION FEE: $65 (OST included)

CREATE YOUR OWN BROCHURES ANDSALES LETTERS (MKTG 1805)For entrepreneurs, small business owners, associations, clubs and non-profitorganizations who want to produce their own low cost. effective. professionalsales/information pieces. This course covers the basics of design principles.logos and writing your own brochures and sales lellers.INSTRUcrOR: Jennifer BurgessLOCAnON: Kelsey Institute Room No. 32502.999 Sat. Dec 2 9:00 a.m.- 4:00 p.m. 6 hrsIl wkTUITION FEE: $75 (OST included)

DYNAMIC NEWSLETTERS (SCOM 1800)Do you currently wrile or edit a newsleuer"' This course gi\'es information onplanning. designing. and writing a newsletter. Creating a unique newslelleridentity. newsletter elements. audience evaluation and audience appeal.Considers visual elements. newsleller writing style. editing techniques.newsleller production and cost CUlling tips. Includes a oW page manual.INSTRUcrOR: Jennifer BurgessLOCATION: Kelsey Institute Room No. 12802.994 Fri. Oct. 13 9:00 a.m.-4:00 p.m. 6 hrs/I wkTUmON FEE: $75 lOST included)

NEW> EDITING MADE EASY (COMM 1808)Oood writing is clear. concise. and grammatically correct. But how does it gelthat way"? As the saying goes. a good editor is wonh three good writers. Ifyou edit your own writing or are called upon to edit the work of others. if youwant to learn to edit quickly and painlessly. if you "know it's wrong, but don'tknow what's wrong with it", this course is for you. This course will cover ba­sic principles of editing. the seven-step editing system. editing tips and tech­niques. editing symbols and checklists. and editing and the ego.INSTRUcrOR: Jennifer BurgessLOCATION: Kelsey Institute Room No. 20902.1009 Sat. Oct. 21 9:00 a.m.-4:00 p.m. 6 hrsIl wkTUITION FEE: $75 (OST included)

GRAMMAR BUSTERS: GRAMMAR BASICSFOR BUSINESS &ACADEMIC WRITING(COMM 1804)Forgollen the grammar you learned in school? While never overwhelming youwith hard-to-remember terms and definitions, this class provides a solidgrounding in the basics of grl1llllllar. It also includes 25 grl1llllllar busters in­cluding why we don't like grammar. selecting a writing book, dictionary andthesaurus. Diagnose and cure grammar problems. Included also are spellingand editing tips. Intended for business people, students, scientific and techni­cal writers. Includes 100 page manual.INSTRUcrOR: Jennifer BurgessLOCATION: Kelsey Institute Room No. 12802.99'7 Thurs./Fri. Nov. 9-10 9:00 a.m.-4:00 p.m. 12 hrsIl wkTUITION FEE: SilO (OST included)

INTERPERSONAL COMMUNICATION:SEVEN SKILLS FOR COMMITTEDCOMMUNICATORS (COMM 1802)Excellent communication skills are a key requirement in the 90's. This coursehelps paUicipanlS sharpen one on one communication skills as well as groupcommunication and decision making skills. The course covers basic communi­cation styles. paraphrasing. listening skills. spoken grammar and relaxationskills. Includes oW page manual.INSTRUcrOR: Jennifer BurgessLOCATION: Kelsey~nSlitute Room No. 21602,100: Sat. Nov. 4 9:00 a.m.-4:00 p.m. 6 hrsIl wkTUITION FEE: $75 lOST included)

Ideas for courses? We'd like to hear them.(306) 933-6436

) 66 Kelsey Institute SIAST Fall 1995 Extension Calendor

CareerDevelopment

'le',V"" OVERCOMING WRITING ANXIETY(PERS 1812)

Writing is everywhere, Almost every job or project requires it. You can't sur·vive in today's world without being able to do it well. But what if you hatewriting? Don't have any talent? Can't get your thoughts down on paper?Don't know anything about grammar? Don't feel confident about your abili­ties? This course will help you overcome the anxiel)' and fear associated withwriting as well as gi\'e the basic writing skills and grammar to help you writefaster, bener, and with more confidence.INSTRUcrOR: JeMifer BurgessLOCATION: Kelsey Institute Room No. 143l)~.1tl1l7 Sat. Sept. 16 9:00 a.m.-4:oo p.m. 6 hrsIl wkTUITION FEE: $75lGST included)

PROPOSAL WRITING FOR BUSINESS,VOLUNTEER AND NON-PROFITORGANIZATIONS (RPRT 1801)The proposal is an increasingly popular method of fmding new clients, newfunding and new contracts. This class covers preparation. research, evaluatingclient personality and needs, the RFP, audience appeal. visual appeal, proposalelements, writing, editing and follow up. The course provides proposal plan­ning worksheets and tips on how to protect your ideas. Intended for industry,small business. science and technology, goverrunent and non.profit organiza­tions. Includes 55 page manual.INSTRUcrOR: Jennifer BurgessLOCATION: Kelsey Institute Room No. 14502·1003 Fri. Dec. I 9:00 a.m.-4:00 p.m. 6 hrsIl wkTUITION FEE: $75 (GST included)

REPORT WRITING (RPRT 1800)Intended for those who write year end. progress, scientific. technological.event or form reports. This course will help you write reports clearly, cOn<:ise­Iy and correctly. The course addresses the professional standards of reportwriting. the elements of reports, basic grammar. format, style, and informationlevel. The course also assists you to master the writing process: idea getting,researching, organizing, drafting, and editing. Includes 40 page manual.INSTRUcrOR: Jennifer BurgessLOCATION: Kelsey Institute Room No. 31002.1tl1l1 Sat. Nov. 18 9:00 a.m.-4:00p.m. 6hrs11 wkTUITION FEE: $75 (GST included)

SPEAKERS BASICS (COMM 1806)For Managers, PR people, fund raisers, conference speakers. masters of cere­monies, researchers. educators - anyone who ha~ to speak in public.Participants will learn how to analyze their audien<:e; research, plan, and orga­nize presentations; and practice effectively. How do you turn stage fright andnervous energy into a positive? This course also provides participants with de­livery techniques, spoken grammar tips and a presentation checklist.INSTRUcrOR: Jennifer BurgessLOCATION: Kelsey Institute Room No. 214')2. 1)'15 Sat. Oct. 28 9:00 a.m.-4:oo p.m. 6 hrsIl wkruITION FEE: $75 (GST included)

.FAX.(306) 933-5309

Kelsey Institute SIAST Fall 1995 Extension Calendar