Caryn Gootkin explores the challenges facing lawyers as they are forced to change the way they communicate and shares her journey along this path.
Plain language – two words guaranteed to terrify even the most competent attorney. Both the National Credit Act and the Consumer Protection Act now require written legal communications to be in plain language. The problem is that conventional legal language is anything but plain. It is formal, punctilious and often antiquated.
Although I stopped practising law several years ago, I am still related to the industry by marriage. And because I understand it so well, I know how hard it is for most attorneys to write in plain language for legal communications and documents. Often this stems from reluctance and fear, but some lawyers are genuinely unable to release themselves from the tyranny of legalese, it being almost imprinted in their DNA.
From legal eagle to beady-eyed buzzard
My journey towards becoming a plain language practitioner began over a decade ago, although I didn’t recognise it as such until much later.
As a new articled clerk (as candidate attorneys were then termed) I was shown a letter received by the Chairman of the firm in a divorce matter he was handling. The letter was written by another respected senior attorney who was acting for our client’s soon-to-be ex-wife.
Our client was employing various delay tactics to avoid having to hand over a portion of his sizeable estate to a woman he had once promised to love “for richer or for poorer”. His latest ploy was to go on extended overseas “business” trips during which we were unable to contact him. My frustrated boss had the unenviable task of having to advise his opponent over and over again that he was unable to receive instructions from his client and as a result he could take the matter no further at that time.
The opposing attorney had understandably grown tired of receiving such letters and having to placate his anxious client.
I always try to bear this in mind when remembering the opening sentence of the letter he wrote so that I can “climb around in his skin and walk around in it” before judging him. (My decision to study law was heavily influenced by the character of Atticus Finch in Harper Lee’s To Kill a Mockingbird.)
The letter began something like this: “Notwithstanding the peregrinations of your peripatetic client at this point in time…”
I have often wondered why this sentence stirred up such strong reactions in me. Is it that I had to secretly look up two words in the dictionary so as not to look stupid in front of the man I so badly wanted to impress? Could it be that this, my first experience of the widespread tendency of attorneys to use words to exaggerate, overstate, intimidate and confound, sowed the first seed of disillusionment with my chosen profession? Is it that, while a large part of me condemned such an abuse of language, a little part of me was amused by the sheer chutzpah of the person that could write such a sentence?
Maybe it was a combination of all these things. Certainly it was a step on my journey from lawyer to plain language practitioner and linguistic pedant, a cap that fits me more snugly.