Lucid Legal Language

Kazaman · Apr 16, 2016

I was thinking this a few weeks ago ... we've created a needlessly high barrier to entry. The fact that we have a sophisticated legal system in the first place already creates a learning curve. But when we make the learning curve steeper without gaining any functionality, I agree that we're doing ourselves a disservice. Thanks for leading the call here, Hy. I'll use your recommendations in ongoing Senate debates.

Kuramia · Apr 16, 2016

I do agree, hyangyo. It's taken me months to read through and comprehend Europeian legislative writing. Now while it does help me in reading actual legislation, it's been a pain to try and learn this and...well, I imagine people wonder why I haven't entered the Senate...and that would be why. I want to understand our laws before I try to amend or make new ones...or review old ones.

It's been tedious, but yeah, something that I imagined was required for me to gain an understanding of the politics here and further my gaming "career".

I would be for this change, as our newcomers already have a problem comprehending some things without the added detriment of an awkward language barrier.

Of course, there's the question of - and I seriously don't know the answer - some Latin words simply being better to use than their English alternatives?

Izzy · Apr 16, 2016

I'm for dropping Latin, but I like "shall"... it depends on the context, really.

Malashaan · Apr 16, 2016

I want to start by making it clear that I generally agree with Hy; we should strive for simplicity in the language we use. However, I think it is important to make sure we do not let a desire for simplicity dominate at the expense of precision. For the most part, I think our laws find a pretty good balance between readability and precision, but there are some exceptions. For example the Judicature Act uses Latin and other unnecessarily legalistic phrases. We should recognize that most instances of this occur in older legislation that has not been substantially rewritten in a long time. More recent legislation is generally much clearer and avoids such issues for the most part.

Sections 1 and 3 - Changing to Plain English

Overall, I agree with the recommendation that we should use plain English. Hy's opening passage, citing a portion of an older Court Opinion is a great example of where simplicity and clarity were not appropriately considered. I completely agree with Hy's analysis of that passage in parts 1 and 3. The original is unnecessarily confusing through its use of Latin phrases and excessive parentheticals. The proposed rewrite in section 3 is not perfect, but it covers the key points and is much easier to follow. However, I will lay out a case below with reference to the other sections that using "plain English" is not as simple as the article makes out.

Section 2.1 - Latin Phrases

I generally agree that the use of Latin phrases is confusing and unnecessary. However, some phrases, such as percentage have become so much a part of English that this does not apply, and it is not always to determine exactly where the line is. For example, per se is a Latin phrase, but it is commonly used in English. In some circumstances, trying to replace phrases such as per se with "plain English" can make the passage more confusing. For example, the Merriam Webster definition of per se is "by, of, or in itself." I think most readers would find it easier to parse the phrase "this per se violates the law" than "this violates the law by, of, or in itself." In other words, where the Latin phrase is well understood, and a plain English description of the same concept is wordy, choosing to use the Latin phrase may be the better option.

Section 2.2 - Avoiding Legal Falvouring

I again agree with the general concept that using legalistic terminology purely to make the writing seem more official is bad practice. However, as with Latin phrase, sometimes the "legalistic" term may be the best term. For example, shall and must are not totally interchangeable. The distinction may be more philosophical than meaningful, but I think it is worthy of more discussion than the article suggests.

In the examples given, shall means "it must be done and the identified entity is instructed to do it" (i.e., it is in the active voice) whereas must means "it must happen, and the identified person is responsible" (i.e., it is passive). Put another way, shall implicitly includes a direction to act as well as a requirement, whereas must only includes the requirement. Thus, where a direction is intended, shall can result in a clearer sentence than must. This is apparent in the intermediate examples, where the use of must makes the statutory language uncomfortable to read. E.g., "The Office must be declared vacant if..." is just uncomfortable to interpret. It tells is that something must happen, but doesn't tell us what authority makes it happen. In contrast, "The Office shall be declared vacant if..." is implicitly self-executing. Once the enumerated conditions are met, the law itself makes the position vacant. In this instance, "shall" should not be replaced with "must," but rather "will."

Overall, I think shall can and probably should be avoided. While I personally think the argument shall is antiquated is vastly overstated (it is a term that appears regularly in many real life scenarios, and many people use it in conversation as well), there is certainly an impression that it is overly legalistic, which can be avoided by minimizing or discontinuing use of the term. However, simple substitution for must isn't the best approach in many cases. Rather, legal clauses should be written focusing on making them as clear and precise as possible in context. In some cases, a shall will be changed to must. In others, to will. In others, the bet approach will be to restructure the clause entirely.

With regard to words such as herein, thereby, whereby, etc., I generally agree. Again though, I think that such words do sometimes serve a purpose. For example, "herein" is pretty easy to understand. I imagine anyone reading it would immediately either know or infer what it means. A "plain English" alternative is to say something like "throughout the rest of this document." It is certainly not a major issue, but if a sentence is already fairly long, saying "as described herein" may result in a clearer sentence than "as described throughout the rest of this document."

Section 2.3 - Headings

I again agree with the general principle. Using headings is good, but I think the analysis is over-simplified. In the interests of full disclosure, I wrote the text of the AO used as the example. I acknowledge with thanks the comment that it is one of the better AOs, and I think because of that it does not make a good example.

Firstly, the two cited paragraphs come under a heading, namely "definitions." Thus, at a first level of abstraction, the reader knows that the paragraphs will be defining a term. It is notable that the article omits the heading, even though in the original text it comes immediately before paragraph 3. Having a "pure" title before every paragraph would eviscerate the structural clarity provided by being able to group paragraphs under a single heading.

Secondly, as Hy notes, the purpose of his headings are to orient the reader. The two cited paragraphs already do that, using what is described in legal writing theory as "focus sentences." Put simply, the first sentence of a paragraph is its focus sentence (i.e., essentially a heading), and should inform the user as to what the paragraph will be about. By using this approach, and retaining headings for broader structural groupings, we retain the clarity-enhancing ability to both group paragraphs with headings (providing high-level context) and orient the reader as to the topic of each individual paragraph.

In legal writing, there are two main types of focus sentence, corresponding to two different paragraph structures (these are referred to as CRAC and IRAC if anyone wants to do more research). The first type of focus sentence states the conclusion the paragraph will reach. The second type states the issue the paragraph will address. In either case, the paragraph then proceeds by analyzing the law and facts in question, and explaining how this leads to whatever conclusion is reached. Both formats have their advantages. Knowing the conclusion in advance can help the reader understand why the analysis in proceeding as it is. Knowing the destination helps make sense of the path taken. In contrast, knowing what the question is and being led to the answer makes the reader's experience closer to that of the writer. You start identifying the question that needs to be answered, analyze the facts and law, and reach a conclusion.

Getting into the specifics, the first example paragraph begins "Comments from members of the bar have raised a question of the correct definition of 'sitting Senator.'" In other words, the paragraph is in IRAC format. Thus, the reader is informed that the paragraph will determine a definition for the term "sitting Senator," and then steps the reader through the analysis that leads to the definition. In this context, I think this is the better approach. It more naturally takes the reader through the thought process that the Justice went through. This helps focus the reader on the "why" rather than the raw conclusion, which can be important in interpreting the true scope of the decision. That said, I do agree that in many instances, providing the conclusion first helps the reader understand the analysis, because they know where it is heading. However, the down side is that if the reader knows the conclusion, they are less likely to pay attention to the details of why, and whether those details makes sense. and because it helps less legally experienced readers understand the process. In other words, it is good for legal education for our opinions to emphasize the how, rather than the ultimate outcome, and the IRAC format is better for this than the CRAC format.

A similar analysis can be applied to the second example. The focus sentence identifies that the paragraph will provide a definition of "majority of voices." The reader is then stepped through the analysis, and the explicit definition is provided at the end. If the paragraph has done its job, the reader should have already reached that conclusion before reading the last sentence, and merely see the conclusion sentence as a confirmation of what they had already seen for themselves. This is another advantage of the IRAC format in some scenarios: it leaves the reader feeling like they participated, rather than just being told the answer.

I would also note that the opinion drawn on in this article actually includes some examples of the CRAC style as well. For example, paragraph 19 begin "Applying the above to our example of the Grammatical, Formatting, and Spelling Errors Act (2016), we find any conclusion other than the one we reach incompatible with the Constitution." I.e., the conclusion of the paragraph (that alternate conclusions would conflict with the Constitution) is stated up front. The remainder of the paragraph then explains why this is the case. I can't provide a deep theoretical explanation for why I wrote that paragraph that way. However, I can say that I felt that it was essentially an afterthought, and that the analysis performed was less substantive. Therefore, stating the absolute conclusion up front and providing a summary of the rationale was more appropriate in that instance. The details of the analytical path were less important for that aspect than the ultimate conclusion, therefore the conclusion leads.

Conclusion

Overall, despite my lengthy critique, I do think this is a good article. it i a timely reminder when the Senate is considering rewriting some of our more substantial portions of law that plain English is important. However, I caution both Senators and Justices not to oversimplify the concept. Simple rules like "never use Latin" or "always begin with the conclusion" do not necessarily lead to the best writing. In the case of the AO cited, I made conscious decisions about where to lead with the conclusion and where to lead with the issue. Maybe in some instances I made the wrong decisions (I suspect that is more a matter of taste than empirical truth), but it is better that I considered the options and made a choice than blindly followed a rule. Similarly, when considering the use of "shall." It is better to consider the options, and determine whether "shall," "must," "will," or some other construction will lead to the clearest statute, rather than relying on a simple-substitution rule.

OnderKelkia · Feb 9, 2017

hyanygo said:
1 sentence. 104 words.

Re:Classified Information said:

When a court is asked by the defence to order the release of classified information because the defence believes that it will assist their case, the court should consult the authority responsible for authorising declassification (whether that is ‘the highest-ranking departmental supervisor of said subforum’ as under the Europeian Speech Protection Act (2012) s 9 or the Director of the Europeian intelligence Agency as under the Intelligence Act (2012) s 7b, which will depend on the type of classified information concerned) regarding whether the information should be used (including whether it is disclosed to the court initially and whether it is ultimately released publicly or in camera).

Click to expand...

This is part of a judgment that was celebrated as a great opinion. It is no such thing. When clarity, precision and respect for the audience is absent justice cannot be done, and no opinion can be called great. I challenge Justices and Senators to do better than this.

As the author of this January 2015 opinion, I should like to briefly respond to this point. I would have done so sooner, but I only became aware of this thread today.

I agree that the sentence quoted is too long, principally because of the large segment in parentheses in the middle. If that segment was taken out and reworded into a subsequent second sentence, then what is left of this sentence would be readable and of reasonable length.

I disagree with the suggestion that the sentence is imprecise or, if the issue of length is set aside, unclear.

As regards the inclusion of legal Latin, I can see a good case for avoiding these terms in general, so that judgments are accessible to non-lawyers without them having to conduct a brief search. That said, there are definitely some concepts where it would be more appropriate and helpful to use a Latin phrase (perhaps accompanied with a brief explanation) than to invent some alternative phrase. In addition, I would note that while the Constitution and the Judicature Act (2012) employ legal Latin - 'stare decisis' and 'de novo' - I don't think it is reasonable to criticise the courts for following that practice.

Going forward, we must of course bear in mind the issue of readability and I agree that it is important. Happily, I do not believe that any of the High Court's judgments in the last 12 months has any serious readability issue - unless the length of the opinion is the cause for complaint, which is entirely distinct from the length of individual sentences. Insofar as the length of opinions is concerned, my general view is that opinions will be as long as the number of legal issues that need to be considered. If anything, I would say that my own recent judgments have excluded too much in a quest to reduce the overall size.

Finally, your remark about the "emotionally abusive affection of legalese" is offensive, unnecessary and - strangely in a post calling for plain speaking - unduly pretentious. The same goes for your statement that when "respect for the audience is absent justice cannot be done" in reference to the paragraph quoted. Accusing someone acting in good faith of being "emotionally abusive" or disrespectful because they happened to write a long sentence with a Latin term at the end is frankly outrageous. I may be able to make my points with shorter sentences, but you can make your points without being rude.

hyanygo · Feb 9, 2017

"Emotionally abusive" isn't supposed to be as strong as you're implying.

I do think that it -is- disrespectful and I do think justice cannot be done if people can't access your judgments. I don't disagree with the conclusion but the opinion is badly written. Both of these things are not new to you.

I find it really strange that you're not aware that this is just the early Plain English movement wrapped up for a Europeian audience.

---

The second of my points that you selected is probably the point that I stand by the most: if you make it hard to read you obstruct access. That is very much a settled and well-used argument both in NS and RL.

OnderKelkia · Feb 9, 2017

hyanygo said:
"Emotionally abusive" isn't supposed to be as strong as you're implying.

How else is one meant to interpret the term "emotionally abusive"?

By anyone's standards, it is a term with its own loaded implications.

It is not a term which should be thrown around casually to label those that one disagrees with for the fact that they write long sentences with the odd Latin phrase thrown in. It is highly inappropriate for you to have used it in this way.

hyanygo said:
I do think that it -is- disrespectful and I do think justice cannot be done if people can't access your judgments.

The second of my points that you selected is probably the point that I stand by the most: if you make it hard to read you obstruct access. That is very much a settled and well-used argument both in NS and RL.

In an online game, there is nothing "disrespectful" about writing a court judgment which perhaps might require the reader to read over a sentence again to confirm its meaning or look up a term - spending a minuscule fraction of the amount of time the judgment itself took to produce. It may mean that the judgment falls below the desired or potentially even the required standard in that respect, but it is not evidence of contempt for the reader.

Insofar as real life is concerned, access to justice does not primarily consist of the ability of a layperson to read a statute or a High Court judgment as if it is a touch of light reading, with no legal terminology included. That is just unrealistic. It means access to affordable representation, appropriate costs regimes and the ability of litigants to make a claim in the right forum. Members of the judiciary are required to write concisely and clearly, and very poor expression has occasionally been chastised on appeal - rightly so when they are paid and assisted to produce such judgments, usually over an extended period of time in each case - but that is different from suggesting they have individually obstructed access to justice.

What you said was that the expression emblemised by that sentence meant that "respect for the audience is absent". That states that I as a judge have no respect for the people who read my judgment - not just that I should show greater consideration for some readers, but that respect for the audience is absent and that justice is prevented as a result. Your words are hyperbole and are divorced from the reality of the situation.

hyanygo said:
I don't disagree with the conclusion but the opinion is badly written. Both of these things are not new to you.

I have not sought to make any argument regarding the quality or otherwise of that judgment from January 2015, beyond the specific issues regarding the sentence you used. I have not even had cause to re-read it since that time, so I am not presently in a position to comment on the wider aspects. That's not the issue.

The point is that the way you have expressed yourself here is unnecessarily derogatory.

Skizzy Grey · Feb 9, 2017

Im glad Onder bumped this article -- it's a great piece.

One caveat: the main reason lawyers (and specialists in other fields) use jargon is because it allows for concise writing. It usually takes more words to express a complex idea in plain English than to express it in technical terms. Because of this, I think it is occasionally prudent to toss a Latin phrase into a legal opinion. There's a lot of content packed into phrases like stare decisis and expressio unius est exclusio alterius; in some cases, forcing a reader who is unfamiliar with a term of art to Google it is preferable to breaking up the flow of the text by digressing to explain a concept that can be summarized with a term of art. After all, the main problem with the 100-word sentence quoted in Hy's article isn't jargon -- it's the digression that makes the sentence so long that one has forgotten what the sentence is about by the time one reaches the end.

To illustrate what I'm talking about, here's an Advisory Opinion I wrote a few years ago. I think it's written in plain English, and it makes use of some of the ideas (such as headings) that Hy recommends in his article -- but it also uses a few Latin terms.

http://s6.zetaboards.com/Europeia/single/?p=8049677&t=8871787

By the way, I completely agree with Hy that a lot of our judicial opinions are too long, but I think that's a separate issue from plain English. Frankly, I think a lot of our jurists could use to spend a bit less time writing, and a bit more editing their work. Opinions that dispense with background and procedural issues with a minimum of words and maintain a laser-like focus on the salient issues are far easier to read than opinions that don't do these things.

OnderKelkia · Feb 10, 2017

As regards the length of opinions, the principal driver of length in this region is the number of legal issues which need to be addressed. Particularly when dealing with advisory opinions, judges are often asked open-ended abstract questions about a general topic, with multiple applicable bodies of law. They are often asked two or more such questions in the same application - meaning that many advisory opinions are really two judgments. They have to approach such questions without the benefit of adversarial parties clarifying the areas of law under dispute, in a legal system where there is still very little appellate case law providing binding decisions on the issues covered. That is a recipe for long opinions.

Of course, every effort should be made to limit discussion to only those legal issues relevant to the judge's chain of reasoning and any alternatives which the judges feels that they need to address. Parsimony should be the objective. However, achieving this is ultimately a judgement call and judges risk leaving unanswered questions about pertinent issues - which may not seem pertinent at the time - if they make the wrong call.

Provided that they are set out in different sections (so people can read such content only if they wish to do so), there is little drawback from summarising any relevant procedural issues and the factual background within a judgment.

Apart from the obvious point that procedural decisions and findings of fact can change the outcome, such details are important for distinguishing future cases. If a future advocate or judge is seeking to explain why the principle of a previous decision on a similar point of law does not apply to a case that they presently dealing with, then they need to be able to quickly obtain the facts of the previous case. That information allows the advocate or judge to illustrate why the legal principle previously decided does not apply to the facts of the present case and the authority should be distinguished.

Additionally, in the event of an appeal, it is positively helpful if the judgment at first instance has precisely specified the Court's understanding of those details. Having such a summary means that the appellate court can take those details as read and reject any unjustified attempts by the parties to re-litigate factual or procedural issues which were properly decided below. This helps focus an appeal on the substantive legal issues in dispute - unless of course a party is expressly arguing that the Trial Court was in error on the facts or procedure. If the facts or procedure is the focus of the appeal, then the benefit from the judge at first instance having written about their view on these issues is obvious.

Equally, it can actually be especially important that the judge at first instance articulates the background if the facts seem non-contentious - otherwise there can be no statement of the facts to which the law is being applied or one party may try to advance their own reading of the facts on appeal if it seems that a different factual basis will advantage them, when they failed to even try to persuade the tribunal of fact to accept their case at the proper stage. A clear and agreed factual basis is a necessary precursor to a functioning appeal on points of law.

Skizzy Grey · Feb 11, 2017

Good points, Onder. My judicial style always leaned more toward brevity than yours, perhaps occasionally at the expense of comprehensiveness. I have always appreciated the comprehensiveness of your opinions. Unfortunately, I do think some of our other justices have strayed toward writing long opinions that are neither concise nor comprehensive; those are the folks I had in mind when I said some of our judges ought to write less and edit more. I certainly wasn't thinking of you -- it's evident that you spend a lot of time carefully constructing your prose.

Rand · Feb 14, 2017

Does this mean we cam get rid of all the "shall"s now?

Lethen · Feb 14, 2017

Rand said:
Does this mean we cam get rid of all the "shall"s now?

Shall we? :gentleman:

Revision to sections 1 and 2 of the Attorney General Act (2012)
Original	Simple replacement of "shall" with "must"	Clarifying further
(3) The President shall nominate an individual to the Office at the commencement of every term, or if the Office is vacant. Nominees for the Office shall require Senate confirmation in order to take office. (4) The Office shall be declared vacant if the Attorney General: ...	(3) The President must nominate an individual to the Office at the commencement of every term, or if the Office is vacant. Nominees for the Office must require Senate confirmation in order to take office. (4) The Office must be declared vacant if the Attorney General: ...	(3) The President must nominate an individual to the Office at the commencement of every term, or if the Office is vacant. Nominees for the Office require Senate confirmation in order to take office. (4) The Office is vacant if the Attorney General: ...

Lucid Legal Language

Kazaman

Kuramia

Trust me.

Izzy

Malashaan

OnderKelkia

hyanygo

Well-known member

OnderKelkia

Skizzy Grey

New member

OnderKelkia

Skizzy Grey

New member

Rand

The Ven.

Lethen

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