Full disclosure

The truth, the whole truth, and nothing but the truth?

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1. The problem

In Improving the rewrite (in the Book chapter section of the Publications page of this site) I criticised my own revision of a typical lease clause. The clause allows the landlord to repossess the property if the tenants do not comply with their obligations, and my objection was that it did not (as the original did not):

I said then that "[t]hese omissions raise difficult questions, which I hope to discuss soon on the Comment page". This, then, is that discussion — or at least the beginning of it.

Because these omissions were likely to mislead non-lawyers about the effects of the lease, I had these questions in mind:

2. The difficulties

Ideally, of course, these defects (and similar ones that arise with other clauses) should be remedied. But there are obstacles:

3. Can my revised clause be described as plain?

Trying to define plain language for a consultation paper about establishing international standards for its practitioners, and thinking through my disagreement with others in the project, led me to the view that the expression was vague, ambiguous, and best avoided.

I explained those reservations and suggested a more productive approach in my earlier Comment article What is plain language (when there's more than one egg on the wall)?.

But plain and plain language are useful shorthand, not easy to replace. In this article I use them in the sense in which I think they are generally understood — to mean vocabulary, syntax, and document structure that are uncomplicated, easily read, and at least superficially understood by people without advanced education or special skills. It refers to the language, not to the ideas that the language expresses, as in this example:

It doesn't mean that the object is in one of the two states. It means that the object is in both states at the same time. The dog treat isn't in the left-hand box all along, it's simultaneously in left and right boxes until after you open the box, and find it in one or the other.

Chad Orzel: How to Teach Quantum Physics to your Dog

I admit my definition is vague, but it is unavoidably so, as nearly all our language is: our categories are arbitrary divisions imposed on a reality that does not recognise them, and inevitably they have fuzzy edges.

Using that definition, I would say that my text is about as plain as is practicable, though no doubt it could be improved.

4. Can it be described as "honest"?

When I was helping to write the consultation paper I put it like this:

It has been suggested that if information is misleading it cannot be plain and that honesty is therefore an essential component of plain language. This is a seductive idea, but a lie can be expressed in plain language: I didn't do it. And George Orwell argued for another, less obvious, incompatibility: "The great enemy of clear language is insincerity. When there is a gap between one's real and one's declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink". (Politics and the English Language 1946). So … we believe we should define plain language without referring to honesty but that the need for honesty should be incorporated in the standards we set for plain language practitioners and documents.

I would now widen the scope of the last sentence of that passage to suggest that in the interests of clarity we unstuff the definition of plain language by stripping it of all recommendations, express or implied. We should not confuse what something is with what we want it to be.

Ethics, if not the law, should require that text is honest, and so not knowingly inaccurate. But that is different from its plainness.

5. Is there a way around the difficulties mentioned in section 2?

The conflict of interest could be resolved by creating an enforceable requirement that landlords explain tenants' rights (about this and other opaque clauses) in standard wording prepared by specialists. But that would not resolve the other difficulties.

A better course would be for The Law Society or some other suitable body (if they could be persuaded, and were up to the task) to put the advice on the internet and for the requirement to be that leases direct tenants to it. The advice could then be kept up-to-date; if it was properly arranged and indexed, with hyperlinks, enquirers could limit their searches to relevant information. But it would still be impersonal rather than tailored to the individual or to the particular circumstances. And this still does not resolve the other difficulties.

A simpler requirement would be that leases include a warning along the lines of the familiar "This does not affect your statutory rights", alerting tenants to their need for professional advice. (Perhaps "legal" would be better than "statutory" rights, so as to include any rights given by secondary legislation or the courts.)

But it is impossible to make all the law behind our documents clear to everyone reading them. It would mean, for example, reproducing (in plain language) on every cheque we signed the law of contract, of banking, and much of tort. And even that would not protect readers against the constant development of the law. Nor would it enable people to think like a lawyer, nor give them the other benefits of a lawyer's skill and experience.

The best we can do is (1) avoid inaccuracy as far as we can and (2) ensure (a) that the public knows of the need for legal advice and (b) has access to it. Lawyers (should) know what questions to ask; their experience enables them to consider aspects, sometimes important ones, that clients do not think to mention; they can filter out irrelevance; they can look at problems dispassionately; and they can take the pressure off a fraught client.

6. Have I changed my mind about the benefits of plain language?

I don't think that anything I've said here would have seemed controversial to me or my fellow-CLARITY-members in the 1980s. And I disagree now as I did in 2008 with Francis Bennion's argument that the plain language movement "was always a misconceived and hopeless project" …

Confusion over Plain Language Law The Commonwealth Lawyer (16 2007, pp 63-68)

In support of plain law: an answer to Francis Bennion The Loophole (August 2008 pp 15-34)

… with this reservation:

Although I remain convinced, for the reasons set out in Clarity for Lawyers, that legalese is indefensible and that clear writing is overwhelmingly preferable, I think I gave too little weight to Mr Bennion's warning that easy readability could mislead the public into believing that they understood what they did not.

On the other hand, I suspect that the reason this problem didn't bother me until some years after I retired is that it never arose during my 25-odd years as a plain-writing lawyer. I tried to make my documents as clear to their users as was practicable without endangering the clients by oversimplifying them. My firm's standard handout explained that:

Occasionally, some jargon is useful. For instance, in a conveyance of land the use of the expression "with full title guarantee" is legal shorthand for a lot of tedious detail which would rarely concern you.

I don't remember any occasion on which the meaning of "with full title guarantee" ever did concern a client. And no client ever expressed any curiosity about it; they had enough to read.

Moving back to s.146, it is common knowledge in England that tenants may not usually be evicted without a court order; and any tenants threatened or summarily dispossessed know that they should go straight to a lawyer. More generally, the public know that the law is complicated — some of them suspecting that this results from a malevolent conspiracy by lawyers — and the need for professional advice is well understood. But that is only my anecdotal evidence and it should be researched rather than speculated upon.

The real problem with the standard repossession clause that triggered this article is not that it failed to explain the tenant's rights in full but that it suggested wrongly that they did not exist. In that it is unusual. But defects like this can and should be corrected.

Acknowledgements

I am grateful to Rabeea Assy for sending me a draft of his article Can the Law Speak Directly to its Subjects? The Limitation of Plain Language (Journal of Law and Society, vol 38, no.3, September 2011, pp 376-404), which (although I still disagree with some of it) started me thinking in this direction. I would also like to thank my wife Jan, Richard Castle, Phil Knight, Christine Mowat, and Richard Oerton for looking at one or other early drafts of this article and helping me disentangle the various strands of my thought. I hope I have used their advice wisely but the final (quite different) version is my own.

In sending me his detailed comments, Richard Oerton rather diffidently but very graciously pointed out that he had written a similar article in Clarity 44 (December 1999). Finding and re-reading that, I discovered not only that he had anticipated the problem of making a document self-contained, and the impossibility of solving it, but that he had used s.146 as his main example. I know I read his article when it came out, as I helped prepare that edition of the journal, but I had completely forgotten it, and it is at least reassuring to discover that my unconscious memory is in so much better fettle than my conscious one. I am posting this piece anyway, for the aspects not anticipated, to clarify my own position, and (I hope) to bring the debate to a new audience. Meanwhile, my oversight brings to mind a warning by Phil Knight some years ago against overlooking work published in back numbers of Clarity.


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