FIRST IMPRESSIONS OF LAW FIRM'S WRITING CULTURE

Need for plain English review

Sparke Helmore took me on as a precedents lawyer and later as precedents manager. It seemed that my earlier dependence on precedents made me a fit person for the job. Who better than I to understand the value of precedents? Except now there was another dimension - I was the one who had to ensure the precedents were well written so others could rely on them.

I brought my teacher’s hat to the firm; and instead of my students, I put myself in the position of the firm’s clients. After all, clients are nonlawyers too. Did the lawyers write to them in a way that was easily understandable? Were they as effective in their writing communication as their face to face contact?

I asked some of the partners for examples of junior lawyers’ work needing plain English review. And I received a cross section of documents and letters including a deed of release, deed of unit trust and letter of advice. (Attachment 'A') Common to all of these were the ubiquitous ‘shall’s’, ‘hereinafter’s’, and ‘duly’s’, and other examples of legalese, ‘butchered grammar’ and sentences long enough to ‘choke a horse’.⁵

One word that stuck out in the advice letter was ‘tortfeasor’. Being used to blank faces in my law classes when trying to explain the word ‘tort’ I wondered how easily a client would cope with ‘tortfeasor’. And a young lawyer, who had been exposed to plain English at law school, wrote the letter. In my orientation sessions I asked support staff if they knew the meaning of ‘tortfeasor’ – not surprisingly only a few did.

Plain English policy - perception and reality

The firm had a plain English policy but there was a discrepancy between the stated policy and some of the documents it was producing. Letters often began with ‘we refer to previous correspondence’ and ended with ‘please do not hesitate to contact the writer’ and ‘we look forward to hearing from you’. Letter subject headings commenced with ‘re’.

At orientation sessions I asked new recruits if they knew about plain English and mostly they did. But when I showed them the letter containing ‘tortfeasor’ not many spotted its inappropriateness. Critical reflection about choice of archaic words was not strong. They were so used to this kind of language that it brushed over their heads.

But, unlike my law studies 30 years ago, plain English was now taught in some law schools. And in those universities where plain English wasn’t taught students were at least made aware of its importance. So why were some lawyers still writing in a pretentious lengthy and complicated way?