In law school, students learn to understand and use legal terminology that can convey a legal principle in just a few words. As they become expert at legal jargon, they find using it quicker and clearer than trying to explain things accurately using ordinary language and simple terms. Why then, should lawyers and judges spend the time and effort to use plain language?
Because …
People need to understand the law and legal decisions that affect them
Both legal rights and legal documents - including court orders - are meaningless unless they’re understood.
According to Statistics Canada in a 1996 report, almost 50 per cent of Canadians aged 16 and over had difficulty understanding and using information in documents such as job applications, bus and train schedules, and instructions for taking medicine or for operating machinery. The legal system is text-based and has peculiar terminology, complex procedures, and complicated forms. It is difficult to understand, even for people without language or literacy challenges.
In a ground-breaking 2013 study the National Self-Represented Litigants Project found:
In spite of the promise that online services aid access to justice, the litigants had difficulty filling in the forms, which they found too complex. Many grew frustrated when failure to fill in the forms properly had serious consequences for the progress of their actions.
Even those with training have problems: A number of court staff said they and some lawyers had difficulty completing the forms or keeping up with the constant changes.
Court guides seem to be written in a foreign tongue and the entire online self-help process left self-represented litigants scratching their heads.
Courts have recognized the importance of understanding one’s rights in the criminal justice system, where people make significant decisions at many points in the process. People involved in the system are confronted with a mass of information they must understand, recall, and act on in a timely way. They are burdened and confused by obscure language and contextual inferences. Plain language helps them understand their rights and choices so they can make informed decisions.
In the 1991 case of R. v Evans the Supreme Court of Canada found that although police had told Mr. Evans he had the right to consult a lawyer, when he said he didn’t understand and they knew he had a mental deficiency, they had a duty to explain further. As Justice McLachlin pointed out, “A person who does not understand his or her right cannot be expected to assert it.”
Since 1991 Canadian criminal courts dealing with Charter rights have emphasized understanding. From the outset of any encounter, police need to be aware of both:
• special circumstances that impede understanding.
Courts have emphasized the importance of understanding in other contexts. In a recent family law case, R.A. v. W.A., the BC Court of Appeal said that a man’s support obligations were a “matter of conjecture”. An ambiguous court order led to the appeal:
We cannot know whether he is abiding by those obligations without a definitive interpretation of an ambiguous court order. Because of this lack of clarity, we concluded that this Court should proceed to hear the appeal. …
I make the obvious observation that, particularly in high-conflict family cases, it is essential that obligations under court orders are easily ascertainable.
(paragraphs 9 and 10)
Legal literacy is the ability to understand the words used in the legal context and to access rights in the justice system. Most people, literate or not, don’t understand even the simplest legal expressions…They do not understand the concepts contained in the words, even if they understand the words themselves. Therefore, they cannot understand what is expected of them and often the implications of what is being said.
[Canadian Bar Association, Reading the Legal World, quoted in Literacy and Access to Administrative Justice in Canada: A Guide for the Promotion of Plain Language CCAT 2005]
The cost of unclear legal writing
What is the cost of not using plain language to lessen the impact of low legal literacy? Legal writing that is not clear to readers generates confusion and frustration. It can result in offences like failure to appear, breach of probation, or being unlawfully at large. In family and civil court it can lead to missed deadlines or court appearances and breaches of orders.
How can we accommodate those who cannot cope with the systemic hurdles they encounter in the courts? Plain language makes it easier for people to find, understand, and use the information they need to make informed decisions. It also makes it easier for them to understand what’s being said to them and about them in the justice system.
Ensuring that the people they affect comprehend all communications by lawyers and judges is an essential aspect of access to justice. People want to understand what lawyers are saying and why a judge came to a decision. They need to understand and they have a right to understand.
In addition to plain language forms and orders, courts can provide clear reasons using plain language to explain how a decision is reached and increase understanding of orders. Cases come back to court to clarify terms of an order or where a series of orders has produced confusion. Better communication can improve compliance, and avoid appeals and additional court appearances.
Understand how the reader understands
Lawyers and judges write for different audiences: the affected parties, the public, lawyers, judges, appeal courts. But shouldn’t the people directly affected by a legal problem or court case be the most important readers? Other readers will not complain about clarity, simplicity, obvious structure, and good layout.
The Universal Design concept adopted in other fields supports designing things so they can be accessed, understood and used to the greatest extent possible by all people regardless of their age, size, ability or disability. Applied to legal writing and speech, it suggests we use language that is simple and works for the largest number of people - regardless of their experience, knowledge, language skills or current concentration level.
There are many factors that affect understanding of the reader:
• aging
• cognitive difficulties
• low English literacy
• medical conditions and injuries
• learning disabilities and mental handicaps
• reading in a second, third, or fourth language
• physical and emotional stress or fatigue
• lack of knowledge of legal context and concepts
Other factors that affect concentration and comprehension are:
• perception of intimidation, harassment, or abuse
• fear of a situation that produces inability to think clearly
Everyone can experience understanding difficulties at some time, for reasons related to their health, physical, social, or cognitive conditions. For some the difficulty will be transitory, but taken as a whole a general reading audience will include people with such challenges. People with reading difficulties are not a separate target group but all of us at some point in our lives.
Many of us face some physical, cognitive, social, emotional, or language issue. Some sources of difficulty in understanding are hidden or invisible. People often will not admit to any problem, having spent their lifetime trying to hide any deficit in comprehension. Asked only if they understand, they will say yes even when they know they don’t understand. And just being in court can be frightening enough to impede comprehension. The communication burden falls on the writer or speaker, not the reader or listener.
The impact of plain language
By using plain language we do everyone a favour and reap the benefits of effective and efficient communication. We contribute to improved understanding of court processes, legal issues, and decisions. We shorten court lists. And we give people effective, real access to justice.
As Chief Justice McLachlin put it, “We should do what we can to make the law clear and accessible to average Canadians.”
Watch for a future eNews exploring plain language techniques that can be applied in legal writing.