Why can’t lawyers and judges just say what they mean?

Legal documents are infamous for being dense and full of jargon —not to mention Latin. 

Most forms, disclaimers, and court decisions are written in the passive voice, while sentences are often too long and have multiple clauses. Then there are the block quotes and $10 words, all of which make the text inaccessible to anyone who didn’t go to law school — and likely even some who did.

It's why a growing community of legal professionals is advocating for plain language as a means to make the law more accessible, build trust in the justice system, and ensure that ordinary litigants can read a decision and understand whether they have won or lost.

Ultimately, it’s about access to justice, which goes beyond having fair access to the courts and legal services. It’s about making services and documents easy to understand. It turns out that using plain language to ensure everyone in society can find and understand the laws, rules and judicial decisions that affect them is one of the cheapest and most effective ways to improve access to justice.

“The rule of law is about protecting everyone, and if we are not articulating ourselves well, if we're not communicating to everyone, then how can we be upholding that?” says Karen Jacques, Canada's representative at Clarity International, the world’s largest organization focused on promoting plain legal language and design.

“The use of clear, plain language is the path to access to justice, to upholding the rule of law. The more everyone can understand what is happening, the better.”

Jacques, the vice-chair of the Workplace Safety and Insurance Appeals Tribunal in Toronto, changed her writing style as an adjudicator after being inspired by the work of Paul Aterman, the former chair of the Federal Social Security Tribunal of Canada and a consultant in plain language and legal design.

Both recently joined host Alison Crawford on the Verdicts & Voices podcast.

“At the beginning, I certainly started out writing the way I was trained and what some other people were showing me,” Jacques says. 

However, in an era when people’s attention spans are shrinking, she recognized the need to reevaluate how she communicated legal decisions to the public, aiming to provide better service to them. She started dropping the legalese and getting to what was important more quickly and clearly.

Stumbling upon one of Aterman’s social media posts opened Jacques’ eyes to the fact there were organizations working to make legal writing more accessible in the way she wanted. 

“This is what we need to do so that when we write these decisions, we're serving the people that we're talking to,” she says. 

“We're helping make sure that they actually understand, and we’re meeting them where their attention span is, as opposed to what we would like them to have.”

Aterman was instrumental in bringing plain language to the Tribunal's rules of procedure. 

“I think there's a very long tradition in law of the people who are educated in law — lawyers, adjudicators and judges — talking knowledgeably to one another, without regard for the people who actually use the system and are affected by it,” he says. 

“That has been perpetuated in the law for decades, if not hundreds of years. Undoing it is not simply flipping a switch. It's a significant challenge, and moving off inertia is easier said than done.”

Approximately three-quarters of people who appear before the Social Security Tribunal represent themselves, and about 60 per cent have only a high school education or less. They’re left to navigate very complex statutes and documents on their own. 

“This was epitomized to me when I started. The general counsel at the Social Security Tribunal told me an anecdote of an appellant who had received their decision … phoned up and said, ‘Thanks very much for sending me my decision. Can you tell me whether I won or lost?’” Aterman recalls.

“If we're in that state of affairs, there are serious problems around access to justice. Plain language is fundamental, I think, to access to justice.”

Establishing a plain language practice at the Tribunal meant making a commitment at the top to use it consistently. 

“This is the way we do our business, and that becomes something which is not negotiable,” he says. 

“It's not something which trenches on the independence of individual adjudicators or judges, because no one is telling them what to decide or how to decide. It is simply asking that they articulate this in a way that ordinary people can grasp it.” 

However, when people hear the term “plain language,” they often intuitively think it means writing in shorter sentences and using simple words. 

That’s a misapprehension, Aterman says.  

“Plain language is not rocket science, but it does have a few principles underlying it which need to be understood and taught.” 

In the case of writing about the law, he says the most important thing you can do is focus on structure. 

“Writing using simple words and avoiding Latin is kind of easy. The challenge on an intellectual level is to think through the structure of a complex communication, like a decision - that's really where the impact is greatest.”

Jacques agrees that structure is “super” important in plain language communication. 

She says there was a time when they were trained to write out all the evidence in one section, all the testimony given in another, map out all the medical evidence, and then eventually they’d get to the analysis in another.

But that approach means the important information in a decision gets bogged down in legal jargon. 

“The outcomes have got to be on the front page,” Jacques says. 

“You should see that up front, because if someone is only going to glance at your decision, they should at least know, was it allowed or was it denied? And if we haven't at least done that piece, we aren't meeting them where they are.”

These days, she ensures that decisions are mapped out in a way that allows someone to read the sections they need, providing sufficient information for their purposes. She also ensures that information is gathered together in one place to discuss, rather than listing every piece of evidence examined.

Knowing your current and potential future audience is also key to writing in plain language. 

“We are in service to the people that we're writing for, and usually for myself, it's workers or employers that are usually before me,” Jacques says.

In some cases, a decision might prove helpful for future researchers, which can also influence how she writes about it.  

“It's just thinking about who it is that you're talking to and what they need to know. That's going to change with every single case, even ones that seem really similar. If you think about the people before you, you're going to write it a little bit differently.”

Tune in to the full episode to hear what Aterman and Jacques say are the top three things they wish people would stop doing in legal writing, and to learn more about resources you can access to improve your own plain language skills.