PLAIN ENGLISH FOR LAWYERS
| Published date | 01 December 1996 |
| Author | YEO HWEE YING |
| Date | 01 December 1996 |
The English legal language has been derided for centuries for its verbosity, convolution and employment of esoteric jargon. The resulting legal documents are often beyond the comprehension of its readers. A movement towards the use of plain English is especially timely in Singapore where English is not even the native tongue and there are three other competing official languages. The paper seeks to examine the problem of the legal language and the reasons behind it, appraise the experience of the plain-English movement in other countries and discover some strategies that may be able to assist in the implementation of plain English usage in Singapore.
Those materials marked by asterisks (*) in the footnotes of this article were provided by the Law Foundation Centre for Plain Legal Language, University of Sydney, Australia.
In January 1996, the Academy of Law organised a week-long seminar on plain English for the legal fraternity. The Sunday Times1 publicised this event under the heading of “Hitherto, obfuscation; hereafter, no more” which in plain English simply means that obscure language will be a thing of the past. The newspaper report continued with the parody in the opening sentence:
“Verily, inasmuch as our legal brethren suffer the imprecations of the laity for obfuscation, it is right and proper that the very same take issue against the said depredation.”
What the journalist intended to convey, again after translation into plain English, is that lawyers who often use obscure language deserve the condemnation of laymen for doing so. “Lawyers,” he pleaded, “do not speak that way anymore.”
The call for the use of plain language is actually not new. Criticisms of legal pomposity abound. Even well-known personalities from the past (such as King Edward VI, Thomas Jefferson and Jeremy Bentham)2 had lamented the unfortunate abuse of the legal language. Let us, however, take a quick look at some of the more recent instances for an updated perspective of the problem.
Judges have already pointed out that poor draughtsmanship often give rise to problems. The English Court of Appeal in Trafalgar House Construction v General Surety3 has advised those involved in commercial contracts that “they would save much time and money if in future they … set out their bargain in plain modern English without resorting to ancient forms which were doubtless designed for legal reasons which no longer exist”.4 Another leading English leading judge, Lord Justice Staughton, has complained in Stayline v Tyne Ship Repair5 that the conditions in the contractual dispute are firstly “in such small print that one can barely read them [and] secondly the draughtsmanship is so convoluted and prolix that one almost needs an LLB to understand them”.6
Such views are also shared by the courts in Singapore and the neighbouring jurisdictions. Thean J (as he then was) has already pointed out that unfortunately the typical syndicated loan or facility agreement “is extremely lengthy and verbose.”7 In the Malaysian case of Tio Chee Hing v Government of Sabah,8 there is the observation that “the language used in the statement of claim is …. so verbose and mixed that it becomes necessary to sort out the wheat from the chaff.”9 Another Malaysian judge has similarly noted in Lim Theng Hoe v Commissioner of Land Titles Penang10 that “even title deeds, those most venerated of documents, have been described … as being difficult to read, disgusting to touch and impossible to understand.”11
The problem is not peculiar to civil proceedings. Criminal cases also fall prey to such verbosity; for instance, in the case of Abdul Hamid v PP12 the judge was so disdainful of charges which “contained a great deal of unnecessary verbiage” that he had to instruct that “charges … should be drafted as simply as possible setting out the offence with such particulars as is necessary to understand with what he had been charged.”13 An even more recent example is that of PP v Vasavan Sathiadew & Ors14 which
sounds the warning that the prosecution suffers the risk of the court throwing out the accused’s statements should the cautionary statement read by the officer to the accused, as prescribed by s 121(6) of the Criminal Procedure Code, “contain a fair smattering of legalese”15 (especially when the accused is unable to understand English and has to rely on translations).
Having previously been a colony of the British Empire, Singapore has inherited the problem of legalese in certain of the older statutes that have been lifted from various other jurisdictions. This has thus led a number of parliamentarians to castigate legalese and plead for the use of plain English.
The Road Traffic Act provides a suitable illustration. One of the Nominated Members of Parliament has berated that this particular piece of legislation “should be written not just for lawyers and judges but for ordinary people as well … [and if it] cannot be read easily and understood by the general public, then the deterrent effect of many of the punishments is lost”.16
The Minister for Law, Professor Jayakumar, has also highlighted in Parliament this problem of poor writing style in the statutes, especially those which are relics of Singapore’s colonial past: “Many are also inaccessible and unavailable to the general public and even to lawyers. Moreover, the language of these ancient statutes is archaic and very difficult to understand.”17
Noting that this problem of poor English is not limited only to legal circles, the then Prime Minister, Mr Lee Kuan Yew, had already issued a call in 1979 for plain English to be used in the civil service.18 Expressing grave concern over the “deplorable situation” in written communication generally existing in Singapore at the time, he pitched for a “determined effort to change” beginning with the senior civil servants: “Do not try to impress by big words — impress by the clarity of your ideas … The written English we want is clean clear prose.”
How did this mess arise? How did lawyers (who have generally prided themselves as wordsmiths) become entangled with such legalese? In defence, lawyers claim that they are merely the victims of circumstances and they list the following as blameworthy factors:19
Latin, being the early language of learning and scholarship in Europe for many centuries, was used as the primary language for important books and documents in England. After the Norman conquests in the 14th and 15th centuries, Anglo-French came to be used as well. By then, Latin and French terms were integrated into the language of law — for example, ab initio and ex contractu. When English subsequently became the official language, it had already assimilated a large number of these foreign words. As the lawyers of the day translated their documents into English, they felt the need to preserve some of the technical French and Latin terms. At times, an English synonym was added to a French word to aid understanding and we thus have couplets such as “will and testament” and “force and effect” as well as triplets such as “sell, assign and convey”, “fixtures, appurtenances and hereditaments” and “rest, residue and remainder”.
Common law decisions were arrived at by determining whether there had been earlier relevant decisions. This compelled lawyers to look up earlier cases and be familiar with their writing styles, regardless of how antiquated they may be. The attitude became that of “what worked for them should also work for me”. This approach led lawyers to adopt the earlier forms of expressions and pleadings (many of which were already archaic) and have them incorporated in a wholesale manner into standard forms and documents. The practice was aggravated by the ensuing publication of handbooks containing sample forms and precedents20 as this encouraged lawyers to employ what is nowadays hailed as the cut-and-paste technique of culling clauses from different sources — giving rise, most unfortunately, to incongruity and uncertainty.21
City legal practice moves in the fast lane. There is intense competition and the ability to deliver documents promptly (at times on 24-hour notice) keeps one ahead of the rivals. There may be little time for lawyers to sit back and reflect when they are pressed to meet unrelenting deadlines. Given such a working environment, it would be far easier — and perhaps safer even — to borrow from previous precedents or to re-cycle old copies rather than to draft a new document from scratch. The arrival of the electronic age (with its wonderful offering of wordprocessors, scanners and computer networks that enable the easy archival and retrieval of precedents) has reinforced a linguistic tradition that has been professionally buttressed over the centuries.
Lawyers have come to perceive their ability to wield bombastic words and convoluted sentences as a mark of professional distinction. Their legal style and vocabulary have almost attained a cultist quality. There is a certain prestige and aura about the language which serves as a legal badge to separate this exclusive class from the rest of the human race. To gain admission into this fraternity, there is tremendous pressure on aspirants to speak and write in the same pompous manner. This ostentatious propensity is often fuelled by misguided clients who revere such pomp and feel that the magic would be lost if simple language were to be used. William Zinsser, a well-known American writer, has made the following observation: “[The] tendency is to inflate and thereby sound important; … [if] the sentence is too simple, there must be something wrong with it.”22
Historically, it was in the lawyers’...
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