Legal design and plain language for lawyers = legal efficiency

Polish version of this newsletter was sent yesterday and can be found here.?

I don't feel competent to present a comprehensive explanation here on legal design and plain language methodology. I haven't completed any courses, and I haven't even been to any dedicated conference (not including perhaps Rafal Lorent's excellent lecture). I am self-taught in this field. My knowledge is made up of many small pieces that I have collected over many years from various sources and then tested in practice.

The turning point for me was when I started working with Tomasz Piekot. It was 2017, and I remember the stress of worrying what will be the opinion by a leading expert on plain Polish on the draft agreement I had prepared for him. It wasn't too bad. However, when sometime later I went back to this agreement when making some changes, I discovered that there was still much room for improvement. And in fact, to this day, I am still discovering new ways to translate plain language standards into my daily legal work.

The distance from the use of plain language to legal design is not far. Because these two methodologies have one thing in common. It is not art for art's sake. Or at least it shouldn't be.

An effective lawyer requires effective communication

Plain language and legal design are tools that allow a lawyer to be effective, i.e. one who achieves his or her clients' goals by acting professionally and diligently. Indeed, the foundation of legal effectiveness is, in addition to knowledge of the law and experience or a range of soft skills, also communication effectiveness.

A lawyer's effectiveness depends, inter alia, on whether his or her communications are so clear that the recipient for whom the communication is intended can easily find the information he or she needs, understand it, and make use of it. This applies whether it is a client receiving legal advice, a client's counterparty receiving a subpoena, or a judge. In all these cases, unclear communication often equates to ineffectiveness - the client will have to ask what he or she is specifically supposed to do, the client's counterparty will ignore arguments that he or she has not understood, and the judge will overlook overly abstruse legal arguments.

ISO standard for plain language

And it so happens that all of the above-mentioned characteristics of effective communication are also basic requirements for plain language according to ISO 24495-1:2023.

The ISO standard outlines these as follows:

• Rule 1: Readers get what they need (relevant)
• Principle 2: Readers can easily find what they need (findable)
• Principle 3: Readers can easily understand what they find (understandable)
• Principle 4: Readers can easily use the information (usable).

And these four principles are the foundation not only of plain language but also of legal design. Adhering to them allows to create documents that not only meet formal requirements, but also realistically support readers in action. This is illustrated in the diagram below.?

The client in the centre means that the recipient of communication is in the centre

This is why I believe that the use of plain language and legal design methodology is not a fad, but the cornerstone of any lawyer striving for effectiveness. At the heart of plain language and legal design methodology is the recipient of our communication - be it the client, the judge or the other party to the dispute - and their needs. It is the understanding of these needs and the adaptation of communication to the capacity of the recipient that often determines a lawyer's success.

Plain language - a tool for efficiency

Many lawyers fear that using plain language means simplifying content at the expense of precision. Nothing could be further from the truth! Plain language is not the same as simplified language. It is a language purged of everything that gets in the way of communication. It is a language whose substantive content is the same as the original. What is more, it is often only by redrafting a document that we notice errors that were previously obscured by the linguistic constructions we habitually use.

What does this look like in practice?

Creating legal documents in plain language is not difficult. You just need to adopt a few habits.

For a start, you can, for example:

Remove all embellishments and so-called writing about writing.

Instead of

"We hereby wish to inform you that, after lengthy and detailed analysis, we have decided to implement a new system."

You can write

"We have decided to implement a new system."

Remove lawyerisms, such as 'hereby', 'herewith' etc.

Instead of

"Please find the documents attached herewith."

You can write

"The documents are attached."

Change the passive form to the active where possible

Instead of

"The verdict was given by the court."

You can write

"The court has given its verdict."

Introduce subheadings or headings

Just look at this text.

Reword sentences with center-embbed structures

Instead of

"In the event that any payment or benefit from the Company (all such payments and benefits, including those set out in clause 3(a) of this Agreement, are hereinafter referred to as 'Total Payments') is taxed, then the amount of the payment shall be reduced accordingly."

You can write

"In the event that any payment or benefit from the Company is taxable, the amount of the payment shall be reduced accordingly. All such payments and benefits, are hereinafter referred to as 'Total Payments, which includes the payments and benefits set out in clause 3(a) of the Agreement."

Divide longer paragraphs into shorter ones to avoid so-called walls of text.

Instead of:

"Regardless of the manner of transmission, all information relating to the operation of the Seller's business, in particular concerning the composition, technology and methods or techniques used in production, formulas, plans, diagrams, drawings, lists, tools, equipment or special equipment solutions, components or materials used in production and the terms and conditions of the Contract are Confidential Information constituting a secret of the Seller's business. The Buyer shall be obliged to keep Confidential Information confidential, including protection against disclosure and use incompatible with the agreed purpose, using standards no less than those applied to protect its own information of a confidential nature and with diligence no less than that required in such cases of a professional entity."

You can write

"1. Regardless of the method of transmission, all information relating to the operation of the Seller's business and the terms and conditions of the Contract shall be Confidential Information constituting the Seller's business secret.

(2) In particular, Confidential Information is information relating to compositions, technologies and methods or techniques used in production, formulas, plans, diagrams, drawings, lists, tools, devices or special equipment solutions, components or materials used in production.

3. The Buyer is obliged to:

(a) keep Confidential Information confidential and protect it from disclosure

(c) protect Confidential Information from use contrary to its intended purpose

(d) apply standards no lower than those applied to protect its own confidential information

(e) exercise no less care than that required in such cases of a professional entity.

Turn enumerations within sentences into lists.

See the example above.

Use tables instead of descriptions where possible.

Instead of "In the first quarter, the number of court cases was 50, in the second quarter 75, and in the third quarter 100."

You can write

Then you can go further - make changes to the layout of the document (contracts in particular are great for such changes), add graphical elements (e.g. colour), add explanations of more difficult passages... Of course, only if you consider that this is needed to increase the effectiveness of the letter - it cannot be art for art's sake.

I can assure you that even the most complex documents, from a pleading to a contract, can be prepared better this way. The key is to tailor the words, structure and layout to the needs of the specific recipient - be it a client or a Supreme Court judge.

There are many helpful resources that you just need to use. I will only mention two resources:

• Contract Design Pattern Library - a collection of ready-to-use solutions for common contractual problems with clarity and comprehensibility for the parties.
• Dictionary of icons for legal documents - a collection of icons compiled by a team led by Aneta Baranowska.

Why is it important to keep working on your documents?

This is a simple rationale. There are real benefits to using plain language and legal design methodologies (I am only mentioning a few examples):

1. Reducing contract negotiation time

2. Increasing contractor confidence

3. Streamlining and speeding up internal company processes by reducing the need to clarify prepared documents

4. Greater persuasive effectiveness

Why do lawyers avoid simplicity?

Despite the obvious benefits, many lawyers still resist change. The reasons? Various. From 'because I just like to write like that' to the belief that 'difficult' language is indicative of professionalism. And how it is in reality - just read these studies, the titles of which provide the best answer.

• Poor Writing, not Specialized Concepts, Drives Processing Difficulty in Legal Language
• Even Lawyers Don't Like Legalese

Important!

Legal design methodology applied in full, in my view, is very difficult for implementing in practice.

Just look at the requirements for plain language indicated in the ISO standard. Meeting them requires interaction with the recipient of the text - if we wanted to prepare a document in which the recipient would actually find the information they need easily, understand it and use it for their needs, we would have to involve the actual recipient and run tests with them to verify the effectiveness of the document in plain language.

Moreover, such tests would have to be multi-stage, quite complex and expensive. Tomasz Piekot describes this clearly in his article 'Legal text validation from the perspective of the ISO plain language standard'. More often than not, there is simply no time for this.

I can imagine such tests when creating bylaws or contract templates intended to be used in hundreds or thousands of cases, but they are unlikely to come into play when creating documents for one specific transaction or a single pleading. In such a situation, however, usually even the use of a few plain language or legal design techniques really makes a difference.

Summary

Legal design from a legal perspective is the conscious use of simple language, document layout and available technology to better serve the needs of clients and achieve better results. It is, on the one hand, a range of easy-to-use techniques for working with a document, but also a philosophy of legal practice based on empathy and understanding of the reader’s needs.

Finally, to quote the words of Ruth Bader Ginsburg - US Supreme Court Justice from 1993 to 2020: "If you can say it in plain English, you should."

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