PLAIN ENGLISH—Part 2

1.4 Samples

This Section provides some samples of how plain English in legalese and other documents.

1.4.1 Legalese

Sample 1

In his article Drafting: PLAIN ENGLISH VERSUS LEGALESE,  Stephen Hunt provides a clear background to both forms of writing and analyses the responses from 26 respondents without legal training and 60 respondents with legal training and comes to a balanced conclusion in favour of plain English. I urge you to take a look at this interesting contribution.

CONTRACT A

An example of a traditional legalese style contract.

Agreement for Building a House.

MEMORANDUM OF AGREEMENT, made and entered into this second day of May, 1994, between John Smith of the one part, and Mary Jones of the other part, as follows, viz. THE SAID Mary Jones, for the consideration hereinafter mentioned, doth agree with the said John Smith that she, the said Mary Jones, or her assigns, will, within the space of three calender months next following day of the date hereof, find and provide all fit and proper materials and things, and erect, build and finish, in a good, sound, substantial, and workmanlike manner, one brick house or building on a certain piece or parcel of ground, situate in 41 Matipo Ave, Rotorua, according to the plan thereof hereunto annexed. AND THE SAID John Smith for the consideration aforesaid, doth agree with the said Mary Jones well and truly to pay or cause to be paid unto the said Mary Jones, the sum of 60,000 dollars of lawful money of New Zealand, in manner following; that is to say, 20,000 dollars, part thereof, as soon as the foundation of the said house shall be laid, 20,000 dollars other part thereof, when the brick work of the said house shall be carried up and covered in, and 20,000 dollars, being the remainder thereof, in full payment of and for building the said house, when the same shall be completed inside and out fit for occupation, subject to the approbation of Jill Black, as surveyor of the said John Smith: AND LASTLY, THE SAID John Smith and Mary Jones do further to agree to perform for each other, with all convenient speed, this memorandum of agreement, in penalty of 500 dollars for each individual week, for any failure by more than one week, of the true performance of the erecting, building and finishing, in a good, sound, substantial, and workmanlike manner the aforesaid house, or failure to pay, or failure to pay part thereof, for building the said house. 

AS WITNESS, &c.

John Smith.

Mary Jones.

 [Contract A is based on a precedent contained in Woolaston, F L Woodfall’s Law of Landlord and Tenant (1840)].

 CONTRACT B

An example of a modern plain English style contract.

Contract for Building a House:

Date: May 2, 1994.

Between: John Smith the landowner and

Mary Jones the builder.

To: Build a house at 41 Matipo Avenue,

        Rotorua.

Conditions of the contract:

a. Mary Jones agrees to build a house for John Smith by August 2, 1994.

b. The house will be built to the specifications of the attached plan. c.John Smith will pay Mary Jones 60,000 dollars for building the house.    The payment will be in three instalments of 20,000 dollars.  

    i. John Smith will pay the first instalment when the foundations have been laid. 

   ii. John Smith will pay the second instalment when the brick work is completed and the house is covered in.

   iii. John Smith will pay the third instalment when the house is completed to a standard which is acceptable to Jill Black.

d. If John Smith does not pay an instalment within one week from the day it is due a penalty will be incurred. The penalty is incurred every week an individual instalment remains unpaid. The penalty is 500 dollars per week per unpaid instalment.

e. If Mary Jones does not complete the house within one week from August 2 1994 a penalty will be incurred. The penalty is incurred every week the house is not completed. The penalty is 500 dollars per week.

 Signed:

John Smith.

Mary Jones.

[Contract B is my “translation” of Contract A into plain English]

Source:Hunt, Stephen --- "Drafting: Plain English versus Legalese" [1995] WkoLawRw 9; (1995) 3 Waikato Law Review 163

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Sample 2 

Sample of old text 

Group Conversion

(Direct Payment) Subscribers

In the event of termination of eligibility of the subscriber for coverage as a member of the group through which his coverage is effective, by reason of termination of employment or otherwise, the subscriber may, by written notice to the Service Association within thirty (30) days after the end of the monthly payment period in which eligibility so terminates, elect to convert this contract to a Group Conversion contract; provided that no such right of conversion shall exist if the group of which the subscriber is a member shall enter into an arrangement to provide any of its eligible members with hospital care or hospital expense protection other than through the Service Association, and if as a result of such arrangement the contracts of all subscribers in the group are terminated by the Service Association or the subscribers.

The same text in Plain English

Group Conversion Coverage

When leaving a group health care coverage plan, individual coverage is available through a BCBSM Group Conversion plan. You or your eligible dependents must submit to BCBSM a written request for a Group Conversion contract:

* within 30 days of the date your group coverage was canceled or

* within six months before the date the COBRA group continuation coverage ends (18 or 36 months).

"We also changed the appearance of certificates and riders to enhance their readability. Both were enlarged from 33/4 x 8/2" to 5/ x 81/ ".Colored headnotes, bullets and borders were added to highlight the text. Small, light-blue type was replaced with large, black type. More space was allowed for margins. Since riders are usually printed separately from the certificates they amend, we added a pocket in the back of each certificate where riders can be stored.

Source:

Plain English in Insurance Papers by George H. Hathaway and Peter A. Marroso published in Plain Language, a regular feature of the Michigan Bar Journal, edited by Joseph Kimble for the State Bar Plain English Committee

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Sample 3 

Legalese

Appellate Brief

The trial court erred in giving flawed essential elements instructions

to the jury and thereby denied the defendant due process and fundamental fairness since it is error to give the jury, within the essential elements instructions, one statement containing more than one essential element of the crime and requiring of the jury simple and singular assent or denial of that compound proposition, fully capable of disjunctive answer, which if found pursuant to the evidence adduced would exculpate the defendant.

Plain English

Appellate Brief

The trial judge erred by instructing the jury to affirm or deny a single

question which contained more than one essential element of the crime. By joining all of the major elements, the court denied the defendant his due process right to be acquitted if found innocent of any one of the elements.

Source: Robert W. Benson and Joan B. Kessler’s article “Legalese V, Plain English: An Empirical Study of Persuasion and Credibility in Appellate published in Loyola of Los Angeles Law Review, Vol.20:301  

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Plain English--part 3 in the next post.