Plain English and modern legal drafting - Part - 1

Part 1: What is plain English—really?

All legal writing should be appropriate for its audience—it should speak to the reader in words, sentences, and forms the intended reader can understand. Thus, transactional legal writing—legal drafting—should be appropriate for its audience: the parties to the transaction and, if they are represented by counsel, their lawyers. But in many transactions, particularly consumer transactions, the parties are not represented by counsel. The transactions are between nonlawyers without counsel or between a sophisticated party, who dictates the terms, and a nonlawyer consumer. Those nonlawyer consumers need plain English. To meet their needs, I offer this broad description of plain-English legal drafting:

Plain English is a form of English that can be read and understand by the typical nonlawyer.
Here are some specific traits of plain-English legal drafting:

Plain English all but forbids insider jargon, legal Latin, and archaic words.
Plain English strictly limits terms of art and always defines them in plain English.
Plain English sometimes requires more words and sentences than traditional legal drafting—to define terms of art and to explain complex subject matter.
Plain English also values brevity and concision—sometimes even at the expense of content.
Plain English often uses the first- and second-person pronouns you and we.
Plain English uses contractions.
Plain English often uses bullet lists, question-and-answer formatting, lots of headings, and document summaries.
Plain English uses shorter-than-average sentences and paragraphs.
For example, here’s a plain-English provision from a form produced by the Texas Office of the Consumer Credit Commissioner:

If I don’t pay an entire payment within 10 days after it’s due, you can charge me a late charge. The late charge will be 5% of the scheduled payment.
That’s plain. But ask yourself if that tone and style are appropriate for a complex, multi-million-dollar transaction between large corporations represented by counsel.



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