Plain language drafting: Write for your reader

The push for plain language drafting is, of course, nothing new. Joseph Kimble, Emeritus professor at WMU–Cooley Law School, has been writing on the topic for more than 30 years. He has written two books, including Lifting the Fog of Legalese and many papers, including Answering the Critics of Plain Language, Plain Words (Part 1), and Plain Words (Part 2). The arguments he makes in his various writings are quite persuasive, … but sadly are probably only read by those who are already converts to the cause.

More recently, Professor Ken Adams, Adjunct professor at Notre Dame Law School and prominent author on legal drafting issues, through his blog, Adams on Contract Drafting, his book, A Manual of Style for Contract Drafting (currently in its 3rd edition), and his many seminars has been doing what he can to advance the cause of what he prefers to call drafting in “standard English” (rather than “plain language” drafting). Bryan Garner is another American legal writer on the topic, whose work includes a book entitled Legal Writing in Plain English.

There are, therefore, ample resources to help practitioners to improve their style. And yet, if you review at random the agreements published on Edgar, many or most of which are drafted by the country’s top law firms, you would wonder if the drafters had ever heard of, let alone considered, the issue.

It is certainly regrettable that the push is still on for plain language drafting, that so many lawyers still seem not to “get it”!

I would suggest that your guiding principle when drafting should always be to write for your reader. It is the businesspeople who will ultimately live with and use these documents who need to understand them. The large majority of your readers never went to law school and are not familiar with legal terms the way you are. If, when you draft, you keep those readers in mind, you will necessarily and inevitably draft in standard English.

These ideal readers of yours likely also read the New York Times, the Washington Post, or the Wall Street Journal (if not all three!). Read the business pages of those and similar publications to see, in practice, how complicated issues can be explained clearly for intelligent readers, and apply the same approach to your own drafting.

If you want some objective help, calculate the Flesch-Kincaid score of your document. The score tells you what U.S. grade school level is needed to read your text. There are several websites (such as this one) where you can paste your document and get the appropriate score. You should aim for a score no higher than 12.

To get a sense of how an “average” legal document would score, I searched Edgar asset purchase agreement, and rated my first hit, which is a relatively modest 52-page document. It received as score of 19, meaning that someone reading that document would need a four year undergraduate degree and three years of grad school to understand it properly! (This 89-page merger agreement scored 21.7, so for it, you’d need almost six years of grad school.) When I scored a New York Times Dealbook article entitled Where Finance and Technology Come Together, on the other hand, it scored 11.6.

In order to get a score of no higher than 12 on your agreements, you will have to be doing all the things you need to do to write clearly for your reader (short, focused sentences, clauses with only one substantive issue, a clear organizational structure, clear, “meaty” clause captions, etc.), and you will find that, in doing so, you will necessarily have been drafting in standard (or plain) English.