Some of the country’s top legal brains are backing calls for greater use of plain language in the law to make it more accessible for New Zealanders. Leading the charge is Solicitor-General Una Jagose who for years has been intent on clearing the legal landscape of arcane language that is “mired in the past.”Jagose launched her campaign at a Clarity International conference some years ago, saying for far too long lawyers have revelled in complex, hard-to-understand language that is mired in the past.

“The language of law is to persuade, to advise and, in the case of judging, to determine disputes between parties so that justice is done between them and seen and understood to be done. “As I tell my colleagues in Crown Law, if our clients cannot understand what we are telling them, and if they need a lawyer to translate what our advice is, we are not doing our jobs right.”

Former High Court Judge Paul Heath KC holds similar views. He told LawNews that during his time on the bench he was a member of the Board of the Institute of Judicial Studies which ran programs dealing with judgment-writing, emphasising the need where possible for simplicity of expression. “Sometimes that will not be possible, for example in a case where the subject-matter is technical/legal and requires careful use of terms to explain the reasons for a decision,” he says. “In such cases, a lay reader may well find the language somewhat dense and difficult to follow but that is difficult to avoid.”

Heath, who now works as an international arbitrator and mediator at Bankside Chambers, says simplicity of language is paramount. “Write as simply as possible. Short sentences and simple language make for the best writing, whether one is reading a judgment of a court, an arbitral award or a novel. Try to use language that would explain the problem and the solution to an intelligent third party.

“Think about leaning over the neighbour’s fence at the end of a hard day at the office and explaining what you have done that day. “In a leaky home case, for example, rather than getting into technical detail about what happened, there is no reason why you simply could not say that someone was complaining about the quality of work to the deck on his or her house because it was leaking, for whatever reason. If you were explaining the problem to a neighbour, you would avoid over-complicating the facts. Why would you not do the same thing when writing the award?”.

But Heath says a more nuanced approach may be required when making findings on differences in expert evidence. “Frequently, an explanation of the technical nature of the problem and solutions cannot be written in simple language. The aim is to write in simple terms, so far as that is practicable in light of the subject matter of the dispute and the reasons why it should be resolved in a particular way.

Heath has two further tips: “When you define a term for later use in the award, choose one that is simple and easily remembered. Often lengthy acronyms do not serve the purpose well. The reader may have to return to the definition frequently if they cannot remember what the acronym means. “Secondly, the time spent writing an award must remain proportionate to the amount at stake. For every hour you take to polish an award, the parties pay more for it. Efficiency is important. It is not an ‘either/or’ situation. “A good award will be well-written, readily comprehensible and produced efficiently.”

Unrepresented parties

The issue of opaque court judgments was raised last month in an article published in the UK’s Law Society Gazette. It cited the example of a litigant, the House of Zana, who had been sued in a trade-mark dispute with fashion giant Zara. The defendant said she was struggling to understand the court’s decision and it was only after skipping to the end of the 29-page judgment that she realised she had won. “In an age of speed reading and increasingly unrepresented parties, is it not time for a few rules to ensure [litigants in person] can understand the rulings that affect them?” the article said. “If people cannot understand a ruling that affects them, then justice is not being served properly.”

Eternal vigilance

Auckland Law School Professor Mark Henaghan is another who supports the efforts of the Solicitor-General to make the law more accessible through the use of plain language. Henaghan says there is no question that judges are now taking time to make their judgments more accessible. “The Supreme Court, for example, releases helpful media statements to summarise in plain language the outcomes of its decisions.

“Recently it made a helpful video explaining the background to the case of Smith v Fonterra which outlines the issues in a case where claims are made against a number of companies, including Fonterra, for causing climate change damage.” Henaghan says while ignorance of the law is no excuse for committing an offence, “the law itself fails when it creates that ignorance by the use of obtuse legalese, where only specialists in the field can understand it. “The legislation itself can be an offender. This is partly due to what is called the technical nature of some fields such as tax. Have a read of the Tax Act and see if you can understand it. Tax affects us all.

“The Social Security Act, which is the other end of tax, is also very complex. Yet both these pieces of legislation affect New Zealanders one way or the other,” Henaghan says. “There are pamphlets which are brought out to explain legislation, but the legislation itself could be improved by making it much more accessible to read.”

Henaghan says another downside to convoluted legal language is that it adds significant costs to litigants by creating uncertainty and delays. “As far as worst offenders go, it’s difficult to tell. There are still lawyers who try to hide the ball behind convoluted language. They normally don’t understand the issues very well and are largely ineffective. “The same can happen in some judgments which can be long and give a variety of difficult-to-reconcile reasons for the outcome.

“For example, the Supreme Court decision of Vector Gas Limited v Bay of Plenty Limited [2010] NZSC 85 is about how to interpret a contract and the degree to which prior negotiations can be taken account of in the interpretation process. “There are five judgments by the Supreme Court judges in the case which all say different things.”

Henaghan says while significant headway has been made in the use of plain language, much still needs to be done. “It is a work-in- progress and a highly significant one if society is going to continue to rely on lawyers and judges to resolve its problems. “The most effective lawyers and judges communicate in succinct, plain and accessible-to-all language.

“Eternal vigilance to insist on and demand plain, understandable, succinct language by the whole of the legal profession and by the academics teaching the future generations of lawyers is the only way to ensure that the profession is relevant, accessible and cost-effective for New Zealand society,” he says.

Otago Law School lecturer Mihiata Pirini told LawNews the use of plain language in the law is also important for those who cannot afford lawyers or choose to represent themselves in the courtroom. “The audience for legal writing is changing. Once, lawyers were the sole or primary audience for legislation and judgments. It was the lawyer’s job to explain the law in a way their client could understand, but lawyers are not affordable or accessible for all.

“Increasingly, people are going to the source of the law to try and understand it and apply it to their own situation. So, the audience for legislation and legal judgments is expanding to include non-lawyers. “I think the legal profession is recognising this; for example, we are seeing plain language initiatives in legislative drafting. We are seeing digestible, accessible summaries of important court judgments. These initiatives are important, and they show the connection between plain language and access to justice.”

Not surprisingly, Australian lawyer Lauren Kelindeman, who was one of the winners in the 2021 Australia/New Zealand Plain English Awards, is an ardent advocate of plain language in law. Her law firm Legalite is at the forefront of moves to make law more accessible to individuals and organisations. “Language can exclude and hold back progress,” she says. “For example, let’s say you have a client who is selling their business. If they don’t understand your sale agreement, this will have many negative effects including:

• misunderstanding an obligation, increasing the risk of a dispute later on;
• needing more hand-holding, reducing your ability to be efficient and work on other matters;
• not empowering them to negotiate directly with the buyer as they are not confident;
• slowing down the sale; and
• higher legal costs because of all the above

Kelindeman says many lawyers still use Latin phrases that clients don’t understand, such as prima facie or ab initio. “The other culprit is old-fashioned English language such as forthwith, herewith, insofar etc. “If clients aren’t sure of the meaning of a word, they will assume what it means, which might be incorrect. This makes it uncertain and possibly even unenforceable.” So, why do so many members of the legal profession still resort to the use of such language?

There are a few reasons, Kelindeman says. First, lawyers often use templates. If these aren’t updated regularly, they will have out-of-date language. “Updating requires a big-time commitment and is often not prioritised. We’ve seen templates that are decades old or where a whole page goes by without a full stop! Second, some lawyers believe it is unprofessional or unintelligent to use simple words. I don’t agree. Using plain English makes us more relatable and helps us build trust with clients. “People will already think you are intelligent. You don’t need to impress them with a big vocabulary!”

Kelindeman says trying to get judges and lawyers to embrace plain language has been problematic. “I don’t believe enough is being done to encourage plain English. University students are still being trained to write essays in complicated and academic language to meet assignment word counts. “The good thing is we are seeing more plain English training opportunities for lawyers. We present plain English training several times a year and there are organisations like the Plain English Foundation dedicated to this.” But Kelindeman says despite such encouraging signs it’s still an uphill struggle.“The feedback we get, particularly from young lawyers, is that they try to write in plain English but their supervisor changes it back to jargon. Like any culture shift, change needs to come from the top.”

Despite such linguistic impediments in her journey to become a lawyer Kelindeman took it upon herself to become a pioneer in the use of plain language. “I have been passionate about using plain English since the beginning of my career. As a young lawyer, I didn’t understand why lawyers used complicated language. I felt that I wasn’t smart enough to be a lawyer as I didn’t include Latin phrases in my advice. But it didn’t make sense to me. Surely clients would like you more if they could understand you?”

So, in 2020 she spear-headed a plain English project at Legalite. “We developed a plain English policy and simplified over 100 of our templates and advice. I provided internal and external training on plain English and helped us launch a LinkedIn campaign with plain English tips. “In 2021 we won the Plain English Champion award at the Plain English Awards New Zealand and Australia which was a huge achievement. “We saw significant benefits, including increased client happiness, productivity, accessibility and business growth. It is now a key pillar of Legalite’s culture and one of the main reasons clients come to us.”

Kelindeman attributes her success in the use of plain language to two things. “Commitment and consistency. It was a huge task to simplify all of our precedents, but we were determined. We do refresher training and review our templates as we use them, so it is always a priority.” And what advice does she have for others who may wish to follow in her footsteps? Writing in plain English takes practice, especially if you are undoing years of habits. Here are some tips which I follow:

• use the active voice. This shortens sentences and provides certainty;
• swap jargon for simple words, the simpler the better;
• put the answer or a summary firs. This gives the reader clarity;
• after you finish writing, go back and delete unnecessary words; and
• consider your audience. How much detail does the reader need?

Other legal entities which are following in Legalite’s footsteps include the Citizens Advice Bureau in New Zealand.

Last year it was judged best organisation in the Plain English Awards.

Winners of this year’s awards will be announced on October 27. ■