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

	Home \| Databases \| WorldLII \| Search \| Feedback Waikato Law Review

Drafting is a central feature of legal work. Lawyers draft statutes, contracts, jury instructions, statements of facts, memos, pleadings, interrogatories, letters, wills, trusts and research papers.[1] This article focuses on legal drafting but much of the discussion is also relevant to writing in other fields.

This article is based on my initial assumption that because lawyers use legalese and not plain English they do not write as well as they could. I have tested this assumption by comparing published discussions of plain English and legalese styles with my own field research. The field research involved having 86 anonymous individuals (with and without specialist legal training) read a legalese contract and its plain English translation and then complete a written questionnaire.[2] The contracts are contained in Appendix One, and the questionnaire and a summary of quantitative responses are found in Appendix Two.

The methodology used in this article is drawn from the social sciences and reflects the perspective I bring to this article. Initially a wide-ranging literature review was undertaken to establish the boundaries of this article. Once the boundaries were established the depth of the review was increased. The in-depth review was used to identify the issues that form the basis of my field research.

This article has two sections. Section One is historical and places legal drafting in its broader context. It explains why legalese developed in the way that it did and proposes that plain English is a reaction to perceived inadequacies in legalese. Section Two investigates the views of published theorists and the 86 respondents. The investigation centres on whether legalese or plain English is the more effective drafting style. Comparison is derived from the in-depth literature review and focuses on the issues of recognition, past performance, transition, precision, terms of art, efficiency, business sense and sexist language.

I. HISTORY

1. The historical development of legalese

Legalese is a style of writing that is wordy, complex, legal and shaped by history. Legalese contracts are drafted, read and interpreted almost exclusively by lawyers. Legalese contracts endeavour to be comprehensive, precise and give complete protection to lawyers’ clients.[3] Clients enter into legalese contracts without a complete understanding of their effect, choosing instead to trust the judgment of their lawyer. History has moulded legalese into a style that is recognisable to the general public. Outlined below are six historical features that have shaped legalese.

(a) Transfer from the oral to written word

During the early fifteenth century the legal profession slowly began moving away from the spoken word to the written word. The focus on writing meant that pleadings which were previously oral were being reduced to writing prior to their presention in court. The immediate effect of this was to limit the tactic of changing the substance of a pleading depending on how the hearing was proceeding. The long-term effect was to render more attractive the tactic of basing pleadings on what had worked before.[4]

(b) The printing press

The development of the printing press in the late fifteenth century considerably increased the importance of the written word.[5] The printing press allowed large amounts of legal text to be reproduced with relative ease. The need to reproduce the same text was driven by the newly attractive tactic of basing pleadings on what had worked before. The printing press and its modern-day equivalent the word processor significantly increased the currency of legalese.[6]

In the sixteenth century the filing fee was introduced.[7] A client was charged a filing fee when a document was filed in court. The level of the fee depended on the length of the document, the longer the document the higher the fee.[8] Understandably the length of documents filed grew. The filing fee was not popular with all of the legal community. In 1506 this point was demonstrated by one English Lord Chancellor. He ordered that the middle of a particularly wordy document be cut out and that the writer be paraded around the Westminster Hall with his head through the hole in the document to serve as a warning to others.[9]

(d) Tautologies

Legal tautologies[10] or word strings[11] developed because at several points in English legal history there was a choice between two languages. Initially there was a choice between Celtic and the language of the conquering Anglo-Saxons. Subsequently the choice was between Latin and English and later between French and English. As a direct consequence of the uncertainty about which language was dominant lawyers started using paired words to express one meaning. For example “free and clear” derived from the old English freo and the old French cler.[12] While these tautologies were initially used for clarity, they quickly became enshrined in the law through the doctrine of precedent.

From the sixteenth century onwards the number of legal texts and writings has steadily grown.[13] Of particular interest in tracing the history of legalese was the development of books and guides containing “forms and precedents”.[14] The rationale for these forms and precedents was the belief that they had been carefully drafted and tested to ensure that they were precise and unambiguous.[15] The dominance of these forms and precedents coupled with the conservatism of the legal profession meant that original drafting occurred only in unique situations. Legalese dominated the forms books in the early 1970s.

Change may have been deliberately stifled by lawyers to protect their ability to make a living.[16] This view arises because legalese contracts are drafted, read and interpreted almost exclusively by lawyers. A second view is that the lack of innovation was not a deliberate ploy by lawyers but arose out of a desire to protect their clients.[17] A third view, which I favour, is that the lack of innovation reflects the conservatism of the legal profession.[18]

Collectively these six features shaped the language of legal drafting to create legalese. Legalese is wordy and complex. The length and complexity of documents were justified by the view that legalese was comprehensive, precise and gave lawyers’ clients complete protection.[19]

2. Criticism of legalese and development of plain English

In the 1970s criticism of legalese became common. Observations made in a summary of a survey viewed legalese as:

These criticisms are reinforced by the view that legalese takes longer to draft, read and understand and is ambiguous.[21] Interestingly the opinion that legalese is ambiguous contrasts with its primary aim of precision.

The plain English style of drafting developed as a reaction to criticisms of legalese. Three alternative years have been proposed as marking the beginning of the use of plain English in the legal field: in 1974 when the Nationwide Mutual Insurance Company simplified two of its insurance policies;[22] in 1975 when Citibank revised its consumer loan note;[23] and in 1978 when United States President Carter issued his executive order directing that federal regulations be “as simple and as clear as possible”.[24] The particular year is not of vital importance, other than to show that the plain English style is barely 20 years old.

Since the mid 1970s there has been a rapid increase of plain English statutes, contracts and documents. These documents are not exclusively legal and to assume that plain English is only a legal phenomenon would be simplistic. It has been stated that “[p]lain English is now a part of the culture of law, business and government”.[25]

3. What is plain English?

Plain English is writing that is easy to understand.[26] At a more complex level plain English is a term that is potentially undefinable.[27] I will consider plain English at a more complex level.

Good plain English writing should sound as though it was not written exclusively for lawyers.[28] Plain English is distinguishable from legalese by its economy of words, lack of archaic or lawyerly phrases, relatively short sentences and small gaps between verbs and their objects. It has been suggested that the use of plain English is an effort to pander to illiterates.[29] This view is rebutted by the view that plain English is not the reduction of writing to its simplest form.

Plain English is “... a collection of principles in the service of simple direct economical writing and drafting”.[30] A more comprehensive statement is that:

The notion of simplicity can be taken too far if verbs and pronouns are left out because the writing will not convey the meaning it intends. In my view the statement that really captures the essence of plain English writing is that “... everything should be made as simple as possible but not simpler”.[32]

II. ANALYSIS

This section analyses the effectiveness of plain English and legalese. In so doing I consider the distinctions and similarities between published sources and my field research.

1. Recognition

Published writers on the topic of legal writing suggest that legalese is commonly recognised as the traditional language of the law.[33] Consequently, when people read a legalese contract they are alerted to the fact that it is likely to confer legal rights and obligations. Plain English contracts can also be written so that it is clear that they confer legal rights and obligations. The key distinction is that the recognition is automatic in a legalese contact because of the language used, as opposed to being the result of a deliberate choice of words in a plain English contact.

My field research does not support the view that a contract written in legalese is easier to recognise as a contract than a contract written in plain English. Of the respondents, 63 percent of those with legal training and 80 percent without legal training said that the plain English contract was easier to recognise.[34] Any link between legalese and recognisability can be further challenged by considering the reasoning of the legally trained respondents who said that the legalese contract was the easier to identify. Of that group only half said that they recognised the contract because of the use of legalese.

The headings “Contract for Building a House” and “Conditions of the contract” in the plain English contract sufficiently alert most respondents to potential legal obligations. The view that legalese alerts the reader to the likelihood of legal obligations is wrong. A clear plain English contract more effectively alerts the reader to potential legal obligations.

2. Past performance

Published writers suggest that an advantage of legalese is that it is tried and tested. Legalese is a mature form of drafting with established meanings and lawyers are confident that they know the consequences that flow from a legalese contract.[35] The second limb to this argument is that plain English has not been tested. There is likely to be considerably less certainty about the rights and duties that flow from a plain English contract.

The view of published writers that legalese is tried and tested is echoed by my field research, although not to the same extent as it is advocated in theory. A number of respondents identified the precision, certainty, consistency, tradition and accepted meaning of legalese terms. Not surprisingly this confidence in the meaning of legalese was especially prevalent from respondents within the legal profession.

One respondent observed that, because the meaning of some legalese terms has been established through litigation, it is now unlikely that the meaning of these terms will be challenged. A second observation was that legalese encourages the public to get professional advice and as a consequence indirectly protects the public. A third and in my opinion cynical view was that legalese is used to keep lawyers in jobs. This view does however find support in the discussion in Section One on lack of innovation.

3. Transition

Published writers observe that plain English is not easy to produce, requiring time, effort and skill.[36] These skills cannot simply be learned but must be acquired through practice and analysis.[37] If there was a widespread transition to plain English in the legal profession there would have to be large scale re-education. This re-education would be disruptive and expensive. The transition would also give rise to some litigation with the meaning of words being challenged.[38]

My field research identified a strong desire within the legal profession to change from legalese to plain English documents. Of the respondents, 77 percent with legal training and who use legalese documents in their work said that they would like to change to plain English.[39] The desire to change is motivated by a perception that plain English is easier to understand, will result in less litigation and will lead to greater client satisfaction. With a satisfied client being more likely to return for more advice, a change to plain English makes good business sense. The perception that the use of plain English is likely to result in less litigation is in direct conflict with the observation that legalese is a tried and tested form of drafting, which will result in less litigation.[40] These two points are not reconcilable without embarking on a major review of case law and this is outside the ambit of this article.

My field research suggests that the process required to complete the transition from using legalese documents to plain English documents in a law firm closely mirrors the views of published writers. The transition would require a considerable amount of time and extreme care to ensure that the meaning of a legalese contract is carried through into a plain English contract. The need for care is highlighted by considering that the plain English contract in the questionnaire is a translation of the legalese contract. A number of respondents pointed out that the two contracts do not confer identical bargains. In the legalese contract Jill Black is identified as John Smith’s surveyor, but in clause 3(a)(iii) of the plain English contract Jill Black is identified only by name. When I drafted clause 3(a)(iii) I thought it would be more precise to identify the surveyor by name. Regardless of what I thought, this particular translation seems to have caused ambiguity. A second point was that the plain English contract has no clause permitting Mary Jones to assign her obligation to build the house. This is potentially a vital omission and illustrates the difficulty involved and the care needed in translating a legalese contract into plain English.

My field research suggested that consumer demand would drive the transition. One New Zealand example clearly highlights the costs involved: retraining, workshops, editing and rewriting of precedents cost one law firm over $100, 000 last year and they expect to have similar costs this year. The firm anticipates that in 18 months they will lead the field in plain English documents and will attract a number of new clients as a result.

Practical hindrances to a widespread transition to plain English have come from members of the profession. The general perception at present is that older practitioners and overworked sole practitioners have not actively tried to modify their contracts. To ensure an effective change these practitioners will have to be educated about the benefits of plain English and encouraged to change.

4. Precision

A debatable advantage of legalese is that it is more precise than plain English. This precision occurs because legalese has developed with the law and as a consequence is better suited to deal with the complexities of the subject. It is suggested that because the subject is complex the language explaining the problem needs to be complex.[41] An alternative view is that legalese is not as precise as is claimed because it fails to explain the common use of words that do not have a precise meaning like “reasonable”, “substantial” and “satisfactory”.[42] In response to this view I would suggest that words like “reasonable” are used deliberately when the exact boundaries of the subject matter are not clear, or where defining them would be very difficult.

The view that legalese is more precise than plain English is challenged by the view that a complex topic does not need to be explained by complex language.[43] Plain English does not prevent complex ideas being considered with precision. It is argued that plain English is more precise than legalese because its simplicity allows errors to be more easily detected.[44] Coupled with this is the opinion that plain English can make complex ideas clearer, because their complexities are not compounded by a difficult writing style. Plain English allows long and complicated ideas to be expressed in a manner that is precise and clear.

Clearly there are arguments for and against the precision of both styles; I argue that the balance of the authority at present favours plain English. A notable exception to the discussions of precision by most published writers is a potential general limitation of both styles. If the law and the associated rights and duties are not clear, then it is impossible to write precisely about them. Language can only be as precise as the subject matter.

Published writers state that if a document is more precise it will be more persuasive. A Californian survey of ten appellate judges and their research attorneys concluded that passages in legalese were “...substantively weaker and less persuasive than the plain English versions”.[45] This view is echoed in two other United States surveys.[46] Collectively these three surveys give support to the view that plain English is more understandable, readable and as a consequence more precise than legalese.[47]

Despite the debate regarding the precision of each style it is clear from my field research that in practice the plain English style is more precise. Of the respondents, 91 percent with legal training and 100 percent without legal training identified the plain English contract as being the more precise.[48] Factors that encourage precision were the breaking down of the contract into clauses, the use of effective punctuation and clear and simple language.

5. Terms of art

It is suggested by published writers that plain English cannot deal with terms of art such as hearsay, plaintiff, defendant, fee simple and mens rea.[49] Terms of art have a generally accepted meaning although their boundaries have always inspired scholarly debate.[50] Terms of art cannot be replaced by simple words; they are words with their own specialist legal meaning. The use of terms of art is consistent with the main principle of plain English, to convey a clear meaning in the simplest form. If a term of art is not used where appropriate the contract would not be as precise as it could be. Imprecision is likely to arise when the lawyer does not know the meaning of the term of art or has mistaken legal jargon for a term of art. A correctly used term of art will be precise. The use of terms of art is limited because there are only a few true legal terms of art and as a consequence they will form only a small part of any contract.[51] Terms of art should be incorporated into a contract and the balance should be written in plain English.[52]

The conclusions from my field research were not clear. A number of respondents correctly pointed out that the plain English contract does not include any terms of art, so it is difficult to conclude that they were used effectively. Most of these respondents then observed that the legalese contract by default used terms of art most effectively. One respondent pointed out that terms of art have a specialist meaning and should be used only where necessary. The same respondent also suggested that in this case no terms of art were needed and so the plain English contract used them most effectively. Unfortunately no accurate conclusions can be drawn and in hindsight it is apparent that slightly different contracts would have allowed this point to be investigated more thoroughly.

6. Efficiency

Published writers have observed that the use of plain English documents achieves efficiency gains. These efficiency gains are derived from faster processing and less inquiries and complaints.[53]

My field research assessed two aspects of efficiency: first, the efficiency of the creation of each contract, and secondly, whether each contract communicates its meaning quickly and clearly. Of the respondents, 70 percent with legal training and 96 percent of those without thought that the legalese contract was easier to produce.[54] They thought that the systematic approach of breaking the contract into parts used in the plain English contract would have allowed it to be drafted quickly. This is especially true when contrasted with the stream of consciousness technique used in a legalese contract. One respondent correctly identified the steps that occurred when the two contracts were drafted. The legalese contract is a precedent and the plain English contract is a translation of that precedent. As a direct result of this process, the plain English contract took considerably more time to draft than the legalese contract.

Another view was that it is often more difficult to draft things simply than to fall back on precedents. I think that this difficulty can not be overstated and arises out of the need to know exactly what bargain the parties to the contract are trying to achieve and to include only terms that give effect to that bargain. This is in contrast to a legalese drafter who excludes only terms that are definitely not required.

The drafting of a plain English contact that is a translation of a legalese document is not as simple as I had initially thought; it required considerable care, time and skill. The real efficiency gains associated with the plain English contract did not occur in the drafting process, they occurred because of the limited amount of time it takes the reader to comprehend a plain English contract.

Of the respondents, 96 percent with legal training and 100 percent of those without identified the plain English contract as being the easier to read and understand.[55] The reasons behind this ease were the effective use of spacing, punctuation, short sentences, layout and paragraphs. Another reason identified by a respondent without legal training was that the legalese contract “...almost puts your brain into neutral”. It is clear from these responses that the plain English style achieved its goal of creating a contract that was easy to understand.

7. Business sense

Published writers suggest that drafting in plain English will give lawyers a competitive edge over those that do not.[56] This edge occurs because plain English is efficient and more acceptable to the general public. Public acceptance and client satisfaction are the key to a law firm’s survival in today’s competitive market. If clients are not satisfied they will go elsewhere. Changing to plain English could potentially be an important self-preservation mechanism for modern lawyers.[57] In short, plain English makes good business sense.[58]

The general presumption surrounding a practical discussion on business sense is that the “customer is always right”. Therefore it makes more sense to draft in a style that is more readily acceptable to the public. Of the respondents to the survey, 96 percent identified the plain English contract as the contract they thought the public would prefer.[59] Similarly, 100 percent of the respondents preferred the plain English contract.[60]

Reasons for the preference include a perception that plain English empowers members of the public by clearly setting out their rights and duties. The empowerment is limited because lawyers still have an influential role in ensuring and reassuring their clients that all the legal aspects are covered. Other reasons for the preference are the use of everyday language and the format of the document.

8. Sexist language

A point not alluded to by most published writers is the potential for plain English to remove sexist language from the law. 60 percent of the respondents thought that plain English would be a good way to remove sexist terms like “workmanlike”.[61] An additional 30 percent of the respondents pointed out that sexist language is inherent in the author and not directly related to the style of drafting. While this is true, what needs to be appreciated is that lawyers will continue to use precedents. Most legalese precedents are sexist, new plain English precedents need not be.

III. CONCLUSION

The legalese style was shaped by historical events. The development of the printing press and reliance on precedent are two of the most notable. The legalese style was heavily criticised in the early 1970s and the plain English style developed as a reaction to this criticism.

Published writers suggest that documents drafted in a legalese style are easier to recognise as contracts than documents drafted in plain English. The field research suggests the opposite, and leads to the conclusion that the theoretical observation was wrong.

Published writers and the field research state that legalese is a mature form of drafting. This maturity will result in the meaning of legalese terms being less open to challenge.

The field research identified a desire from within the legal profession to change from legalese to plain English. The transition from one style to the other will require a considerable amount of time and expense. In addition extreme care is needed to ensure that the rights and obligations expressed in a legalese document are carried through to a plain English document.

Published writers are not united about which style is the more precise. The field survey lends support to the view that it is plain English. Linked to this precision is the view that plain English terms are less likely to be challenged in court. This is in direct conflict with the view that legalese terms are less likely to be challenged. The conflict between the two views is not reconciled in this article.

Plain English is considerably more efficient than legalese, especially when the reader’s ease and accuracy of comprehension are considered. Linked to this efficiency is the business sense of using plain English. Both the public and practitioners want to use plain English, and firms that do not do so are likely to be at a commercial disadvantage.

Neither style provides a panacea for sexist language because such language is author specific and not style specific. But the plain English movement does give authors with an opportunity to remove sexist language as precedents are progressively redrafted into plain English.

Plain English is clearly more effective than legalese. An important rider to this simple conclusion is that converting from legalese to plain English is probably not as simple as one might initially think. Extreme care, planning and skill is needed to ensure a successful transition.

APPENDIX ONE: TWO CONTRACTS

The respondents to the questionnaire were asked to read two contracts carefully and then answer the following questions.

CONTRACT A

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.

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

CONTRACT B

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.

4. 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.

5. 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.

APPENDIX TWO: QUESTIONNAIRE

The following are the quantitative questions and a summary of the quantitative results of my field research. The respondents also offered comments where they felt that this was appropriate. These comments are not included in the summary but are incorporated in the article.

There were 26 respondents without legal training and 60 respondents with legal training. Of the 60 respondents with legal training, 40 were solicitors, 14 were legal graduates, four were at law school with less than two years experience, one was a barrister with two to five years experience and one was a public servant with five to ten years legal experience. Of the 40 solicitors, 12 had less than two years experience, 11 had two to five years experience, five had five to ten years experience and 12 had over ten years experience. Of the 14 legal graduates six had less than two years experience, four had two to five years experience and four had five to ten years experience.

Question	Respondents with legal training			Respondents without legal training
1. Which of the two options is easier to recognise as a document that is going to confer legal obligations?	A 14			B 47
2. Which contract would you feel more confident about entering into if: You were the builder?	A 1			B 59
You were the purchaser?	A 11	B 49		A 8		B 18
3. Which contract do you think was harder to produce (ie took the longer time and involved more thought)?	A 43	B 15		A 4		B 25
4. Which contract is the more precise (ie less likely to be ambiguous)?	A 6	B 54		A 10		B 21
5. What contract more effectively uses terms of art (ie words with specialist legal meanings)?	A 34	B 17		A 23		B 3
6. What contract was the easier to read and understand?	A 1	B 59		A 2		B 24
7. Which contract do you think the public will prefer?	A 1	B 59		A 7		B 16
8. Which contract do you prefer?	A 0	B 59		A 0		B 26
9. Do you use traditional legalese style documents in your work? Respondents with legal training Respondents without legal training	Yes 10 3		Some-times 34 10		No 10 1
10. If you do use traditional legalese documents in your work, would you ideally like to change to modern legal drafted documents? Respondents with legal training Respondents without legal training	Yes 39 3			No 0 0

[*] BSoc Sci, LLB (1st class honours) (Waikato), barrister and solicitor, High Court of New Zealand. The first draft of this article was written in late 1994 as part of the honours component of my LLB degree, and the draft has since been considerably reworked.

[1] Ray, M B and Cox, B J Beyond the Basics: A Text for Advanced Legal Writing (1991).

[2] The choice of the respondents to the questionnaire was not random and reflects the personal contacts of my former research supervisor, Tim Blake, and myself.

[3] Siegel, A and Felsenfeld, C Writing Contracts in Plain English (1981) III and 26.

[9] Mylward v Welden (Ch 1596) reprinted in Monro, C Acta Cancellariae 692 (1847).

[11] Siegel and Felsenfeld, supra note 3, at 124, drawing on Mellinkoff, D The Language of Law (1963).

[14] Examples of forms and precedents include Goodall, S I Goodall's Law and Practice Relating to Conveyancing in New Zealand with Precedents (1951); Jacob, Sir J I H and Iain, S (eds) Bullen & Leake & Jacob's Precedents of Pleadings (1990); Britts, M M G Pleading Precedents (1990); and a loose leaf serial New Zealand Forms and Precedents (1986 onwards).

[16] Thomson, K A “The Marketing of Law in English History: The Professional Self Interest of Lawyers at Work” (M Jur thesis, University of Auckland).

[20] Martineau, R J Drafting Legislation and Rules in Plain English (1991) 1, drawing on Goldtein, T and Lieberman, J The Lawyer’s Guide to Writing Well (1989) 3.

[22] Kimble, "Plain English: a Charter for Clear Writing" (1992) 9(1) Thom M Cooley LR 1, 2.

[33] This is clearly highlighted above where the history of legalese is traced back to the early 15th century, but plain English has only developed in the last 20 years: Aitken, J K The Elements of Drafting (1991) 6-7: Mellinkoff, supra note 11, at 4.

[45] Kimble supra note 22, at 24, drawing on Benson and Kessler, "Legalese v Plain English: An Empirical Study of Persuasion and Credibility in Appellant Brief Writing" (1987) 20 LOY L A Rev 301.

[46] Kimble supra note 22, at 24, drawing on the State Bar Report, Cal Law, and Harrington and Kimble, "Survey: Plain English Wins Every Which Way" 66 Mich B J 1024 (1987).

[49] Siegel and Felsenfeld, supra note 3, at 172 and Garner, B A The Elements of Legal Style (1991) 184.

[53] Siegel and Felsenfeld, supra note 3, at 58-62: Kimble, supra note 21, at 25-26 where 10 reported examples of efficiency gains are given.

[57] Similarly, retaining legalese was a self-preservation mechanism for lawyers in the past. See discussion above.

[58] Walker, "Plain Language can make good Business Sense" Law Talk 401, 20 September 1993.

[60] See Appendix Two, question eight. This personal preference was qualified by a number of respondents because they also suggested that the ambiguities in contract B should be removed.

Waikato Law Review