Archive for the ‘Plain English Drafting’ Category

Garner's Daily Plain English Emails

Monday, November 16th, 2009

If you are a fan of plain English drafting, or just good writing in general, I recommend signing up for Bryan Garner’s free daily “Usage Tip of the Day” emails.  Garner is the doyen of plain English experts.  He is the author of multiple treatises on the subject, a primary author of the SEC’s Plain English Handbook, and editor of Blacks Law Dictionary.  Here is an example of one of his emails:

Garner’s Usage Tip of the Day

“of”

Today: Signaling Verbosity.

However innocuous it may appear, the word “of” is, in anything other than small doses, among the surest indications of flabby writing. Some fear that “of” and its resulting flabbiness are spreading: “Clearly, ‘of’ is now something more than a mere preposition. It’s a virus.” “All About ‘Of,’” N.Y. Times, 8 Mar. 1992, at 14. The only suitable vaccination is to cultivate a hardy skepticism about its utility in any given context. If it proves itself, fine. Often, though, it will merely breed verbosity — e.g.:

o “In spite of the fact that a great percentage of the media coverage of Muslims mainly targets the negative actions of some splinter groups and several individuals, there are still a shrinking number of people who are still under the false impression that Al-Islam is a ‘bloody and dangerous religion,’ as the Bishop puts it.” Frederick Qasim Khan, “Muslims Do Not Denounce Christians,” Call & Post (Cleveland), 4 Jan. 1996, at A5. (A possible revision: “Because the media frequently put Muslims in a negative light, some continue to believe that Al-Islam is a ‘bloody and dangerous religion,’ as the Bishop puts it.” [Five "of"s to none; 56 words to 28; and heightened logic in the revision.])

o “In light of the high number of requests from retail investors, the Treasury can expect to top the million mark in terms of numbers of small shareholders participating in the privatization.” Deborah Ball, “Telecom IPO in Italy Has Strong Start,” Wall Street J. Europe, 21 Oct. 1997, at 13. (A possible revision: “Given the high demand from retail investors, the Treasury can expect that more than a million small shareholders will participate in the privatization.” [Four "of"s to none; 31 words to 23.])

As the examples illustrate, reducing the “of”s can, even at the sentence level, make the prose much more brisk and readable.

Plain English drafting is for statutes too

Saturday, October 3rd, 2009

As a contract lawyer who spends a significant amount of time coaxing colleagues to use plain English, I found humor in last week’s struggle in the Senate Finance Committee over the sufficiency of reading plain English summaries versus a complete bill written in legislative “legalese”.    One recognizes that the conflict was more about employing available tactics to achieve legislative objectives rather than championing a particular drafting style.  Nevertheless, the principles of plain English drafting apply at least as much to statutes as to contracts, and there is no reason that all statutes cannot be written in plain English.  I mean really, if the language of a statute is so complex that the public cannot parse it, can we really expect that members of Congress who voted for it also understood it?

The SEC actually has its own rule requiring the use of plain English in disclosure documents.  Those of us who practice in the area are always hopeful that the SEC will apply the principles in its plain English rule to its own byzantine regulations.  (A risible example:  SEC Rule 506 provides an exemption for up to 35 “purchasers” but a separate rule provides that purchasers who meet certain income or wealth criteria are not purchasers.)

Of course, the best use of plain English drafting is this: “Section [insert your choice] of the U.S. Code is hereby repealed.”