Legal education encourages precision in the use of language, and we all revel (perhaps a little too much) in our professional articulacy. As the legal landscape changes, Marion Ballantyne finds out how plain speaking competitors can take clients from firms who take refuge behind the big words.

In the unlikely event I am ever appointed head of curriculum for Scotland’s law schools, the first thing I would clear a space for would be a masterclass in plain language.  In fact, I might even covertly weave the concept of speaking to our clients in a language they’ll understand throughout the entire syllabus.

One of the aspects I enjoy most about working with lawyers is listening to them speak.  I can’t remember working with any other group of people where I’ve consciously thought during a meeting ‘that was a fabulously accurate and elegant way of answering a question’.

When they describe a situation or propose a new idea, they communicate very fluently, effectively and colourfully, with rarely a word wasted, or a stray ‘um’ or ‘er’. They are not prone to adopting that week’s meaningless freeze-dried phrase or cliché, such as ‘going forward’ ‘all things being equal’ or ‘strength in depth’ - the verbal equivalent of nails scratching down the blackboard.

So why is it that the minute the communications medium moves from the spoken to the written, some lawyers seem to immediately reach for their old quill pens and spout forth with a few ‘hereto forthwith notwithstandings’? It’s as if they feel compelled to demonstrate how many big words they know, and how slavishly committed they were in the third form, so that their clients are so in awe of their convoluted vocabulary that they feel they must be getting their money’s worth. 

I have had many a draft press release dropped back on my desk by a senior partner offering the scrawled helpful top tip that ‘you can’t start a sentence with “and” or “but”, despite the front pages of every broadsheet  they’ve ever read doing just that on a daily basis. To me, this demonstrates a stubborn unwillingness to adapt our language to be compatible with that of our target audience, and this is a dangerous philosophy to adopt in a service industry like ours.

I suspect the advent of so-called ‘Tesco law’ is about to change all that. The new Legal Services Bill will allow non-lawyers to own and operate law firms for the first time, and will revolutionise the way legal services are marketed.

Retailers and consumer service industries stand or fall by their ability to communicate the benefits of their services and products to their audience. They learned this lesson a long time ago, and they know how to speak their customers’ language. With multi million pound marketing budgets they can invest in targeting communications in a way that the legal profession can only dream of. In what will be a relentless pursuit of new business, they are unlikely to be remotely interested in the protection of a centuries old exclusive dialect for its own quaint sake.

The legal profession is about to be shaken to its core as a marketing machine swings into action ready to swallow market share at a potentially rapid rate. Look how quickly the big four supermarkets have almost monopolised the grocery industry over the last 20 years and then went on to stack their shelves with insurance and financial services products and services.  And who can even remember the days now, when it would have seemed a ridiculous idea that you would buy your holiday insurance or loan from anyone other than an insurance agent or a bank?

With the law now firmly in their sights, make no mistake, plain English is one of the main weapons our competitors - or new partners - will be using to entice business away from traditional firms, and given the current use of language in the profession, it threatens to be easy pickings.

Unfortunately our profession can be one of the last bastions of outdated, antiquated and generally indecipherable language. The defenders of our signature ‘legalese’ insist that the need to express complex ideas precisely makes the use of plain language impossible. Keepers of the faith say the law needs a defined separate language to protect its integrity.

So, lets look at the reality of the language we shackle our clients with on a daily basis. Language is constantly evolving with daily usage, but in the legal profession we seem to be stuck in a bygone age, continually defending our own static, conservative dialect almost to the extent of obsession. The problem is that legalese has not evolved in step with modern English.

The language we all use uses outdated grammar and sentence structures. It also tends to use improper or non-standard punctuation, passive voice, and awkward pronoun references.  We use everyday words while giving them extraordinary connotations and meanings without ever defining what those special meanings are. Not to mention the unfathomable overuse of French and Latin terminology.

Legalese was once defined as “the language of lawyers that they would not otherwise use in ordinary communications but for the fact that they are lawyers”. Yet, experts such as Professor Robert Benson, from LOYOLA Law School, Los Angeles suggests that in the US there are fewer than a hundred genuine legal terms that need to be used definitively, and even then they should be explained properly. I suspect the same is true in this country.

And worryingly for our clients, excessive use of jargon and technical terms without proper definitions makes it almost impossible for the layperson to make their own balanced judgments about the advice they are being given. 

But, as appointed legal representatives, lawyers have a duty to make sure they communicate to clients the law as it affects them, in a way that they understand. And contrary to popular myth, plain English does not have to be dumbed-down English. It is simply language that can be understood at first reading by clients, lawyers and judges; it is legally binding but it is also logically organised, concise and unambiguous.

It uses normal or standard grammar, punctuation and capitalisation. It considers the reader’s level of knowledge and state of mind while using a tone and style that is professional yet appropriate to the circumstances. Sometimes it just takes a little more thought.

It is much more difficult to simplify than to complicate. Any educated person can take a paragraph and throw in a few additional clauses to make it look more sophisticated and intellectual. It’s much harder to cut through the jargon, to explain complex concepts and arguments simply and directly - as demonstrated in the professional communications world by the relatively greater challenge of being the economics editor of The Sun than of The Telegraph.

Plain language has to do with clear and effective communication - nothing more or less. It does however signify a new attitude and a fundamental change from past practices. Of course lawyers must aim for precision, but plain language is an ally to the cause, not an enemy. Plain language lays bare the ambiguities, uncertainties and conflicts that traditional legal style tends to hide.

At the same time, the process of revising into plain language will often reveal all kinds of unnecessary detail. In short, a devotion to plain language will improve substance - even difficult substance.  And while a lack of plain language can be merely frustrating or just downright pompous in some areas of life, in most areas of the law, the stakes are far more important.

One of my Family Law colleagues draws on her experience of counselling work in her day job. One of the key principles of counselling is “checking out” each others’ understanding of what is being communicated. This principle is also used by the lawyers who communicate most effectively.

The importance of understanding is essential in the field of family law, where often emotions are heightened and a client’s ability to process information can be compromised. One misunderstanding on the part of a client can cause anguish and upset. Clients should not have to search to discover meaning, particularly where they instruct us to impart some to them.

For clients to labour under a misapprehension because they have misunderstood something that should have been properly explained to them in the first place, may do untold damage not only to the case itself, but also to the lives of the people who are trusting their future child welfare arrangements, or their family business to the advice of the legal profession.

There is a wealth of evidence to back up the plain English cause in the legal profession. One study gave volunteers four different legal documents to read and found that plain language techniques reduced the number of reader errors on three of them by about half. Another study looked at a range of legal documents and found that plain language improved comprehension by 140% when tested by people with no legal background.

The fact is that it is possible to express legal concepts in plain language. Written properly it is legally effective and precise. Most important of all though, clients, the people who pay our salaries, prefer it.

So, next time you’re drafting a document for a client and feel like ending with a paragraph of eloquent prose, don’t bother. Just stick to the point. Chances are your clients will come back again, rather than select their legal advice along with their fresh veg while doing the weekly shop.