Waging War on Legalese

Simplespeak is not so simple

We will cut down on Government regulations," Jimmy Carter assured his fireside-chat audience last winter, "and we will make sure that those that are written are in plain English for a change." The spark ignited by the President has been slow to take hold. The U.S., after all, is a land flowing with torts and breaches, and much in thrall to the legal profession. But the forces of hereinafter, res ipsa loquitur and-party of the first part are now clearly on the defensive.

Guerrilla warfare against legalese is busting out all over. For example, the Federal Trade Commission has assigned Language Expert Rudolf Flesch, author of several books on plain English, to redraft some ordinarily impenetrable regulations. Joseph Califano has recently hired Barnard College Political Scientist Inez Smith Reid to improve and simplify Health, Education and Welfare Department prose. Among other agency heads arguing for brevity and clarity, Interstate Commerce Commission Chairman Daniel O'Neal last spring issued an exhortation stating: "English is a remarkably clear, flexible and useful language. We should use it in all our communications."

In December a conference in the nation's capital on regulations in plain English drew 800 participants, most of them Government employees. "Five years ago," said Legal Consultant James Minor, a member of the American Bar Association's committee on legal drafting, "we could have offered solid-gold Cadillacs as door prizes and not attracted 25 people." Wayne Granquist, a Carter appointee in the Office of Management and Budget, called attention to the plight of citizens confronted with bad writing. Until recently, applicants for a Citizens Band radio license were advised: "Except as provided in paragraph (b) of this section, applications, amendments thereto, and related statements of fact required by the Commission shall be personally signed by the applicant . . ." In other words, the applicant should sign the form himself.

Private banks and insurance companies have been trying to please customers by writing loan agreements and policy forms in high school-level English. In Massachusetts, State Representative Lois Pines last year pushed through a bill requiring insurance companies to limit their policies to the simplest and clearest language. The state of Michigan now has an "understandable-language bill" under consideration. New York Governor Hugh Carey has signed a bill, to go into effect this spring, providing $50 fines for failure to use "nontechnical language" in consumer contracts.

Fighting a rearguard action, lawyers like to point out that sharp-eyed legal brethren will fairly leap to exploit ambiguities in the simple English. Notes Georgetown Linguist Roger Shuy: "Much of the obtuse, confusing prose is the direct result of misguided attempts to be precise, clear and straightforward." A special committee of the New York County Lawyers Association has already recommended repeal of the new state plain language law. Committee Chairman Wilbur Friedman predicts that a deluge of new court litigation will be required to sort out exact definitions of the new simple prose. "A camera-store owner could be fined for offering an f/2 lens for $75," Friedman notes, unless he also explains to non-camera buffs what an f/2 lens is (no easy feat). Hearing-aid manufacturers are already up in arms against Flesch's first FTC regulation revision. "Simple language is great for consumer brochures or explanation of bills," complains Washington Attorney Thomas V. Vakerics, "but you can't expect an industry to operate under third-grade English when the penalty is whopping fines." One of Flesch's proposed revisions commands hearing-aid companies: "Don't say or hint that your product will make or help people hear normally or naturally, or that it will help them get their normal, natural hearing back." In this new version, "hint" has replaced the legal word represent. Says Vakerics: "A $10,000 fine for hinting? Even I can't advise what a vague word like that will mean legally." Observes another attorney in summation: "One man's readable prose may be another man's loophole."

Those arguments have some merit: a worthwhile reformist idea like Carter's can easily come to grief when it's turned into black-letter law. But whether the proposed cure will actually prove worse than the disease is highly questionable. As some critics are fond of noting, the lawyers who point out difficulties posed by simplification are the very people mainly responsible for the current plague of quiddities and quillets in the law.

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