I interviewed Joe Kimble, emeritus professor at Cooley Law School, for my article in Frontline magazine. Here's the lightly edited transcript.
Vijayalaxmi Hegde (VH): The Bar Council of India (BCI) has announced that plain legal drafting will be introduced in the curriculum for a law degree. This announcement seems to have taken lawyers, senior advocates, and law students by surprise. Many people have not heard about it. It's just sort of out of the blue you know, because we haven't had what we could call a journey towards plain language in India. In recent years there have been some calls for plain language from judges of the Supreme Court, too. There has been push back against those long rambling judgments which no one can understand. When I posted about the BCI on LinkedIn, someone asked if the ISO standard had got anything to do with this. I don't know. I'm not sure.
Joe Kimble (JK): The question is whether you have the people in place who can teach plain drafting. You know it's a special skill drafting. Most lawyers even in the United States don't have that skill. So, you've got to make sure that your professors have learned that skill or are willing to learn that skill, right?
I mean, there's no point obviously in saying we need to teach plain drafting if there's nobody around who knows how to do it, right?
VH: There may be just a smattering of people all over India who are conversant with plain legal writing. So that's not enough.
JK: I think all the legal writing teachers in the US would teach clear writing, clear communication. All of them emphasize the importance of clearly communicating with your audience. Whether they would call it plain language or not is another story. They might not talk in those terms but in effect they are teaching the principles of plain language.
VH: You said on the I-GL podcast that legal texts have readers too. And legal texts need to be edited and critiqued. You know, I was a journalist when I started out. When we would get any legal copy, it’s as if it would be set in stone. It would come with a disclaimer like, “Don't touch the legal stuff.” So it is untouchable, you know, in India. Your life's work has been about breaking this down, right? This aura around legal text. It is just text. It can and should be edited and clarified.
JK: Well, once a statute is passed it becomes a law or a regulation. And it is set in stone. I mean there's nothing you can do about it once it is enacted. But the job is to get to the drafters to draft in a way that is obscure. It is hard for the average citizen to understand. Some drafters are quite good at that and others are not quite as good. There's great variability in the quality of all legal writing in the United States. It varies from state to state on whether the drafters are good, up to speed on plain language and clear communication. Same thing at the federal level. Now, sometimes to be fair to drafters, they don't have a free hand. Lobbyists and other special interest groups will come in and say, “This is what we need.” they'll just hand it off to the legislature and say this is what we want and don't change a word." So, a lot of times to be fair again to drafters, they will not have a free hand.
But when they do have a free hand, they ought to apply the various kinds of techniques that Bryan Garner and I talk about in our book. And there're [other] books out there on how to do this. Ours just happens to be free. So you've got a great start on on techniques. I'm promoting my own book a little bit here, but I don't think there's any book out there that goes into such detail on drafting, pure drafting technique. In other words, you will hear it said, “Write short sentences.” Well, okay. That's one thing to say you should do that. But how do you do that? In the book we show ways to do that. And we've got maybe six or seven different ways to do that. That's just about drafting technique.
Now those techniques ought to be applicable in any drafting office. Any drafting office ought to be able to use those techniques to improve the quality of their drafting. So, there are resources out there that conscientious drafters, drafters that care enough to be clear, can find and use. You have to want to do it. You have to care enough.
I think it's a very positive development with the BCI. Sometimes pressure has to come from the from the top. It can only be a good thing and it may just give your your law school teachers, professors just a little bit of a nudge in that direction. Just the fact that it's in the air, that it's in the conversation is a good thing.
But you have to have people that know how to do it. If you're going to teach, you got to know how to teach. Yeah, you need to know your stuff.
VH: You spoke about drafters being so much under pressure. But you know if the intention is there, there can be various workarounds like a plain language version of the law. And you present it as well. So we might be trying to please everyone with such a move but at least there is a plain language version of the law if someone wants to read and understand.
JK: Ideally you wouldn't have to do that. It would be clear enough to begin with. It also adds another level of work that the drafters have to do if they have to prepare a plain language synopsis, right? But it doesn't seem like it would be terribly burdensome after you have written it to draft a summary. My attitude is anything that works, anything that makes it easier for the public to understand the laws that govern their lives should be – nothing should be off the table. Every resource that you think you can bring to bear on making laws and regulations and codes and rules clear is a good thing.
VH: There is no drafting pressure on consumer contracts, right? The companies can do it. The lawyers who work for these companies, they could do it. Do you think we could get better traction there initially than legislative texts maybe?
JK: Boy, I don't know. It's very hard to move large law firms because as you say there is no pressure on them to to to do better. I suspect that most of their contracts are still pretty bad. I think you're likely to have more luck with legislative drafters, frankly, than with big law firms. Large law firms are just so set in their ways. They're so paranoid about missing some little tiny detail that might come back to haunt them somewhere down the road. And they obviously don't want to let their clients down. They think they've got to protect themselves.
Training would help, you know. I've done quite a bit of training for law firms. I don't do as much as I used to. And of course, Bryan Garner does a lot of training for law firms. So there's interest out there. But the problem is so huge.
VH: I've been reading your book Essentials for Drafting Clear Legal Rules [pdf]. You list four basic principles at the start of the book. When I read this, and I'm not a lawyer, my takeaway was that so this is what I would be doing if I would be doing plain language writing in any domain. I mean in spirit the main guidelines remain the same.
JK: Yes, you're right that many of the techniques we set out in the book will apply not only to drafting but also to other forms of legal writing like court papers. Now they all have their models. The big divide is between analytical writing and persuasive writing on the one hand and drafting on the other which has to be neutral. There's no analytical content to legal drafting. It just sets out rights and duties. But analytical writing in court papers, you're taking a position, right, for one side and you're advocating for one side or the other. So there will be techniques that come into play in analytical writing that don't come into play in legal drafting. Different kinds of formatting requirements. You're trying to make a persuasive case. I don't want to say emotional content, but there's argumentative content. Legal drafting doesn't have that. With drafting, you're just setting out rights and duties. So, but having said that, there's no reason that some of the techniques for shortening sentences, avoiding wordiness, such as use of headings and subheadings and vertical lists couldn't be used in court papers as well. So there is some overlap. There're also distinct parts to both of them.
VH: There's so much referencing going on in legal writing, right? It always keeps referring back to some clause somewhere. There's no easy reference provided right there like even a summarisation of what that reference is leading to. It just seems very inconsiderate to the reader. And that reader need not be a lay person. That reader can be a lawyer, too.
JK: You're talking now about analytical writing. In a court paper you have to start out with what the law is and how court cases have interpreted it. So, you do have to make these references. But they don't have to clog up the text. You can make these references in footnotes, which is something that Bryan Garner has advocated for a long time. I agree with him on that. There's a way to handle this by putting what I would call bibliographic information. You can say in the leading case of Smith v Kimble. Well, in the text you don't have to include all of those numbers. 138 United States Report 200 and the year and the court. You can drop all of that information in a footnote. You don't have to clutter up the text with those legal references. Now, that is something that US lawyers do not do. They have resisted that. They want all of that information up in the text and it really clutters up the text.
But a good writer will know how to do that in a way that doesn't require the reader to constantly look up and down. If the reader knows that the only thing that's in the footnote is the citation or the bibliographic information on where I want to find that case, I have to go to this volume and that's all that needs to be in the footnote.
VH; You mentioned [about guidelines on] cutting down verbosity in your book. But plain language is not just bout cutting down words, right. Because sometimes shorter may not be clear. Do you want to comment on that?
JK: Sometimes shorter may not be clear. True. Sometimes you need to provide a little bit of an explanation for a consumer. What is a “default judgment” after all? If somebody gets a paper in the mail or delivered to their door that says if you don't do this in 30 days, the court will enter a default judgment. Well, what does that mean? Basically, it means you're going to lose the case. And the other side will get whatever they want, whatever they've asked for.
So there are times when you need to provide a little extra detail. We found this in redrafting all of the federal rules. Although in places you may be adding a little explanation or a definition, it will be offset by the savings you made if you write in plain language.
I've never yet been involved in a plain language project that didn't come out shorter than it started out. Even though there may be places where you had to add some words. Even the design might have ended up in longer documents, but you know more accessible documents.
VH: And that brings me to the question: if we're talking about plain language drafting, then should we also be talking about plain legal design? Do you think one can be taught without teaching the other?
JK: Well, I think ideally you would teach legal design. Some people are taking this legal design quite a ways down the road. They're including icons and pictographs: people shaking hands after the deal is settled.
VH: Graphic contracts.
JK: Yes. So, anything that we can do to make it clearer is a good idea. I'm not an expert on legal design, but there are some obvious things that drafters can do, which is to use more white space, more headings, more vertical lists. Better spacing between the lines. If you only single space your documents, it's going to look intimidating. You need more a little more line spacing. Margins that are 1.25 inches or something like that. A readable font and a readable font size. So those are just basic design elements that any lawyer ought to be able to put in place. Now if you get into creating sidebars and pictures and flowcharts those are all good things but of course those take more skill and time.
You can even improve on the headings. That's one of the point we make in the book that headings don't have to be short. There's this idea out there that in legal drafting all the headings should just be kind of short little snippets. But there's nothing wrong with a long heading or a longish heading. A heading that really accurately describes what that provision contains.
I was just reviewing something the other day where people had five or six provisions in a row. I said to myself if they had tried to put headings on these provisions they would not have been able to because it's not coherent. If they had tried to say this little piece is about this and this little piece is about that, they wouldn't have been able to do it because they overlapped too much or they conflicted too much. So the headings serve as a check on the organization of things. And if you can't assign good headings and subheadings, there's something wrong with your organization to begin with. If the headings won't work, it doesn't fit together.
It sounds like you have a challenging task in India. Getting lawyers to accept plain language is a challenge. We've been working at it for 40 years. I don't know how much progress we made. We made some progress but it is very incremental. This change is not going to happen in my lifetime. It's going to happen gradually slowly over time like with the Bar Council.
VH: But that's because of the kind of work that people like you have done. I like to believe that we enjoy the ripple effects of the work that you and other plain language leaders have put in over the years. Thank you so much for your time.
JK: My pleasure and keep on pitching.
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