Letting go of the gobbledygook – Using plain language in legal documents

Provided by DocNinja

By Esti Louw

Topics Contract Law | Running Your Practice

17 Jun 2020

Why should you use plain language in legal documents?

What is all the fuss about plain language?

Plain language is not a new concept, but somehow many drafters of legal documents are still using archaic templates and convoluted wording in their drafting. Fortunately, lengthy convoluted contracts and legal documents are no longer considered a sign of good and thorough drafting. Also, many laws now require you to provide information and legal documentation in plain language. Using plain language is therefore no longer a choice, but a legal obligation.

What is plain language?

Internationally there are many definitions of plain language, but in South Africa, there is a legal definition that has been adopted in two of our consumer-centred laws. The National Credit Act (NCA) and Consumer Protection Act (CPA) have overlapping definitions of plain language.

They state that a notice, document or visual representation (document) is in plain language if it is reasonable to conclude that an ordinary consumer of the class of persons for whom the document is intended, with average literacy skills and minimal experience as a consumer of credit or other goods and services could be expected to understand the content, significance, and import of the document without undue effort, having regard to the:

context, comprehensiveness and consistency of the document;
organisation, form and style of the document;
vocabulary, usage and sentence structure of the text; and
use of any illustrations, examples, headings, or other aids to reading and understanding.

The CPA goes further and requires that notices, documents or visual representations that are required in terms of CPA or other law are to be provided in plain and understandable language. This means that, for example, when the Protection of Personal Information Act (POPI) comes into force, this will extend to privacy notices and all other information provided to a consumer.

The irony is that the definition of plain language is not clear and precise. Whether or not a document will be regarded as being in plain language will depend on the intended recipient and their context. Although mainly consumer facing documents are legally required to be in plain language, legal professionals can greatly benefit by using it in all of their drafting.

Below are some tips on how to get started.

The basics of plain language writing

According to the Centre for Plain Language, the following are the five easy steps for plain language writing.

Step 1: Find out who your audience is

When drafting a document or rewriting a template, make sure you know who your audience is. Use language your audience understands and can relate to. Look at what their level of knowledge is on the topic.

Keep in mind who you are and are not designing for, what they want to do, and what they know and need to learn.

Step 2: Organise your document properly

Organize the content so that it flows logically
Break content into short sections that reflect natural stopping points
Write headings that help readers predict what is coming up

A reader must be able to easily find the information they are looking for.

Step 3: Write in plain language

Keep it short and to the point
- - Use short logical sentences and put the most important information first.
  - Include the details that help the reader complete the task and leave out unnecessary information.
  - Make sure the document flows logically and the sections or clauses link up in a logical way.
Watch your tone
Write in the same way you would talk to someone. Avoid legalese and an unnecessary formal tone.
Choose your words carefully
- - Use strong verbs in the active voice.
  - Use words the audience knows.
  - Make sure you convey the message in a way that the reader will easily understand the message and what their rights and obligations are.

Step 4: Design your document for easy reading

Use headers and sub-headers to organize the information.
Use typography (font size, color, bold, etc) to guide the reader’s attention.
Use whitespace to organize the information.
Use images to make content easier to understand.

Readers must be able to navigate easily and efficiently through the document.

Step 5: User testing

If possible, do user testing of the document or notice.
Ask readers to give feedback on readability and design and test comprehension of the content.

The document works when target users can find what they need, understand what they find, and act on it confidently.

What are the benefits of plain legal writing?

Compliance with the document or notice

If people are not able to easily navigate an agreement or notice, they will not be able to act on it appropriately. If a person knows and can easily see what their obligations are, they will more likely comply with it. Also, it will be difficult for them to argue that they did not comply, because they were not aware of such information. This is especially relevant in the context of CPA documents, where there is a risk of loss or injury to a consumer or a limitation of risk or liability for a supplier.

Less queries and disputes

If people have clarity on what they need to do or how they need to use a service or product, they will not need to phone or write to ask additional questions, which means a company saves time and money. There is also less likelihood of a dispute as parties are clear what their rights and obligations are.

Legal compliance

As set out above, it is a legal requirement to draft consumer notices and documentation in plain language. Aside from the CPA and NCA, the following pieces of legislation also mandate the use of plain language:

Long-Term Insurance Act 52 of 1998 and Short-Term Insurance Act 53 of 1998: The Rules and Regulations make provision for representations and information to a policyholder in “plain language, avoid[ing] uncertainty or confusion and not be[ing] misleading”.
Companies Act 71 of 2008: Section 6(4)(b) provides that “the producer of a prospectus, notice, disclosure or document”must publish it “in plain language, if no form has been prescribed for that prospectus, notice, disclosure or document”.
Financial Advisory and Intermediary Service Act 37 of 2002: in terms of section 12 of the Rules and Regulations to the Act a broker must give medical scheme advice to a consumer in “plain, simple and understandable language”.
Code of Banking Practice: in terms of clause 2 of the Code members of the Banking Association must undertake to give information on products and services “in plain language and ensure that all written terms and conditions are fair and clearly set out [the Consumer’s] rights and responsibilities in plain language“.
Electronic Communications Act 36 of 2005: the Code of Conduct prescribes that licensees must use “plain and understandable language” in their service contracts.
Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002: the Rules and Regulations make provision for information to be provided in a “readable, intelligible and understandable format”.

Other legislation referencing plain language

Some other legislation that refers to information in understandable, reasonable, clear, or plain form, include:

Children’s Act 38 of 2005
Basic Conditions of Employment Act 75 of 1997
Customs and Excise Act 91 of 1964
Employment of Educator’s Act 138 of 1994
Health Professions Act 56 of 1974
Higher Education Act 101 of 1997
Housing Consumers Protection Measures Act 95 of 1998
Medicines And Related Substances Control Act 101 of 1965
Military Veterans’ Affairs Act 17 of 1999
Mine Health And Safety Act 29 of 1996
Public Finance Management Act 1 of 1999

Brand trust and confidence

Speaking to your clients or customers in a way that they can appreciate and understand builds trust. Customers are more likely to show loyalty to a brand that makes them feel understood and valued. This is a great marketing tool for companies and enhances a company’s brand.

Conclusion

The benefits of plain legal language greatly outweigh any perceived difficulties faced by legal professionals. Plain language is starting to become the norm. Combined with the fact that it is, in some cases, a legal requirement lawyers will be required to change how they draft. There is no space in a modern society for language that is out-dated and convoluted. Wittgenstein once wrote of language, ‘Everything that can be put into words can be put clearly’. Clarity is essential and the need for reform in legal writing in South Africa is long overdue. Those who refuse to change will be left behind.