We Were Promised a Plain Language Revolution, But All I Got Was this T-shirt with a Slogan On It

I do not usually begin my blog with a lengthy quotation. However in this case, I make no apology. Please read on…

“In the mid 1970s, I prepared a report for the Law Reform Commission of Canada entitled “Access to the Law”. The study found … that the law is not in an accessible form, such that it can be readily found and understood by non-lawyers or, I should add, by many lawyers. Few laypersons know where to start…

I am not talking about difficult legal points. But of laws and regulations that are supposed to guide the citizens’ conduct in such areas as criminal, family, immigration, and employment law. The State has an obligation to ensure that its laws are available to laypersons….

The solution, my report argued, was to provide specially prepared sets of legal materials in public libraries and legal clinics and other places “so citizens can determine their rights and obligations without necessarily first going to lawyers.”…(T)he materials could be used by intermediaries who regularly provide legal information, such as paralegals, accountants, civil servants, police officers, librarians, and teachers.

I recently returned to the subject (and)… found that surprisingly little had been accomplished, in spite of the fact that the internet, which was basically unknown when I did my study, was now the perfect vehicle to make the law more accessible. …(T)here has been no concerted effort by any level of government or other institution to integrate and make understandable primary legal materials, without cost to users… 

Surely it is time for the law to be available to those it is meant to govern.”

(all italics my own)

Are these the words of a radical revolutionary, advocating citizen access to the law in order to first determine whether or not to go forward or to retain a lawyer?

Not quite. This is an excerpt from Professor Martin Friedland’s speech delivered at the Toronto call to the Bar in 2014 (full text here: http://www.lawsocietygazette.ca/wp-content/uploads/2014/06/friedland-speech.pdf).

Professor Friedland is University Professor and James M. Tory Professor of Law Emeritus at the Faculty of Law at the University of Toronto. Professor Friedland has had a long and distinguished career – now in his 80’s, he is the author or editor of 18 books – and while much of his work has been in relation to (criminal) law reform, he is not generally associated with revolutionary causes.

A long-recognized problem

As Professor Friedland points out, we have been bemoaning the inaccessibility of legal language – further complexifying and disguising the meaning and intent of the law and throwing up yet more barriers to those without legal training – for decades. The Canadian Bar Association and the Canadian Bankers’ Association Joint Committee on Plain Language produced a fine report – optimistically titled The Decline and Fall of Gobbledygook – in 1990. In the same year, the excellent David Elliot produced Legislative Drafting, Language & Law for the Canadian Institute for the Administration of Justice. This knowledge and critique has been around for a long time.

However, in her analysis of a selection of provincial Court Guides especially developed for SRLs for the 2013 National SRL Study Report, (see the Report of the Court Guides Assessment Project at Appendix I) librarian Cynthia Eagan found the reading levels of some of these materials was higher than grade 13 (using the Flesch-Kincaid test). This is obviously above the reading level of many using the legal system (including, perhaps, some lawyers J).

Of course even where a word appears familiar, it may have a new and different meaning in the context of the law. A question posed on the NSRLP Facebook page this week brought forth a new slew of examples from SRLs: for example, “damages”, “action”, “your worship”, “consideration”, “administration of justice”. Another development in the language obfuscation business pointed out to us by a SRL is the proliferation of mysterious acronyms, most recently access to justice acronyms (for example, NAC, ACIJ, and of course A2J).

Progress, what progress?

First, I must applaud those organizations working hard to correct the lacunae of plain language resources enabling SRLs to access and understand the law. These include Community Legal Education Ontario, the Legal Services Society of British Columbia, the Paralegal Litigation Users Group in Vancouver (mostly volunteers), Nova Scotia Legal Aid, and some new family law sites being developed by courts and government.

Developing plain language documents for SRLs – for example the recent Can Lll Primer, now being translated into French – is also the focus of a great deal of NSRLP time and resources (see the present collection at https://representingyourselfcanada.com/ under “NSRLP publications” and note that these are all open source access materials).

But as we rediscover each time we release a new resource, and experience the gratitude of SRLs and the widespread attention of other national and provincial organizations, the enormous amount of work necessary to develop these resources is being undertaken by some of the most overworked and under-resourced agencies and individuals in the access to justice field.

Which brings me to the next obvious question that follows from Professor Friedland’s speech.

Why – and especially in light of the amazing tool that the Internet represents – has so little progress be made? And why is the goal of providing accessible legal materials still the purview of the desperately overcommitted, willing to spend their weekends and evenings working on these projects?

Legal language and the law club

Many SRLs in the original Research Study complained that legal language and the use of unfamiliar terms and expressions only heightened their sense of “outsider’ status in the legal system – “like going as agnostic to a religious court” – as well as their ability to constructively participate. It raised further their anxiety about appearing impolite in court, or unintentionally disadvantaging themselves because of a misunderstanding about the meaning of particular words or terms. In some cases this appeared to be an intentional strategy to position the SRL outside the conversation. “The judge told me to go and look up res judicata in the library. The lawyer for the other side wrote it on a piece of paper and tore it off and gave it to me”.

Their distinctive language allows lawyers to mark themselves as members of the profession. “Law students soon learn how to ‘talk like a lawyer’ … No one will doubt that you are a real member of the bar if you can convincingly bandy about phrases like expunging a lis pendens or quashing a subpoena duces tecum.” (The Nature of Legal Language, Peter Tiersma)

Does this cultural norm – which serves as a red line around lawyer “expertise” – limit enthusiasm for plain language reforms inside the legal profession?

Looking busy

There is a school of thought that all the attention to plain language and cutting through legalese has inspired rhetoric but little action because it is a response to the crisis of legitimacy of the law and the legal system.

In this view, plain language rhetoric is not about fundamentally changing who holds power (which is challenged by real access to justice), but it looks responsive and sounds “busy”. It moves our focus away from the boundary question (who can and should appear in court), thereby preserving intact the legal “club”. The implication is that if we can successfully modify the language of the law and make it more accessible, system legitimacy is restored without the need for further questions or changes.

Is plain language reform alone enough to transform access to justice? Probably not. What about simplifying legal language, principles, and even procedures? This would bring us a lot closer to addressing the most important A2J issue of all – how those who cannot afford legal counsel can make their way through a system that presently excludes and marginalizes them in numerous ways, including limiting their access to information and explanations.

But in any case, and as both Professor Friedland and Cynthia Eagan point out, most of what we have seen so far in advancing accessible content for laypersons is minimal. It is limited to the endeavors of individual agencies and innovators, and sometimes resisted by professional groups decrying what they call the “dumbing down” of the law.

How important is this?

Unless we can make real and significant progress in simplifying legal language and providing accessible and understandable materials to non-lawyer users of the justice system, we cannot move access to justice forward in any tangible way. This will require a concerted effort, with government backing overriding any professional veto. It also needs appropriate resources.

If we can (1) ramp up the pace and (2) do this really well, the difference we would make to the access to justice crisis – especially if we also pay attention to the role of the non-lawyer “intermediaries“ as Professor Friedland and others have emphasized – would be enormous. More than 50% of the National Study respondents had a college or university degree. They as well as many of those less formally educated are more than capable of being empowered by more and better information.

The task is to develop materials that pay attention to vocabulary and terminology, language consistency, and appropriate reading levels. Certainly a very big task, but we now have all the necessary resources (including software such as the Guided Pathways program, see for example ) and expertise (among those who have been working at developing plain language materials for decades) at our disposal to do this.

So what’s the problem? Why are the small steps being taken falling to marginally resourced projects and worker bees, volunteers, and SRL “testers” for whom we sometimes cannot even raise the bus fare to participate in a tester focus group?

We know that public assistance for litigants is unlikely to rise in the coming years. What is stopping us from pressing – as a few visionary Legal Aid Boards are already doing – for directing more funding towards developing really fine plain language SRL resource materials, and with that momentum established, stepping up to tackle head-on archaic and baffling procedures?

Professor Martin Friedland has reviewed this blog and fully endorses its message.