Recommendations
1. When a part of a law is referred to you should include explanatory information showing what the law is about, instead of only referring to it in a reference section or appendix.
2. Use simple explanations for complex terms.
Example:
This content is positioned at the top of a form, not hidden away in references section.
"We collect personal information on this form under section 26 the Freedom of Information and Protection of Privacy Act, because it concerns our programs and activities (c), and it is necessary for planning and evaluating our programs and activities(e)."
Example:
[Subheading] "Direct sales contract — exemptions from application of the Act"
[Body copy] "5 (1) This section describes direct sellers that are, and circumstances in which direct sellers are, exempt from the application of sections 19 to 22 (required contents, direct sales contracts, direct sales contract — cancellation, credit agreement respecting direct sales contract] of the Act."
Usability evidence
Over the years, judges have tried to figure out what the legal writers intended their writing to mean. They evolved a set of tools to do this analysis: Statutory Interpretation. When we write in plain English, we intend the meaning to be so clear that judges don’t have to resort to these, sometimes contradictory, interpretations.
'Joseph Kimble—No, the law does not (normally) require legalese' Editing Goes Global, 2015. Professor Joseph Kimble discusses the "psuedo-precision of legalese".
Plain language: the underlying research, Karen Schriver slide presentation, pages 29 to 35.
The public speaks: an empirical study of legal communication, study by Christopher Trudeau (@proftrudeau on Twitter) containing case studies from solicitors about using legal language.
Richmond vs HRA A pharmaceutical company called Richmond took the Health Regulatory Authority to court because the website was confusing. A high court judge deemed the site 'unlawful' and ruled against the government. The site was cleared through a legal department. This set a precedent in the UK. Just because all the legal language is there, doesn't mean you can't be sued.
Plain English Campaign The Plain English Campaign argues that legalese is unnecessary and does not do what it was intended to. 'The argument that clarity should be sacrificed for a document to be comprehensive does not stand up.'
Instead of asking for evidence for legal language, we might ask for evidence against legalese.
For example: http://clearlanguageatwork.com/complimentary-resources/cost-benefit/
The Legal Services Society of BC (legal aid and public education) sorts legal writing by the context and content-knowledge needed to make use of it: LSS Publication Readability
How much legal understanding
is needed?
Level 1 — None needed.
No legal understanding required. Outline or “first step” information, written in clear language for those with no previous knowledge or experience with the law.
Level 2 — Some helpful.
Some understanding helpful but not essential. Offers all basic information on a topic, meant for those who are reasonably comfortable reading and who may have a general sense of some legal concepts.
Level 3 — Some needed.
Basic familiarity assumed. Detailed material, written primarily as a reference for the advocate/intermediary audience, although accessible to members of the public with adequate literacy skills.
When considering what language and which words are acceptable, lawyers who have looked into this say the client's awareness of the legal system is an important factor.
Legal Literacy
The concept of legal literacy implies that there is a culture of practices, procedures, and process in law that are unfamiliar or unknown to the general public.
Definitions
According to the American Bar Association Commission on Public Understanding, legal awareness is, “the ability to make critical judgments about the substance of the law, the legal process, and available legal resources and to effectively utilize the legal system and articulate strategies to improve it is legal literacy.”
The Canadian Bar Association defines legal literacy as, “the ability to understand words used in a legal context, to draw conclusions from them, and then to use those conclusions to take action.”
With little change to the Multiple Action Research Group’s (MARG, an NGO working for the promotion of legal awareness) definition, legal awareness can be defined as, ”critical knowledge of legal provisions and processes, coupled with the skills to use this knowledge to respect and realize rights and entitlements.”
Source: Wikipedia: https://en.wikipedia.org/wiki/Legal_awareness September 7, 2015
Read the section of the style guide: https://styleguide.mailchimp.com/writing-legal-content/
That section refers you on to 2 other sections.
We did a lot of user testing when creating a new Employment Agreement Builder tool for the NZ government. https://eab.business.govt.nz/employmentagreementbuilder/startscreen/
We — client, business analyst, some lawyers, writers — all thought contractions and you/we etc might help make employment contracts less stuffy, more plain.
But prototype testing showed people didn't like these in clauses (terms and conditions of employment, eg agreed hours of work). They questioned if it was actually a legally safe contract. So we had to dial up the formality of our plain English a notch or two.
(I've popped this comment to the contractions discussion too)
This research makes the case for plain, clear writing where legalese is the norm - having benefits for presumed higher intelligence, professional audiences.
http://www.kesslerandkessler.com/files/pubs/LEGALESE_V_PLAIN_ENGLISH.PDF
Disclaimer: I claim to have no answers…just questions :)
I work at a small charity trying to get people to complete an 'Advance Decision to Refuse Treatment'. This is a legal document which allows you to refuse unwanted medical treatments in advance of losing mental capacity (e.g. from dementia).
There is a constant struggle of how much information to provide up front…what it is, what it can and cannot do etc…
However there is nothing to say we have to provide all this 'important legal information' up front - and I have a sneaking suspicion only revealing all this detail once someone is actually completing the form is the way to go.
I think it's very easy though to front load all this info because "it's a legal document" and people need to know what it is…without proper thinking into how all that affects people at least starting the form.
Ultimately our aim is to get people completing these bloody things…by scaring them with legalese up front are we shooting ourselves in the foot?
Agree, Zach. Information users need at the point of need better than everything upfront – cognitive overload coupled within incomprehension may cause alarm and distress, confusion at the very best. Users know this sort of information is Very Important which ups the anxiety levels. If anything, legal and medical language should be especially clear for that reason alone. Best practice service and content design principles should equally apply for legal user journeys. Weird that it's mostly still the opposite way round.