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The Case for Basic English

The case for Basic English in law:

In the typical communication situation the responsibility to be understood doesn’t lie with the message receiver but the message giver.  In other words; if you want the person you are addressing to understand what you are saying, you need to communicate your message in a clear and easily understandable way.  This also applies to written communication.  The responsibility is on the writer to communicate the message in a way the reader can understand and interpret correctly.

So if this is the case, why has these same rules of communication not always applied to the law and how did this change?

Only recently did courts start to take into consideration the intended context of what is written as opposed to the literal definition of individual words.  In previous years the courts interpreted legal documentation literally, not paying mind to the context or intended purpose of words.

Lawyers used complex jargon and words with very specific definitions in favour of their clients for two reasons; they either chose a word with such a narrow definition that any argument from an opposing party would be a futile attempt or one that had such a broad field of interpretation that it would leave them the possibility of a solid argument later on.  Not all lawyers, however highly qualified, are able to use words so ingeniously and drafting a document of high quality from scratch can quickly become a very time consuming, complicated affair that is not even very profitable.  Due to the high level of competition among draftsmen, the price charged for these documents remain relatively low.

The use of precedents are implemented by draftsmen to make the process of drafting documents less time consuming and more profitable.  Precedents are standardised paragraphs of text produced by only a hand full of legal publishers.  The fact that only a select few publishers produce precedents means that though drafted by different people, legal documents may be very similar if the same precedents were used.  Using precedents proves less risky for unskilled draftsmen as these have been used in court several times.  Precedents also allow unskilled trainees to draft documents only to be reviewed by a legal professional.

The standardisation of these precedents also comes with its disadvantages.  While the above mentioned legal publishers do update precedents to be in compliance with the latest law, the language changes are minimal because they try not to reduce the value of such precedents that were already tested.  This basically means that long-winded sentences, complex jargon, excessively formal language, unnecessary words and double negatives remains in these paragraphs.  Secondly, these standardised precedents contain standard wording intended for standard use and does not include practical or commercial provisions.  The less skilled draftsmen who make use of these precedents are unlikely to put such commercial and practical provisions back in due to partly a lack of experience and partly to avoid a mistake made by deviation of the standard.  Should any additions be made the language used includes legal jargon to match the rest of the document.

Since courts these days can use discretion in the interpretation of a legal document, it removed the advantage of using words that previously had very narrow room for interpretation unless the relevant word also reflects the context of what the document is intended to achieve.

Globally there has been a drive to adopt basic language in law.  Now South Africa as well as other countries like the USA, New Zealand, the UK, Canada, Australia and the Republic of Ireland has statute law written in basic language.  There are also campaigns for the same to happen in other jurisdictions.  In certain areas of the law the use of basic language has actually become a legal requirement more particularly the areas pertaining to consumers.

How does this affect us and our products?

These changes to the language used for law allows us to write legal documents in basic English that you can understand.  These documents will stand up in court based on their content and context without the need for high English.

The likelihood of a document drafted by us to be supported in court is far more likely than a legal document based on old precedent, written in old fashioned, high English.  Because of the simple language used in our documents, even someone with very little to no experience of the law can easily understand the content of these documents.

Does this mean we removed all legal jargon?

No, our documents still contain a great number of legal words and phrases that we absolutely need to include.  Certain words and phrases cannot be removed as these have very specific meanings that have been refined over the years.  We strive however to simplify the legal documents we draft for our clients to the best of our abilities.




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