By Gwynne Middleton

Legislators and attorneys get a bad rap when it comes to legalese, that pejorative term relegated to needlessly convoluted jargon often found in legal documents. And rightfully so. Some of the worst offenders of overly complicated writing come from the legal profession. The Center for Plain Language even created an annual award called the WonderMark for the worst legal writing.

But most legal writers don’t set out to confuse their readers. In a litigious society, these writers are tasked with including as much detail as possible in documents to avoid unintended interpretations and future legal debate. Unfortunately, even the best intentions sometimes leave the reader wishing the writer had gone another round at the editing table.

In 1993, the Colorado General Assembly passed a law that requires drafters to write legislation that clearly and concisely communicates legislators’ intent. Known as the “plain language” law, section 2-2-801, C.R.S., expects bill drafters to avoid unnecessary jargon and to aim for “nontechnical language” that “in a clear and coherent manner uses words with common and everyday meaning which are understandable to the average reader.”

Colorado legislative drafters apply this plain language law to each bill they draft. The Office of Legislative Legal Services’s drafting manual includes at least 37 guidelines and numerous examples for how to implement the plain language statute. Below are just a few of the guidelines drafters use to create clean legal writing for legislators’ bills.

Use Active Voice.

In the active voice, the subject and verb relationship is straightforward: the subject is a “be-er” or a “do-er,” and the verb moves the sentence along. In the passive voice, the subject of the sentence is neither a “do-er” nor a “be-er” but is acted upon by some other agent or by something unnamed. For example:

Passive voice (actor absent): A notice shall be mailed to the parties within 15 days after issuance of an order.
Active voice (actor present): The commission shall mail a notice to the parties within 15 days after issuance of an order.
Passive voice: Prescribed forms may be furnished by the county clerk and recorder.
Active voice: The county clerk and recorder may furnish prescribed forms.

Avoid unnecessary jargon, including archaic terms and provisos.

Legal writing has been around for a long time, and though legislators and drafters have updated language to reflect their changing audiences, certain archaic terms, such as “herein” and “heretofore,” as well as provisos (words before a sentence or clause that state an exception to the preceding sentence or clause) pop up in otherwise clear prose and often cloud the meaning of the sentence. For example:

The Archaic Interloper: Any other incidental expenses for the trip not specified herein are the sole responsibility of each participant.
Suggestion: Each participant is solely responsible for any other incidental trip expenses not specified in this section.
The Pesky Proviso: An application for a parking permit shall be approved provided that the applicant has not been fined for more than ten parking violations.
Suggestion: The county clerk must approve an application for a parking permit if (so long as) the applicant has not been convicted of more than ten parking violations.

Avoid being verbose.

Cutting archaic terms and provisos improves sentence clarity because including them in legal writing often indicates a legal writer’s propensity for being verbose. But seasoned legal writers know that cutting the “heretofore” and “provided that” legalese is just the beginning of concise writing. They’ll need to eliminate any unnecessary words and keep sentences short when possible if they want to help their audience understand and retain important information. For example:

Verbose: In the case of Abigail v. Johnson (TC, 1988), the taxpayer was able to exclude from gross income embezzled funds that were repaid during the year the funds were embezzled but the taxpayer was not allowed to exclude embezzled funds to be repaid in a subsequent year.
Concise: Abigail v. Johnson (TC, 1988) allowed the taxpayer to exclude embezzled funds repaid during the same year but not those repaid in a later year.
Verbose: Louise can deduct the $10,000 for the cost of the pool at her new home as a medical expense.
Concise: Louise can deduct the $10,000 cost of the new home’s pool as a medical expense.

Ultimately, by rewording sentences to omit archaic terms and provisos and whittling away unnecessary words, drafters and legislators aim for precision in their language, curbing legalese to compose legislation that’s easier to interpret and implement.