A possible new position for plain language : Plain Language: beyond a ‘movement’ - Part 8

Plain language is a movement no more. The legal profession has known this for some time. However, in the minds of key decision-makers in business and government, plain language is too often still seen as a movement. We need to remedy that by repositioning plain language in the minds of those decision-makers. It's worth doing because those people bare responsibility for enabling plain language to be implemented—and plain language has benefits for all.

Progress depends on plain language acknowledging its success and how that success has changed it. But what position should plain language seek to occupy?

As a threshold issue, we need to establish the aim of the repositioning. I suggest that the aim is to further deliver the social and economic benefits of plain language:

• to a wider audience of consumers and readers of documents; and
• to a greater number of the organizations that rely on documents to administer and manage their operations.

(It's purely a side benefit that businesses like mine may be able to grow as a result of the increased success of plain language. Oh yes, purely a side benefit.)

The repositioning might start with clarifying how we conceive plain-language. Let's start the clarification process with the documents, where it all begins.

I see the documents that an organization—whether a business, a government body, or a law firm—produces and relies on as forming the "voice of the organization's brand". For that statement to make sense, we need to think about two things: "voice" and "brand". Let's think about voice first.

8.1 Voice
Each time we speak, the voice we use is heavily influenced by our audience and our purpose: whom we are talking to and why. For example, we use different voices to talk to our pet, to our mother, to our boss and—if we are a lawyer in private practice—to our clients. As a lawyer, we probably use quite different voices for different sorts of clients.

At the same time, the voice we use depends on our purpose. For example, the voice an employee lawyer in a law firm uses to talk to the managing partner:

• in a conversation at a social function about how fantastic it is that the firm just won a major pitch for a new client with much, interesting, lucrative, and challenging work for all;
is very different from the voice that same employee lawyer would use:
• at their annual performance review to ask for a 25% bonus, a 30% pay rise and whether they can work out of the London office for a couple of months a year—business class travel will be fine thanks.

That's how our audience and purpose influence our voice when we speak.

But when most lawyers write, they do so without thinking about the who and the why. They put their fingers to the keyboard or they pick up a dictaphone, and a-way they go. Usually the lawyer's "work-voice" kicks in and takes over. That work-voice tends to be fairly heavy, formal, traditional, and impersonal. When writing, most lawyers automatically use their work-voice regardless of whether they are:

• writing to a major corporate client to tell it that the jury awarded it $150 million in compensation;
• writing to a retail client in the process of buying a house to say that on some technicality the vendor has avoided the intent of the contract and sold the house to a third party at a much higher price; or
• writing a document for the firm's client to use to communicate with its markets. That document shouldn't be in the voice of the law firm's brand. Rather, it should be in the voice of the client's brand.

Many lawyers are proud of their work-voice. It gives them confidence: makes them feel like a real lawyer. I remember the moment when as a final year law student a friend of mine asked me a question about a legal issue he had read about in the paper. Lo and behold, I knew the answer. Even better, when I explained it to him, even I thought I sounded like a lawyer. The relief—the feeling that, "Hey, maybe I'll be able to do this after all"—was immense.

Many people have a work-voice—not just lawyers.

Most of us are familiar with our work-voice. We notice it especially when it starts coming out in an inappropriate context. For example, you're having a relaxing time at a social event and then someone asks you a question about something related to your area of expertise. All of a sudden, you're being consulted professionally. Your work-voice kicks in without you summoning it. The first thing you notice is your cheeks feel a little funny and the words aren't coming out quite right—you feel a little slurry or odd. The second thing you notice is that the person you're speaking to suddenly has a baffled expression on their face because they have no idea what you're saying. That's your work-voice.

Somewhere along the way to becoming a lawyer (or whatever it is we are), most of us develop a work-voice and use it for nearly everything we write—no matter how inappropriate the work-voice is to the audience and purpose of the document.
I think the reason many of us (lawyers in particular) so habitually use our work-voice is because we want to sound professional. Fair enough too. But if we look up and think about "professional" writing, we don't really see anything. So it's difficult to see how to write professionally. Then I think what happens is we decide that in order to write professionally, we'll write in a way that is "formal" and "traditional"—in the hope that that will equal "professional". But "formal" plus "traditional" doesn't equal "professional". It equals pompous and out of date. We can write a letter that's warm, human, clear, and friendly and still be completely professional.

Having thought about voice, let's think about brand.


8.2 Brand
Today, in these communication saturated times, an organization's reputation is expressed through a clearly defined brand. The brand represents the essence of an organization: everything it stands for, and everything that differentiates it from its competitors. To quote the global management consultants McKinsey & Company:
A name becomes a brand, when consumers associate it with a set of tangible, or intangible, benefits that they obtain from that product or service. To build brand equity, a company needs to do two things: first, distinguish its product from others in the market; second, align what it says about its brand in advertising and marketing with what it actually delivers.

Perhaps the best way to understand the concept of brand is to imagine me offering you a sports car and asking you to choose from 3 leading models each from a different manufacturer. The vehicles are labelled Model A, Model B, and Model C. The trouble is you have to choose your car on the basis of the anonymous manufacturers' vehicle specifications and performance criteria (no photographs of the car either).

I expect you'd have trouble choosing—until I told you that Model A was a Corvette, Model B was an Alfa Romeo, and Model C was a Porsche. With that information alone, most of us would choose one of the cars immediately—who cares about the torque ratios, the widget factor, or the number of what-have-yous in the thingy. (Personally, I'd take the Alfa).

Whatever it is that enables us to decide which car to buy as soon as we know the names of the manufacturers is the brand—the intangible thing that influences our buying decision so much more than the product specifications and performance criteria.

The key point about building and maintaining a brand is alignment. This point was made by McKinsey & Company in the quote above: "… a company needs to … align what it says about its brand in advertising and marketing with what it actually delivers." That's true, otherwise, all that advertising and marketing is undone when the customer's or client's expectation is not met by the reality of the product or service. So alignment and delivery are the key to a successful brand.


One aspect of an organization's activities that needs to be aligned with its marketing and advertising to create a successful brand is the organization's documents. Because the documents an organization produces, or relies on, form the "voice of its brand".

8.3 Voice of the brand
The people who create written communications for an organization are creating the "voice of their organization’s brand"—whether they work for the organization or as one of its advisers.

The voice of the brand is vital to the success of some organizations particularly those that provide intangibles. Their communications may be the only thing of any substance that the customer (or potential customer) has to go on when, for example:

• they are deciding whether to buy in the first place;
• they are deciding whether to continue using the service;
• they are working out how to use the product; or
• they are trying to understand and apply some professional advice they've received.

Consequently, each time someone reads an organization's document they connect with the organization's brand. Too often, that moment of truth is sour: the document is formal, impersonal, and awkward. It fails to live up to the values that are the foundation of the organization's brand.

Organizations spend fortunes on logos, visual identities, and advertising. They do so with the aim of creating or refining their brand in an attempt to woo and retain customers. Yet the very same organizations pay little attention to the voice of the brand. Even though it is the voice of the brand that the audience has to deal with often when the audience is busy at work, or weary at the end of the day, and would rather be doing something else.

An organization needs to treat the voice of its brand as seriously as it treats its visual identity, its customer service, and the flowers in reception.

A simple way for the organization to do that is to measure its documents against its brand values, its brand promise, its mission, its vision etc.


Consider this simple letter from a major global organization. The letter was sent to a former colleague of mine in response to a letter she wrote to the organization seeking information to help with her tertiary studies. (I need to mention that the information my friend asked for was not at all secret or valuable.)

Here's the letter:

Dear Ms X

Thank you for requesting information about [name of the company]. We appreciate your interest in our company and our products.

Due to the sheer volume of student requests for information we receive, we are not able to provide detailed answers to specific questions about our company. However, there is a comprehensive packet of marketing information available to students.

Please note, that as we are a [particular type of company], we are not required to produce a [certain publication] and this information is considered proprietary in nature.

Our student information packet is now available for review on our corporate website, www.[web address] in the section titled "All about [name of company]". All information contained in our student packet is available on this website.

In case you do not have internet access, we have enclosed a copy of our current student packet.

As most of the information published about [name of the company] is available in magazine articles, we strongly recommend that you look through the "Reader's Guide to Periodic Literature", which is an annual index of magazine articles. This should be available to you at a public or university library.

Thanks again for contacting us. Please call us at [number] if we may be of further assistance.

Sincerely,

Let's consider a few questions about the letter and the organization. I need to emphasise here, that I'm not concerned about the content of the letter. I completely accept that the organization does not have to answer every set of questions it gets from students. My concerns are only with the style.

So to the questions about the letter:

• How does the letter make you feel about the organization? I find the letter insincere—for example, it seems to give with one hand and take with the other. Then in the last paragraph, the writer invites the reader to ring for more information but that's the last thing the writer wants the reader to do. Also, the letter is defensive, impersonal, and repetitive.
• What sort of organization might the letter be from? Hard to tell really: maybe a financial services organization or a government body.
• Is the organization cool? Not at all.
• Do you want to work there? No. Buy its products? Not really. Invest in the organization? Hmmn, investment is different.

The letter is the voice of the organization's brand and it gives us a fairly clear impression of the organization.

To see who the letter is from, see the footnote where the answer is hidden to preserve the surprise?

How did the letter measure up against your perception of that organization's brand? I use the letter as an example in a plain language training course I run. Most participants on the course say there is a massive disconnect between how they feel about that organization—that is, its brand—and how the letter reveals that organization to be.

Let's consider a legal example. Several years ago I was employed in the Melbourne office of a national law firm but I worked on secondment in-house for a client in Sydney. One Friday afternoon, a partner I knew slightly in my firm's Sydney office rang and asked me to help him out. He had developed a suite of documents for a client and needed to deliver them on Monday. The documents had to be as plain as could be. He'd gone way over budget and still felt the documents weren't clear enough. Effectively, he asked me to give him my Sunday and edit the documents to improve their clarity. I was happy to help.


A few hours later the documents arrived by courier. There was a covering letter addressed to me:

Dear Sir
We refer to our earlier conversation and enclose the documents for your review. We look forward to your comments in due course.
Yours faithfully
[Name of firm—The partner hadn't even signed his name!]

The letter irritated me. A lot. (Mind you I edited the documents anyway.)

I would have been happy with a handwritten note on a with compliments slip. Something like "Dear Christopher, Thanks for this, I owe you lunch. Cheers [name of partner]".

As I see it, the letter from the lawyer was a classic example of someone automatically using their work-voice. In a Zen sense, the writer was not "in the moment" when he dictated the letter. He did not even remotely consider his audience or his purpose.

8.4 The importance of the voice of the brand: to business and in government
For some organizations the voice of the brand doesn't matter—for example, Levis. We don't care too much about the way Levis writes to us—if it ever does other than in advertising and labelling.

But for some organizations, the voice of the brand is of vital importance— for example, a radio station. If we don't like the voice of the brand of a radio station, we're never going to listen to that station. The radio station has got nothing to give us other than its voice.

So if we had a spectrum showing the relative importance of the voice of the brand to an organization, we could put Levi's at one end of the spectrum and a radio station at the other end.

At the same end of the spectrum as the radio station—where the voice of the brand is vital—are organizations like law firms, financial services organizations, many government bodies, providers of medicines, and any organization that gives its staff or its customers a set of instructions or a product manual.


For these organizations, the voice of the brand is fundamentally important. Consider a law firm and its relationship with its clients. The moment of truth comes when the clients read something written by one of the firm's lawyers. In that moment, it doesn't matter how brilliant the writer is as a lawyer, or how pleasant they are to deal with—what matters is how easy it is for the clients to use the documents to make decisions about their businesses and their lives.

That moment of truth matters to the reader because the document matters to the reader. If that wasn't so, they wouldn't be reading the document— and they wouldn't pay the firm to write it.

The moment when the document is read is either a brand damaging, or brand enhancing, moment. The person reading the firm's document quickly sees whether the way in which the firm communicates lives up to the claims the firm makes about itself in its advertising and marketing material. The reader can "smell" whether the firm's advertising and marketing puffery reflect the way the firm provides its services.

To make that point using the McKinsey & Company language (quoted above) , the reader is made abundantly aware of whether the document—a key aspect of the law firm's behaviour and service—is "aligned" with the firm's claims about itself. If the document fails to live up to the brand, then the firm's brand is damaged. However, if the document and the brand are aligned, then the moment when the document is read is a brand enhancing moment: the client is likely to feel happier about using the firm, paying the invoice, coming back next time, and referring other clients to the firm.

Those moments of truth matter for businesses that rely heavily on documents to communicate with their markets.

But the voice of the brand is even more important in a broader context. The fact that so much legislation and judicial writing is inaccessible to all but the members of the legal profession (and even they have to work pretty hard to make sense of some documents) means that the voice of the brand of the State often:

• damages the community's respect for the rule of law and for the legal profession; and
• damages the State's relationship with its citizens.


The problems arise in legislation, in the communications produced by government departments, and in the courts. Consider this point from a tongue-in-cheek article by an Australian journalist covering the vote counting in Florida after the 2000 US election:

It doesn't matter if it's Super League [a reference to a major piece of protracted very public litigation over the running of Rugby League in Australia] or a national election, judges are the most unsatisfactory people to decide life's big questions [By the way, that's going too far even for me!] because it's so hard to work out what they are saying. All of the key decisions in this election, at whatever level, have been followed by universal blank looks. "Has he finished yet? Does that mean we won or lost?"

The point was made more formally by Hon. A M Omar MP, Minister of Justice, Republic of South Africa, in March 1995:

Clear, simple communication is … an absolute and critical necessity for democracy. People have a right to understand the laws that govern them, to understand court proceedings in matters that affect them, to understand what government is doing in their name.

At first glance, it may be a little odd to think about the voice of the brand of a State, of an entire nation. But South Africa has given us a good place to start. The South African Constitution contains a Bill of Rights, which includes the statement that:

This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.

Those are inspiring brand values for any nation: "dignity, equality and freedom".


The challenge is to make the style of legislation live up to these inspiring ideals. One way to do that is to ensure that legislation is inclusive. As Phil Knight, Professor Joseph Kimble, and I said in a 1995 report to the South African Minister of Justice:

Most importantly, plain language allows people to visualize themselves as subjects of the law, and to imagine themselves in the circumstances with which the law deals. This ability to place or imagine oneself within the law is an important distinction between a system of justice and a regime of enforced order.

There is much good news on the legislative front. For example, the main headings in the New South Wales Local Government Act 1993 are:

Chapter 1—Preliminary
Chapter 2—What are the purposes of this Act?
Chapter 3—What is a council's charter?
Chapter 4—How can the community influence what a council does?
Chapter 5—What are a council's function?
Chapter 6—What are the service functions of a council?

The heading for Chapter 4 is my all-time favorite legislative heading "How can the community influence what a council does?" It's so inclusive and welcoming—even if the reader is unfamiliar with the law and legal processes. If they want to find out how to let their local council know what they think, the law welcomes them to the process.

When I quoted that heading to some lawyers working in community legal centers in Namibia, they were ecstatic (I'm not exaggerating) at the thought that legislation could be written like that. New South Wales is not alone in using question headings in legislation: Sweden does too. Other exciting developments in legislative drafting include the increasing use of graphic devices and examples.


How wonderful it would be if more judges also strove to write in a way that enhances respect for the rule of law: not through gravitas, formality, and tradition but through accessibility, clarity, simplicity, and ease of use.

There is good news too in US government departments, many of which are engaged in major long-term projects to improve the clarity of their communications.