moral imperative — The BUSKLAW Newsletter

(Note: you may want to stop here if you aren't a spiritual person in the Judeo-Christian tradition.)

As an introduction to this post, I'll share my religious background. I was brought up in the Protestant tradition with the Dutch Reformed twist. But when friends ask me what I really believe in, I hedge my bets based on:

I went to Hope College, affiliated with the Reformed Church in America.
I went to Notre Dame Law School, a respected Catholic institution.
I'm a quarter Jewish and was cared for by a fairly authentic Jewish mom (who was thankfully tempered by my 100% Danish father).

So at the pearly gates, I'll show Saint Peter (or whoever) the three Protestant-Catholic-Jew entry tickets reflecting this background, and hopefully one (or more) will allow passage.

So now that I've disclosed my broad-minded belief system, here's my thesis: using plain language furthers the Christian and Jewish faiths.

Contemporary Christian evangelist Rob Bell talks about ways in which Christians can echo Christ's resurrection in this video. At 2:02 in the piece, he describes that every "fair and honest act in business and trade...belong to God's good world." We've already seen how the twin evils of legalese and bureaucratese distort what is fair and honest in our society. So avoiding them furthers God's plans for his creation and enables us to advance to a higher state of awareness.

On the Jewish side, many Jews practice tikkun olam (literally "repair of the world"), an aspiration to behave and act constructively and beneficially. As the Wiki states: "It's the idea that Jews bear responsibility not only for their own moral, spiritual, and material welfare but also for the welfare of society at large. To the ears of contemporary pluralistic Rabbis, the term connotes 'the establishment of Godly qualities throughout the world'." This goal is hardly different than what Rob Bell is talking about! Go figure.

Regarding contract language, it's well-established that God and the Devil love contracts. We have God's contract with Abraham in the Old Testament, and the various contracts for souls proffered by the Devil. While the former is written in plain language, the latter assuredly is not, if only because it's impossible to cover all the loopholes of soul forfeiture, so the Devil uses obfuscation to hide that fact.

What words flow from your keyboard, and how are they structured? Are you stuck in the mire of gobbledygook? Or is your business and legal writing clear and concise and so advances God's purpose in a small yet meaningful way?

"The man in black fled across the desert, and the gunslinger followed."

Thus begins Stephen King's epic story of the gunslinger, Roland Deschain, and the popular Dark Tower series of novels describing his adventures. But King didn't have to write this sentence that way; he could have consulted with the typical lawyer, politician, or company PR department first. Had he done so, the sentence may have appeared so:

"The bad hombre who was dressed mostly in dark clothing and running fast across an arid land was pursued by a multi-armed, extremely dangerous, and notorious vigilante."

The difference in these two sentences is clear. King's concise short sentence creates an image that grabs the reader's attention and raises provocative questions. Who is the man in black? Who is the gunslinger? Why is he after the man in black? But the Bizarro World Stephen King sentence - with its ethnic slur, passive voice, ambiguity, suppositions, and superfluous adjectives - will likely cause the reader to check the number of pages in the book and decide whether it's worth the time.

Now let's consider the typical introduction to a big-law-firm-drafted ("BLFD") business contract:

"THIS AGREEMENT ("Agreement") is dated as of the ____ day of _____________, 2017, by and between ABLE CORPORATION [address] hereinafter "BUYER," and BAKER CORPORATION [address] hereinafter "SELLER."

RECITALS

WHEREAS, BUYER engages in the retail sale of widgets which, among other things, include springs (the "Components") manufactured by SELLER; and

WHEREAS, SELLER is interested in selling the Components to BUYER; and

WHEREAS, BUYER is willing to buy the Components from SELLER;

AGREEMENT

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is acknolwedged by SELLER, BUYER and SELLER, intending to be legally bound, hereby agree as follows:...................................................................."

Even though a business contract doesn't tell a story, this introduction has undesirable elements in common with the Bizarro World opening to The Dark Tower:

Superflouous and archaic words or phrases: "by and between," "RECITALS," "WHEREAS," "AGREEMENT," the entire line about consideration, "NOW, THEREFORE," and "hereby."
Ambiguous words or phrases: "as of," "hereinafter," and "among other things."
Unnecessary words in capital letters and underlined: every one.
Poor grammar: "which include..."
Use of the passive voice: "manufactured by SELLER..."
Poor font: Times
Underlining to show emphasis

Whoever is stuck reading this contract probably wishes they made a different career choice (or not, if they can bill by the hour). Consider this plain-English makeover:

"This Agreement, dated ___________________, 2017, is between Able Corporation [address] ("Able") and Baker Corporation [address] ("Baker").

Able manufactures springs (the "Springs") that are suitable for use in Baker's widgets. Baker wishes to buy Springs from Able. Able is willing to sell the Springs to Baker, so the parties agree as follows:........................................"

Like King's actual opening sentence, we have a clear and concise plain-language statement of what is happening. Gone are the elements that make the BLFD contract a nightmare. And the truly amazing news: the plain-language contract is "just as legal" as the BLFD document!

Bureaucratese is the cousin to legal jargon. Consider the following examples:

The Trump Administration's lies are "alternative facts."
United Airlines' forcible removal of a seated, ticketed passenger is a "re-accommodation."
A company that lays off employees is "rightsizing."
The result of rightsizing is the "new normal."
Genocide is "ethnic cleansing."
Civilians killed in a military action are "collateral damage."
If your medical plan is with an HMO, you have "a narrow-path health product." (No link on this one; actually experienced.)

So we've visited a spectrum of gobbledygook: Bizarro World Stephen King to tediously-drafted BLFD contracts to institutionally-broadcast deceptive terms of art. But does rejecting legalese and bureaucratese for plain English make any positive difference for society? That's the question for examination in the June issue of the BUSKLAW blog. Stay tuned!

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