plain language and legal decisions

[2]…First of all, I want to say something about the style of this decision. For those who have read some of my past judgments, the reader may notice a change. For Jesse Armitage, I have tried to say what I wanted to say in very plain language. I believe that this is very important for judges to do in every decision. However, judges often do not do a good job of this. I would describe myself as one of the worst sinners. As lawyers first and then judges, we get used to using words that are long and complicated. This only muddies the message we are trying to say. That message is very important when it comes to passing a sentence on an offender. That the message is clear is even more important in the Gladue courtroom.

[3] I say this because in the Gladue court at Old City Hall, accused persons who share a proud history of the first people who lived in this nation, not only have a right to be heard, but they also have a right to fully understand. Their voices are heard by the judges. And they must also know that we have heard them. I believe that the accused persons who have been in this court have had good experiences in this. This is something that they have come to appreciate. This is something they have a right to expect.

[4] I know that all accused, whether they have any Aboriginal blood or not, should have this right.

The above is an excerpt from a judgment written by Ontario Court of Justice Mr. Justice Nakatsuru in the case of R. v Jesse Armitage. It is remarkable not only for its use of plain language, but also for the acknowledgment that the accused should have the right to understand the document setting out their legal fate.

Writing in plain language is far trickier than it might seem, if you are trying to get across complex ideas with the same degree of accuracy–which is necessary when writing something like a legal judgment. A miswording could have devastating results, such as having the judgment overturned.

Yet I agree with Justice Nakamura. Everyone has the right to understand what is happening to them when they go through the justice system. Of course they do, because knowledge is power, and often the people who go through the courts are disempowered for multiple reasons and in multiple ways, poverty and racism being the two that spring first to mind. It’s incumbent on lawyers and judges not to add to the inequity already faced by many who appear in their law offices or courtrooms.

For more discussion of plain language and legal writing:

By Cheryl M. Stephens at the Canadian Bar Association: Part I–Writing as a Process and Part II: Writing to be Understood. I particularly like the section at the end of Part I providing some clues that a person may have literacy issues. As an adult upgrading instructor who has worked with some very low literacy students, these ring very true to me:

Low literacy is not a problem only for immigrants, or for people whose first language is not English. Most people with low literacy skills were born here or have English as their first language. Low literacy is also a problem for senior citizens, or high school drop outs, or people who suffered in childhood from poverty, discrimination, abuse or development disabilities. Low literacy can be invisible.

Low literacy is a problem that knows no age, education, economic boundaries or national origins. If you give your client a legal document to read, does she read slowly and laboriously? Can he summarize what the document says? Has he filled in a form with the wrong information, or made mistakes in spelling or grammar? The problem may be that the client can’t read well enough to understand the questions, or can’t write well enough to answer.

Clues your clients give you

Some of the following behaviors may indicate a literacy problem:

  • Using the excuse, “I forgot my glasses.”
  • Saying, “I don’t have time to read this now – can I take it home?”
  • Wanting to take forms home to fill out, “when I can think about it.”
  • Saying, “I hurt my hand (or arm); I can’t fill these out.”
  • Bringing along a friend or relative (who will help with reading or filling in forms).

Don’t be misled by the obfuscatory behaviours that often accompany literacy problems. Sometimes clients will appear to be uninterested in their case or unwilling to participate in finding solutions even though reading is not involved. They are probably scared that it will eventually lead to reading. They may:

  • not show up for appointments,
  • show nervousness or embarrassment during interview,
  • act confused and ask unrelated questions,
  • not ask questions for clarification,
  • not answer the question asked,
  • have difficulty following instructions,
  • be compliant, nod agreement, but do not do what is expected.

Sometimes people behave in ways that seem to point to a poor attitude but actually indicates a literacy problem. They may do things like:

  • act frustrated and leave in a hurry,
  • become angry and storm out,
  • get involved in physical confrontation.

 

 

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