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Exploring issues relevant to law students and the law at large. Stare Indecisis is a student-led podcast at the University of Victoria Faculty of Law affiliated with its law journal, Appeal: Review of Current Law and Law Reform published by the Appeal Publishing Society.
Produced on the unceded Coast Salish territories of the Lekwungen, Songhees, Esquimalt and W̱SÁNEĆ peoples.
Hosts: Sarah Lachance (she/her), Camille O’Sullivan (she/her), Vinson Shih (he/him)
Tom Ndekezi 00:00
So there's this one case that a lot of law students get assigned in their first year property class that it's safe to say is pretty unforgettable. And Tom, because he, by the way, a second year student at UVic law, one of the hosts of the starry decisis podcast.
Tom Ndekezi 00:16
So to get back to the case, it's called Edwards V. Sims. And is this case from Kentucky in the 1920s. That's about land rights. What the case really ends up being about is this one judge, Justice Logan. What happens in the case is that there's these two guys, Edwards and Lee, who own land close to each other. Edwards, as it turns out, has the opening to this big underground cave on his land, which he decides to turn into a bit of a tourist spot. So Edwards goes out, scopes out the cave, maps it out, and then starts advertising it as the great ponics Cave. It all seems pretty harmless, except for the fact that the underground portion of the cave actually runs underneath Lee's land. Lee catches wind of this. And whether it's out of jealousy, pettiness or just him sensing an opportunity, he decides to put a stop to it. So Lee sues Edwards, saying that the fact that he's running the tours underneath his land, means that he's trespassing on these land. The case ends up going all the way up to the Kentucky Court of Appeal, which eventually sides with Lee, giving its reasons. The court cites this old property law principle that says whoever owns the surface rights to a piece of land also owns the property rights all the way underground and up into the sky. Just riveting stuff. Just as Logan, however, disagrees with the other judges on the court of appeal, but it's the way that he does it, that's really special. He starts off by mentioning that what he's about to say isn't supported by any legal precedent, which is a bit of a hot take, but still not anything too crazy. He then starts identifying the logical errors and the majority decision, pointing out how ridiculous it would be to give someone property rights right up to what he calls the outmost Sentinel the solar system, just because they own a plot of land in rural Kentucky. Even though it makes some sense. It's also immediately clear that just as Logan has a bit of a linguistic flair, where you really start to take it to another level is when he turns his focus to Edwards and Lee specifically. Justice Logan starts off by pointing out the basic fact that Edwards and not Lee is the one who discovered, explored, developed and advertise the cave. He doesn't say quite that simply though. Instead, he talks about men fighting their way through the eternal darkness into the mysterious and abysmal depths of the bowels of groaning world to discover the therefore unseen splendors of unknown natural scenic wonders. It's beyond weird, I know. But it gets even weirder when he turns his attention to Lee specifically. While Logan is more than happy to describe Edwards as a conqueror of fear, who descends into bottomless pits and waves through rushing towards, it soon becomes obvious that his feelings for Lee aren't as positive. Here's what he has to say about Lee, and I quote, then came the horse leeches daughter crying, give me give me then came the surface men crying, I think this came may run under my lens. They do not know, they only guess. But they seek to discover the secrets of Edward so that they may harass him and take from him that which He has made his own. They've come to a court of equity and have asked that Edwards be forced to open his doors in his ways to them, so that they may go in and despoil him that they may lay his secrets bare so that others may follow their example and dig into the wonders which Edwards has made as well, maybe the result of this stuff is wrong. In case you forgot, this all just started with the cave. The reason why Edwards and Sims is so memorable, aside from the obvious is because it's so different from your typical court decision. Don't get me wrong. Some cases can be really interesting. But there's a lot of them that can be pretty dry, as well as hard to understand. Older cases and legal texts can be especially guilty of this. A lot of time you'll see the writers going on forever and ever about certain points using qualifier after qualifier after qualifier until you forget what was even being qualified. Pulling words straight out of the dark ages, like Fort widths here and befores and they're on twos and the one language crime the English teachers everywhere a fringe yet, which is using too much passive voice. It's the reason why we've got the word legalese, which pretty much refers to the idea that a lot of times the language used in law is so complicated, that it might as well be its own language. Edwards and Lee is an almost comical example. overly flowery and drawn out legal writing, but the effects of legalese around us all the time. A great example is the terms and agreements that you'll often find on webpages and apps. While a lot of them actually use pretty straightforward language, the assumption they don't, coupled with the fact that it can take anywhere from 10 minutes to an hour to read all the way through, means that most of us just agree without even bothering to skim them over. 120 20 study found the wealth 33% of users claimed to return to service only 1% could remember what they had read immediately after agreeing. The use of complicated and ambiguous legal language can also have grave consequences. And now be an important time to acknowledge that this podcast is being recorded on the unseeded territories of the lekwungen songhees Esquimalt. And with Saanich peoples. The lands are unseeded because they were never subject to a treaty between its original inhabitants and the colonial crown. But the use of the word might give the impression that other lands treaty lands were in some sense given up. That couldn't be further from the truth. Aside from the fact that many treaties referred explicitly to the land and resources being shared, there's also the reality that many treaties were signed without the crown making an attempt to accurately explain the terms or capture indigenous nations is perspectives and interests. That's how we get agreements that were initially supposed to be about coexistence and relationship, becoming about land being given up and seated. The work of undoing those historical wrongs continues to this day. But it's important for present and future generations of legal professionals to understand how using inaccessible legal language, whether intentionally or unintentionally, can have serious, long lasting effects. More recently, governments agencies and courts have started to recognize the importance of using plain and accessible legal language. governments across the country have even adopted plain language checklists to ensure the documents are easy to read and understand. Some of the recommendations in BC checklists are things like using descriptive titles and headings, sentences that are no more than 15 to 20 words. paragraphs that are no more than five sentences, using the active voice present tense and a conversational tone, and overall aiming to write for grade eight reading level or lower. The Supreme Court of Canada even started writing plain language summaries of its decisions. So they can be more easily understood by the public summaries have been written for all cases since 2021. As well as cases going back to 2018. To talk more about the move towards plain legal language, I spoke with Cheryl Stevens. Cheryl is graduate of UBC law, and one of the founders of the Plain Language Association in Canada, also known as plane. I spoke with Cheryl about how she got involved with plane, the trends she's seen over the years regarding the use of plain language, and where she sees the movement going in the years to come. Here's some of our conversation.
Tom Ndekezi 08:22
Your words in your experience? What is the plain language movement that did it? I don't know if movement is even the right word. But was there a particular starting point like where did this all come from? Where do people into people realize that this was something that was needed? Well, I
Cheryl Stephens 08:38
like to tell people that Queen Victoria sent her the first governor to New Zealand with instructions to produce laws that were clear and simple and understandable to the people governed. And in her day, that didn't, the language was different. And one thing she used was the word prolix. She didn't want prolix.
Tom Ndekezi 09:00
I've never heard that word way back
Cheryl Stephens 09:03
100 years. And actually you can find quotes from, you know, international classical writers and others going back hundreds of years, but in a significant way. In the US the I think was the Department of Commerce, published a booklet around 1977 Calling on industry to use plain language. And Canada had something published in that year two by the government. And then you had many plain language laws for consumers. So that contracts for consumers needed to be in plain language. And that also impacted Canada and it was around I think 1991 That there was a blind study by Canadian Bar Association and Canadian Bankers Association. And they concluded in that report and another report on Literacy, that plain language was a necessity. So for both bank documents and legal documents, and so both of them mentioned that plain language was necessary. And so that's actually when the CBA and the Cle and, you know, launched their study their project on plain language. So, you know, it's been going safe since the 70s. And BC, mostly, money has been available since the 90s. Because the funding is very important. There have been projects across Canada, at the provincial level, at the municipal level at the federal level. And as soon as we have an election, and there's a change in government, or the party and government, the funding is cut off. So things have been going back and forth for 30 years, but I'd say we've made definite progress with law. And we used to get really argumentative resistance from lawyers and 30 years ago when we never hear that now.
Tom Ndekezi 10:56
Oh, wow. Okay, that's, that's yeah, that's, that is something I wanted to touch on. A little bit later. But it's interesting to see that I guess the, the desire to have more plain language needs to be coming from across jurisdictions. You know, you just mentioned the US, Canada, even Queen Victoria, which I didn't expect you to go that far back.
Cheryl Stephens 11:21
Well, Australia, Australia did their legal firms spent millions of dollars to convert their documents, some, you know, of two of the larger firms. And in Sweden, they've had a training program for, for legal writers for plain language for 30, more than 30 years. And those people, the graduates are pulled into the government to advise government and assist with clear communication from government. So you know, yeah, it's been very active.
Tom Ndekezi 11:54
And so, I was wondering you for the benefit of the listeners, I know we've mentioned in plain language a few times already, but maybe in your own words, what is plain language? Is it just colloquialism? Is it something different? Like, what do you look for when you're identifying plain language?
Cheryl Stephens 12:14
Well, I'll give you some context. The report from the bankers and lawyers associations, set out 10 tips for legal drafting, and those are good, you could Google it. Other groups, and especially with social media, you have people constantly posting five tips or 10 tips, and that's fine. But I'm in when COVID hit my contracts were canceled right at the beginning. So I had to find something to busy myself with. So I started reading neuroscience, which is biology and psychology and linguistics and all those things with neuro added. And looking at what part of it would impact how you would communicate in writing or with one another. So I've been pursuing that for three years. And so to me, to make information easily understandable, you have to use familiar words. And to find out what's familiar, you might have to go to a word list, there's a number of lists online 5000 10,000 words, if you know that your target audience is going to be low in literacy, and percent of the population in Canada is low in literacy, you might look to a 3000 word list, but that 1000 word list that was created for fun is not appropriate. Yeah. So if familiar word and familiarity arises either from it being frequently in use daily and everyday word, or that the particular reading audience is familiar with in their line of work, or their line of study, or their artists or whatever. And then the second most important thing is that your sentences follow the default structure of the language. So it differs in different languages. But in English, it's subject verb for action, and an object, possibly. We call it SVO, subject, verb object, keep that structure and put it out the front of this sentence. I call many legal sentences left handed because they have a whole bunch, all the conditions and limitations are at the front of the sentence. And then they make a statement positive statement of something. And it used to be considered that that was the legal way. And you had to mention all the conditions and limitations before you could say what the main thing was the main idea, that's wrong, it's out of date. You need to say upfront what your issue is put it in positive tones what your statement is, and then you could add limitations restrictions, conditions in which that applies and so on. And in doing sentences, we want them to be brief because our working memory is brief. We have to hold those words in our memory while we identify them and determine their meaning and the circumstances and analyze them and decide Whether we're going to retain them or ignore them, let them go and not even keep them in our memory. So working memory is short. So that could mean 25 or 30 words. But you've also then got to do all that higher order thinking. So we generally say 25 Words or Less on average for sentences. And that gives you room for the mental work you have to do to be sure you have the right meaning. So brief sentences, averaging 25 words or less, but also, if you've got a lot, and essentially supposed to express one thought, okay, one idea. So if you feel that idea is too complicated to get out in 25 words, then you need a list structure, which is also brain friendly. The brain likes to scan a list because it establishes a chronology or hierarchy or levels of importance, or whatever. So you can use chunking of information into list items. The brain likes chunking, it's easier to process things a chunk at a time. And also, so that's it. The main thing is the familiarity of the words and the construction of your sentence. There are a lot of other things I could go into. But those are the two key two key things.
Tom Ndekezi 16:14
Sounds like a whole science when you Yeah. Yeah, that's interesting, I think. I think when you put it like that, like it's just about communicating your ideas in a logical order. Because I think even like, I'm not, I'm only a second year law student, but even you know, having seen some statements of claim or some or some legal documents, I see exactly what you're talking about, where there's all these conditions at the beginning of the sentence, and you don't know what they're talking about yet. But they're saying like forthwith if this happens, and that happens, by the order of whomever, it's like, Wait, what are we talking about? And then
Cheryl Stephens 16:54
go back and start over. And often there's so much between the subject and the verb, you have to there's like, 35 words in there. And you have to keep reading it, rereading it until you can connect the last word and the first word. Yeah. So that we have to resist. Yeah. So rhetoric, we do draw on, you know, rhetoric from the time of Aristotle, you know, there's been many permutations of that philosophy of rhetoric and so that the key things are Who are you talking to? Who are your who's your reading audience? What's the subject? What's the key message you have to deliver? And focus on it? And and what are the circumstances? You know, when will they be hearing this? Will they be in the courtroom when this is coming at them? You know, what's the circumstance in which the information is communicated?
Tom Ndekezi 17:43
Yeah, yeah. So it's interesting. So it seems also that what qualifies as plain language? Depends on who the audience is. Exactly. It will change. Yeah, can you maybe speak, speak a little bit more on that? Or there's anything?
Cheryl Stephens 17:56
Yeah. It's the reader. But it's which reader when and where? Yeah, I recently heard a speaker putting it that way. And also to remember that you've after you've been through university and law school, and wherever else, you've got training, the people who read your material were paying to listen to you are paying to read what you wrote, and the people you're going to encounter now, are not paid. And they're not going to be interested unless you show them right up front, why they should be interested. And you make it easy to read. Yeah, yeah. You know, when I was a student in law school, I mean, that was 35 years ago, there were 100 Page judgments. And I don't think there's a lot of those anymore, but
Tom Ndekezi 18:40
there's definitely a few. Yeah, I can I can attest to that. Yeah, that's a
Cheryl Stephens 18:45
failure to focus on the
Tom Ndekezi 18:50
constitutional cases, they definitely. Definitely like to belabor the point, sometimes
Cheryl Stephens 18:58
they used to be a prime opportunity that comes up every summer. And it's a federal, I think, is the Canadian Association for the administration of justice, produces a seminar every summer for judges. And there's usually one or two seats from each province. So when a judge here gets the chance, they're very thrilled, you know, they been called on to go and learn how to write and clear language. And so I spoke to one of these judges when she came back, and I said, so how is that, you know, what's your experience about that? And she said, Well, I really liked it. And it was great. And then I had to sit in court and listen to lawyers go on for hours and hours. She said, I think I've lost it all, you know, like, you just get overwhelmed by legalese.
Tom Ndekezi 19:42
Yeah, yeah. And so I'm going on from that I'm wondering, apart from you know, saving, saving paper and ink. Why is the widespread use of plain language necessary?
Cheryl Stephens 19:56
Okay, well, it does save government's money and an incumbent Because if your information is not clear, you're going to have a lot of customer service calls, you're going to have many misunderstandings, which lead to complaints or lawsuits. And back in the 70s, with the that used to be called City Bank, City Bank of New York, they took up a huge project to use plain language to reduce the number of times they were in small claims court. Court because people didn't understand what they'd obligated themselves to. The solution was to make it very clear what it is. And today, this year is the social social Appeals Tribunal for the Federal Government of Canada has undertaken a plain language project. And they've trained their tribunals to write in plain language. And I worked with the registrar's department to make sure they're dealing with the public in plain language. That's an agency that deals with employment, unemployment appeals. And you know, the social security issues, any kind of benefit from government, the appeal goes to this one tribunal. So they're dealing with people with everyday problems. And they are not represented by a lawyer. So they need to be guided through the process plus well informed of what's what's going on. So it's very important, it saves time and money both for the consumer or the ordinary citizen, and the government. And businesses have known this longer.
Tom Ndekezi 21:33
That's, I think I said even before, but I think it's really heartening. Even when you're talking, you mentioned all the different corporations and organizations that are pushing towards this, like to see just this big, I don't think community is the right word, but a network pushing towards plain language. But I was wondering, on the flip side of that I imagined I may be wrong, but I imagined that there may be some parties who have an interest in not seeing the widespread use of plain language. And I'm wondering if if Yeah, maybe you could speak to is there is there like, what are some of the reasons why parties or organizations or particularly agents in the legal field, might want to see the continued use of like, complicated? And all these condition statements that we see, I think just because I think a lot of times law is often like fairly accused of being a self propagating profession, you know, you have all these documents, statutes that are written by lawyers, and can only be understood by lawyers. Or there's like the classic, almost like, almost like a TV example of, you know, the lawyers sliding into contract full of all these terms that you don't understand. And you're just overwhelmed. And you signed it, not realizing that you've actually entered this, you know, incredibly lopsided agreement. And so I was just wondering, like, are those practices still in place?
Cheryl Stephens 22:57
They are. And I don't know if you've encountered it yet. But there's a legal theory that if a contract is ambiguous, the negativity is distributed. Yeah,
Tom Ndekezi 23:07
contract. Yeah.
Cheryl Stephens 23:10
There's that. And there is the fact that some people are scam artists, you know, they're not going to be clear. I got taken by a product that was advertised online. And I went in and looked at all the material, and it's actually a well supported by leak, scientific evidence product. So I saw it, I bought it. But the thing was that in order to use the website, you had to agree to their terms. Now it takes on average three days to read the terms of there's been a study. Oh, actually, like if you I've never done it, right. So
Tom Ndekezi 23:44
I didn't show it takes that long.
Cheryl Stephens 23:47
There was a judge in Australia said that, too. So yeah, so I just signed Yeah, I thought it was the regular Terms of Use of a website. But but the terms actually said, if you buy anything off of us, it's a subscription, and we'll keep sending it to you and send you bills. And it had come like three times and I, I tried to cancel, there was no way to cancel because they gone. They had no contact information. And I searched like mad find them anyway. So yes, there are scammers that are gonna use plain language to draw you in. And when Donald Trump was elected, there were people analyzing his writing and speaking style and saying that he talks in plain language. Yes. So now I always tell people play you can use plain language for good or evil.
Tom Ndekezi 24:34
That's that's an A plus example. No, but I think I think it's true. I know. I'm grinding gotta be careful because I really don't want to wait into politics. But even using the Trump examples interesting how Yeah, even when he was running, you would watch a clip of one of his campaigns, campaign speeches, and even though you may not, you may disagree with everything he says even down to like the factual basis. It was interesting when they would cut to another politician. And you realize how strange most politicians talk, you realize like, oh, wait, after hearing him talk and then to hearing like some other more mainstream politician I was this is not a natural pattern of speech that they're adopting right now.
Cheryl Stephens 25:19
You know, there's been a considerable research and materials written about how to be persuasive with language. And it happens to overlap very nearly with our plain language practices, you know, as be simple, be clear, be personal, you know, do what you can to engage the person with the words and where you tell stories and all that. And so you can persuade people for good or evil, you know, and you've seen it in your own life.
Tom Ndekezi 25:47
Yeah, no, definitely. Something you mentioned earlier was that when you when you first got started, you encountered a lot more resistance than you do now. And so I'm wondering, can you maybe tell me about that evolution, and maybe what you think what what that looks like for you personally, and maybe what you think motivated that that change?
Cheryl Stephens 26:10
Well, that's it 30, some years ago, a couple of bars associations in the States made videos. And one large group in the southern states have produced some song album, talking about how the judges that resist and the people that resist clear thinking, my personal experience was that I had a young lawyer told me, people didn't want plain language, they didn't want to understand it. They wanted to be serviced by lawyers, the lawyer to worry for them. But over time, the movement of consumers has expressed the concern of people that they shouldn't be able to make decisions for their own life and not simply trust a lawyer's advice one way or the other. And the Bar Association has said that it's the client's decision, not the lawyers what to do, and that lawyers should explore alternatives to litigation. Okay, so you have to have a client who understands the risks and the benefits and the and the odds of winning and all that. So it falls upon my lawyers to make that understandable. And, yeah,
Tom Ndekezi 27:19
yeah, yeah. So it seems as though the use of plain language even maybe goes beyond access to justice, but almost like grants, clients or people who aren't legally trained, like a measure of autonomy, like not to say, yeah, yeah, like not to say you may still need your lawyer, but it's the relationship looks different.
Cheryl Stephens 27:37
And also, you know, ignorance of the law is no excuse.
Tom Ndekezi 27:39
So, yeah, that's a classic, that
Cheryl Stephens 27:43
puts a burden not on governments to explain law. And that's why a lot of work I did way back was the Department of Justice in Ottawa had a division for public information. And would when there was a new law, they would explain it. So it's about there's a social democracy, social bases, that there's democratic basis, that one of the organizations in the state say, plain language is a civil right. You know, and if you just think philosophically about democracy, and about the courts and everything, yep, plain language should be, or these bodies should speak to the people in clear language.
Tom Ndekezi 28:22
And so I'm, I'm wondering, obviously, you are, you're on a consultancy agency. And that's what your efforts may have looked like maybe more recently. But can you tell me maybe even with plain Canada, are there organizations you're aware of like, what does advocating for the use of plain language look like?
Cheryl Stephens 28:45
Well, yeah, it's small steps. And it's small steps. But so it's standing up to a client and saying this, this is not clear. And readers, I always used to think the readers not going to understand your client won't know what you mean. You know, so you become a reader advocate. The other thing is to try to persuade clients that that's the process it take, and I run into that, but in government as well as to persuade superiors that that's what's needed. The federal government's communication policy goes back at least 25 years and calls for either plain language or as it's been amended, clear, and understandable information. And I've gone out and done training at the civil service level. And they say, okay, great, you know, but I my manners, you won't accept this. So the issue becomes how you you advocate by saying, but this is the government policy, you must do, we must do this and see what happens. I'm a rule breaker. So you know, not everybody will do what I would do. So plain Canada, has adopted a petition that I saw and it called Also on the auditor general's office to review in the annual audit of each department, the communication practices. Now that back in the 90s, when Sheila Fraser was Auditor General and the government first adopted a plain language communication policy, she would release her report of an audit of a department containing information about whether they were implementing that policy, how much training had they done, how many documents had they kept, translated into plain language or created a new in plain language. And it was like a report card. They have that in the US now because they have a plain language law that says when the government communicates with citizens about benefits or obligations, needs to be in plain language, but they don't. And they chose to have a senior member of each department implemented and enforced that. But there's a volunteer organization of people who are involved in this field, called the Center for plain language in the US. And every year they issue a report card for each department given them an A, B, C, or D. Plus they do annual good and bad awards. But in Canada, our auditor general could take that up. And we have you know, it's about steel, Fraser was I think, three 300 years ago. So that petition is asking for that. But there's got to be ways to pressure either the BC government or the federal government. And one of the things we do is the plain language movement internationally, has a international plain language date is on October 13. Because that fell one year, in a day after the US government brought in a plain language law, there was a significant significant impact. So we chose that day. And we started having celebrations. And part of that would be a petition or march on a government department or something to express the importance of plain language in and advocate for it on that day. And, you know, we started that it will 19 2011 I think, and already every there's many, many countries all over the world celebrating it.
Tom Ndekezi 32:09
Yeah. Yeah. Yeah, that's interesting. It's also it seems as though those efforts are bottom up, in some sense, like, like, like playing Canada doing training, you know, one organization after another, but then also top down. You talked about the this legislation that was passed in the States. I'm wondering, has there been any so it sounds as though there hasn't been any sort of plain language legislation passed in Canada or BC,
Cheryl Stephens 32:36
in particular laws, they might call for, you know, clear and understandable by the reasonable person making a reasonable effort is one of the phrases it's all kinds of phrases that are used, the BC government has required in in regulations. But there's no law. Federally, the government has required it in, for example, the fire fireworks regulations were put into plain language, but there's no requirement that those regulations be in plain language, there's no law requiring the government to use playing that, which is they get by with a policy, which in Canada is usually enough?
Tom Ndekezi 33:15
And also seems, and go ahead. No, no, no, fine. And so it also seems as though there's no requirement on non government actors then to to use plain language and, obviously talk about common law. But beyond that,
Cheryl Stephens 33:30
well, they become requirements because of court decisions. Yeah, I do do a lot of volunteer writing and editing and being part of a focus group for the BC Cancer Federation. And what initiates most document reviews with them is what they call a safety event, where there was a problem that arose because the patient couldn't understand the instructions or directions for their treatment. So immediately, they turned to revise that document so that it's clear and understandable. And they're in. They're on a campaign now to redo about 30 documents, but they've probably done that many in last two or three years. So private agencies are affected by what goes on in the world. And they do have it's a risk assessment, should we put time and money into this and save ourselves time and money? Or, yeah, that and the PR value of clearing that we had a insurance company, which changed its name to clarity, and advocated for clear language and had TV ads in Canada for a year on that, but then they got bought out by Sunlife. And that was the end of the focus on clarity
Tom Ndekezi 34:51
I guess. And so it seems as though because something I've been wondering about previously was like, Okay, is there any sort of enforcement of Please, but it seems as though the enforcement isn't in the form of PR, or efficiency or sales. Record decisions.
Cheryl Stephens 35:08
Yeah. And as I mentioned, the center in the US calls on people to demand plain language and keep saying, you know, plain language is your civil rights, you know, speak up demanded, etc. I should, I'd like to mention Plain Language Association International, which a colleague and I organized in 1993. So it's coming on its 21st birthday. But it's got 20,000 people on its LinkedIn group, international, it's, I think it's in 30 countries now. And so joining a group like that makes people feel like they're not alone in this battle, and also allows for sharing information, having conferences, having webinars and learning the latest. So yeah.
Tom Ndekezi 35:55
And I'm just wondering, so in your mind's eye, let's say, what what what do you what would you want a formalized requirement to use plain language? What would that look like? Let's say if it were coming from the Government of Canada or the government of BC,
Cheryl Stephens 36:13
drafts, there have been there has been bills introduced already, I probably got find one of those and just, you know, updated, because the the laws in the states on consumer matters, used a computer algorithms, or they'd say, right to the third grade level, or the fifth grade level. And that's out of date. Now, because for the last 2030 years, there's been a lot of money going into neuroscience research of all the types I mentioned, biology, psychology, linguistics, because the computer, or the artificial intelligence people, and companies want to figure out how people think how the human thinks so they can make their computers equal, or as intelligent. So they've invested a lot of money in the neurosciences. And in the last 30 years, we've learned a great deal about what actually facilitates comprehension. What used to be that people who worked in the field for a long time would develop a sense of what's good style and the great style guides. And the people in the teaching and reading specialization, they would develop suggestions for teaching clear writing, they, Edward Frey, who wrote running the tests, was asked, you know, so instead of writing, trying to get a five letter word and a 20 letter sentence, how can we write to be comprehensible. And he set out a bit of guidelines that he called write ability guidelines, as opposed to readability. So he had right to build a guidelines. And those are pretty consistently supported by the neuroscience. But and I'm currently on a campaign internationally to talk to people about the neuroscience show. So we can, we can say we have scientific proof that this is what you should do.
Tom Ndekezi 38:03
And so I'm wondering, I don't know if it's clear yet. I'm personally very big supporter of the use of plain language. I know even from from my own experience, like working in a in a law firm over the past summer, you know, sometimes you see people as come to the court as self reps, and, and just the complete like bewilderment they have, just because of some of the terms that are being thrown out there. And as a second year law student, I didn't even I didn't understand some of them. But sometimes, you'd be in a situation which I was found very disheartening, where you think to yourself, if someone just explained what that term meant, and it wouldn't take much time. But if someone just explained what some of these terms meant, it would, it would, it would really help this person in a major way. But because no one does that and kind of takes it for granted. You see these people kind of floundering and also the fact that they're facing off against the lawyer on the other side of it. Yes, that's obviously just something I've encountered. But I'm wondering,
Cheryl Stephens 39:09
as a result of that, the increasing appearance of self represented litigants, the courts are taking an interest, you know, and they've so far as they can, they've published materials on their own websites about how to, you know, make your way through. There's a national self represented litigants project that publishes information. In British Columbia, we have the MaKey curae organization of legal assistance that meets with people online in recent years, to help them understand a form so that they can fill it out. You know, they're not giving legal advice. They're explaining what the form wants to know. And, and that's a big issue. And when you think about the criminal courts, I've done research with the chief of police Association across Canada, and in the criminal courts, you have to think about not just the defendant, but the victim, the victim's family, the defendants, family, all the witnesses, people that might be affected? And if if you want to get to and honest answers out of them, make sure they understand the question, right? Or what is the process and is explained to them. So they're not scared to death when they go in and get on the stand. It's up throughout every part. It's very important. And there was a judge in Ontario two years ago. He was stealing, I believe it was an indigenous young man. And he had to, I think, revoke parole or something. And so he wanted, he said, his, the person, the reader he was writing for with the kid, he was, you know, 1820, something, he said, he, I want him to understand why I must revoke and send him back to prison. And so he wrote it in very clear, understandable, empathetic language. And that's really what they should be judges should be doing. And some of them may be getting to think that way as well.
Tom Ndekezi 41:08
Just wondering, do you know if that if that was just as that could serve? Yeah, sure. Um, yeah, I think I've read some of his other decisions. I think are V Morris, by the Yeah, he's he has a reputation for for that kind of where he writes it in first person to really interesting, like the decision is directed directly at the, at the accused. Yeah, I was wondering, I think some people, maybe skeptics would say, okay, plain language is fine. In some arenas or in some areas, but sometimes, you know, you just need to come, you just need to communicate a very complicated, convoluted idea. And it's just not going to make sense if you don't have that training, if you're not don't have the expertise. And so I was wondering, maybe even in your own experience, how do you approach the process of communicating, you know, what are occasionally complicated ideas.
Cheryl Stephens 42:04
But there was a legal writer, and I'm sorry, I don't remember the name. Who said, you can, there can be complex things that you can express clearly. And simply, there can be complex things that you express, with great complexity and make it difficult to understand. And there can be simple things that you make complex. Yeah. And that's to the detriment of the reader. And that is what we really have to go after, when simple things are made complex. And any complicated thing. Well, complications are usually unnecessary, but complexity we can't avoid. But you chunk it out. You say, Okay, there's this factor and this factor and this factor, and together, they produce this result. So you just have, it's about organizing your thinking. And you mentioned earlier about being logical? Well, the problem is, we all have a different logic, if you large thing, there's only one logic and probably scientists reasonable
Tom Ndekezi 43:00
person. Yeah.
Cheryl Stephens 43:03
You know, reasonable person just means the average guy, it really literally does. I've tracked the history of it. So the average person is personally trying to communicate with and we can make things sound clear and simple by chunking. And explaining and not just assuming a whole bunch of language or being arrogant.
Tom Ndekezi 43:23
Ya know, it's interesting. What you already said is very interesting. Just the idea of chunking. Very complex ideas. And obviously, you can't, like you said, avoid complexity in some situations, but it's the difference between throwing a million ideas at someone. Oh, that was giving them time to digest them one at a time. I can tell
Cheryl Stephens 43:40
you a little secret. Okay. Yeah. Just between all of us.
Tom Ndekezi 43:45
Just yeah, just yeah, thank you, everyone listening.
Cheryl Stephens 43:49
Association, BC has a dialogue law. And you I was the editor for three years. So you dial in, and you hear five to seven minutes about a particular topic. And it's five to seven minutes, because we actually found from our data that people hung up after five or seven minutes, no matter how long you went on about it. But that was when it was a voice voice delivered by voice on the telephone full nowadays, they're online, you can reach them. And what I learned when I was working within a law firm was that lawyers who weren't familiar with an area of law would listen to the dialer, law scripts, before they met with their client for the first time.
Tom Ndekezi 44:25
That sounds very
Cheryl Stephens 44:27
clear and simple delivery of the essence of the issues. Yeah. So everybody, there's nobody who doesn't like plain language, especially nowadays. We're all retired, we're stressed, we're busy. We're overwhelmed by opportunities to get information and the information thrown at us the push pull of information, and we don't we like and then people using the internet for the last 20 years. 30 years have developed a new style of reading differently than when you sit down and read a book and see Scanning and skimming has been discovered by the neuroscientists to be the way people approach text. Now, whether it's online or in on paper.
Tom Ndekezi 45:10
Yeah, no, that's, that's, I think, very true. I think. I haven't looked back on some of the, some of the essays I wrote, like in high school or undergrad. And I think there's a real temptation when you don't fully understand a topic to try and cover it up with very, like flowery language and, and yeah, document like these very convoluted sentences. But I think once you, you know, get a little older, and you read people who will actually have a real grasp, and you see how, like, you know, perfect examples, people was talking about justice McLaughlin from the Supreme Court and some of her decisions, where they're just like five word sentences, you know, says the accused, went to the store period, like, thank you. I really appreciate that. And like, once you see more and more people doing that, it's almost empowering. Do it yourself, and just to, you know, shed all that unnecessary weight and baggage, and just say what you think?
Cheryl Stephens 46:06
Yes. And it's consistent, felt like people that you're being authentic and truthful and trustworthy. You know, people can be misled by something that's clear and simple, because they have the brain in us makes us think, Oh, I understand this. So it must be true. Yeah, that's true. That's a problem for politicians and young lawyers is that they use baffle gab when they don't really know what to say. And so for some politicians, you know, they used to publish elaborate platforms for each election. So you knew exactly what they were promising and you could hold them to it. And now they don't they have baffle GABA declarations of intention, because they don't have the details. And maybe what they're saying they're going to do is impossible to do so they can't detail it. So you can hide a lot by being vague and ambiguous and misleading. I like to call it now I've got a new word I picked up from somebody by miscommunication,
Tom Ndekezi 47:01
miscommunication,
Cheryl Stephens 47:03
miscommunication.
Tom Ndekezi 47:06
I don't know if it's a Scrabble word, but I think baffle gab was was also first I've heard that sounds like.
Tom Ndekezi 47:34
Thanks for listening to this week's episode of Starry decisis. Tune in next Monday for a discussion about tenancy rights hosted by Cassidy and the starry decisis volunteer team. Starting decisis is made possible by the appeal Law Journal and see if you v 1.9 FM take care much love
Transcribed by https://otter.ai