Plain English is the future. But some people still question whether to use plain English for legal documents. We weigh up the risks of using plain English vs the risks of not using plain English and come to the conclusion that plain English is the future. Mark Adler asks: Why do lawyers write so that no one can understand them? They say it is because they need to be precise and that their language has been honed by centuries of litigation. But this is baloney. The real reason it that, although they are paid for their skill with words, most lawyers are dull and clumsy writers who have not broken the bad habits they have learned as students…
The Times They are A-Changin’
If you are a supplier of goods or services you have to rethink the way in which you speak to your clients or customers. The reach of consumer protection legislation is far and wide, and you can be sure that you will be affected. Gone are the times when you will be protected by what is contained in the documentation given to consumers just because they have signed it. It is the new terrifying reality faced by suppliers. If a consumer is not able to understand the contract, if the contract is unfairly one-sided or if their attention is not drawn to important provisions in the contract, the contract is not on your side. The only way to avoid this is to redraft all documents into plain and understandable language intended for the audience it is addressed to.
Plain English is here to stay, so enjoy the journey to the new age of legal clarity.
The truth is that no supplier can afford not to take notice of the law and International best practice with regard to how they draft any documents intended for consumers, unless they do not mind spending a fortune on litigation, media releases and free gifts to the customers they will lose. Not to mention the fact that if a contract is not drafted in plain language, that a court could redraft it for you or simply not take a specific clause into account. Imagine all the time and effort it takes to draft a watertight contract, only to have the whole thing deemed unenforceable by a court just because you used legalese to express your rights. You can use plain language to your advantage and if you do not, your competitors will.
Now is the time to take action to protect yourself the way in which the new legislation protects your consumers. The only question to ask yourself is: “Can I afford NOT to use plain English?“. If the answer is not clear to you yet, then it will become clear very soon if you carry on reading. Below we first set out the risks of using plain language and then we set out the risks of using legalese. As you will see, the risks of using legalese far outweigh the risks of using plain language. You need to use plain English.
Risks of using Plain English?
Some people believe it is risky to use plain English. Here they are and why they are not really risks.
- Vague and not precise – This relates to the fact that people believe that plain language use means using language that does not contain legal concepts and therefore drafters have to use general language to avoid using legal terms. Plain language is not a ‘dumb down’ of legal language. It is rather a clearer and more precise way of setting out legal concepts.
- Waters down legal rights – One of the main arguments against the use of plain language is that one cannot convert complex topics into plain language without losing some of its force and effect. Legal concepts and rights do not hold their power in the complexity of the language used to explain them. A complex right can be defined or explained in a way that makes it understandable without losing its legal force. This is why plain language editing must be done by legal professionals who have a knowledge of the law.
- Cannot enforce your rights – Many people believe that legalese has miracle powers that are watered down or completely lost when using plain language. It is like a miracle potion where the secret ingredient is what makes it so effective. The truth is that rights can be explained using plain language and the only difference when it comes to enforcement is that more people are aware of what these rights are.
- Tried and tested – Legal practitioners love using precedents. There are many reasons for this, but the most important one is that there is a belief that these precedents are the result of much legal thought and successful use. There is a belief that there is a reason why the language is the way it is and that if you were to change it, you would open yourself up to litigation.
- Consumers will not sign – There is a belief that consumers want to know that only their legal advisors understand the terms of their contracts. This is rooted in the belief that, once again, legalese possesses powers that normal language does not. This cannot be said to be true as thousands of contracts are signed daily by consumers without legal representation and these consumers have the right, and the desire to know what their rights are.
- Tech and Legal Terminology – Some technical terms cannot be translated into plain language and the same goes for legal language. The tool used by plain language editors is therefore to provide an explanation as to what a term means so that the lay person can understand it.
- Costs money and time – This is true. Redrafting your contracts into plain language will cost time and effort. This has to be weighed up against the potential loss that a company will suffer if they do not comply with the newest consumer legislation. As with all things, prevention is always better than cure.
Risks of using legalese?
What are the risks of using legalese?
Lose customers to competitors
Many companies use the fact that they are “consumer friendly” as a tool to gain the trust of consumers. A consumer is spoilt for choice when it comes to choosing suppliers so they will gravitate towards suppliers that propose to put their needs first. Consumers feel that a company who communicates with them in their “own” language does not wish to hide behind difficult legal and technical terms to further their own ends.
Bad publicity = reputational damage
In this competitive environment with regard to the supply of goods and services, companies cannot afford to lose consumer trust. The damage that negative consumer feedback can have is tremendous and companies need to protect themselves as much as possible against these risks.
Participate in ADR
Consumers now have many dispute resolution channels to approach in the event that they are unhappy with the level of service they receive from suppliers. Consumers now will also have the right to have contracts declared invalid and their money refunded if they can show that the contract was not in plain language. This poses a big cost implication for companies.
If companies refuse to re-evaluate their agreements and comply with the plain language requirements they open themselves up to the possibility of litigation.
Consumer courts, commission investigations, and compliance notices
In both the NCA and CPA a consumer may approach the relevant ombudsman or other designated body to file a complaint of non-compliance which is then investigated by the National Credit Regulator (in the NCA) and the National Consumer Counsel ( in the CPA), and after a ruling is made by this body it can be referred to the relevant tribunal or court. The CPA in particular purports to protect the consumer from what it defines as ‘unconscionable’, ‘misleading’ or ‘deceptive’ business practices or contractual terms that are unfair and unjust. The new bodies established by the Act to protect consumers the National Consumer Commission, as well as national and provincial consumer tribunals. These forums have wide powers to investigate prohibited conduct; to make appropriate decisions and to impose administrative fines.
Special consumer courts are another feature of the Consumer Protection Act that will have a vast impact on the enforcement of consumer rights. It will become easier for consumers to litigate against suppliers and get their rights enforced in terms of the Consumer Protection Act. The Act also empowers courts to hear consumer complaints and to make orders, including damages awards, against businesses for failing to comply with the Act. These administrative fines can be as much as 10% of a company’s annual turnover. Imprisonment for up to twelve months is another penalty that is a scary consequence of non-compliance.
In terms of the Act, agreements will have to be drafted in plain and understandable language. If agreements are drafted in such a way that the consumer is not clearly aware of the obligations and rights of both parties the agreement may be unconscionable and the consumer may be entitled to cancel the contract, or the contract could be set aside by the court. Another novel feature of the Act is that courts are given wide powers to redraft contractual terms where they infringe on consumer rights created by the Act.
The court may:
- Give any order it considers just
- Give money or property back to the consumer
- Compensate the consumer for losses or expenses
- Sever part of your doc
- Alter it
- Declare it to have no force or effect
- Award damages against you for collective injury
Not only can the whole agreement be declared void or a provision severed, but a court can also choose to change the wording of the agreement to what they think is fit. It must also be kept in mind that the CPA also stipulates that a contract must be interpreted in favour of a consumer, so the agreement will more than likely be changed to benefit the consumer.
The bottom line – Plain English is the way forward
Right now you as a supplier have two options. Change now at your own leisure or change later after your company could have suffered financial and reputational losses. Since consumers are king in terms of the CPA and that is why it is important for companies to ensure that they avoid litigation before it starts. Embrace plain language and what it can do for your business. Start thinking differently about how you communicate with your clients. Work on pro-actively restructure your documents and all other communications with your clients.