tone of voice
This is a guide designed for TLB team members, but we also want the world to see it, and when we say the world we predominantly mean our lawyer friends and clients.
See, lawyers are special. The language they use is very special. And by special, we unfortunately mean painful. We have been (expensively) trained for years to speak in ‘code’, or ‘legalese’ as it’s often called. ‘Legalese’ is reserved for lawyers and the complicated, technical nature of it means that other non-lawyers are left confused by the jargon. . This is weird considering that the stuff written in legal documents is mostly meant for other people, and rarely the lawyers themselves.
TLB is on a mission to change the way the legal industry works. We don’t like how something as necessary as legal services has become something that only the super-rich or super-desperate can afford. It needs to be democratised, and that democratisation must start from within.
Many lawyers say they have a ‘plain English policy’, but we really mean it. We firmly believe that legal language does not need to be complicated. It can be serious and legally binding, but it must be simple. A court will not look at a contract that has the word ‘notwithstanding’ in it and interpret it more favourably than if it said, ‘in spite of’ or ‘although’.
A real life example
In 2010, US lawyer Sean Flammer asked 800 circuit court judges to choose which argument was best framed. One was a traditional ‘legalese’ argument; the other was in what he called ‘plain English’.
The judges overwhelmingly preferred the plain English version (66% to 34%), and that preference held no matter their age or background. The respondents also said that they thought the plain English author was more believable, better educated and worked for a prestigious law firm.
In conclusion, plain English makes you more popular, more believable and also makes you sound clever.
Warmth v competence
Real scientific research has shown that lawyers are one of the least trusted professionals in the universe. While lawyers are perceived as some of the most capable and competent professionals, , they’re almost on par with prostitutes when it comes to warmth. Ouch!
If the way someone communicate confuses, frustrates or scares people, it is a fact that you will lose their trust in seconds. That’s even more the case when we’re dealing with people who come to us with sensitive topics or difficult subjects. It’s in that moment that people will decide if we’re really transparent and if we really care.
Now, not all lawyers are like this. We know that lawyers often can’t help it and I’m sure that many readers will agree. It’s often easier to say it in ‘legalese’ than it is in ‘plain English’. But our choice of words matters. Every word is a chance to make a connection with someone.
It’s about design thinking
There’s a lot of hype at the moment around legal design. People often think that ‘legal design’ is throwing some pretty designs into a contract to make it more relatable. In fact, it’s much more basic than that. It’s about taking a view from the user’s perspective. That’s all design thinking really is. It revolves around a deep interest in developing an understanding of the people for whom we are designing the products or services. A lawyer’s service is actually writing and speaking. And with that, goes their tone of voice. Good writing is empathetic.
Here’s a test to assess whether the tone you’re using is empathetic. Quite simply, if you were to read it out loud, does it sound like the kind of thing you’d actually say?
Why are lawyers like this though?
A couple thousand years ago, the Romans came to Britain and brought Latin with them. Latin became the language of religion and administration. Because the high-power, high-status citizens knew it, they used it as a way to segregate themselves from the common people who couldn’t understand it.
It was a way of saying ‘we’re cleverer than you’.
Lawyers were of course part of the higher echelon and Latin was their business. It ipso facto still is. But what we’re (consciously or unconsciously) doing is perpetuating the idea that ‘we’re cleverer than you’ and when we do that to people, they stop trusting us because we’re hurting them, making them feel like we’re withholding information and that we don’t have their best interests at heart.
Start with what matters to readers
Put yourself in your reader’s shoes when you’re writing or advising. Often when you read a piece of advice or legal opinion, you have to read through pages and pages before you get to the bit you really want to know about – the answer.
As lawyers, we often feel compelled to explain why we think something before we tell people what we actually think — especially if it’s not what they want to hear. What we forget, is that people don’t really care. What they really care about is how it affects them. So you might want to start with that. Then you can give some context.
Here’s an example of how we structure our advice. Firstly, we start by defining the questions our client really wants to know. The structure might be:
Can I do what I want to do?
Will I get in trouble because of it?
How much is this going to cost?
Anything else I need to know?
How did you reach this conclusion?
Say for example John from HR asks you whether he can fire Susan from accounts who’s been with the business for four months and who keeps going against her manager’s instructions and doesn’t do what she says she’ll do (by the way, this is not legal advice, this is an attempt to illustrate how you might go about advising your internal stakeholders).
Can we dismiss Susan?
Yes, we can dismiss Susan’s both under our agreement and under English law.
What’s the risk of Susan suing us?
Susan may well decide to bring a claim against us. But I think the chances of her winning any such claim, are low.
Do we need to pay them a settlement?
We do not need to do this under the agreement or by law. However, there are some benefits if we choose to do this.
The contractual position
Under our agreement with Susan, we are are able to end her employment under Clause 3 which says that we can do that if the employee acts in a way that is not in line with the interests of our business. We think that Susan’s conduct is a valid reason for dismissal on this basis.
The legal position
From a legal point of view, under section 98(2)(b) of the Employment Rights Act 1996 (“ERA 1996”), an employer may end an employee’s employment for misconduct. This may be a single serious act or a series of less serious acts. I think we can rely on the latter, i.e. a series of less serious acts that amount to misconduct as grounds for dismissal.
Under English law, an employee cannot bring a claim for unfair dismissal against their employer, unless they have been employed for over two years (section 92(3)(1) ERA 1996) OR if the employer has acted in a way that qualifies the dismissal as an automatically unfair dismissal.
We don’t think that Susan can claim that we’re dismissing her for any reason that is unfair so if Susan decided to sue us, it’s unlikely that she’ll be successful. That doesn’t mean she won’t sue us (she might) it just means that she probably won’t win.
Joking. We mean ‘Conclusion’.
If your first question in everything you do is thinking about what your reader or stakeholder really needs to know and how they’ll respond to the format you’re using to give it to them - you can’t go wrong.