Working with Attorneys to Create Clear

Insurance Documents

Professor Christopher R. TrudeauAssociate ProfessorThomas M. Cooley Law Schooltrudeauc@cooley.edu@proftrudeau

Most cited reasons for poor health literacy

Healthcare providersPatientsThe educational systemCultural influences

But there are other causes:• Lawyers• Underwriters• Executives• Legislators

Two keys to plain language:

① Will – getting people to buy in to plain language.

② Skill – learning the tools needed to communicate plainly.

Goals of this presentation:

① To help convince you that clarity and legal language are not mutually exclusive.

② To discuss some of the tools needed to clearly convey technical or legal information.

Two levels of convincing:Rational arguments for plain language

Emotional arguments overcoming the barriers

For more on this, read Switch: How to Change Things When Change is Hard, by Chip & Dan Heath

Rational Arguments for PL

It is economical.

It helps develop a positive brand.

The public prefers it.

Plain Language is economical

The Cleveland Clinic (mid-90s)

o Revised a billing statement using plain language.

Result?

o Recovered an extra $1M/month.

o 80% increase in patient payments.

NOW the Cleveland Clinic is a leader in health literacy.

Plain Language is economical

Los Angeles County

o Dept. of Consumer Affairs redrafted docs, simplified recorded messages, and conducted PL training.

Result?

o Saved $50ko Consumer calls fell by 30%o Readability improved four

grade levels.

Plain Language is economical

General Electric

o Revised hard-to-read software manuals.

Result?

o Saved est. $22k to $375k per customer per year for each business customer using the manual.

Branding influence of PL

The public prefers plain legal language

Until recent, no U.S. study focused on the public’s preferences when receiving legal information.

In 2011, I conducted a study to fill this gap.

Full results: The Public Speaks: An Empirical Study of Legal Communication, 14 Scribes J. Legal Writing 121 (2011-2012)

The Survey: 28 Questions in Four Categories

① Experience with Attorneys Designed to separate clients from non-clients.

② Preferences for Attorney Communication Designed to gather information in areas for which

there is little or no empirical data, such as The importance responders attached to

understanding an attorney, The percentage who have received a legal

document that was difficult to understand, and The responders’ reactions when reading material

that was difficult to understand.

Four Categories continued:

③ Choice-of-Language Questions Designed to test whether responders preferred plain

legal language over traditional legal language.

Limited to the following areas: Active voice v. passive voice (four questions) Strong verbs v. nominalizations (two questions) Plain words v. complex words (four questions) Explaining a legal term v. not explaining that term (one

question)

④ Demographic Questions Designed to help categorize the results on age,

education, etc.

Analyzing the Responses 376 people responded to the survey.

Clients comprised 54.5% of the sample.

Responses in every age category: 59 (16.3%) were 18 – 29 years of age; 100 (27.6%) were 30 – 39 years of age; 64 (17.7%) were 40 – 49 years of age; 78 (21.5%) were 50 – 59 years of age; 46 (12.7%) were 60 – 69 years of age; 11 (3.0%) were 70 – 79 years of age; and 1 respondent (0.3%) was 80+ years of age.

Analyzing the Responses continued:

Responses by education level: 32% had less than a bachelor’s degree; 29% had a bachelor’s degree; 22% had a master’s or doctoral degree; and 17% had a law degree.

Caveat: includes far more responders with advanced degrees than the population as a whole.

But that is a benefit here because it allowed me to more accurately measure the differences between the educational levels.

The Results: Importance of Clear, Understandable Communication

Question: How important is it for a client to understand what an attorney is saying in a letter or document?

99.7% of responders thought it was at least important to understand an attorney!

88.3% said it was very important.11.4% said it was important.

But there is a disconnect:

Question: In your lifetime, have you ever received a letter or document from any attorney that was difficult to understand? 71% of responders indicated that they had received

a document that was difficult to understand at some point in their lifetime.

The Takeaway: Nearly everyone thought it was important to understand attorneys, yet 7 out of 10 have struggled to do so at some point.

Clearly attorneys should strive to do better!

Feelings about Latin or complicated words:Question: How does it make you feel when an

attorney uses Latin words or complicated words in written documents?

Reactions by frustrated clients Question: Have you ever felt so frustrated when

reading an attorney’s letter or a legal document that you stopped reading it before it ended? 38% said they had stopped reading a

document out of frustration

But what frustrates these people?

It was all in the English language, yet I could not understand the mumbo-jumbo!! This for me feels condescending and corrupt.

If you can’t understand the document, there is little motivation to read the entire thing.

Lack of answer, simplicity, and way too long.

Because of legal terminology. I do not feel like I am a stupid person by any stretch of the imagination, but just imagine how those feel of average or below-average intelligence due to lack of education, social circumstances, etc.

Because it made me feel dumb. And I didn’t know what was being said.I used to work for some good attorneys that treated people as equals. So when I used my own, I was mad that he was using terms to make himself sound better than me.

The Results: Choice-of-Language QuestionsActive v. Passive Questions

Question 14: 57% – The employer’s attorney questioned

the witnesses.43% – The witnesses were questioned

by the employer’s attorney.

Question 16: 72% – The Board of Directors decided to

review the file.28% – A decision was made by the

Board of Directors to review the file.

Question 22: 68% – The court dismissed the case.

32% – The case was dismissed by the court.

Question 24:79% – Michigan courts have consistently

held that homeowners must actually supply alcohol to a minor to violate the statute.

21% – It has been consistently held by Michigan courts that a homeowner must actually engage in the supplying of alcohol to a minor to commit a violation of the statute.

Active v Passive: Overall

Respondents preferred the active voice 69% of the time.

Higher than I expected because both options were understandable on the first read through.

The Results: Choice-of-Language QuestionsWord-Choice QuestionsQuestion 15:

83% – Discovery may begin before the judge considers the motion.

17% – Discovery may proceed prior to the judge’s consideration of the motion.

Question 17: 90.5% – If this breach continues, my client will

immediately terminate this contract. 9.5% – If there is a continuation of this breach,

my client will effect an immediate termination of this contract.

Word-choice questions continued

Question 18: 97% – I have signed and enclosed the

stipulation to dismiss your case. 3% – I am herewith returning the stipulation to

dismiss your case; the same being duly executed by me.

Question 19: 81% – Under the statute, you must purchase

insurance. 19% – Pursuant to the statute, you must

purchase insurance.

Word-choice questions continued

Question 21: 97% – The court, among other things, decided

that the defendant was negligent. 3% – The court, inter alia, decided that the

defendant was negligent. Question 23:

80% – Before the injury, my client was able to work a full week. Therefore, the injury has significantly impacted my client’s ability to lead a normal life.

20% – Prior to the injury, my client was able to work a full week. Therefore, said injury has significantly impacted my client’s ability to lead a normal life.

Word-choice questions: overall

Responders chose the plain version 88% of the time.

Surprising for two reasons:① I never asked people to choose the plain

version; rather, I simply asked them which passage they preferred to read.

② Only a couple of traditional versions were difficult to understand; the rest were fairly clear.

What about “legal terms of art”? Explaining Legal Terms: Question 20

22% — If you don’t respond, the court will issue a default judgment.

78% — If you don’t respond, the court will issue a default judgment. That means you’ll lose, and the court will give the plaintiff what he is asking for.

The ONLY question where the longer version prevailed!

The Takeaway: Normally, attorneys should reduce the number of words in their documents. But if those words are essential to explaining a term, then attorneys should include that explanation.

Two levels of convincing:Rational arguments for plain language

Emotional arguments overcoming the barriers

For more on this, read Switch: How to Change Things When Change is Hard, by Chip & Dan Heath

Overcoming the Myths

PL creates ambiguity.

PL means I can’t use legal terms.

PL means “dumbing it down.”

Judges & professionals prefer PL

See Bryan Garner’s interviews with scores of judges on www.lawprose.org.

Warren Buffett is a fan of clear writing. Read any of his shareholder letters:

http://www.berkshirehathaway.com/letters/letters.html

Two keys to plain language:

① Will – getting people to buy in to plain language.

② Skill – learning the tools needed to communicate plainly.

Vital skill for non-lawyers: To understand a lawyer’s mindset

A Reality: A lawyer’s duty is to protect a client’s interest. Clients come before patients & consumers.

Three keys to clear legal writing

① The writing level must match the audience’s reading level.

② Drafters must anticipate the arguments of a “reader in bad faith.”

Ask yourself: “If someone were to try and get around this document, how would they do it?”

③ Eliminate ambiguity! But appreciate vagueness because precision may not be possible (or desirable).

Vagueness v. Ambiguity

Fact: Most people don’t know the difference – including lawyers.

Vagueness is acceptable – even desirable It’s flexible It allows for case-by-case analysis It avoids the problem of exhaustive lists

Ambiguity creates confusion and uncertainty.

Vagueness: Creates uncertainty at the margins

Dangerous Weapons

AK-47

Dagger

Baseball bat

Serving Fork?

Vague Terms Reasonable care Informed consent Rid segregation “with all deliberate

speed.” Brown v. Board of Education. Motor vehicle v. automobile

Does a drivable cooler used at tailgates qualify as a motor vehicle?

Embracing Vagueness

Perfect precision is nearly impossible. Don’t fall into the trap of trying to spell

everything out.Who would think of a drivable cooler as a

motor vehicle? Or a fork as a dangerous weapon?

But think it through. Vagueness can cause problems. E.g. Please do not ask permission to hunt.

Can people hunt without asking? Or are they prohibited from hunting altogether?

First Latinism Key to Drafting: Expressio Unius Est Exclusio Alterius “To express one thing is to exclude similar

alternatives.” See Alan v Wayne County, 388 Mich 210,253 (1970) [Every state has a similar rule.]

Creates a negative inference that when a document lists specific things, then the list is exclusive. The City Council may prohibit picnics,

dances, weddings, and parties during construction of the gazebo. Can it prohibit a protest?

Avoiding Expressio Unius Use a broader term (car vehicle) Use a modifier to limit or expand

normally driven on public roads (limits)Applicant must substantially comply

(expands) Combine general terms (willing and able

buyer) But be careful if you combine the general

and the specific.

Second Latinism Key to Drafting:Ejusdem Generis

“Where a general term follows a series of specific terms, the general term is interpreted to include only things of the same kind, class, character or nature of those specifically enumerated.” Neal v. Wilkes, 470 Mich 661 (2004)

Ejusdem Generis: ExampleYou may not bring a pistol, semi-automatic rifle, or any other weapon into the hospital.What about knives? Explosives?

Key tip: does not apply if the general term comes first.You may not bring any weapons into the hospital, such as guns, knives, or explosive devices.

Keys to avoiding the Latin maxims when creating lists:

Start with a general, encompassing term first.

Then list a few key things you want the reader to be aware of.

Use (1) “such as” or (2) “includes, but is not limited to” to lead into these specifics.

Ambiguity

Presents more than one possible meaning to the reader.

Always an error. Eliminating ambiguity is the key to

clear drafting!

Example: I will be doing rounds on Saturday and taking appointments if I have time.

Three Types of Ambiguity

Semantic AmbiguitySyntactic AmbiguityContextual Ambiguity

Semantic Ambiguity

Multi-meaning words The board sanctioned the conduct. [Does

sanction mean approve or disapprove?]

Don’t use “elegant variation.” Ex. Cancelled v. terminated v. stopped

Why? Because courts will presume you switched for a reason.

Syntactic AmbiguityPresents an either-or choice.Usually the result of sentence structure.Often created because of an “and” or an

“or.”

Example I use with my students: I will grade your briefs and record the scores

carefully. Will I only record their scores carefully?

Avoid Misplaced Modifiers To avoid ambiguity, a modifier must be as close

as possible to the word it modifies.

My client has discussed your proposal to fill the drainage ditch with his partners. (Did you just propose to use your partners as fill?)

While sitting in the bathtub, the telephone rang? (Was the telephone in the tub?)

Our neighbor was a lovely woman who wore sweatpants named Inger. (Do you name your sweatpants?)

Semantic Problems: Ages & Dates

Careless phrasing can lead to serious inadvertent ambiguity.

Ambiguous: Open to anyone between the ages of 21

and 30.Ambiguous:

The option expires on May 8, 2013.

Contextual AmbiguityArises when two different parts of a

document say contradictory things.

Typically, the contradictions are between one or more sentences.

In longer documents, the contradictory material is usually in different parts of the doc.

Only the tip of the iceberg, but remember these three things:

① The writing level must match the audience’s reading level.

② Drafters must anticipate the arguments of a “reader in bad faith.”

Ask yourself: “If someone were to try and get around this document, how would they do it?”

③ Eliminate ambiguity! But appreciate vagueness because precision may not be possible (or desirable).