Joe Kimble—Wild and crazy tales from a decade of drafting U.S. Federal Court Rules (PLAIN 2013)

Joe Kimble, a professor at the Thomas M. Cooley Law School and the editor-in-chief of the Scribes Journal of Legal Writing, is a stalwart of the plain legal language movement. His book Writing for Dollars, Writing to Please is an invaluable reference for any plain language practitioner.

Starting in 1999, he led a decade-long project to redraft the Federal Rules of Civil Procedure and the Federal Rules of Evidence. At the PLAIN 2013 opening reception, Kimble shared some stories from that experience.

We all know that legalese is cumbersome to read, but its much more serious problem is that it leads to ambiguity. “Legalese is not precise,” said Kimble. “It’s pseudo-precise. It only seems precise.” Using before-and-after examples from the U.S. Federal Court Rules, Kimble showed how complex legal language results in

• semantic ambiguity—when a word or phrase has more than one meaning
• syntactic ambiguity—when the structure of the sentence gives rise to more than one meaning
• contextual ambiguity—when inconsistencies or internal contradictions raise questions about which alternative should prevail

Ambiguity, Kimble was careful to point out, isn’t the same thing as vagueness, which presents uncertainty at the very margins of applying a term. Vagueness is unavoidable in legal drafting; the goal is to arrive at the right degree of vagueness.

Semantic ambiguity

A convenient example of semantic ambiguity in legalese is “shall”—does it mean “must,” “may,” “will,” or “should”? Kimble worked to eliminate all five hundred instances of “shall” from the Federal Court Rules and succeeded, until one “rose from the grave,” as he put it. Deciding the meaning of “shall” is a substantive call, and in Rule 56 of the Civil Rules, the “shall” had been changed to “should” during the restyling. Later, a debate flared up over whether it should have been changed to “must.” Rather than deciding the issue, the advisory committee resurrected the “shall,” while acknowledging in their report that it is “inherently ambiguous.”

Syntactic ambiguity

At the heart of many syntactically ambiguous sentences is the lack of a clear antecedent for a modifier or a pronoun. The committees working on the Court Rules often raised the concern that Kimble’s changes might alter the meaning, to which Kimble once responded, “It’s odd to worry about changing meaning when nobody seems to know what the meaning is.” In several of those cases, the committees decided to “keep it fuzzy” because the original language didn’t indicate which interpretation was the right one; that decision would be left to the courts.

Contextual ambiguity

Contextual ambiguity is particularly troublesome: are inconsistencies deliberate, or are they the result of sloppy drafting? Kimble’s examples show that “Most lawyers, no matter how skilled and experienced, are not good drafters.”

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Of course, beyond untangling ambiguity, Kimble also worked on cutting wordiness. Why write, “the court may, in its discretion” when “may” implies “in its discretion”? For comparison, whereas the old Civil Rules had 45,500 words, the new rules have 39,280 (14% less). The new rules have 45 fewer cross-references and have more than twice as many headings as the old rules. The difference in the readability of the original and plain language versions is stark. An example (from the Evidence Rules):

Before

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.

After

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

The process that worked well for Kimble and his team was to have a plain language expert write the first draft; that version persisted unless it created a substantive change. This approach was more effective and efficient than having a plain language expert edit a document after the fact.