In an article (here) that otherwise isn’t relevant to this post, I saw the following:
Plain language contracts seem appealing but tend to be imprecise and are often used to mask pretty egregious terms. Using folksy words to tell someone you can terminate them at will without remedy and that they have no recourse doesn’t make it any better.
I haven’t encountered the notion of plain language as a form of subterfuge, so I’ll limit my comments to the notion that plain-language drafting is “folksy” and “imprecise.”
The main reason I don’t use the phrases “plain language” or “plain English” is that many transactional lawyers assume that plain language is geared to the needs of consumers. Here’s what I said about that in this 2006 post:
Why don’t I use the phrases “plain language” and “plain English”? For two reasons:
First, in my experience corporate lawyers are leery of those phrases—they assume that they imply some sort of dumbing-down. (This may be in part because the plain-language movement was initially identified with improving the language of consumer documents such as insurance policies.)
Advocates of plain language have a different view of those phrases. For example, Joseph Kimble has said “Plain language doesn’t mean baby talk or dumbing down the language. It means clear and effective communication—the opposite of legalese—and it has a long literary tradition.” I concur that this broader meaning is the more appropriate one, but I don’t wish to make my constituency—corporate lawyers—skittish.
Second, contract prose is stylized and limited, and in my seminars I half-jokingly suggest that it resembles computer code. I’m not sure that I’d describe it as “plain,” even when it incorporates the recommendations I make in MSCD.
That’s why I use instead the phase “standard English,” meaning English as written by the average educated native English speaker.
Once you rule out any notion of dumbing down, you can also rule out the notion that drafting in standard English is imprecise. I like to think that my writings establish that it’s traditional contract language that’s imprecise.
Postscript: By the way, in case it isn’t otherwise clear, I’m not faulting the authors of that article for their understanding of the phrase “plain language.” The point is that it’s confusing—that’s why I don’t use it.