Introduction

Why is it that lawyers think that the principles underpinning financial remedies are clear, and yet the public are often perplexed? The issue is one of communication, or rather translating the law into plain English.

Our clients frequently feel disconnected when lawyers discuss the law, and particularly when writing about the law, especially in court documents and during court hearings.

It appears that the problem arises from the way we frame our laws. And that is something we, as lawyers, must all encounter daily. When our clients come to see us, they pay for strategy, but that is only worth paying for when they understand what we are talking about.

Over the centuries, perhaps the idea was to shroud the law in secrecy so that only the judges and the lawyers could understand the law. For our clients it must feel like we are talking in a code or a different language.

In my first week as a law student, my property law lecturer was very keen to talk about a bona fide purchaser for value with notice, or a ‘b.f.p.v.w.n’. Some 36 years later, I still can’t retain in my mind what that means. I recall waking up in the early morning of an exam sitting to memorise these concepts so that I could regurgitate them to pass the exam. Why should we expect the paying public to understand these concepts and acronyms if we can’t retain them?

Nevertheless, I have spent my career trying to provide clients with meaningful explanations of the law in the hope that they understand me. Otherwise, what is the point of advising? Surely, it’s our job to continually aim to improve how we communicate the law to our clients.

The importance of clear, understandable communication

In his article The Public Speaks: An Empirical Study of Legal Communication (2011/2012), Christopher R. Trudeau emphasises the importance of clear, understandable communication. In his survey, seven out of ten people had struggled to understand their lawyers at some point. Using complicated terms put unnecessary barriers in the way of that understanding. Results from that survey showed that most clients prefer plain language. Interestingly, as both educational levels of clients and complexity of subject matter increase, so does the preference for plain language.

Trudeau makes some key recommendations that we should all heed.

• Do not underestimate the importance of oral communication, to enhance understanding of advice given in writing.
• Always define even commonly used legal terms.
• Be sure to avoid complicated terms and Latin words.
• Avoid confusion and misunderstandings by using plain language.

Communicating the law in more user-centred ways is more efficient and effective for all concerned – not just for clients but for businesses and lawyers too. If you want clients or unrepresented parties to really digest what you write, the simpler and clearer it is written, the more likely it will be read rather than ignored. This in turn is not only a better use of everyone’s time but also potentially reduces risk – for example reducing or eliminating the potential for complaints down the line.

A more user-centred approach to communicating with clients will make our work as lawyers more inclusive for everyone, and specifically for people who speak English as an additional language, for those who are neurodivergent, and those with learning difficulties or low literacy levels. Bear in mind that 9% of the UK population do not speak English, or Welsh in Wales, as their main language; over 16% of adults in England (7.1 million people) have very poor literacy skills; and the average reading age of people in the UK is allegedly just nine years old.

Quite apart from the importance of inclusivity, so many clients who are going through relationship breakdown don’t listen because they are too upset or angry. Stress caused by separation and related disputes can reduce people’s capacity to take in even clear straightforward information and advice.

Communicating the law better to improve access to justice

When it comes to the law, access to justice is improved when litigants have a better sense of how the law applies to them and what they can do to deal with their legal problem, increasing their legal capability and hopefully reducing stress.

Many people who use our courts never see a lawyer and therefore have very little help in terms of how to run their case or navigate the legal process.

Data published by the Ministry of Justice on Family Court statistics have identified that the number of cases where both parties are unrepresented have nearly trebled from 14% in 2013 to 38% by 2023.

Lawyers, judges and lawmakers have welcomed the last government’s announcement, earlier this year, of the early legal advice pilot for parents, which assists separating couples to resolve issues on separation without using the family courts.

Resolution’s Vision for Family Justice advocates scaling up services that enable separating families to access publicly funded legal information and early advice. This includes the Affordable Advice service, run by Law for Life working with Resolution, to support litigants in person and thereby reduce the demand on the family courts.

Tips on writing good legal information

The legal information and support charity, Law for Life, gives evidence-based guidance on writing good legal information. Crucially:

1. Know your audience.
2. Be clear what you are trying to achieve.
3. Build your legal information around the needs of your audience.
4. Make it easy to use.
5. Include only what your audience needs to know.
6. Build their legal capability.
7. Address the realities of their situation.
8. Test out your information to be sure it is helpful to your audience.
9. Choose the right language and tone for your audience.
10. Signpost accurately to further help.

Understanding is improved using simpler words where possible for example: ‘work with’ rather than ‘collaborate’. Avoiding metaphors or colloquial phrases is especially helpful for those who speak English as an additional language. Use ‘you’ and ‘we’ as much as possible and write in the active rather than passive voice, for example, ‘you fill in the form’ (active) rather than the ‘the form is filled in by you’ (passive). Avoid abbreviations and acronyms – where they are unavoidable, explain them fully when the reader first encounters them. Keep sentences short, preferably less than 20 words long.

Such an approach to writing in general and the law specifically may lead some, or even many, to complain of a general ‘dumbing down’. On the contrary, communicating in a more user-centred way, to clients and others in a legal context, aids understanding, saves everyone time and shows respect. User-centred legal information and advice has the capacity to open the law and in so doing make it far more accessible.

Clearer explanations of our laws

Why do the public feel so mystified by financial remedies law? Have our rules simply become too obtuse? Section 25 of the Matrimonial Causes Act has been in place for over 50 years and yet if you looked at the statute, you would have absolutely no idea of the principles underpinning the statutory criteria, and in particular the concepts derived from the key cases of White v White; Miller; McFarlane and Radmacher v Granatino. The law is expressed in tiers which makes the public feel that the law is too complex. The case law guidance makes the law more complex too.

Rather than uprooting this law entirely, why can’t we just reframe it so that it is better expressed and understood?

Legislation in its current format can be hard to follow for lawyers, and impossible for litigants in person. User-centred guides that underpin legal advice are helpful for all litigants, regardless of whether they are legally represented, and help the public understand the law better, making it more transparent.

The principles identified by Law for Life’s research into what makes for better legal information could guide the approach taken on providing more accessible explanations of legislation and case law.

It should be possible to envisage a future where the law in its various forms is written in more user-centred language. If s 25 were amended, for example, the statutory checklist could include longer passages to explain concepts such as contributions and conduct.

Conclusion

In summary, it is within every one of us to strive to communicate better on a basic level. Improving communications by expressing the law better and ensuring that it is better understood shows compassion for our clients and would go a considerable way to relieving the huge frustration and stress experienced by court users, be they represented or not. It might well help us to settle our cases more efficiently, cost effectively and with much greater levels of satisfaction all round – and without the need for a radical reform of laws that most of us think are fair and work well for our clients.