Law in Quebec

At last count, more than 1,800 copies of the free guide were distributed, and the law society intends to publish at least 3,000 more to satisfy growing demand – and that’s not taking into account that over 700 copies have so far been downloaded from the Barreau’s website.

“It’s obvious from the numbers that there’s interest,” said France Bonneau, who as a member of the Barreau’s 10-person plain language committee spearheaded the drafting of the guide. “We are trying to raise our member’s awareness, and the guide gives a very clear signal that the Barreau is taking plain language very seriously.”

The law society is hoping that the 32-page French-language guide, entitled “Plain Language – An Indispensible Guide for Lawyers,” will spur lawyers to speak and write clearly and plainly, without resorting to legalese, to clients, particularly since it goes hand-in-hand with participatory justice, a concept the Barreau has been heavily promoting for the past five years. Participatory justice allows people with legal problems to actively participate in finding solutions to their quandaries through the use of alternative dispute resolution methods such as negotiation, arbitration, collaborative law, and if need be, through court proceedings, according to Bonneau.

“The Barreau has put a lot pressure on its members to adopt participatory justice, that is, to propose to clients solutions to resolve their disagreements,” said Bonneau, the law society’s director of communications. “But to do that, communication between the client and the lawyer must be clear and lucid.”

Lawyers have little choice but to adapt to the changing legal landscape, added Miville Tremblay, also a member of the Barreau’s plain language committee. Clients are more demanding, more educated, and expect to take part of the process that will resolve their legal dilemmas, said Tremblay. To properly counsel clients and find suitable solutions to their problems, it is essential for lawyers to use plain language, said the chairman of the Barreau’s committee on participatory justice.

“Participatory justice and plain language are two inescapable ingredients,” said Tremblay, who practices exclusively in the area of conflict resolution as a mediator, arbitrator, and ombudsman for private businesses. “The practice must adapt to today’s society. Today’s client is not the same kind of client that existed 15, 20 years ago, let alone 50. If a lawyer proposes solutions that are not understood by a client because he uses terms that are exclusive to the legal world, then the lawyer is not accomplishing the objectives of the mandate.”

But there’s also a healthy dose of self-interest involved in promoting the use of plain language, admitted Bonneau. According to the latest figures available from the law society’s professional liability insurance fund, poor client communication is the “biggest source of risk” lawyers face, with 37 per cent of complaints lodged against lawyers arising out of a failure to follow instructions. Further, 20 per cent of claims filed against Quebec lawyers emanated from poor client relationships, with another 13 per cent of clients alleging lawyers have what the Barreau describes as “vindictive attitudes.”

The Barreau hopes that plain language will help curb complaints against lawyers because of poor communication, said Bonneau.

“Statistics from the professional liability insurance fund demonstrate that the biggest source of claims against lawyers are due to poor communication,” said Bonneau. “The professional liability insurance fund obviously then has a great interest in seeing lawyers communicate better, and that clients understand what it is that they are getting involved. These are problems that can easily avoided.”

The guide is the first step in what is expected to be a concerted effort to promote plain language. The Barreau intends to launch plain language workshops targeted at the legal profession, and eventually unveil a public campaign that will inform consumers that “they can demand” to speak and write clearly and concisely.

But lawyers are not alone in embracing plain language. Judges too. In a frank and disarming discussion over the challenges faced by judges when handing oral and written judgments, Court of Quebec Chief Justice Ēlizabeth Corte highlighted the importance of using simple words, and eschewing Latin terms, shunning legalese used by lawyers “that ordinary mortals don’t understand.”

“But it is not only about words,” noted Justice Corte recently at a plain language conference held in downtown Montreal. “It is about the style which leads us to use less words, shorter phrases, and short citations. But if our ideas, though using clear and simple words, are expressed in a unstructured and unorganized fashion, we’ve only attained only a part of the objective behind plain language. Writing judgments is a difficult and long exercise.”

Quebec Superior Court Associate Chief Justice André Wery, who defined plain language as language that a “reasonable” person could understand with a “reasonable effort,” asserts that the use of plain language is more effective because a “clear judgment” has less of a chance of being the object of an appeal.

“We work hard to write well,” said Justice Wery before a packed audience, admitting that when he was called to the bench as a puisne judge of the Superior Court of Quebec in 1997 he thought he knew how to write well until he was handed a “little book” penned by a colleague and the “more I read it, the more I had doubts.”

“It’s a very difficult exercise to be concise in our judgments,” added Justice Wery. ”It takes a long time to write judgments. It is absolutely essentially to use the ‘mot juste’ to describe particular situations.”

Yet ironically more judgments have been penned than ever before. According to the Société québecoise d’information juridique (SOQUIJ), a judgment on average was 8.7 pages long in 1990 compared to 15.75 pages in 2005. In 1969, the Quebec Court of Appeal’s written judgments totaled 1,282 pages compared to 3,292 pages in 2009. Even the Supreme Court of Canada have poured more effort into writing. In 1969, the SCC’s written rulings totaled 956 pages compared to 2,362 pages in 2009.

“Lawyers now have access to a phenomenal amount of information at the tip of their fingers — and they use it and they hand it to us,” explained Justice Wery. “There’s also the evolution of the law, there are now more remedies available for a host of issues than there was 20 years ago.”