By Ian Lewenstein
Minnesota’s plain-language requirements predominantly lean on its executive-branch agencies and private sector. For example, the Minnesota Legislature—and two Minnesota governors—have required agencies to write regulations and other public-facing documents in plain language.1 The Legislature also requires the private sector to prepare plain-language documents and forms in areas such as insurance, health care, and workers’ rights.2 Because of legislative and gubernatorial directives, Minnesota consumers and workers are entitled—at least on paper—to the clarity and knowledge that plain language has been proven to provide.
But the focus on executive-branch agencies and the private sector—while needed and beneficial—should have long ago been expanded to the Legislature itself and to court rules. While the Legislature has witnessed plain-language progress in some areas, albeit still limited, court rules seem ripe for improvement to ensure public understanding of and compliance with the court system.
Even the sclerotic federal government has slowly shuffled ahead of Minnesota in its dedication to washing court rules of legalese.3 I think that it’s time for Minnesota to follow suit.
Starting with court rules: Rule 114 on Alternative Dispute Resolution
Examining the benefits of embedding plain language in Minnesota court rules should start with Rule 114. The nearly six-year effort to update Rule 114 on alternative dispute resolution “dramatically [altered] the face of ADR....”4 Given that the new rule is meant to “offer guidance and order regarding an increasingly popular process,”5 the rule should have been drafted with plain-language precision in mind because a law, policy, or procedure is meaningless if it can’t be easily understood by all affected parties, or if it’s written so vaguely or ambiguously as to invite frequent disputes over meaning.
First, kudos to those who worked on the new Rule 114, for it adheres to many plain-language precepts; for example, the rule limits legalese, restrains its abbreviation use, and rests on a solid structure with good use of headnotes, vertical lists, and short paragraphs. But despite this improvement, there are both little tweaks and larger revisions that could make the rule more easily understandable and heap even more plain-language benefits on all affected parties.
Slight but important tweaks
Timeless advice for improving your writing is to eliminate clutter—that is, omit needless words.6 Clutter distracts, hinders flow, slows reading, and occasionally introduces ambiguity. Because of these pernicious effects, excising clutter is important, and at times critical, to the legal drafter. The following examples and explanations demonstrate how we can cut the clutter in the new rule:
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Clutter cutter
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Explanation
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In rare circumstances where the court in its discretion finds ADR to be inappropriate or to operate as a sanction...
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The court is already operating with discretion, so the additional “in its discretion” just adds extra words. A similar issue occurs with language such as “the court may, under its discretion.” But may means that the court has discretion.
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The following terms shall have the meanings set forth in construing these rules given them.
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A couple of issues here. First, note the commonly incorrect use of shall.7 The sentence isn’t establishing a duty—rather, it is stating an operative fact—and both facts and law are written in the present tense. Second, it’s clear that the definitions aren’t for decorative purposes but to give meaning to the terms used in the rule, so extraneous language on “construing these rules” can be cut. And third, what does “these rules” refer to exactly? If absolutely necessary, cite to a range and avoid the vague phrasing.
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The Neutral(s) then issue(s) a non-binding nonbinding advisory opinion regarding on liability, or damages or both.
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The (s) construction is unnecessary because it’s commonly understood that the singular includes the plural and the plural the singular. Prefer the singular; draft in the plural if you must, but avoid the misguided (s) temptation. Also, ensure proper prefix etiquette by closing up prefixes (nonbinding), and prefer the simple word (on as opposed to regarding). Last, you can safely assume that or includes one or both options. But if you are uneasy, draft these constructions in parallel form: “on liability or damages or both.”
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The Neutral may give an assessment of assess the strengths and weaknesses a claim, case, or defense...
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For the most part, spurn nominalizations, or zombie nouns.8 Readers want to see action (assess), not concepts (assessment). Also notice how one word replaces four words. Plain-language bonus.
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A “Qualified Neutral” is an individual or Community Dispute Resolution Program (CDRP) listed ...
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The letters are nice, but why abbreviate when the program is mentioned only once in this paragraph and the entirety of rule 114.02?
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... low-cost ADR services are not unavailable
ADR sessions are not open closed to the public ...
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Prefer the positive to the negative, which effectively means avoid using not. The positive is more direct and usually shortens the phrase.
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of-phrases such as “the agreement of the parties.”
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Almost all of these constructions can be replaced by using the genitive and removing the preposition (of) and article (the). So “agreement of the parties” becomes the “parties’ agreement.”
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Lingering legalese
While the new Rule 114 is mostly devoid of legalese, a few common lawyer favorites remain:
Prior to issuing the decision, the Neutral will mediate. In the event of impasse, the Neutral discloses the decision which may be binding or nonbinding, pursuant to the agreement of the parties.
This example has a triple whammy of prior to, in the event of, and pursuant to. All function like noxious weeds, so consider a revision with a few hearty snips:
Before issuing the decision, the Neutral will mediate. If there is an impasse, the Neutral discloses the decision—which may be binding or nonbinding—according to the parties’ agreement.
Why people are fascinated with prior to—not strictly limited to the legal profession—could be the basis of an insightful psychological study. Try before, and you’ll never go back. Replacing in the event of with the more direct if establishes a more visual connection. And the lawyer’s security blanket, pursuant to serves as the poster child for legalese and has three main meanings: in accordance with (also, according to), in carrying out, and under.9
If you harbor doubts, look to the guidance of the Uniform Law Commission,10 which not only eschews pursuant to, but also prior to and in the event of, not to mention other common examples of legalese. Also look to Rule 114 itself, which sometimes—maddeningly—alternates between according to and pursuant to.
Slippery sentence construction
In addition to clutter and legalese, legal drafting really devolves into mass confusion with shoddy sentence construction. For example, Rule 114 contains several “good” examples of left-branching, or when a sentence starts with complex conditions before we reach the sentence’s subject and verb. In contrast, right-branching is when we start with the subject and the verb at the beginning, or close to the beginning, and then cascade into the complex information. Our brains crave right-branching; left-branching, not so much. Here are some examples and revisions:
If a party qualifies for waiver of filing fees under Minnesota Statutes, section 563.01, or if the court determines on other grounds that the party is unable to pay for ADR services, and free or low-cost ADR services are not available, the court shall not require that party to participate in ADR.
In boldface is the sentence’s main subject and verb, but notice how it takes 41 words until we get there. The sentence starts with two conditions, one with a separate condition. This makes us work too hard. But see what a revision could do, with some other fixes:
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Original
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Revision
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If a party qualifies for waiver of filing fees under Minnesota Statutes, section 563.01, or if the court determines on other grounds that the party is unable to pay for ADR services, and free or low-cost ADR services are not available, the court shall not require that party to participate in ADR.
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The court may not require a party to participate in ADR if free or low-cost ADR services are unavailable and if:
(1) the party qualifies for a waiver of filing fees under Minnesota Statutes, section 563.01; or
(2) the court otherwise determines that the party is unable to pay for ADR services.
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Reorganizing the sentence into a vertical list helps to reveal the problems. First, I moved the subject and verb to the beginning of the sentence and excised the nebulous shall. Second, I made good use of a vertical list to show and structure the two conditions. Third, I pruned clutter (on other grounds and not available). And fourth, I fixed an ambiguity from comma placement—does “free or low-cost ADR services are not available” apply to the entire list or just the second item?
Another example of slippery sentence construction occurs when the subject is separated from the verb; the intervening words, if more than a couple, can wreak havoc on the sentence flow and reader comprehension. Take this sentence, for example:
The parties, after service of the complaint, petition, or motion, shall promptly confer regarding selection and timing of the ADR process and selection of a Neutral.
Here, the intervening phrase should start the sentence. Even better would be to name the actor and remove the nominalization (service). Who is serving the complaint, petition, or motion? Even if the actor is unimportant or unknown, the nominalization can still be removed and replaced with a verb (served):
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Original
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Revision
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The parties, after service of the complaint, petition, or motion, shall promptly confer regarding selection and timing of the ADR process and selection of a Neutral.
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After a complaint, petition, or motion has been served, the parties must promptly confer on selecting and scheduling an ADR process, including selecting a Neutral.
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I moved the sentence to keep the subject and verb close together. The prepositional phrase at the beginning of the sentence is short enough so as not to bend too far to the left. Additionally, we can take out the rest of the nominalizations and tweak the sentence a bit more to make it more cohesive (by using including, for example).
Two other examples demonstrate the insidious nature of left-branching. The first example is particularly nettlesome because it starts with a prepositional phrase with an exception and then two subjects before we reach the verb:
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Original
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Revision
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Without the consent of all parties and an order of the court, except as provided in paragraph (c), no evidence from an ADR process or any fact concerning the ADR process may be admitted in any later proceeding involving any of the issues or parties.
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Except as provided in paragraph (c), evidence from an ADR process—or any fact on the ADR process—must not be admitted in a later proceeding involving any of the issues or parties without:
(1) the consent of all parties; and
(2) a court order.
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Evidence in consensual special magistrate proceedings, binding arbitration, or in non-binding arbitration after the period for a demand for trial expires, may be used in later proceedings for any purpose for which it is admissible under the rules of evidence.
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Evidence may be used in the following later proceedings for any purpose for which it is admissible under the rules of evidence:
(1) consensual special magistrate proceedings;
(2) binding arbitration; and
(3) nonbinding arbitration after the period for a demand for trial expires.
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Remaining issues
Rule 114 contains other common drafting errors in word placement that bedevil most writers, not just legal drafters.
1. Which/that. Both are relative pronouns. Generally, which introduces a nonrestrictive clause, and that a restrictive clause—though this differs across English-speaking countries.11 A nonrestrictive clause adds extra information, while a restrictive clause limits the information. Which is preceded by a comma, and that isn’t.
For example: “The jury issues a verdict[,] which may be binding or non-binding, according to the agreement of the parties.” Here, the phrase is nonrestrictive, meaning that the bolded phrase isn’t essential to the sentence’s meaning and could be taken out to read “The jury issues a verdict according to the agreement of the parties.” The agreement will specify whether the verdict must be binding or nonbinding, something that isn’t essential to the sentence.
In another example, the which should be changed to that: “The State Court Administrator shall certify training programs which that meet the training criteria of this rule.” The clause after programs is essential to the sentence’s meaning.
2. Misplaced modifier. Sometimes, legal drafters misplace important information: “If a filed action is settled through an ADR process, the attorneys shall promptly notify the court and, whether filed or not, complete the appropriate documents to bring the case to a final disposition.”
According to this sentence, the attorneys are being filed. Though many may wish this, attorneys shouldn’t be getting filed. Rather, it’s the action that should be getting filed, so a missing word must be added: “whether the action is filed or not.”
Or here: “Within 90 days after its entry, a party against whom a judgment ...” Its refers to the judgment, not the party: “Within 90 days after the judgment’s entry, a party ...”
3. Misplacing only. Misplacing only is common, but for legal drafters, being loose with only can drastically change meaning. “The Neutral may only disclose to the court information permitted to be disclosed under Rules 114.10-11.”
This sentence means that the neutral can do only one thing: disclose to the court information. What the sentence means to say, however, is that the Neutral may disclose only certain information: “The Neutral may only disclose to the court only information permitted to be disclosed under Rules 114.10-11.” Watch your only placement; when in doubt, move it as close to your modifying phrase as possible.
4. Using above and below. In legal drafting, these words amplify ambiguity. For instance, “The written statement of any other witness, including written reports of expert witnesses not enumerated above ...” Does above mean the sentence, paragraph, etc.? Cross-references are your friend, so use them.
Larger revisions
The new rule does a decent job of using headnotes and small paragraphs—this structure is just as important as the words on the page. Without proper structure that breaks up the language into readable and easily identifiable chunks, well-written plain language is only half-complete. But once the rule runs into the ethics section, 114.13, we encounter the deadly great walls of text.
Great walls of text are nefarious because they signal, “Don’t Read Me!” But text should be inviting, especially when “public confidence in the integrity and the fairness of the ADR process is essential.”12 To first understand important ethical guidelines, we need to not be repelled by walls of text:
On glancing at your pages, readers should get the feeling that your work will be easy to read. You’ll therefore want to avoid a series of long, forbidding paragraphs. A profusion of bulky paragraphs suggests either indiscriminate lumping or unnecessary padding. Think how often you’ve been repelled from a book by whole solid pages without paragraph breaks; and think, by contrast, how often you’ve yielded to the attraction of an open, easy-looking page.13
The introduction to the ethics section flouts this well-accepted advice. For example, we have 365 words without clean headnote breaks. True, the paragraphs are short, but without headnotes, the text is uninviting. Or take subdivision 2, which is two paragraphs (199 words), with the first paragraph horrifically cluttered. And why no headnotes as in subdivision 7? And speaking of subdivision 7, why not combine like sentences into friendly vertical lists? The original reads like a school outline or someone’s notes:
(a) Fees. A Neutral shall fully disclose and explain the basis of compensation, fees and charges to the parties. The parties shall be provided sufficient information about fees at the outset to determine if they wish to retain the services of a Neutral. A Neutral shall not enter into a fee agreement that is contingent upon the outcome of the alternative dispute resolution process. The fee agreement shall be included in the written agreement and shall be consistent with a court order appointing the Neutral. A Neutral shall establish a protocol for regularly advising parties on the status of their account and requesting payment of fees. If one party does not pay the fee, and another party declines to cover the fee, the Neutral may withdraw, proceed, or suspend services for both parties until payment is made. If proceeding with services, the Neutral shall not refuse participation by any party based on payment status. A Neutral who withdraws from a case shall return any unearned fee to the parties. A Neutral shall not give or receive any commission, rebate, or similar remuneration for referring a person for alternative dispute resolution services.
Now try breaking up the long paragraph into vertical lists and shorter paragraphs with headnotes:
(a) Fees Disclosing fees. A Neutral shall must:
(1) fully disclose and explain the basis of compensation, fees, and charges to the parties. The parties shall be provided; and
(2) provide the parties with sufficient information about fees at the outset to determine if they wish to retain the services of a Neutral.
(b) Fee agreement. A Neutral shall may not enter into a fee agreement that is contingent upon on the outcome of the alternative dispute resolution process. , and the fee agreement shall must be:
(1) included in the written agreement; and shall be
(2) consistent with a court order appointing the Neutral.
(c) Fee protocol. A Neutral shall must establish a protocol for regularly advising parties on the status of their account and requesting payment of fees. If one party does not pay the fee, and another party declines to cover the fee, the Neutral may withdraw, proceed, or suspend services for both parties until payment is made. If proceeding with services, the Neutral shall may not refuse participation by any party based on payment status.
(d) Fee restrictions. A Neutral who:
(1) must return any unearned fee to the parties if the Neutral withdraws from a case shall return any unearned fee to the parties. A Neutral shall; and
(2) may not give or receive any commission, rebate, or similar remuneration for referring a person for alternative dispute resolution services.
Even without substantively amending the language, adding structure greatly improves readability and clarity.
The new rule goes in the right direction if you look at part (B), subdivision 3, which uses good paragraphing, headnotes, and vertical lists. It isn’t perfect, but it’s a striking comparison to the previous example.
For consequential law, add plain language
I’m sure that the new ADR Rule 114 is as good as promised. I’m no expert, but I trust that the extensive effort that went into the rule will pay great dividends. Yet we shouldn’t stop with innovative law. Instead, we must pair innovation with a strong commitment to plain language to ensure that people can easily track, follow, and comply with law that affects them.
IAN LEWENSTEIN has worked for the Minnesota Legislature in the Office of the Revisor of Statutes and for several state agencies, helping write clear regulations in plain language. He serves on the board of the Center for Plain Language and has a master's degree from the University of Chicago and a paralegal certificate from Hamline University.
ian@capyourpenconsulting.com
[1] Minn. Stat. §14.07, subd. 3(3) (2022); Exec. Order No. 14-07, 38 Minn. Reg. 1191 (3/10/2014); Exec. Order No. 19-29, 43 Minn. Reg. 1235 (4/15/2019).
2 Minn. Stat. §§72C.02 (insurance policies and contracts), 144A.44 (home-care bill of rights), 176.235 (workers’ compensation).
3 See, e.g., Joseph Kimble, Seeing Through Legalese: More Essays on Plain Language 21-22 (2017). Our cold-weather neighbor to the north is also beating us in plain language. See Paul Aterman, Tribunal Rules in Plain Language ... Why Bother?, Slaw, 3/28/2023, https://www.slaw.ca/2023/03/28/tribunal-rules-in-plain-languagewhy-bother/.
4 Kristi Paulson, Inside ADR’s Minnesota Rules Reset: Understanding the New Rule 114, Bench & Bar of Minnesota, January/February 2023, at 33.
5 Id., at 36.
6 William Strunk Jr. & E.B. White, The Elements of Style 23-24 (4th ed. 2000).
7 Even worse: “Neutrals serving under this rule shall be deemed to consent to ...” (emphasis added). The bolded phrase can be eliminated with no loss in meaning.
8 Ian Lewenstein, Bring your Writing to Life: Use Recognizable Characters and Action Verbs, 102 Mich. Bar J. 26, 26-28 (Feb. 2023).
9 Pursuant to, Black’s Law Dictionary (10th ed. 2014).
10 Uniform Law Commission, Drafting Rules and Style Manual 62 (2022).
11 Bryan A. Garner, Garner’s Modern English Usage 1086-88 (5th ed. 2022).
12 Kristi Paulson, ADR: Understanding the New Code of Ethics for Court-Annexed Neutrals, Bench & Bar of Minnesota, March 2023, at 20.
13 Bryan A. Garner, LawProse Lesson #400: So what’s a paragraph?, 3/8/2023, https://lawprose.org/lawprose-lesson-400-so-whats-a-paragraph/.