The Office of Council Services is committed to helping the Council satisfy the State Constitution’s directive on the use of plain language in governmental writing, including bills and resolutions. Not only is plain language mandated, it promotes precision and clarity in legislation, enhancing the Council’s effectiveness. Writing experts agree that plain language is powerful.
OCS will strive to assist the Council in phasing out or minimizing the use arcane or confusing terminology, often called legalese, in legislation.
As principles of legislative drafting continue to evolve and as we learn from experience, OCS anticipates the Council will periodically modify its practices. For now, we will turn to the following documents, among others, for guidance:
- Hawaii Legislative Drafting Manual (10th, December 2012)
- “Ax these terms from your legal writing,” by Bryan Garner, ABA Journal (April 1, 2014)
- “Drop the Jargon,” by Jessica Beyer and Brian Lieb, National Association of Counties (July 16, 2015)
- “A Beginner’s Guide to Legislative Drafting,” by Deborah Beth Medows, Harvard Journal on Legislation (October 24, 2016)
- PlainLanguage.gov on “Shall and must”
Some of the plain-language principles included in these resources are recited below.
Hawaii Legislative Drafting Manual (10th ed., December 2012):
- Use words that are plain, clear, well understood, and not ambiguous. Do not use unnecessary words. Be consistent; do not use the same word or phrase in different contexts. Do not use synonyms.
- Avoid couplets: use “void” instead of “null and void.”
- Use the singular instead of the plural. The singular includes the plural. See section 1-17, HRS.
- Although the masculine includes the feminine (see section 1-17, HRS), do not use gender specific terms, such as “he” or “she,” “his” or “hers,” “they” or “theirs”; instead use the antecedent noun or use the word “person” or “individual” or other neuter term. Do not use words such as “chairman” and “salesman”; use gender neutral terms such as “chairperson” and “salesperson.”
- Do not use “and/or.” See section 1-18, HRS. If necessary use “or both,” e.g., “this or that, or both,” or “this and that, or both.”
- Do not use “said” as an adjective.
- Do not use: “aforesaid”; “forthwith,” “henceforth,” “hereafter,” “hereby, “ “hereunder,” “in the event that” (use “if”), or “in order to (use “to”).
“Ax these terms from your legal writing,” by Bryan Garner, ABA Journal (April 1, 2014):
- herein The problem with herein is that courts can’t agree on what it means. In this agreement? In this section? In this subsection? In this paragraph? In this subparagraph?
- deem The Seattle Seahawks are deemed to be the XLVIII Super Bowl champions. That’s silly. They are the champs.
- provided that Experts in drafting have long agreed that this phrase is the bane of legal drafting. It has three serious problems: (1) its meaning is unclear—it can mean if, except or also; (2) its reach is uncertain—that is, it may modify the preceding 12 words or the preceding 200; and (3) it causes sentences to sprawl. A variant form is the phrase provided, however, that. If you see it, try inserting a period and begin a new sentence with a capitalized But.
- pursuant to This is pure legalese.
- said As the past tense of say, this word is fine. As a fancy-pants substitute for the (such as said agreement), it isn’t fine at all.
“Drop the Jargon,” by Jessica Beyer and Brian Lieb, National Association of Counties (July 16, 2015):
How to apply plain language
The goal is clear, concise and scannable
- Include only what the audience needs
- Organize so key information is featured
- Use descriptive headings and white space
- Avoid acronyms, jargon and odd capitalization
“A Beginner’s Guide to Legislative Drafting,” by Deborah Beth Medows, Harvard Journal on Legislation (October 24, 2016):
- Write simply and carefully. Legislative drafting is “a highly technical discipline, the most rigorous form of writing outside of mathematics.” It functions as practical poetry for lawyers as we artfully select words to shape society.
- Write purposefully. Be aware of the connotations of the various documents that you write, because they can have major practical consequences when applied. Word choice can be critical and powerful.
- Do your research efficiently. You need at least a rudimentary understanding of the issue your legislation addresses.
- Do not automatically rush to recreate the wheel. Examine how other jurisdictions have drafted similar legislation.
In addition, OCS recommends elimination of “including but not limited to” and similar variations in legislation. This terminology is imprecise and confusing. It is usually intended to convey non-exclusivity of listed items. But there are better ways to convey that message or whatever the desired message may be. Sometimes that will mean just using “including.” Sometimes that will mean avoiding a list. In other cases, it will mean taking additional time and effort to think about what we are trying to express.
Here is some guidance on why “including but not limited to” is, at best, superfluous:
- “The term ‘including’ in no way implies exclusivity.” Lealaimatafao v. Woodward-Clyde Consultants, 75 Hawai`i 544, 556-557 (1994).
- “The participle ‘including’ typically indicates a partial list . . . some drafters use phrases such as ‘including without limitation’ and ‘including but not limited to’ — which mean the same thing.” Black’s Law Dictionary at 880 (10th, 2014).
Some courts have even held the phrase “including but not limited” means the subsequent list is exclusive:
- “When the legislature uses the phrase ‘including, but not limited to’ in a statute, the application of that statute is limited to the types of items therein particularized.” In re Clark, 910 A.2d 1198, 1200 (N.H. 2006) (construing “all income from any source, whether earned or unearned, including but not limited to, wages, salary, commissions, tips, annuities, social security benefits, trust income, lottery or gambling winnings, interest, dividends, investment income, net rental income, self-employment income, alimony, business profits, pensions, bonuses, and payments from other government programs . . . including, but not limited to, workers’ compensation, veterans’ benefits, unemployment benefits, and disability benefits. . . .”) (citations omitted).
- “If all goods of any kind are to be included, why mention only a few? A court required to give ‘reasonable and effective meaning to all terms,’ must shy away from finding that a significant phrase (like the lengthy description of chemicals and fertilizers we have here) is nothing but surplussage.” Shelby County State Bank v. Van Diest Supply Co., 303 F.3d 832, 837 (7th Cir. 2002) (construing “all inventory, including but not limited to agricultural chemicals, fertilizers, and fertilizer materials”).
OCS will also seek to phase out the use of “shall,” following the example of our counterparts at the Honolulu City Council and in an increasing number of legislative bodies. The Obama Administration’s PlainLanguage.gov project, launched in response to the Plain Writing Act of 2010, provided the following advice:
Shall and must
Use “must” not “shall” to impose requirements. “Shall” is ambiguous, and rarely occurs in everyday conversation. The legal community is moving to a strong preference for “must” as the clearest way to express a requirement or obligation.
- “Shall” has three strikes against it.
First, lawyers regularly misuse it to mean something other than “has a duty to.” It has become so corrupted by misuse that it has no firm meaning.
Second—and related to the first—it breeds litigation. There are 76 pages in “Words and Phrases” (a legal reference) that summarize hundreds of cases interpreting “shall.”
Third, nobody uses “shall” in common speech. It’s one more example of unnecessary lawyer talk. Nobody says, “You shall finish the project in a week.”
For all these reasons, “must” is a better choice, and the change has already started to take place. The new Federal Rules of Appellate Procedure, for instance, use “must,” not “shall.”
Prof. Joe Kimble, Thomas Cooley Law School
- “Must” is now being extensively used
in the legislation of… Australia and at least three Canadian provinces (British Columbia, Alberta and Manitoba) that have amended their Interpretation Acts to say that “must” is to be interpreted as imperative.”
“Must” may be used to create requirements and prohibitions. However, prohibitions should be drafted in the form of “X must not”, rather than “no X must”.
Drafters should not use “must” and “shall” together in the same Act or regulation. It could raise questions about whether different meanings are intended.”
Justice Canada’s Legislative Services Branch
- Delete every shall.
“Shall” isn’t plain English. . . But legal drafters use “shall” incessantly. They learn it by osmosis in law school, and the lesson is fortified in law practice.
Ask a drafter what “shall” means, and you’ll hear that it’s a mandatory word—opposed to the permissive “may”. Although this isn’t a lie, it’s a gross inaccuracy. . . Often, it’s true, “shall” is mandatory. . . Yet the word frequently bears other meanings—sometimes even masquerading as a synonym of “may”. . . In just about every jurisdiction, courts have held that “shall” can mean not just “must” and “may”, but also “will” and “is.” Increasingly, official drafting bodies are recognizing the problem. . . Many . . drafters have adopted the “shall-less” style. . . You should do the same.
Bryan Garner, Legal Writing in Plain English, 2001, pp 105-06.
OCS will also seek to avoid distracting legalistic techniques such as parenthetical plurals and parenthetical numerals.