Prof. Dauphinais in UND Discovery Magazine

A Passion for Clarity

by Juan Miguel Pedraza
UND Discovery
Winter 2007-2008

"The minute you read something you don't understand, you can be almost sure it was drawn up by a lawyer." So quipped American humorist and social critic Will Rogers (1879-1935). Yale law professor Fred Rodell, in a 1936 Virginia Law Review article, agreed: "There are two things wrong with almost all legal writing. One is its style. The other is its content."

University of North Dakota law professor and Columbia graduate Kirsten Dauphinais winces, smiles, and admits they're right on the money - most of the time. Take, for example, any of the "terms and conditions" that show up in dialog boxes whenever you install new software or sign up for some service on the Internet: ever read that fine print?

Microsoft's "terms of use" for its software downloads runs close to 4,500 words, or the equivalent of 10 pages of dense verbiage.

Here's a sentence from those terms: "Except as warranted in the license agreement, Microsoft Corporation hereby disclaims all warranties and conditions with regard to the software, including all warranties and conditions of merchantability, whether express, implied, or statutory, fitness for a particular purpose, title and non-infringement." (http://www.microsoft.com/info/cpyright.mspx#ESB)

"Yes," says Dauphinais, director of legal writing at the School of Law, "this kind of legalese isn't written to make things clear to non-lawyers. It takes a lawyer to parse it." Such, historically, is the way of lawyers: "The Utopians have no lawyers among them, for they consider them as a sort of people whose profession it is to disguise matters," wrote Sir Thomas More in his famous novel "Utopia" in 1516.

But Dauphinais, who also holds the Alphson research fellowship in the School of Law, is passionate about making the language of the law much clearer for everyone. She spends a good part of her day teaching UND law students to think and write clearly, and to communicate legal ideas and concepts without resorting to the dense legalese that dramatically reduce their usefulness to non-lawyers.

Clarity and transparency are ideas Dauphinais is taking to a wider legal audience. This summer, she was invited to partici pate as a presenter at the first international East African Legal Writing Institute.

"It was a conference for legal writing pedagogy," said Dauphinais, who belongs to several U.S. legal writing groups. "We're hoping that it was a landmark event. We focused on creating a program to build legal writing and Iawyering skills in East Africa's law schools. That area comprises mostly former English-speaking British colonies, so their legal structure is English common law, very much like ours."

Nowhere is the need for clear legal writing more evident, she points out, than in the process of democratization. "Developing cogent, meaningful, and readable legal language is vital for nation building and for human rights advocacy (in East Africa)," said Dauphinais. "But right now, East Africa is not graduating enough attorneys with the skills to participate fully in the process of nation building, the process of dialoguing with the world to promote human rights, the process of overcoming ethnic divisions.

"Thus it's important for us to figure out ways to deliver education to African students who are preparing to become lawyers," she said. "They face overwhelming odds and overwhelming challenges." For example, while a typical U.S. legal writing class will have up to 30 students per professor, in East Africa a teacher may have classes with 200 to 300 students. "It's impossible in that situation to give students the individual feedback that's essential to building good legal writing skills," said Dauphinais. Moreover, law students in East Africa often lack textbooks, have limited access to computers, and may find that printers have neither ink nor paper.

"So we aim to take U.S. pedagogical ideas about teaching skills such as legal writing and adapt them for our African colleagues in the face of such challenges," she said. Ultimately, Dauphinais says clarity in legal writing is for everyone studying law.

"Here at UND, our approach is clinical," she explained. "We're taking a ground-up approach to legal writing. We want students to know what it is they're going to say," and then get to the point, without layering in the dense legal jargon. "It's all about communicating effectively with the client," Dauphinais said.