contract-law lawyer legal-writing
Why do lawyers write contracts with language that is more difficult to understand than other works?
<p>The recent <a href="https://doi.org/10.1016/j.cognition.2022.105070" rel="noreferrer">Ig Nobel Prize Winning work &quot;Poor writing, not specialized concepts, drives processing difficulty in legal language&quot; by Martínez, Mollica, and Gibson</a> demonstrates that contracts are written in language that is harder to understand than other genres such as academic or media writing.  In particular, center-embedded clauses are used at more than twice the rate in contracts than in other professional writing except newspapers, lead to long-distance syntactic dependencies and are recalled and comprehended at lower rates than excerpts without these clauses.</p>
<p>Why is this?  One would have thought that making contracts understandable to the parties would generally be in everyone best interest, but it is possible to imagine situations where this is not the case.</p>
<p>Abstract of the paper:</p>
<blockquote>
<p>Despite their ever-increasing presence in everyday life, contracts remain notoriously inaccessible to laypeople. Why? Here, a corpus analysis (n ≈10 million words) revealed that contracts contain startlingly high proportions of certain difficult-to-process features–including low-frequency jargon, center-embedded clauses (leading to long-distance syntactic dependencies), passive voice structures, and non-standard capitalization–relative to nine other baseline genres of written and spoken English. Two experiments (N=184) further revealed that excerpts containing these features were recalled and comprehended at lower rates than excerpts without these features, even for experienced readers, and that center-embedded clauses inhibited recall more-so than other features. These findings (a) undermine the specialized concepts account of legal theory, according to which law is a system built upon expert knowledge of technical concepts; (b) suggest such processing difficulties result largely from working-memory limitations imposed by long-distance syntactic dependencies (i.e., poor writing) as opposed to a mere lack of specialized legal knowledge; and (c) suggest editing out problematic features of legal texts would be tractable and beneficial for society at-large.</p>
</blockquote>
<p><img src="https://ars.els-cdn.com/content/image/1-s2.0-S0010027722000580-gr1_lrg.jpg" alt="Comparison of indices of linguistic processing difficulty in contracts versus various genres of written and spoken English" /></p>
<p><img src="https://ars.els-cdn.com/content/image/1-s2.0-S0010027722000580-gr2_lrg.jpg" alt="Effect of text register on comprehension accuracy in the main experiment" /></p>

<h2>There Is Little Pressure To Improve Contract Drafting</h2>
<p>One piece of the puzzle is tradition and habitual writing style. A customary writing style for legal documents evolved over time, some of those conventions have evolved overtime (e.g. &quot;Party of the first part, party of the second part&quot;), others have not.</p>
<p>Archaic vocabulary is slowly being weeded out, but again, it is almost never the goal of someone drafting a contract to reduce the reading level of the document. As long as the judge, or other lawyers, know what it means, it is an aesthetic stylistic issue more than it is a substantive issue of importance.</p>
<p>Contract drafting is highly decentralized and change happens only when there is a powerful impetus for change.</p>
<p>Does this mean that legal writing can't be improved?</p>
<p>No.</p>
<p>Some lawyers are excellent writers in both contract drafting and in court documents.</p>
<p>A well drafted contact can reduce litigation costs when there are disputes. It can also increase compliance with the intent of the parties by preventing disputes over what the contract means from arising in the first place.</p>
<p>But most lawyers are mediocre contract drafters, and there is little selective pressure in transactional legal work to weed out their sub-optimal writing styles.</p>
<p>Bryan A. Garner, who among other things is the editor of Black's Law Dictionary, is pretty much the leading figure in the United States pushing for a more modern, more readable, less flabby legal writing style. This is exemplified, for example, in his book &quot;<a href="https://rads.stackoverflow.com/amzn/click/com/0226283933" rel="nofollow noreferrer" rel="nofollow noreferrer">Legal Writing in Plain English</a>&quot; (2d ed. 2013).</p>
<p>But even then, a lot of the impetus for his stylistic decisions was primarily driven by the need to get across ideas clearly, in a minimum of words, when writing appellate briefs with word limits. This is also the main context in which legal writing is taught in law school and continuing education classes.</p>
<p>In contracts, in contrast, in our current era of the word processor, long documents are easy to deliver, and long passages of writing can be cut and pasted. So, the same outside pressures to limit word counts and persuade judges who will read legal briefs cover to cover in order, are not present when drafting contracts. So, the pressure to have a succinct plain language writing style in contracts is less strong.</p>
<p>This said, when there has been regulatory pressure to write consumer contracts in a way that an average consumer can understand, it can be done.</p>
<p>For example, most credit card agreements are written in very clear plain English with a very low reading level compared to other contracts.</p>
<p>But those easy to read credit card agreements are drafted by committees of many lawyers and senior executives, each charging hundreds of dollars an hour, over many meetings over a period of weeks of debate and refinement, and a cost of many tens of thousands of dollars each to draft.</p>
<p>The flabby and clunky character of legal writing also reflects client imposed budgetary constraints. It takes much more time and effort, with multiple rounds of rewriting and editing, to write a clean, easy to read contract than it does to write a kludgy one.</p>
<p>Lawyers bill by the hour and clients want the job done at a price that they can afford. There is little incentive in contracts that will not be used many times as forms, to take the effort to produce a clean, easy to read final product. This kind of beautifully drafted contract costs much more to draft for the client, but provides little additional legal benefit to the client.</p>
<p>Few contracts are ever litigated at all, and when they are, the legal drafting tends to focus on only a handful of key provisions that are carefully drafted. Boilerplate language, which is often less carefully drafted, is very rarely litigated, so the quality of that writing doesn't matter much.</p>
<h2>Capitalization</h2>
<p>As far as capitalization goes, I agree with @user6726 that <strong>all-caps writing is often required by law</strong>. These requirements were based upon the previous legislative assumption that it was more prominent and more likely to be read, which has since been proved to be false empirically. But new empirical discoveries about readability haven't changed the relevant laws requiring certain language in contracts to be &quot;prominent&quot; and in all caps.</p>
<p>I would also add that there is a legal writing convention that defined terms have capital letters (although not necessarily all caps), which is a pointer to when one needs to look for a definition, that relaxes the need to put the definitions of capitalized words in the actual sentence where those terms are used.</p>
<p>Weird capitalization can facilitate shorter sentences.</p>
<h2>The Relevant Audience</h2>
<p>I'd also agree that the primary audience for contract language is often not an unsophisticated non-lawyer consumer. While it's true that the average American reads at about the 5th grade level and can't do algebra, that person isn't the target audience. In the same vein, you don't write scientific journal articles for an audience of the average American.</p>
<p>When push comes to shove, written contracts are interpreted as a matter of law by judges who are legally trained, and not a matter left to a jury of non-lawyers to decide.</p>
<p>Most business to business contracts are negotiated by lawyers. Most business to business contracts have as additional audiences sophisticated senior managers of business with some limited formal business law training in college, who also have great familiarity with the class of contracts involved.</p>
<p>Even in consumer contracts, when consumer protection regulations and statutes do not compel another approach, the intent is frequently a MEGO effect (My Eyes Glaze Over) in the hope that the consumer, who often isn't at liberty to negotiate the terms anyway, won't decide to read the fine print.</p>
<p>The only language in a contract that needs to be clear to the consumer is the actionable part like the price that needs to be understood by the consumer to perform it. And, often those parts of a contract are provided in a separate short summary document with the full contract available for future reference but not intended to be routinely read in full.</p>
<p>Furthermore, characteristic legal writing styles can convey a sense of importance and official authority. It sounds like it is and is intended to have legal effect. It's the same reason that fictional magical spells are far more often in Latin or Greek or Sumerian than they are in plain English. Language too ordinary conveys the false impression to a client that anyone could write the contract even if legal skill is implicated in drafting it, and can even cast doubt over whether a document was intended to be a legally binding contract in the eyes of a non-lawyer encountering it.</p>
<h2>Long Sentences, Definitional Clauses, And Pronouns</h2>
<p>One of the key factors that is identified as making legal writing hard to read is the use of internal definitional clauses within sentences and the use of very long sentences.</p>
<p>It is possible to draft without those. But, often including it in the same sentence reflects the drafting lawyer's thought process.</p>
<p>It can also reflect a negotiated contract drafting process. Even if an initial draft of a contract has simple sentences clearly laid out, it may be easiest to clarify a bargaining point in contracting negotiations by complicating the sentence in question to make it reflect the other side's preferred interpretation, even if it is stylistically ugly. And, changing that language in a final draft to make the contract look pretty is viewed with the suspicion that a subtle substantive change in the meaning of the contract from the haggled term was intended.</p>
<p>As an aside, some contract provisions in hotly negotiated contracts are also sometimes intentionally ambiguous. This is because resolving the ambiguity could result in a fight over a side issue that could bust the deal if each side insisted on their own interpretation. Leaving the term ambiguous allows a judge evaluating a dispute that actually arises, if a dispute even arises over that term (which it often doesn't), in order to do what makes sense under the circumstances instead.</p>
<p>Also, lawyers are wretchedly afraid of an adverse party quoting a sentence in a contract without including the related context that clarifies its meaning (e.g. by omitting definitions that are not obvious from the plain language of the contract).</p>
<p><strong>Unlike most prose, contracts are rarely read front to back the way you would a court opinion or a newspaper report or a short story.</strong> Normally, someone using a contract quotes only the relevant portion of the contract in isolation from the larger entire document.</p>
<p>When ideas are broken into separate sentences, lawyers are very worried, rightly or wrongly, that different sentences in a paragraph or section modify each other, rather than being isolated islands of legal propositions. So lawyers are more comfortable when as many connected ideas as possible are all contained in the same sentence in which everything must be related somehow.</p>
<p>Lawyers feel more comfortable and secure arguing about the meaning of a single sentence, than they do arguing that a simple short sentence should have a particular meaning based upon the larger context in which it is found.</p>
<p>Similarly, lawyers are quite wary about using pronouns that aren't defined terms in the contract, for fear that the person that the pronoun refers to will be incorrectly assigned, even though this is an unnatural way of writing.</p>
<h2>Common Law Contracts v. Civil Law Contracts</h2>
<p>Also, as an aside, contract drafting is an area where common law legal drafting styles differ materially from civil law country legal drafting styles (e.g. in continental Europe).</p>
<p>This is because in civil law countries there is a great effort made to provide for what would usually be boilerplate language in U.S. contracts as default statutory rules that match the default choices that are usually made in contracts negotiated between third-parties. Far less can be taken for granted in common law countries.</p>
<p>A lot of the operative language in a common law jurisdiction contract, including much of it the most difficult to read legalese in contracts, is simply implied in law unless specifically disavowed, in many civil law countries.</p>
<p>As a result, civil law country contracts are usually much shorter and more focused on the deal specific terms than a common law jurisdiction contract. A civil law business agreement that runs to five pages might typically take 30-40 pages to write saying exactly the same thing in a common law jurisdiction.</p>

<blockquote>
<p>Why do lawyers write contracts with language that is more difficult to understand that other works?</p>
</blockquote>
<p>Because if contracts were written easy to understand, lay persons wouldn't need lawyers to explain them.</p>

<p><a href="https://en.wikipedia.org/wiki/Information_asymmetry" rel="noreferrer">Information asymmetry</a>.</p>
<p>You are assuming that most of the times the contractual parties have the same negotiating power, but that is not the case. The majority of the contract are designed to be clear for the experienced party who used that types of clauses for most of their working life and difficult do understand for the other party.</p>
<p>Insurance contracts and other contracts where a business provides a service to a private person. Labour contracts offered by recruiters or HR employees. Contracts between a real estate agency and an individual. All of these make a massive amount of cases that pit a professional skilled in the field against a person with far less experience. It is obvious who will have an advantage from the language difficult to understand.</p>

<p>On the one hand, there does exist a trend in law in favor of more user-friendly drafting. On the other hand, there is a trend that is almost a millennium old that what worked before, you can count on to work in the future. End-users are not the intended customers for legal writing, lawyers and courts are, and lawyers are adept at understanding these structures (if competently drafted). There is a related belief that the old ways of writing are &quot;more precise&quot;. Lawyers know what these clauses mean; lawyers explain to their clients what the contract means. I contend that the study is flawed because it does not distinguish between consumer contracts and lawyer-to-lawyer contracts, instead the just harvested an indiscriminate pile of contracts. I conjecture that if they had redone the study looking only at consumer contracts, that they would not have gotten those results. In addition, the study does not appropriately control for register, insofar as COCA is a significantly lower register than one finds in legal writing. It's not about legal writing per se, it's about register.</p>
<p>There is one structural feature that can be pointed out as a fundamental cause of confusion, which is the complex structure of single sentences. An example from the paper:</p>
<blockquote>
<p>In the event that any payment or benefit by the Company (all such
payments and benefits, including the payments and benefits under
Section 3(a) hereof, being hereinafter referred to as the ‘Total
Payments’), would be subject to excise tax, then the cash severance
payments shall be reduced.</p>
</blockquote>
<p>I do not see any way to rewrite this as a single sentence and include all of the relevant information expressed in that sentence. The author's solution is to write this as three sentences</p>
<blockquote>
<p>In the event that any payment or benefit by the Company would be
subject to excise tax, then the cash severance payments shall be
reduced. All payments and benefits by the Company shall hereinafter be
referred to as the ‘Total Payments.’ This includes the payments and
benefits under Section 3(a) hereof.</p>
</blockquote>
<p>This is still bad writing in the revision (&quot;hereof&quot;?!?!; no reason to keep the Total Payments definition in the middle of the discourse), but it is structurally better. The underlying problem is one needs a more-contextual theory of semantics, because there <em>is</em> a desideratum in law of writing single sentences (&quot;pronouncing sentence&quot; comes from a requirement in France that the verdict must be a single sentence).</p>
<p>The authors should have consulted someone like Larry Solan of Pierter Tiersma (linguist-lawyers) to find out why there is capitalization – IT IS REQUIRED BY LAW that disclaimed be &quot;prominent&quot;.</p>

<p>I'd add one more thing to all the great points here:</p>
<p>What diffrenciates contracts from other kinds of writting is very high probability of a conflict about its content. When writting some news, articles or fiction, you can easily assume that a lot of things are obvious for a reader and usually reader's attitude to your text is positive - they want to understand what you're trying to convey.</p>
<p>Situation is a bit different in academical papers. Readers often want to find a loophole in your research, but again - it's the reaserch they want to undermine, not some particular word. You can always publish some ammendment if needed. And also in case of whitepapers, researchers benefit from quoting, so they want they article to be as easy to grasp as possible, at least for other experts on the field</p>
<p>But in case of contract, every ambiguity may work to your disadvantage. You may say, you ment something else, but other party might declare otherwise and you got a problem. So you need the most unambigous language possible. So, while it certainly could be improved, it probably always will be one of the most difficult to understand (if not the most difficult)</p>

<p>45 years ago in law school I asked the same question. My contracts prof opined that there are many reasons, but the “real” reason is “precedent.” Old language is perpetuated because it was so confusing a judge had to decide what it meant. So once interpreted, the language became “form book” examples.</p>

<p>Some startups started to use summaries of their contracts for the service they provide which is ethical so long as they set forth generally the rights and duties of their consumers. This typically means that the right provided in the summary are defined more narrowly — effectively suggesting less rights then actually supported by the detailed contract — and broader duties — effectively suggesting more duties imposed on the consumer.</p>
<p>If the consumer feels certain exceptions should apply in the general terms, they must read the contract itself.</p>

<p>From my experience, there are several reasons</p>
<ol>
<li>this is a technical langage, with specific terms for specific notions. Just like medecine or army.</li>
<li>there is a tradition with some words, latin expressions or usage/security clauses in contracts</li>
<li>use of jargon: because some lawyers want to look smart and it confuse people. In the end, this is reassuring for the main client to have a 50 pages contract which looks super-technical. It &quot;worth the money&quot;.</li>
</ol>
<p>Communication is indeed a tool of power.</p>
