Why most of us dread reading the fine print (HINT: it’s not the font size)
Updated: Dec 18, 2019
Leave someone (especially a solicitor) alone to draft anything “legal” and there’s no telling what will happen.
With luck, you’ll get something straightforward and business-like. With less luck, you’ll get something more traditional: tedious and flowery prose, chock full of legalese and artificial formality. It's why so many people dread reading the fine print.
As an example, consider the snippet below from a 20-page contract I recently grappled with. This is a contract between small businesspeople running a business together. They were somehow expected to govern their relationship with this.
Drafted in 2008 (not 1948), this whole tiresome excerpt is just a single sentence.
As legalese writing goes, this might be a bit extreme… but only a little bit. I’ve seen a few other contracts like it in my 12 years of legal practice.
Plain language: write like you’d speak, then adjust slightly
Why would anyone ever write like this? Nobody ever speaks that way. There’s nothing clever or helpful about it. It is a complex, error-prone style that is difficult to parse and painful to proofread. Clients hate it and their lawyers need twice the time to advise on it properly.
The alternative, using plain language in contracts and other legal documents, has been debated for decades.
Proponents of plain language claim it saves time and makes clearer and more understandable documents. Plain-language documents are more likely to be read completely by consumers. This empowers them, making it more likely they will understand their legal rights and comply with their responsibilities.
Detractors claim that plain language “dumbs down” the language and patronises the reader. Some claim that traditional styles are more precise, since professional terms of art have exact meanings that can be hard to replicate in plain language.
I place myself firmly in the plain-language camp for a few reasons.
If a document is patronising or imprecise, it’s not because of plain language. It's just poorly drafted. Poor drafting is caused by inattention, haste, laziness or a lack of solid plain-language drafting skill.
Terms of art usually make up a tiny part of any legal document. They can easily be included within plain-language documents as necessary, and with no effect on their precise legal meanings.
Even with no stats to back it up, I feel safe in saying the chance of any given document landing before a judge is far less than 1%. That means almost 100% of the time the people trying to use the document in daily life will not be lawyers or judges. If the document is of no use to them, it’s mostly useless.
The harder it is to understand, the more likely a document will fuel a dispute instead of settling it.
Commercial first, then legal
Behind any commercial contract there are people doing business with each other. The contract should serve and support them, never the other way around.
Imagine a negotiation between investors setting up a new business together. What would they say to each other? How do you think they might describe how they want to manage the company together and what should happen if something were to go wrong?
Essentially, the written contract does no more than record the final result of that negotiation. So then is it a formal legal document? Or is it a practical commercial document with legal consequences. That might seem like splitting hairs, but I think it matters. The attitude of the drafter will come through in the style of the draft.
There is no reason to write contracts in anything other than normal, polite, commercial English, peppered sparingly with terms of art where unavoidable. To the extent possible, I try to use the same language the parties themselves use to describe their deal.
This is worth repeating: it’s their deal. They agreed it. If I do a good job, they will have no trouble understanding it once I put it on paper.
Primary audience is the client, not the judge
Lawyers sometimes say they write the contract with the judge in mind. That's always a good idea, but it's not the same as saying the judge is your audience. Remember:
If the parties to the contract understand it, so can the judge. It isn’t either/or.
Some specialised areas, such as real estate, use industry-standard agreed templates. However, those situations aside, many judges loathe legalese. It makes their job harder. Most would probably thank us to stop writing commercial contracts in that special “legal” style for their benefit.
As noted above, only a tiny fraction of a percent of contracts ever go near a judge anyway.
The main audience of any contract is the people who have to live with it most of the time. That's the parties, not the judge. Spare a thought for them, and for their account managers, contract managers, finance team, and anyone else who might read the document along the way.
Trevor Fenton, founder of Fentons Commercial Law, is a lawyer qualified in Scotland, England & Wales, and British Columbia.
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