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Poor writing, not specialized concepts, drives difficulty with legal language

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Re: Poor writing, not specialized concepts, drives difficulty with legal language

#21

Post by YawningAngel »

Our_Benefactors wrote: post #12

> (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; It seems like a misrepresentation to call “long-distance syntactic dependencies” in a legal document the same thing as poor writing when comparing to other genres of written English including those that…

> But legal frameworks don’t cover individual situations, they paint broad strokes over the human experience.

If that doesn't cohere with the questions individuals exploring the law actually have, maybe that isn't a good way for legal frameworks to be designed?

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#22

Post by Jtsummers »

johndhi wrote: post #16
Our_Benefactors wrote: post #12

> (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; It seems like a misrepresentation to call “long-distance syntactic dependencies” in a legal document the same thing as poor writing when comparing to other genres of written English including those that…

I'm guessing what they mean with long distance dependencies is section 3 of the contract sets one scenario and section 46 an exception to it. This happens (normally, intentionally) when there is a section up front or at the end that sets defined terms. It also happens in a way we lawyers agree kind of sucks but whatever who cares - when after a long negotiation we're adjusting one small point and don't want to go thr…

No need to guess, they give an example of the kind of thing they mean:

> “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.”

"center-embedding" is the term they use to describe this, note the long interruption of the primary sentence due to the embedding. A suggested alternative which removes the embedding making the primary sentence easier to understand:

> “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.”

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#23

Post by johndhi »

YawningAngel wrote: post #21
Our_Benefactors wrote: post #12

> (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; It seems like a misrepresentation to call “long-distance syntactic dependencies” in a legal document the same thing as poor writing when comparing to other genres of written English including those that…

> But legal frameworks don’t cover individual situations, they paint broad strokes over the human experience. If that doesn't cohere with the questions individuals exploring the law actually have, maybe that isn't a good way for legal frameworks to be designed?

This is a very complicated proposal you've made but I think the main answer is, it isn't scalable for policymakers or even courts to consider everyone's individual situation a priori. It would cost too much money.

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#24

Post by CharlesW »

tomrod wrote: post #10
Sebguer wrote: post #5

Earlier quoted context omitted.

Normal English evolves. Contracts rely on precise, shared understanding, and so it builds up its own jargon and shibboleths to represent concepts that everyone can have a singular understanding of. You don't want there to be any ambiguity in your contract, or any chance that courtroom precedents may not apply because your language differed from the 'norm'.

By your explanation, the language is broken by design. It cannot simultaneously not change while also develop shibboleths.

The parent commenter said explicitly that Legal English¹ "builds up its own jargon and shibboleths". However, this type of change happens differently than how general English evolves. It might help to think of Legal English as a DSL.

¹ https://en.wikipedia.org/wiki/Legal_English

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#25

Post by swayvil »

johndhi wrote: post #15

I am a lawyer who works with but doesn't do a MASSIVE amount of contract writing like some. I don't think "poor writing" is the right phrasing here, which implies ignorance or ineptitude. I think the reason contracts aren't readable to laypeople is because laypeople aren't the intended audience. We all know no one reads these, so we write them to future lawyers and courts who might want to get our clients in trouble.…

I imagine that a contract must be written for the malevolent reader. The opposite of generous. Striving not to communicate, but to preemptively win every possible argument. An airtight construction.

Quite different from a conversation. Well, an ideal conversation anyway. Internet conversations seem to be more combative every day.

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#26

Post by Victerius »

swayvil wrote: post #20

The sheer verbosity of the average person on the internet has always amazed me. You can't say anything in less than 3 solid paragraphs. Sometimes I wonder if the problem is mine. It certainly seems a hinderance to communication.

No post body was provided.

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#27

Post by pdonis »

johndhi wrote: post #15

I am a lawyer who works with but doesn't do a MASSIVE amount of contract writing like some. I don't think "poor writing" is the right phrasing here, which implies ignorance or ineptitude. I think the reason contracts aren't readable to laypeople is because laypeople aren't the intended audience. We all know no one reads these, so we write them to future lawyers and courts who might want to get our clients in trouble.…

> I think the reason contracts aren't readable to laypeople is because laypeople aren't the intended audience.

This doesn't make sense. The parties to the contract are presumably laypeople, and they have to understand it before they agree to it and sign it since one of the legal requirements for a valid contract is a meeting of the minds, meaning a common understanding between the parties of what each of them is agreeing to.

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#28

Post by Quarrel »

I've been a CTO at companies in various bits of the Anglosphere, and signed contracts in all of the bits (and some other places).

I'm also married to an Anglosphere lawyer (which gives me lots more exposure than I might have guessed to the idiosyncrasies of the profession).

In my experience, I very much agree with the headline (and abstract) here, but would emphasise that the US is the worst for archaic language, creating a worse barrier to entry. Most other countries in the Anglosphere have been through a "plain english" language push in both contract & legislation, while the US has stuck to "this language is proven through precedent" more stubbornly than anywhere else. This seems to be particularly prevalent in IP law, although that might be my tech bias showing.

I would very much argue against those (even in this thread), that say that the lay-person isn't the intended audience for lots of contracts, particularly for T&Cs where they are often written by a contracts lawyer, for a contracts lawyer or judge, but should ABSOLUTELY be written for the lay-person to understand.

Anyway, I think the legal profession can & should do better.

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#29

Post by chaps »

johndhi wrote: post #15

I am a lawyer who works with but doesn't do a MASSIVE amount of contract writing like some. I don't think "poor writing" is the right phrasing here, which implies ignorance or ineptitude. I think the reason contracts aren't readable to laypeople is because laypeople aren't the intended audience. We all know no one reads these, so we write them to future lawyers and courts who might want to get our clients in trouble.…

Yeah. Law is weird and gets weirder when you scrutinize it as far as it can be scrutinized, which often happens in court.

Not contract law, but I've been in two years of FOIA litigation to resolve a legal interpretation of "would" vs "could", and how that applies to a comma-separated list of categories. It's beyond maddening how long legal interpretation issues can go on for.

It sucks, but sometimes the verbosity is needed to avoid these sorts of years-long fights.

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#30

Post by lelandfe »

johndhi wrote: post #15

I am a lawyer who works with but doesn't do a MASSIVE amount of contract writing like some. I don't think "poor writing" is the right phrasing here, which implies ignorance or ineptitude. I think the reason contracts aren't readable to laypeople is because laypeople aren't the intended audience. We all know no one reads these, so we write them to future lawyers and courts who might want to get our clients in trouble.…

You're saying that "center-embedded clauses... passive voice structures, and non-standard capitalization" are actually of benefit to the clients?
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