51–60 of 337 posts
Earlier quoted context omitted.
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
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 agre…
If you decide to try to bring a claim against your mortgage lender, will you have a lawyer read your mortgage agreement before you file suit? Surely.
Earlier quoted context omitted.
> Most other countries in the Anglosphere have been through a "plain english" language push in both contract & legislation The US has seen big pushes for plain English. Nixon, Carter, Clinton and, most recently, Obama have all championed this. It has been federal law since 2010 for all executive branch agencies to use plain language in any official document they produce, for instance. Similar desires in law and contr…
On the other hand, if it’s been championed since Nixon, that means his problem is not solved.
I think this "poor writing", as in hard to understand writing with long backreferences is due to the same reasons as why many academics are terrible at explaining things, as well as why source code is hard to read. I should know, others usually like pointing out how terrible I am at explaining things. And I think I know why. When I make a naive attempt at describing a complex, interconnected concept, such as a piece…
Good writing, just like good code is well-factored and self-documenting. Easy to understand identifiers, short functions.
What you suggesting is the equivalent of writing a module using a long string of function calls, some of which have very non-obvious meanings, and claiming that there isn't a way to factor it out.
I think this "poor writing", as in hard to understand writing with long backreferences is due to the same reasons as why many academics are terrible at explaining things, as well as why source code is hard to read. I should know, others usually like pointing out how terrible I am at explaining things. And I think I know why. When I make a naive attempt at describing a complex, interconnected concept, such as a piece…
Elaborate details in each important direction, separately.
Finally, describe unusual complications that arise when different elaborations are combined. Use a narrative voice when there's a process to explain (but, be sure to use numbered statements!). Use a well-known top-level article structure to help familiarize your reader — but be sure they know to expect that structure.
Finally, always edit for clarity.
Earlier quoted context omitted.
> I think the reason contracts aren't readable to laypeople is because laypeople aren't the intended audience. That's partly true — but there's no reason a contract can't be written to be understandable by mere mortals. (I do a lot of contract drafting and have been teaching it to 3Ls for years.)
Cool! Let me ask you this, though: why shouldn't I be a L.O.A.D.? Also, who's the L.O.A.D. when I and a counterparty are editing a contract someone else drafted a template for five years ago? Am I expected to use my negotiating 'gun powder' to fix clarity issues? Ultimately, the ethical responsibility is to choose the best client representation over the most readable contract, right? Those don't always overlap, do th…
It depends on what's meant by "the best client representation" — is it "best" for the lawyer, or for the client?
What clients want — pretty much universally — is a contract that:
* sensibly and understandably handles the usual use cases;
* addresses the important business risks; and
* can be negotiated and signed quickly — in many cases that might be the client's most-important consideration, because the client is confident that the deal will go smoothly and/or that the business risks are low — and an understandable contract draft can be negotiated far more quickly than a draft that's loaded with "wall of words" provisions.
(The old saying is that most contracts are signed and never seen again, either because the deal goes smoothly or the business people work out any difficulties between themselves without getting lawyers involved.)
Almost never do clients give a [hoot] about maximizing their theoretical legal position for every conceivable set of circumstances — in fact, they're actively hostile to doing so if it means undue delay in getting the deal to signature.
A relevant Dilbert cartoon: https://dilbert.com/strip/2008-08-28
(Source: 40 years of law practice, including nearly seven years as vice president and general counsel of a public software company that I'd helped the founders to start.)
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, cre…
Earlier quoted context omitted.
> Most other countries in the Anglosphere have been through a "plain english" language push in both contract & legislation The US has seen big pushes for plain English. Nixon, Carter, Clinton and, most recently, Obama have all championed this. It has been federal law since 2010 for all executive branch agencies to use plain language in any official document they produce, for instance. Similar desires in law and contr…
On the other hand, if it’s been championed since Nixon, that means his problem is not solved.
Reading some of these before/afters gives me hope, though: https://www.plainlanguage.gov/examples/before-and-after/
Before:
> This form will be used by Federal agencies to obtain applicant certification that States which have established a review and comment procedure in response to Executive Order 12372 and have selected the program to be included in their process, have been given an opportunity to review the applicant’s submission.
After
> If your State requires an opportunity to review your application, use this form to certify that you have done so. Include the form in your application.
I see CACs as footnotes, directly attached to the clause.
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?
1. Your contract is really confusing and looks like it benefits the counter party at face value, but actually benefits you upon close inspection. These things can help with that. It's "dark arts" to apply this technique, and there are various shades of gray, but it happens.
2. It might cost less to have your lawyer correct these things. If I (lawyer) correct them and the the other lawyer has to read them and debate them with me, we're spending client money.
3. "Non-standard capitalization" for most purposes is standard in legal contracts. As lawyers we are more used to non standard than standard. I don't know what center-embedded means, and for passive voice, I'd need to see the example. Passive voice can be helpful as ambiguity can pull more possibilities into play, if desired. E.g.: "there shall be no fraudulent use of party A's intellectual property" is broader than "party b shall not use party a's intellectual property."