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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

#91

Post by troad »

lelandfe wrote: post #35
Quarrel wrote: post #28

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…

> 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…

The US really does lag behind on this one; the push for plain English was phenomenally more successful in other Anglophone common law jurisdictions.

Having practised as a lawyer in one of them, I can confirm much contemporary American legal writing seems absurd and even comical. There’s something amateurish about it; like a layman trying to ad-lib some law talk at a party by cobbling together some obscure law terms he’s overheard.

“The first party of the aforementioned party - THIS PART IS IN CAPS - will henceforth wheretofore undertake that by no later than St Swithen’s Day - MORE CAPS MEANS MORE LAW - ”

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

#92

Post by lo_zamoyski »

torginus wrote: post #39

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…

> one basically needs to reproduce the thought process of how one would come up with the given model [...] people are much better at deriving the rules from a few examples than the other way around.

Indeed. I don't think this is as mystifying as some people seems to believe. There seem to be at least two errors poor communicators make.

The first is that communication doesn't transfer any content from one person to the other. We use signs and symbols with conventional meanings both parties accept to express things which are then interpreted by the other party. If you're not both on the same page, you have to first establish that common ground. Much of education involves building up that common vocabulary and system of signs so that we can even have the conversation. To think of communication as if you were some act of piping the actually semantic content from your mind to another's is to completely misunderstand communication and a recipe for failure and frustration because you will be unable to understand why someone cannot just grasp the content you think you've just poured into their head. "It's right there! I just gave it to you!"

This brings us to the second error. Knowing your audience means knowing what their current state of knowledge is. Part of that is knowing the vocabulary and system of signs your interlocutor knows. Explanation is therefore a matter of using what they already know to lead them to the conclusions you already have (introducing claims as necessary). Once the aim of explanation is stated that way, it starts to resemble something like a chain of reasoning...or an argument, which it basically is. I cannot derive certain theorems if I have not yet derived certain prior theorems, much less if I lack the axioms from which they are derived.

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

#93

Post by _ggwa »

My experience working as a patent examiner agrees fully with the title: legal texts tend to be hard mostly because they're poorly written. (DOC lawyers make me add this: This post is just my personal opinion, not that of the USPTO, DOC, US govt., etc.)

I've been trained in patent legal terminology, which isn't that bad. Patent documents are still frequently difficult to understand. I have one application on my docket where I'm going to have to rewrite one of the claims to understand what it's saying, and no, that shouldn't be necessary... And the situation with patent documents is worse than the situation described in the abstract as many attorneys write vaguely.

The argument that "lawyers are the intended audience" isn't legally sound either, as under 35 USC 112(a), patents are supposed to "enable a person skilled in the art [...] to make and use the [invention]". If an attorney argues that patents aren't supposed to be understood by non-attorneys, they're wrong, full stop.

Unfortunately, I'm not really allowed to do 112(a) enablement rejections. I'd do those sorts of rejections frequently if I could, but I think I can count the number of times I've done 112(a) enablement rejections on one hand. The law in other countries seems more strict than in the US. I'm told that Japan in particular takes enablement a lot more seriously than the US does.

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

#94

Post by xhevahir »

hn_throwaway_99 wrote: post #48

For everyone commenting "laypeople aren't the intended audience", this monstrosity was a recent Texas constitutional ballot proposal, i.e. all voters in the state were asked to vote on it: > The constitutional amendment authorizing the legislature to provide for the reduction of the amount of a limitation on the total amount of ad valorem taxes that may be imposed for general elementary and secondary public school pu…

The assumption of most of the comments here is that bad writing is a matter of incompetence, but in the case of public policy I think Hanlon's Razor no longer applies. Given what we know about Texas politics and American ballot measures in general, it's quite possible that the ambiguity was introduced deliberately to give big landowners (or rather their lawyers) extra wiggle room. If that's true then the only communications for which the public were the intended audience are the advertisements, which I'm sure bore no resemblance to the text of the law.

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

#95

Post by actionablefiber »

_raoulcousins wrote: post #83
zo1 wrote: post #69

Earlier quoted context omitted.

Whoever wrote or approved that should be fired. Whether they are a lawyer or politician, it matters not. To parse it one needs to write it out, draw brackets around concepts, and then add lines between the potentially-grouped concepts because there is so much in-between that you forget it all by the time you get to the end.

Funny that I was about to comment "it doesn't seem so bad, just draw a directed graph to work it out". Reading your comment it does seem a little unreasonable.

No ballot initiative should require back-of-the-napkin syntactic analysis to understand.

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

#96

Post by amilios »

gnicholas wrote: post #87
hn_throwaway_99 wrote: post #48

For everyone commenting "laypeople aren't the intended audience", this monstrosity was a recent Texas constitutional ballot proposal, i.e. all voters in the state were asked to vote on it: > The constitutional amendment authorizing the legislature to provide for the reduction of the amount of a limitation on the total amount of ad valorem taxes that may be imposed for general elementary and secondary public school pu…

Honestly, the ballotopedia summary [1] isn't much clearer! Looks like it passed overwhelmingly (87%), so presumably folks knew what it meant from TV ads? Or they were all successfully and massively misled by the other side's ads, and they had no idea what it meant! 1: https://ballotpedia.org/Texas_Proposition_1,_Property_Tax_Li...

The ballotpedia summary shows that there wasn't really a campaign opposing the measure it seems? In which case presumably it makes sense that it passed overwhelmingly, if no one was voicing any arguments against it

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

#97

Post by lamontcg »

AlbertCory wrote: post #88

IANAL, but I AM a patent agent, which means I passed the Patent Bar. So I haven't dealt in contracts, but a lot of the same considerations apply to patent claims. There is some claim language which is absolutely not required and any lawyer who uses it is just showing off. The article mentioned "aforesaid" which is a prime example in contracts (in patent claims, it's just "said"). For example: A TCP packet, comprising…

Your last example is why reading the law is tricky and why we need both a push for plain language and a push to explain language that is necessarily very specific.

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

#98

Post by chx »

AlbertCory wrote: post #88

IANAL, but I AM a patent agent, which means I passed the Patent Bar. So I haven't dealt in contracts, but a lot of the same considerations apply to patent claims. There is some claim language which is absolutely not required and any lawyer who uses it is just showing off. The article mentioned "aforesaid" which is a prime example in contracts (in patent claims, it's just "said"). For example: A TCP packet, comprising…

This here reminds me of George Carlin:

> People add extra words when they want things to sound more important than they really are. "Boarding process". Sounds important. It isn't. It's just a bunch of people getting on an airplane. People like to sound important. Weathermen on Television talk about shower activity. Sounds more important than showers. I even heard one guy on CNN talk about a rain event. I swear to God. He said, "Louisiana's expecting a rain event". I said, "holy shit I hope I can get tickets to that!"

> News people like to say “police have responded to an emergency situation.” No they haven’t, they’ve responded to an emergency. We know it’s a situation… everything is a situation!

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

#99

Post by mistrial9 »

as part of graduate school, I participated in State of California hearings, studied particular regulations that were adopted after a major law was passed in my chosen field, and finally submitted (and had accepted) amendments to their final regulations. (this is not trivial, since there were more than 400 public comments and suggested changes to the administrative rulings, but less than three dozen were accepted - including mine).

What I learned: the written law is ambiguous, mostly intentionally. The reply at the time was that the legislators "set the direction" and it is up to political appointees at an agency, working with their staff, to write regulation based on the "intent of the Legislature."

The published regulations that implemented the law were written in such a way, that the references were actually circular, and the same term (noun) was used in two different places to mean two different things, without acknowledging that. I did as others suggested, and drew diagrams with notes to check the very very dense legalese in the regulations. My change was regarding that twice-defined noun, which they acknowledged by accepting the change.

Overall - what is said is not what is done -- the saying I heard in Sacramento was "never write what you can say, never say what you can imply, and never imply if you can nod or wink" What that means is cynical; that you habitually do not write what you really mean to do, knowing that it will be reviewed by your adversaries, and taken out of context to be used against you.

The regulations writing was adversarial, and the response from the agency involved was measured and ready for court, at every step. The default action in the public comment period is to ignore your comment, and they do that in most cases.

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