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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

#331

Post by pas »

klabb3 wrote: post #193
unyttigfjelltol wrote: post #176

Earlier quoted context omitted.

To extend this L.O.A.D. point, the worst, most unreadable contracts are drafted by nonlawyer paraprofessionals deputized by their organizations to patchwork previous contracts that may have been somewhat readable, into a Frankenstein mess. It's somewhat akin to assigning the office manager to write software code. Businesses do it because they think contracts should be simple so anyone can write them adequately. Those…

> Businesses do it because they think contracts should be simple so anyone can write them adequately. Those organizations are half right. I can empathize with writing contracts being hard. However, reading them should be easy. Ironically, writing something that is easy to read is hard. If I had more time I would have written a shorter letter

At the same time it's not unreasonable to require roughly the same amount of time from the reader, as in the same amount of effort is needed to grasp the concepts written.

Language is very malleable, and to counteract this it's imperative to use structured writing, detail the model of the concept being communicated, then give ample examples and counter-examples to clarify the model and thus the concept itself.

It's crazy to expect that a well-written sentence will be read just as well without the same context that the drafter(s) had. Yet we are very allergic to giving examples, because that would introduce [more pages to complain about politicians voting on them not reading] aaaaaand more somehow ambiguity. (Oh right, we're talking about this because otherwise statutes and their clarity and interpretations are so unambiguous!)

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

#332

Post by pas »

AlbertCory wrote: post #123
lamontcg wrote: post #97

Earlier quoted context omitted.

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.

In general, yeah, but I have mixed feelings on that particular one. Claims wouldn't be much more understandable if they said: A chair, with four legs, a seat, and a back, and possibly other elements. A good explanation for obtuseness in legal language is: In normal writing, you're trying to be understood. In legal writing, you're trying to make it impossible to be misunderstood.

there's no way around it. if you want to avoid getting misunderstood, misinterpreted, especially by in a somewhat adversarial setting, then you need to build a mental model that grasps what you want to communicate, and then spend the pages and ink to write it down. structural language, plenty of examples to narrow down possible points of false interpretations, etc. (at least 3+ examples for each thing, to have a quorum of examples that can break ties in case of opposing interpretations) obviously quantification is good, measurability is great, directionality is important (so then as you try to specify this abstract concept by its boundary in some mental space you can say what's inside and what's outside the boundary, which examples point in which direction ... so you can say things like "we mandate providing shelter for every resident" with a lot more precision, after all in no time someone would argue that it's a tautology, since "residents reside somewhere, which means they have an address, and therefore they already have shelter there".)

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

#333

Post by pas »

rq1 wrote: post #301
abhinai wrote: post #13

Same with academic papers. Most of my efforts go into dealing with constant loss of attention that happens when I have to look up unnecessarily complex words or improperly defined symbols and variable names. I feel stupid until I realize that the paper is actually about a very simple concept. It doesn't have to be this hard to read.

That's the process of understanding no?

the problem is that journals have this fancy dream that they are still the communication medium between peers of the field, who are equals and up to speed, and they are simply exchanging notes on their eminent thoughts and theories.

yes, that probably also happens every once in a while, but they should adopt a rule to assume that readers are absolutely not the seminal trailblazers of the field. [of course no need to go back to Simple English Wikipedia level]

there's ample space in journals. no need to hide stuff in spreadsheets in the supplements. paper authors should write the fucking thing down with precision and accuracy. yes, of course cite things, but also they should finish their thoughts, spare the reader the endless goose chase. no need for the standards smug remarks that communicate absolutely nothing just namedrops citations.

understanding should not be an adversarial process. (Socratic, yes, but that's cooperative/constructive.)

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

#334

Post by pas »

pdonis wrote: post #304
AstralStorm wrote: post #269

Earlier quoted context omitted.

The problem is that many of the contacts are shrink wrapped - there's no way for you to modify the contract and rejection outright is not free.

What do you mean by "rejection outright is not free"? If you don't have the option to decline to participate, it's not a contract.

there are contracts of adhesion

https://en.wikipedia.org/wiki/Standard_form_contract

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

#335

Post by pas »

jimz wrote: post #205
chaps wrote: post #29

Earlier quoted context omitted.

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…

Considering that two years ago the Supreme Court ended up having to hold that the use of the indefinite article "a" in the phrase "a notice to appear" means a singular document that fits the definition of said notice instead of multiple notices sent piecemeal, even clear legal language can somehow wind up being challenged all the way to the top. The opinion, which actually makes for some delightful grammar shade from…

could you pinpoint where the grammar part is in the opinion? (tried searching for article, indefinite, notice, etc, but no luck :/)

thanks!

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

#336

Post by pas »

dctoedt wrote: post #79
gumby wrote: post #18

TBF those structures do exist for a reason. Just take the “Total Compensation” as an example. Breaking it out as shown in the paper does work, but now some language is repeated; in an edit (and most contracts are edited rather than being created de novo ) one of the duplicated clauses could be edited and the other overlooked, especially if they become separated by successive edits. I’m sure there are obscurantist

The inconsistent-edits problem is a real one; failure to follow D.R.Y. cost a Dallas lender $693K because a guaranteed repayment amount was written as "one million seven thousand dollars ($1,700,000)" and words take precedence over numbers, so the lender was repaid $1.07 million and not $1.7 million. In another example, the agreed deadline for a party to cure a breach of contract was written as "fifteen (30) days"; t…

or provide 3 versions of the thing, so the ambiguity can be - hopefully - resolved

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

#337

Post by dctoedt »

pas wrote: post #331
klabb3 wrote: post #193

Earlier quoted context omitted.

> Businesses do it because they think contracts should be simple so anyone can write them adequately. Those organizations are half right. I can empathize with writing contracts being hard. However, reading them should be easy. Ironically, writing something that is easy to read is hard. If I had more time I would have written a shorter letter

At the same time it's not unreasonable to require roughly the same amount of time from the reader, as in the same amount of effort is needed to grasp the concepts written. Language is very malleable, and to counteract this it's imperative to use structured writing, detail the model of the concept being communicated, then give ample examples and counter-examples to clarify the model and thus the concept itself. It's c…

> Yet we are very allergic to giving examples

I encourage my contract-drafting students to (judiciously) include examples — and of course I show some examples of using examples. [0]

[0] https://toedtclassnotes.site44.com/Notes-on-Contract-Draftin...

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