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Are lawyers’ poor writing skills the reason contracts are so hard to read?

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Quite possibly, say researchers

A new study that examines why many contracts are difficult to understand has pinned the blame on lawyers’ use of overly-complex language.

The study carried out by researchers at Massachusetts Institute of Technology and the University of Edinburgh analysed a corpus of contracts that ran up to around 10 million words. The purpose was to get to the bottom of a widespread bugbear that, “despite their ever-increasing presence in everyday life, contracts remain notoriously inaccessible to laypeople”.

The researchers say contracts contain “startlingly high proportions of certain difficult-to-process features–including low-frequency jargon, center-embedded clauses (leading to long-distance syntactic dependencies), passive voice structures, and non-standard capitalization–relative to nine other baseline genres of written and spoken English.”

In other words, lawyers write very strangely. Part of that is down to legal jargon. But, the study shows that lawyers are often guilty of using unnecessarily complex sentence such as inserting clauses in awkward places that make it easy for the reader to lose track of the meaning and a passive voice (e.g. ‘the stick was fetched by the dog’ rather than ‘the dog fetched the stick’).

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This challenges the position held by many legal theorists that the law and materials related to legal issues are too complex for non-lawyers as they are based on particular legal concepts. In short, the problem isn’t that contracts are too conceptually complex for non-lawyers to understand, they are just written unintelligibly.

The study recommends that “lawyers interested in simplifying legal texts for the benefit of readers ought to prioritize unpacking clauses into separate sentences and opting for higher frequency synonyms when possible.”

So why are lawyers writing like this? The researchers suggest three hypotheses. First, a high degree communicative and legal precision is required in contract. This is an unlikely explanation, however, as it goes against the study’s findings that suggest exactly the opposite.

Second, lawyers choose to write in a complex manner to convey their priorities at the expense of clarity. Contracts not written as a clear manual on your obligations but primarily reflects the lawyer’s concerns.

Third, lawyers are simply not aware that they are writing so poorly — a phenomenon the study refers to as the ‘curse of knowledge’. Much like guild who are all well-practised in legalese, they are accustomed to dealing with such tricky language and are blissfully unaware of the struggles of non-speakers.

The researchers are unclear as to which of these hypotheses is most accurate. But they conclude that rooting out the cause of the problem could open up the possibility of figuring out how best to persuade lawyers to write legal texts more clearly.

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18 Comments

A lawyer

U wot?

Another Lawyer

No

Nahbro

Since when did understanding the passive become so hard for Joe Bloggs? It is not possible to draft a decent contract that is aimed at someone who struggles with the passive.

Is the sentence below that confusing?

I am puzzled by the passive comment too.

MC ass

It is generally bad legal writing to write in the passive as well. It’s something drilled into us from the start. 99% of the time, if you’re writing in the passive it’s because you haven’t sufficiently clearly explained the obligation or right that you’re setting out in the contract.

A loyurr

Hoo sez we got bad riteing sckilz?

Nott troo!

Bad jurnulizm!

Anon

Get a new joke, been done

English Lawyer

Obviously there is a lot of variance, but I think that English law-governed contracts/contracts drafted by English lawyers tend, on the whole, to be pretty easy to understand (even for a layperson).

US law-governed contracts on the other hand tend to be dreadful in my experience. They are often incredibly verbose, with run-on sentences and anachronistic language (“Henceforth”, “forthwith” etc.) being commonplace. Also, what’s with PUTTING THE LIABILITY CLAUSE IN ALL CAPS?

I sometimes wonder whether US law-governed contracts are like intentionally. It sort of just supports this racket/closed-shop type situation, where it is basically impossible for a layperson to do something so basic as just read a contract, meaning you need to hire a lawyer to do everything.

Another English Lawyer

Couldn’t agree more. Americans simply can’t draft properly. I’ve always thought the same – that it’s because of the US legal market cartel – but who knows. It’s one of the several reasons why English qualified associates trained at US firms often tend to suck at drafting.

Anon

The problem is that contracts are drafted by non-contentious solicitors, who are intellectual plodders, do not know any law, and have second rate writing skills. Contracts should ideally be drafted by barristers.

Anon

The same barristers who when retired end up drafting legislation which is open to a dozen interpretations and often no one can understand? They are far more legalistic than transactional solicitors which goes against making contracts accessible.

Anon

Sep 20 2022 7:43pm: no, the same barristers who, when retired, end up drafting legislation which is clear in its meaning. They have better intellects, superior knowledge of the law, and more competent drafting skills than transactional solicitors, which would enable contracts to be accessible and less likely to be subject to disputes as to their interpretation.

K&E Queen

I am just here to comment on the A&O article. What sort of loser would work at a firm that froze associate pay even though partner profits have gone up? A sad trainee secondment is not going to make up for that. If you are an A&O associate you are not intelligent.

Not a fresher

Haven’t you got an essay due?

Archibald O'Pomposity

“But, the study shows that lawyers are often guilty of using unnecessarily complex sentence such as inserting clauses in awkward places that make it easy for the reader to lose track of the meaning and a passive voice (e.g. ‘the stick was fetched by the dog’ rather than ‘the dog fetched the stick’).”

Thanks for that explanation of the passive voice. I’d always wondered what that meant.

Legal Whizz

I hate to break it to the researchers but the use of “non-standard capitalization” is actually what we in the legal profession like to refer to as the use of “defined terms”.

Andrew

It is not just lawyers but also academics who can be accused of creating written materials that include “difficult-to-process features” and “low-frequency jargon” – such as, for example, “center-embedded clauses” or “long-distance syntactic dependencies”. Perhaps they forgot to opt for “higher frequency synonyms” there. Or perhaps that linguistic jargon was the best – most concise and precise – way for them to write it.

Lawyers can write legal and other text more clearly and simply, but it requires effort and practice. I suspect quite a large amount of unnecessarily opaque and obfuscatory verbiage in legal drafting comes from slavishly following precedents without thinking clearly about whether the language is the best way to express the point (and fear of making a mistake or missing a point if the words are changed).

Help is available. For example, Ken Adams offers an interesting point of view in his Manual of Style for Contract Drafting. https://www.adamsdrafting.com/

Tryscorer

What is hard to understand for the better educated of the nation is that no matter how dim we think those in the bottom 50% of the intelligence bell curve are, they are, in fact, much dimmer than that, to a degree that is almost impossible to be grasped by us. Brexit showed that. As does ITV programming.

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