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’).
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.