The big problem with contracts
Many of us regularly enter into contracts: for housing, phones, gym memberships and other services or products. Even visiting a website can involve agreeing to T&Cs or accepting cookies.
But how many of us actually read each contract from start to finish? We should, of course, but often we’re in such a hurry or under so much pressure to sign that we cross our fingers and hope for the best. Click the check box and move on.
After all, reading reams and reams of legalese is not nearly as fun as finally getting your hands on a shiny new device or joining the latest streaming service.
The obvious solution
Would it be different if all contracts went through the same filters as marketing campaigns? What if they spoke directly to their target audience? Would it be different if all service providers (and their legal teams) embraced plain language?
Credit where credit is due – we are seeing more and more organisations acknowledge the benefits of communicating clearly. And the plain language movement has had lawyers at the forefront since its inception. People like me have been talking about these issues for years.
But there’s still hesitation in some quarters, as though plainer wording might diminish the power of the agreement or come under fire in a court.
Codswallop. We have bucketloads of evidence to debunk the myths surrounding plain legal language. You can go straight to Joe Kimble’s excellent book of case studies, Writing for Dollars, Writing to Please (new edition out now!), if you’d like to know more.
The easiest place to start
Even if you are on board with plain language as a legal drafter, it's important to recognise that you're signing up (pun intended!) to adopt a whole new writing style.
You may need to push back against years of training in tongue-twisting formality to realise the full benefits. You'll certainly need to learn some new techniques, so I encourage you to seek out targeted training.
For now, let's look at 3 simple wording changes that will make any agreement more reader-friendly. You should also consider structure and design, but those are topics for another day.
1 Use everyday words from top to tail
As they say, it ain’t rocket surgery: use words your readers are familiar with and they’ll find it a lot easier to understand what you’re saying.
If the task of updating a 40+ page document seems a little daunting, just start with a few global searches.
shall
> will / must (unless you actually mean "may")
hereunder
> below
including, but not limited to
> including
Don’t forget the headings, although the best replacements will depend on your document’s content and structure.
RECITALS / WHEREAS
> Introduction / About the parties
MISCELLANEOUS
> Understanding this agreement / Standard legal clauses
2 Avoid doublets and triplets
One of the most muddling aspects of traditional legal writing is the sheer volume of words in play. Legal doublets – pairs of words that are often synonymous – can pad out your text and add to this problem.
Look out for examples where the extra words add no value. But take care that you don't lose any important nuance.
any and all
> any
over and above
> over
sole and exclusive
> sole
Legal triplets might be less common, but they can still appear in poorly drafted contracts.
null, void and of no effect
> void
promise, agree and covenant
> agree
3 Add some personal pronouns
Our final tip is to describe the parties to the contract with personal pronouns. This works best when you have only 2 parties.
For someone unfamiliar with legal texts, distinctions like ‘lessor’ and ‘lessee’ or ‘principal’ and ‘contractor’ may well be confusing.
Opting for ‘we’ and ‘you’ will be much more effective. This simple change will naturally activate your text and make it more engaging.
You can, of course, define the pronouns so there is no room for ambiguity.
The only potential trap is where you have obligations that apply to both parties. Sentences can become awkward so it might be safest to steer clear of pronouns temporarily.
The lessor and lessee agree to attend mediation.
> You and we agree to attend mediation.
> > Both parties agree to attend mediation.
If you think you might need support to bring plain language to your contracts, please get in touch.
And check back here soon as we'll be releasing a longer guide to legal writing in the coming months.
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