As my eyes glazed over while reading another section of a contract that began with “notwithstanding the foregoing” I realized it was time for a change. It was time to change the way I drafted contracts. It was time to eliminate unnecessary legal jargon and draft a contract that my client can read, understand, and (perhaps) even enjoy. I browsed through my archive of contracts and quickly spotted a dozen or so terms that needed to go (thereto, herein, set forth, and heretofore, just to name a few).
The idea here is not to “dumb down” the information contained in legal documents. Rather, the goal is to convey complex information in the clearest way so that your audience can understand it. You may have a wide range of clients or customers with different levels of sophistication or specialities. Ideally, you would not have to draft multiple form contracts depending on the party you are contracting with merely because the parties differ in sophistication. The people reading your contracts should not need to seek out definitions for archaic terms when modern terms are perfectly functional. Save yourself the time and effort by learning to draft your contracts in a way that every client can understand, no matter what their particular training or education is. Throughout this series, I’ll be discussing simple steps you can take to draft clearer, more concise contracts for your business. I’ve decided to begin this series by exploring the roots of the plain English movement in American law.
Background of the “Plain English” Movement for Legal Writing
None of the ideas expressed in this series of posts will be original. They’re ideas that have been expressed by prominent legal writers and English language experts for a number of years. Here are just a few of the major contributors to the plain English movement.
In 1963, Professor David Mellinkoff (UCLA School of Law) published The Language of Law, which is widely credited as the beginning of the plain English movement in American law. Mellinkoff was famous for his premise that “the law thrived on gobbledygook,” attacking the lack of simplicity and clarity in legal writing.
In 1979, Richard Wydick created momentum for the plain English movement by writing Plain English for Lawyers. Wydick’s book is now widely used in legal writing courses across America. The Legal Writing Institute praised Wydick’s book, saying that it has improved the writing of lawyers and law students by promoting a clear, plain style of legal writing. Wydick may have said it best when he said “We lawyers cannot write plain English. We use eight words to say what could be said in two. We use old, arcane phrases to express commonplace ideas.” Wydick goes on to say the legal writing style is wordy, unclear, pompous, and dull. There’s nothing positive about any of those characteristics. It’s unfortunate that the majority of lawyers write this way, but it doesn’t mean you have to continue the trend.
A third, perhaps more prominent, advocate of plain English legal writing is Bryan Garner, legal writing expert and author of numerous legal writing books including (my favorite) Legal Writing in Plain English: A Text with Exercises. Garner is the preeminent authority on questions of legal writing and English usage. Legal Writing in Plain English is a helpful tool to learn to write clear, concise, down-to-earth documents. Garner emphasizes the need to challenge conventions of traditional legal writing.
Flash forward to today and you’ll see that many federal regulations require documents to be written in plain English. The Federal Trade Commission (FTC) requires certain documents to be drafted in plain English. The Securities and Exchange Commission (SEC) has made plain English writing a legal duty for companies registering securities under the Securities Act of 1933, due to rules the SEC adopted in 1998. Perhaps the most compelling evidence of this is the Plain English handbook produced by the SEC as a guide for securities disclosure. The handbook was created to help companies draft clear, more informative disclosure documents. The SEC describes plain English as using “words economically and at a level the audience can understand. Its sentence structure is tight. Its tone is welcoming and direct. Its design is visually appealing…and (it) looks like it’s meant to be read.” The four characteristics I take away from this are clear, economical, direct, and appealing. We should all strive to draft contracts that contain each of these characteristics.
Our role as small business lawyers is to help business owners and entrepreneurs comply with existing regulations and protect their business from legal risks. Isn’t the best way to achieve this through clear, economical, direct, and readable contracts? I’d argue it is.
Stay tuned for the next post in the Drafting Clear, Concise Contracts series.
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