Three more findings—with advice
This is part 2 of a series discussing the findings of a study, Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language,[1] in which the authors compared contract language with everyday written English. Here are three more findings: Contract language has higher frequencies of—
- center-embedded sentence structure
- words used rarely in everyday English
- words with a higher-frequency synonym (fancy words that could’ve been simpler)
Center embedding means inserting a phrase or clause within another phrase or clause. Here’s an example from the authors:
In the event that any payment or benefit by the Company (all such payments and benefits, including the payments and benefits under Section 3(a) hereof, being hereinafter referred to as the “Total Payments”), would be subject to excise tax, then the cash severance payments shall be reduced.[2]
In a sentence of 47 words, placing another clause of 22 words in the middle makes for difficult reading. An easy fix is to place the embedded definition clause in a separate sentence:
In the event that any payment or benefit by the Company would be subject to excise tax, then the cash severance payments shall be reduced. All such payments and benefits, including the payments and benefits under Section 3(a) hereof, are hereinafter referred to as the “Total Payments.”
Now we approach a thornier topic: Even without this study, any lawyer and anyone who has read a contract could’ve told you that contracts use words that are rare in everyday English as well as words that have simpler or more-readable synonyms. But is that a problem?
On this topic, I won’t offer recommendations for using shorter or simpler words in contracts. Yes, doing so could make contracts more readable, but I’ll propose three reasons that doing so might not be ideal.
- The studied contracts were commercial contracts entered by sophisticated parties represented by counsel.
In my review of the contracts in the corpus, I didn’t see a single consumer contract: apartment lease, credit-card agreement, software-user agreement, car insurance.
So the studied contracts don’t necessarily need to be read and understood by someone without legal training. For the contracts in the corpus, those who need to read and understand the language are lawyers, and those lawyers—we hope—can explain the contract language to those who need to understand it.
- Contracts contain some legal terms that either cannot or should not be simplified.
Yes, contracts use words and phrases unique to legal language or with a different meaning from the everyday-English meaning. But replacing those words and phrases to enhance readability could introduce risk, or it could require the drafter to use even more words to explain what the legal term means.
But note: the number of terms of art or unique legal terms is fairly small—smaller than some legal drafters claim. In one study, only 3% of the words found in a standard real-estate-purchase agreement had ever been construed or defined by a court.[3]
- Revising lengthy, complex contracts for readability might not be cost effective.
Given that the commercial contracts in the study were prepared by, reviewed by, and could (I assume) be explained by transactional lawyers, how would we justify the cost of revising them? We’d need to replace rare words with everyday words and replace or explain legal terms. Who’s going to pay for it?
These contracts were certainly based on forms or precedents from previous transactions, a practice that saves time and money. Add to that fact the reality that very few contracts result in “disputes” (as high as 9% according to one commercial source[4]) and that even fewer end up in litigation (fewer than 0.1% by one estimate[5]).
Next month: my own findings based on the corpora from the study.
__________
[1] Eric Martinez, Francis Mollica, & Edward Gibson, Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language, Cognition 224 (2022).
[2] Id. at
[3] Benson Barr, George Hathaway, Nancy Omichinski, & Diana Pratt, Legalese and the Myth of Case Precedent, 64 Mich. Bar. J. 1136, 1137 (Oct. 1985).
[4] Contract Assistant, Not Good: Average of 9 Percent of Contracts Result in Dispute, https://contractassistant.com/not-good-9-percent-of-contracts-result-in-dispute/ (accessed June 23, 2022).
[5] Id.