ALL CAPS and passive voice

This is part 1 of a series on contract drafting; I’ll report on a study of contract language and offer comments and recommendations. The study is Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language.[1]

The three authors (two linguists and a lawyer/linguist) used corpus analysis to discover why contract language “remains notoriously inaccessible” to nonlawyers. They asked which of these two causes could account for the difficulty:

• Is it the specialized and complex content?
• Is it the form of expression—the way contracts are written?

They compared a corpus (think “database”) of contracts with a corpus of standard English—newspapers, magazines, blogs, web pages, and TV and movie scripts. The two corpora[2] contained more than 10 million words, and the authors assessed five variables: frequency of all caps, frequency of passive voice, frequency of center-embedded sentence structure, frequency of everyday words, and frequency of words with a higher-frequency synonym (fancy words that could’ve been simple).

The authors found that “all of the metrics we looked at were prevalent to a greater degree in contracts than in the standard-English corpus.”[3] Let’s start with the first two variables: contracts use all caps and passive voice more than everyday writing.

I’m not surprised that contracts use more all caps than other writing, but the questions is, why? Typically, all caps are used to draw attention, to make text conspicuous and noticeable. In fact, there are Texas statutes that require certain contract language to be “conspicuous.”[4] But those statutes don’t expressly require all-capitals text. For example, here’s one definition of conspicuousness: “Required information in a document is conspicuous if the font used for the information is capitalized, boldfaced, italicized, or underlined or is larger or of a different color than the remainder of the document.”[5]

So all caps is one option, but not the only one, although I did find two Texas regulations requiring all-caps.[6]

Still, the question remains: why does all-capitals text persist in contracts? Three possible reasons and a recommendation: First, all-caps is a vestige of the typewriter, which couldn’t produce boldface or italics, so some form contracts retain all-caps because they’ve never been updated. Second, all caps really do stand out if the rest of the contract is in regular type. Third, some lawyers mistakenly assume that statutes require all caps for conspicuousness; but although some statutes mention all-caps, they almost always give other options. (See the example quoted above.)

Recommendation: Convert all-caps to boldface—and maybe even increase the font size. Blocks of all-caps text are difficult to read[7] and are nowadays perceived as shouting.

Why do contracts have more passive voice than other ordinary writing? Two possible reasons: Passive voice is preserved because “it’s in the form.” Many contract drafters are wary of changing form language, especially if that form was the basis for numerous contracts that have closed and been performed without a glitch.

And passive-voice just sounds more formal—more lawyerly. But if that’s a source of excessive passive voice, we can let it go. Consider these examples of passive voice that are clearer in the active:

1. Permits must be secured before work commences.

• By whom? Better in active voice:

1a. The owner or contractor must secure permits before work commences.

2. The Purchase Price shall be paid by wire transfer of immediately available funds.

• Certainly, the buyer’s obligation to pay the Purchase Price was stated earlier in the contract, but I still prefer this active-voice version:

2a. The Buyer shall pay the Purchase Price by wire transfer of immediately available funds.

Next month: additional findings of the contract-language study.

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[1] Eric Martinez, Francis Mollica, & Edward Gibson, Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language, Cognition 224 (2022).

[2] Yes, that’s the plural of “corpus,” which I had to look up,

[3] Poor Writing, Cognition 224, at 3.

[4] Tex. Bus. & Com. Code Ann. § 2.316.

[5] Tex. Bus. Orgs. Code Ann. § 1.005

[6] 7 Tex. Admin. Code § 84.808; 16 Tex. Admin. Code § 22.71.

[7] Matthew Butterick, all caps, Butterick’s Practical Typography, https://practicaltypography.com/all-caps.html (last visited June 1, 2022).