Who are contracts for? If they only need to be read by lawyers then perhaps as a society we are doing fine. If not, then we are going to have to open this up and plenty may need to change.
Why Ask the Question?
It seems like an innocent question, but it’s one that goes to a nexus of issues related to the work of lawyers. But why ask it in the first place?
It was triggered by the huge response to an article on Friday by Artificial Lawyer (AL) about how scientists had shown that contracts were hard to read, not because they contained overly complex ideas, but because legalese with its jargon and hard to fathom writing style made the documents impenetrable to most people. At time of going to press, that article had received 434 likes on LinkedIn and 72 comments, the vast majority of which were positive and in support of change. Articles on this site about legal drafting don’t usually get that level of engagement. Clearly this has resonated.
The majority of readers appear to have responded, to put it generally, by saying: ‘Yes, legal writing is too obscure to understand for most people, let’s see if we can change things for the better.’
However, there were also two distinct negative reactions, one perhaps predictable, the other quite baffling. The first went like this: ‘Scientists say we write badly? How dare they!? I read their paper and it’s also hard to understand and is also full of jargon and strange sentences. What hypocrisy! This just shows we have no need to change anything.’
It was this type of response that ultimately triggered the question: ‘Who are contracts for?’ Because, if contracts are like a niche scientific paper, written only for peer review by a few dozen other scientists, then this debate is over already and the answer is that contracts are just for lawyers and that’s all there is to it.
But…neither this site, nor many others, believe that is the case – but more on that shortly.
The other negative response was really surprising and went like this: ‘Legal writing is hard to understand? No surprise there, and what of it? This is how it’s always been and always will be. This study has no value at all.’
First, usually when someone mentions there’s a problem it’s unusual to say: ‘I know, but we don’t care.’ The other aspect it misses is the central point of the study, which was not to ‘bash lawyers’, but to show objectively that people can understand the ideas contained in a contract, it’s just that legalese obscures things to the point they cannot decipher the meaning. I.e. the scientific paper’s key point was that contracts could be understood by a wider audience, if only they were written differently.
The fact that this point was completely missed by several people suggests there is plenty of complacency in the profession.
Back to the Question: Who Are Contracts For?
You may say that a Master Services Agreement between a large corporate and an equally large supplier company is not something that needs to be read or understood easily by the public at large. That may be true. But, presumably other parts of the companies making that agreement probably do need to understand it, not just the lawyers?
If an employee signs an NDA, it also presumably would be ‘a good idea’ if they could actually understand what they had just committed themselves to and how they need to conduct themselves.
And what about the customers? Should they be able to understand the massive agreements pinned onto the end of websites? You could argue that they don’t, as no-one reads them. But if that’s the case, then what are we doing? Company A pays law firm B to draft a document that needs a click online for a customer to proceed with a transaction, but the customer never reads it as the document is too long, too strangely written, too filled with jargon, and so just clicks it and the company makes a sale without one of the key parties (the customer) having a clue what they’ve just agreed to.
Perhaps the company’s lawyers then would say: ‘Well, you’re daft if you just click ‘I agree’, and it’s your fault if something goes wrong and you don’t know what you’ve agreed to.’ Others may say that this is really not a great way for a modern society to operate. I.e. if the knowledge and the facts of an agreement are ‘owned’ by one party and the other has none, or very little of the picture, then is that equitable?
And what about other contractual areas that really do impact everyone at some point? Mortgage and rental agreements? Employment contracts? Care home agreements for the elderly? Agreements with utility companies for what and how they can charge us for our heating?
This site would argue – and no doubt many others in the legal design world would too – that in fact contracts are rarely just for the use of lawyers. And even if they are only read by lawyers (at present) that may not be an indicator that people would not like to know what they are agreeing to or what their legal rights are under that agreement.
Raising a problem without offering any hint of a solution isn’t that helpful. So here goes. Here are a few ideas (and please improve on these) that this site can come up with.
- That all contracts contain an easy-to-read summary, which contains key facts, key areas where you (as an individual or a corporate) are forming a lasting agreement and what it means, and any data, e.g. payments and dates is also included in a clear way. (Ensuring that those summaries are easily machine readable would be great as well.)
- That contracts have a ‘nested’ writing system, especially if online, where the key terms are written in summarised form, and you can then click in and go deeper and deeper into the details. I.e. you have layers of complexity, a bit like a Wikipedia page, where the key points are in a paragraph or two, then there are subheadings, which also begin clearly, and then if you want more detail you can dig in. This would be different to the ‘complex from the first word’ approach that some contracts take, which are then just a long ‘shopping list’ of issues and potential issues that quickly lose the lay readers’ attention. I.e. documents in ‘three dimensions’, not just two.
- That the legal design world puts as much focus onto writing style as it does into visual appearance, (which it may do already…?). Visual changes can help, but if the syntax of the document is still dense and hard to follow, it will make little lasting difference.
- That law schools teach the importance of clear drafting, not in relation to past examples of legalese, but via new examples of a more direct writing style from the wider world. (Try John Grisham if you want to remain in the legal sphere and pick up some tips on clear prose.)
- That Bar and regulatory organisations start to get engaged with this issue and encourage lawyers, like those from lawyers company Red Deer, to communicate in contracts in such a way that clients can understand what they are signing. After all, regulators are all about protecting the clients…
Are there cases where lawyers will really be the only ones to ever see a certain document? Yes, no doubt. There will certainly be documents where a lawyer will likely be the only type of person to draft, read and retain that document. In such scenarios one can see why lawyers – as with scientists and their scientific papers written expressly for other scientists in their field – would object to the idea they need to change how they draft. And for such documents they may well be right.
We would not expect a quantum physicist to put into standard English a set of formulae so intricate that the meaning could not be expressed in any other way. But, we would expect, for example, a government scientific adviser to be able to explain in very clear terms the risks involved in building a new nuclear power station, while still making intelligible reference to the scientific issues involved.
And this is the point: if a legal instrument, e.g. a contract, is going to need at some point to be understood by the wider world, then it seems reasonable to ask that it is written in a way that the wider world can understand.
That ‘wider world’ may be the CFO or head of HR at a company, it may be an employee who has signed an NDA, or it could be you or I who has just signed a mortgage document, but surely contracts that are read by everyone should be understandable ‘by everyone’?
By Richard Tromans, Founder, Artificial Lawyer, Sept 2022
I love this discussion because I’m so often in the middle of it too, making the exact argument you just made – great!
So, yes! Contracts that are read by everyone should be understandable and easily accessible. Here I can only underline everything you just wrote.
But don’t underestimate the precious time of legal professionals themselves, including judges and lawyers. We are all human beings and interested in understanding facts as quickly as possible. Even if a particular contract needs to be understood only by other legal professionals, drafters of contracts do themselves a big favor if they follow simple rules of communication design here as well. Such as inserting infographics for complex issues or using terminology that is easy to understand. Other techniques of communication/graphic design patterns, such as using easy-to-read fonts and creating an easy-to-understand and logical text structure, drafting more short sentences, inserting sub headlines, putting the important parts at the beginning of a contract, following a Q&A style, using colors, creating an intuitive overview at the start and so much more, can provide a bit of magic in the world of legal drafting. What I’m saying is: only the drafter of a contract can help or hinder an easy reading flow.
And I’ve btw asked many judges what they think about visualized contracts: those I’ve talked are extremely grateful for such new approaches and would like to see more rather than less. So again: simply by imagining what you yourself would prefer to read, you probably come to choose a simple and good structured text over a complicated one in most cases.
My opinion: If words are a lawyer’s main tool, lawyers should also know how to turn words into a smooth text that readers understand and enjoy reading.
I attended my first “plain language for contracts” seminar in the mid 1990’s. Bryan Garner, who was (and remains) incredible, taught the course. Inspired, I “awoke” and committed myself to bring together the best of Strunk & White, the commercial code and common sense when it came to my contract drafting. Do you want to guess what happened when I brought this enthusiasm and approach back to my “real job,” drafting complex agreements for complex business transactions in a large law firm? Crash.
It’s 2022, and the business world is still calling out for solutions to make contracts simpler, faster and more accessible. Based on my experience working in both CLM and in Contract Analytics, there are three things that are clear to me: 1) for all of the tremendous benefits that CLM brings, it is primarily a “digitization of the status quo,” and so in most cases does little to help the larger cause, 2) simplification and standardization will only get done with commitment (not just voice, but buy in and usage) from a large enough community of advocates for “better contracts,” and 3) this community of advocates needs a systemic approach, as suggested by Richard, but also a purpose-built platform to support their simplification efforts.
Back to the lab
I echo Astrid Kohlmeier’s comment above. Even lawyers sometimes find it difficult to understand what other lawyers have drafted. And that difficulty isn’t always attributable to poor drafting technique. Many times it’s attributable to the absence of any aids to understanding (such as visualizations, flow diagrams, summaries) the dense, heavily jargonized, deeply cross-referenced language found in so many contracts. Oh, and don’t get me started on the drafting found in statutes and regulations, where citizens without law degrees should be given at least a fighting chance to understand what’s been written.
Great comment Astrid and my precise thinking. I have been talking with a number of lawyers lately who say that they are exasperated with complex, difficult-to-understand contracts. Recent research indicates that with the significant increase in our rates of communication through the use of phones, ipads etc, instant chat etc, our attention spans are not what they used to be. Yes, even for the lawyers! Thus, if we are to reduce margins for error and overall risk from mistakes, we need to be clearer in all communications and that includes contracts or other communication with lawyers!
I do agree with everything already stated in the comments! Having worked in a large company I can just emphasize that very rarely lawyers themselves are reading their contracts but it is the colleagues in operations, finance, supply chain etc pp which NEED to understand the contracts! There is research proving that even colleagues in the legal as well contract departments are not always understanding the legalese , not to forget the non native speakers! Otherwise that is costing the companies money! #pitfallsofcontracting #worldCC
I was reading and reviewing the research handbook on contract design by Haapio et all which links various disciplines to improve the quality and UX of contracts! A must read for practitioners and academics in the contract arena:-)
And for sure the status quo about the approach to contracts or better to truly analyze and innovate the approach is a must! Eg #vested#contracts#proactivelaw approaches are mandatory tools in addition to legal design etc to make contracts understandable for the intended audience .
Really interesting article! I often think that the challenge around contract readability is that as a document they are trying to do two quite distinct things – (1) document the obvious commercial terms which are crucial to delivering on the parties’ bargain and (2) cover every possible eventuality which might (but will hopefully never) impact upon that bargain. Traditional contracts tend to bury (1) in a sea of (2). Well implemented CLM’s can surface the obvious terms so much more easily…
These ideas are even harder to grasp in a civil law context where there is so much reliance on paper and written ideas (in civil law, except for a very few exceptions, statutes, acts, all law is expressly written or it isn’t law).
I am a Mexican attorney and at some point I was admitted to the New York Bar as well. I think in a common law system it’s easier to understand that a contract is not a piece of paper (granted there are some cases in which the law does require a specific form or format), but rather the so-called meeting of the minds. And that meeting tends to be concise. Of course there are complex ideas involved but there are all sorts of tools to help convey those in simple terms as well. Still, in civil law countries the fact that something is not in complex and obscure writing or signed with ink is still regarded as suspicious.
That being said, I think contracts is where law design has the most room for improvement in a global scale because of the huge amount of freedom parties have, particularly in a commercial/business context, and that allows for contracts that may be universal (in fact there is more and more use of common law clauses in civil law contracts or just common law contracts that have been translated into Spanish and signed in Mexico to be interpreted under Mexican law, -something only a dually trained attorney may spot).
And regarding the questions raised in this article, I believe the answer is to deconstruct as much as possible the ideas… and bullets!