The Art of Writing Contracts in Plain English
Why can’t lawyers write in plain English? Why do lawyers like to overcomplicate things? Why do they tend to use hard-to-comprehend outdated terms in contracts? These are the questions often asked by the ordinary person trying to comprehend the pitfalls of excessive ‘business-speak’. Plain English is never muddled or confused. English that is clear and used precisely should not use wordy jargon.
Legal writing has been shaped by tradition. Lawyers are trained in the tradition of writing unnecessarily complex and confusing sentences called “legalese” in law school. Instead of using one or two sentences to communicate genuinely and directly what they mean in the English language, they use convoluted words and sentences. Plain English does not waste words. If a thing can be said briefly, then it should be!
The Traditional Way of Legal Writing
The tendency to write complex and verbose legal documents can be attributed to the Middle Ages, when drafters drew from English, French and sometimes Latin to explain a single idea because a single language did not provide the precision they sought. Therefore, we have convoluted phrases such as: “breaking and entering”, “goods and chattels”, “give and grant”, where some of the words are redundant, because they are a combination of English and French words. In addition to this, “crafty” drafters, during the Middle Ages, took advantage of the fact that legal documents were paid by the number of pages or words. So, more words meant more profit!
The Plain English Movement
The first movement to change the traditional way of legal writing began in England and the United States in the 70s. It was called the “Plain English Movement”, where consumer groups used the mass media to publicize and ridicule examples of obscurity in legal documents and government forms, calling for plain language or plain English.
The Plain English Movement, advocates for the use of plain English in dealings, most especially in consumer transactions, so that even non lawyers can understand what they are signing up for.
Currently, the Plain English Movement is popular in the United States, but also in other countries, like Australia, Canada, the United Kingdom, Sweden, Italy and Mexico.
Importance of Using Plain English in Drafting Contracts
While the use of legalese terms in contracts has been a long-established tradition among law practitioners, the shift to using plain English in drafting contracts, is clearly beneficial to clients.
For one, writing in plain English helps clients and their negotiating partners understand a contract better and avoids potential misunderstandings in the future. If the parties involved can understand their contract, then they can negotiate and resolve matters quickly and more efficiently.
Also, contracts drafted in plain English are advantageous for international dealings. Transacting with foreign clients or foreign counterparts is inevitable in the legal profession. Therefore, a straightforward contract that is written in plain English demonstrates cultural sensitivity because not everyone can understand legalese terms.
Tips on Legal Writing in Plain English
Here are some points to consider when drafting a contract using plain English:
• Keep the needs of your client in mind
When writing a contract, it is essential that a lawyer take into consideration the needs of his or her client. Moreover, they should make sure that a reader of the contract will be able to understand the terms in the document.
• Abandon archaic and Latin expressions
Avoid using Latin expressions such as res ipsa locitur, stare decisis, res gestae, and the likes, or archaic words like “heretofore”, “witnesseth”, “hereinafter”, etc., when there is no need for these outdated expressions.
• Remove all unnecessary words
Trim out words that do not add meaning to your contract.
For example: VERBOSE v. PLAIN
• instead of despite the fact, use although, even though
• instead of in many cases you will find, use often you will find
• instead of for the period of, use for
• instead of in accordance with, use by, under
• Use familiar and concrete words
Use “probably” instead of “in all likelihood”, “defendant’s lawyer” instead of “counsel retained on behalf of the defendant”, “many persons” instead of “numerous deponents”, etc.
• Use the active voice
Structuring your sentences in the active voice makes it easier for the readers to determine who is doing what to whom. Using the active voice also makes your writing stronger, briefer and clearer.
For example: PASSIVE VOICE v. ACTIVE VOICE
• instead of the trust was intended by the trustor to, use the trustor intended the trust to
• instead of in case of termination by the client, use in case the client terminates
Use gender-neutral words
In order to treat all genders equally, use gender-neutral or gender-inclusive language and avoid the use of gender-specific language.
For example:
• instead of reasonable man, use reasonable person
• instead of stewardess, use, flight attendant
• instead of men and their wives, use husband and wives
Conclusion
If you want to successfully draft contracts in plain English, put yourself into your client’s shoes. As an ordinary person, without a legal background, it is hard to comprehend a complex and verbose document filled with legal jargon. Thus, as lawyers, you must ensure that the contract you are drafting is clear and concise, in such a way that your client and everyone who reads it, is able to fully understand it. As your client’s lawyer, it is your duty to ensure that your client’s interests are protected. This means making sure that all contracts your client enter into, are precise and will not cause any misunderstandings in the future. All this can be achieved by drafting contracts in plain English. Say what you mean. Great poets recognise this as few sentences say this as much as Shakespeare’s “To be or not to be; that is the question”.
Johanne Sarcilla, B.A., LL.B
Contact W3IP Law on 1300 776 614 or 0451 951 528 for more information about any of our services or get in touch at law@w3iplaw.com.
Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.
