NO: ‘LAWYERS,’ Kanye West tweeted in 2020. ‘The first thing that changes about record deals is actually lawyers. We need plain English contracts. A lawyers [sic] role is to IMPROVE deals… not charge for contracts we cannot understand or track. Rewrite deals to be understandable from FIRST READ.’ Kanye is no fan of legalese.
Legalese is defined in the Cambridge Dictionary as ‘language used by lawyers and in legal documents that is difficult for ordinary people to understand’. Whether it is the hundreds of Latin terms that still pervade all legal practice areas (and that most lawyers cannot even pronounce correctly), or the ‘heretofore’, ‘herein’, ‘hereto’, ‘hereof’, ‘hereinafter’, ‘whereas’, and ‘forthwith’, lawyers still often produce contracts that are full of legal jargon and challenging for a non-lawyer to understand.
There is no reason why the law cannot be written in simple, clear language. Legal documents should be drafted so that an 18-year-old of average education can understand them with no context or explanation. We do not need long words and long sentences containing multiple ideas. We do not need many words when one will do (and is often more understandable). It does not add precision. ‘In the event of default by the borrower’ is no more precise than ‘if the borrower defaults’. Brevity does not need to come at the expense of substance, accuracy or clarity.
Lawyers negotiating agreements and exchanging correspondence that a non-lawyer cannot follow is bad for all concerned. How can a lawyer achieve trusted adviser status, demonstrating their understanding of a client’s business, emotional intelligence, and ability to provide sound professional judgement as well as legal interpretation if they communicate in a manner that cannot be understood by their client?
Our profession is naturally seen as antiquated and distinct; having our own special language only adds to that perception. Legalese also creates issues regarding accessibility to the law – agreements full of legalese assume that the parties will be represented by solicitors and the solicitors will understand the documents even if the clients cannot. But this is not always the case – small and medium-sized enterprises frequently decide to forgo lawyers, for example on taking a relatively short-term low-rent lease – it is not fair to present them with an agreement that they have no reasonable shot of understanding.
Lawyers against communicating in plain English are not mounting a gallant final stand for tradition, but rather come across as dinosaurs. Why, in a world where a growing proportion of our population communicates mainly by way of 60-second TikTok videos or 280-character tweets, do lawyers persist in communicating in a wordy, stuffy, artificial and often ungrammatical manner? It would be unfair to say they do so just to sound smart or to justify higher legal fees – but this is the conclusion many clients inevitably come to when they are presented with long, poorly structured agreements full of unnecessary and incomprehensible language. After all, have you ever heard anyone object that a piece of legal writing was too clear?
YES: Who exactly is Kanye West? Ah, I see from the interweb that he is about to be divorced by a lady who is famous for being famous, and is also on record for predicting we are ‘going to communicate through eye contact, body language, emojis, signs’. He also believes that he is ‘Shakespeare in the flesh’. Er, no. Shakespeare was Shakespeare in the flesh. I think we may move this debate quickly on from what Mr West may or may not be a fan of.
My esteemed colleague advocates the law being written in simple clear language. Clarity is one thing, but simplicity is another. The law is not simple. It is complex. Legal documents are complex, statutes often more so. Judgments of the courts are rarely page-turners.
I think we can assume few 18-year-olds will have the necessary attention span for processing meaning and understanding practical application of such documents. They are not the intended audience, and need not be catered for in the creation of them. Who then is or should be? The answer of course is other lawyers.
Legal documents are a mode of expressing and communicating about rights and obligations. No one could seriously suggest that (say) the Landlord and Tenant Act 1954 should be understood other than by specialist real estate lawyers. Likewise, no one can expect anyone other than a specialist banking lawyer to understand modern loan facility agreements. These are complex instruments because they deal with complex scenarios, and rights and obligations that have serious consequences. That is going to mean complex, even convoluted, language. It is unavoidable.
We spend years in training and more years in practice, acquiring specialist skills in creating, understanding and explaining to clients documents such as these. It is what we are for. The language we choose for the purpose should have only one criterion for suitability: the avoidance of ambiguity. Sometimes only a ‘herein’ (as in the first line of article 1 of section 1 of perhaps the most famous legal document ever written in English: the US Constitution) will do the job. More prosaically, see the last words of section 25(2) of the 1954 act mentioned earlier: ‘the date of termination specified therein’, referring to a notice. What alternatives could be more clear?
Legal documents are no place for ‘emotional intelligence’. Let us leave that to the poets. Brevity is great if it gives certainty, but be in no doubt that attempts to draft legal documents for (or even worse, by) non-lawyers, are destined for argument, dispute and legal proceedings. If seeking to avoid that means some see us as dinosaurs, well I for one will live with that.
Tristan Wark is a senior associate and Mark Kendrick a consultant solicitor at Goodman Derrick